Explained: What the new regulations mean for online news publishers

Some say Intermediary Guidelines and Digital Media Ethics Code Rules, 2021, leaves too many things in the hands of the central government

Prabhat Khabar has about 12 million readers, 52 million page views and another million-odd engagements on Facebook, Twitter, YouTube et al. As a leading Hindi daily in Bihar and Jharkhand, it has a lot riding on the new rules for news, over-the-top (OTT) platforms and social media notified by the government on February 25. 

“The rules will weed out minor players set up only with the intention of getting government advertising,” says Aloke Poddar, chief financial officer and head of digital for Prabhat Khabar. It will add to costs since a whole framework of compliance comes into play. “Everything we create on social media needs to be rated, we need to give a parental lock. Normally, the editors just shoot a video and upload, but now we will need a tech interface person who will check compliance,” he says. For the main site, too, the company will need a grievance officer to deal with the three levels of redressal laid down by the government. 

“Level one is fine; you dispose of a complaint in 15 days. Level two (which requires a self-regulatory body headed by a retired judge to look into a complaint) is fine, too,” says Poddar. “Level three, where the government has kept sweeping powers with itself, with the secretary, Ministry of Information and Broadcasting (MIB), as the sole authority is an area that will be judicially tested,” he feels. 

This level allows the MIB to form an inter-ministerial committee to look into complaints not satisfactorily dealt with at level one and two. “The oversight committee and guidelines have the potential to tie digital media in endless red tape and to weaponise ‘reader’ and other complaints, leading to unwarranted censorship of news content,” says Ritu Kapur, director, Quintillion Media (The Quint — news and opinion website). 

Deep state

This is the first, arguably most important, point of discussion around the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: That it leaves too many things in the hands of the central government. “We are at the mercy of the authority the government sets up. It gives the government the power to block a website,” says Abhinandan Sekhri, co-founder, Newslaundry, a media watchdog. Many echo Sekhri but off the record.

Others are sanguine. “We are studying the impact but it’s possible our life doesn’t change. We only need to appoint a grievance officer,” says Vikram Chandra, founder, Editorji, an AI-based news app.  

“The rules don’t make a difference to ne­w­srooms like the Indian Express, which follow the normal rigour of journalism, do fact checks. We are part of the Digital News Publishers Association (DNPA), which adopted a code of ethics 2-3 months ago,” adds Anant Goenka, ex­e­cutive director, The Indian Express Group.

DNPA, an association of about 20 traditional media firms such as India Today and Times Group, is one of three bodies in digital news. There is Digipub, with 30 pure play publishers such as The Quint or The News Minute, and there is a third one with eight members. All of them have been talking to the government in different voices. 

That leads to the second point of discussion around the new rules. There is no unity among the firms that reach India’s 421 million newspaper readers and 454 million online news consumers. The Rs 29,750 crore newspaper industry and the difficult-to-quantify online news industry do not agree with, discuss and debate issues among themselves. This conflict helps push through regulation. 

A day after the rules were notified, Digipub sent a letter to the government requesting to “repeal these Rules, or at least put them on hold, until meaningful consultations are undertaken with all the stakeholders”. The government had not responded to its request to be part of the consultation process in December, says the letter. Others say that their feedback has been completely ignored. 

“This is another step in the continuum we are seeing all the way down to the state and district level,” says Chandra. “It is possible for a journalist to face multiple FIRs (first information reports), which in effect hinder free speech. Existing laws can be misused to make the process the punishment. What we need is for the Supreme Court to step in with a mechanism so that journalists are not harassed for doing their job.”

Across the country publishers admit that there has been huge rise in self-censorship. From 122 in 2010, India now ranks 142 on the press freedom index —below Thailand and Myanmar. “Undoubtedly, the new media rules cannot be countenanced, and are on the face of it state control of news media content. Therefore, we will legally challenge them in an appropriate forum,” says M K Venu, founding editor, The Wire. 

That will be tough given the complete lack of unity within. 

This brings in the third point of discussion: The legal tangle the rules create between the Information Technology (IT) Act and the dozens of laws governing press freedom and by extension that of digital news in India. 

“It is not correct to say that digital news media is unregulated. We are subject to restrictions under Article 19 of the Constitution, hate speech, criminal laws, laws of defamation etc,” points out Kapur. She adds, “The IT Act does not have jurisdiction over content published by digital news media — it does not recognise news as a category.” The lawyers agree (see box).

The content conundrum

Most lawyers refer to three factors that cast “doubt about the competence of the rules,” as Ameet Datta, partner, Saikrishna and Associates, puts it. 

Abhinav Shrivastava, counsel, LawNK, points to the first: “Content regulation should have been done through a legislative act that estab­lish­ed the intended policy frame­work. That would have involved full debate on the provisi­ons, principles and safeguards for balancing of legitimate interests, for example, freedom of speech versus the maintenance of public order/security or freedom of infor­mation versus proprietary rights.”

Two, the new rules try to regulate content under an Act (IT) that is largely about carriage. It uses the authority given to establish the procedure for blocking access, to make substantive policy interventions directed at news and digital content firms. 

Three, “the guidelines require intermediaries to proactively inspect and screen content transmitted through their services, and notify recipients of any prurient content,” says Shrivastava. "The balancing of the right of privacy and free speech with intrusions that affect them is a matter of public good. The govern­ment should set out how this balance is to be maintained. Leaving it to private interests could lead to overly intrusive measures to avoid potential liability."