Introduction

The Ministry of Electronics and Information Technology (“Ministry”) on 25th February 2021 notified the Information Technology (Guideline for Intermediaries and Digital Media Ethics Code) Rules, 2021 (“Rules”) to regulate digital media, social media companies and over the top (“OTT”) platforms. The Rules also provides provisions pertaining to publishers of news through digital media (“Digital News”).

Earlier in the year 2019, the Internet and Mobile Association of India formulated a code (“Code”) to monitor and regulate the content of online curated content (“OCC”) providers (now referred to as “Intermediaries” in the Rules). However, the two-tier mechanism provided in the Code failed to successfully tackle the increasing number of complaints arising due to certain disputable content showcased on OTT platforms. The rising disputes with the content on these OTT platforms led to the formation of the present Rules.

These Rules have been the government primary focus amidst the tension over censoring digital content. As the Government encourages new media platforms to do business in India, the content displayed on such platforms shall be heavily guarded by the Rules prescribed, within the specific time frame as determined by the authorities.

Due Diligence by Intermediaries

The Rules lays down the grounds of due diligence to be observed by the intermediaries. The due diligence of the content would require the intermediaries to observe inter-alia prominently publish on its websites, whether such intermediary is a mobile-based application, website or both; its terms of use and privacy policy shall list dos and don’ts that the users of such intermediary are allowed in line with the provisions prescribed under the Rules.

All Intermediaries shall appoint a Chief Compliance Officer who shall regulate the smooth functioning and proper compliance of the Code of Ethics by the intermediary, and thereby be in contact with the enforcement agencies with reports of compliance in accordance with the new set of guidelines. The Rules prescribes additional actions of due diligence to be observed by an intermediary publishing content relating to news and current affairs

Introduction of the Code of Ethics

The Code of Ethics introduced by the Rules shall apply to both the publishers of OCC and Intermediaries. It imposes certain responsibility on the intermediary to exercise due caution and shall take into consideration the following factors when deciding to exhibit and/or publish any content on its platform:

Set-Up of Grievance Redressal Mechanism

The Rules establish a three-tier grievance redressal mechanism for Digital News and OTT platforms. The Government has formulated an online Grievance Portal that would be directly monitored and addressed by the central regulators by way of a three-tier redressal mechanism as detailed herein below. For the purpose of these Rules the term Publisher is defined to mean “a publisher of news and current affairs content or a publisher of online curated content”.

Level I- Self Regulation by the Publisher and Grievance Redressal Officer

Any person having any grievance regarding the content published by the Publisher shall raise its grievance directly to the Publisher regarding the same. The Rules bound the Publisher to issue an acknowledgement of the grievance raised within a period of 24 (twenty-four) hours of receipt of such grievance. Further, the Publisher is also required to address and communicate its decision to the complainant within a period of 15 (fifteen) days from the date of receipt of such complaint.

In the event, the complaint is not addressed by the Publisher in the stipulated timeline or the complainant is not satisfied with the decision of the Publisher, the complaint would get escalated to the grievance redressal officer (“Grievance Officer”) appointed by the Publisher who will act as a nodal point between the complainant, the redressal body and the Ministry and is mandated to dispose of any complaint within a period of 15 (fifteen) days of receipt of the complaint.

Level II- Self-regulation by the self- regulating bodies of Publisher

A Self-Regulating Body (“Body”) will be formulated by the association of Publishers to address any appeals or grievance not addressed by the Grievance Officer of the Publisher, along with overseeing the functioning of the Code of Ethics as observed by all the Publishers, amongst other functions.

The Body will be headed by a retired Judge of the Supreme Court, of a High Court or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field that shall be appointed by the panel prepared by the Ministry and shall consist of a total number of six members.

The Body will have a wide range of powers including the power to (i) issue warning, censuring, admonishing or reprimanding any Publisher, in addition to requiring any Publisher to display an apology, a warning card or disclaimer before or during any content which may arise any further conflicts.

Furthermore, the Body is also entrusted with the power to refer the complaint to the oversight mechanism under Level III where the members of the Body are of the opinion that an action has to be taken under Section 69A of the IT Act.

Level III- An oversight by the Central Government

As and when a complainant has been referred to the oversight mechanism by the central government, it shall have the power to perform the following functions:

Self-Classification of Content

Further, the Ministry also lays down guidelines to regulate certain content that may be inappropriate for children, and thereby establishes a framework to monitor that certain scenes that may include nudity or violence ae not available for children below a certain age. Therefore, all the OCC c transmitted/published by the publisher will now have to be classified as either with a “U” rating, or “U/A 7+” rating, or “U/A 13+” rating, or “U/A 16+” rating, or “A” rating, based on its context, theme, tone and impact, target audience and basis themes and messages, violence, nudity, sex, language; drug and substance abuse and horror. Publishers would also be required to implement access control mechanisms including parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.