Regulating digital media: News portals wary of Centre's latest guidelines

The new guidelines seek to regulate OTT platforms and digital news media, whether they use other intermediary sites or apps such as Twitter or Facebook or host news media content on their own websites

On Monday, a small Imphal-based news portal received a notice from the state government seeking compliance with the Information Technology (Intermediary Guide­lines and Digital Media Ethics Code) Rules, 2021.

It added that “steps as deemed fit shall be initiated without further notice” if The Frontier Manipur failed to comply. The notice came a day after the outlet aired a discussion titled Media Under Siege.

Although the notice was withdrawn after the Centre clarified that the state government was not empowered to administer the rules, this has led to consternation and fear that the new digital rules could further erode press freedom in India (it ranked 142 out of 180 countries in the 2020 World Press Freedom Index).

In arguably the most significant departure from the 2011 rules, the new guidelines seek to regulate over-the-top (OTT) platforms and digital news media, whether they use other intermediary sites or apps such as Twitter or Facebook or host news media content on their own websites. “However, this notification only specifies that the Ministry of Information and Broadcasting (MIB) will regulate this sector,” says Apar Gupta, founder of the Internet Freedom Foundation.

Exactly how it can regulate needs to be specified by a parliamentary enactment. However, the Intermediary Rules seek to expand the scope of regulation of the IT Act to include digital news media and OTT platforms. “This amounts to the executive amending parliamentary legislation and is not permissible under the Constitution,” Gupta argues. The IT Act does not specifically empower the government to establish a non-judicial adjudicatory process to resolve grievances regarding content published by digital news media and OTTs, as mandated by the 2021 rules.

What about small publishers?

The Intermediary Rules are applicable to all “news and current affairs content” regardless of the size of publication. In fact, they can be used to regulate even individual internet users who produce news, analysis and socio-political commentary on a small scale. News content publishers, small and large, have to now follow a three-tier grievance redress mechanism to ensure “minimal government interference”.

The first tier of grievances will be addressed by a grievance officer appointed by the news portal. The next tier will be addressed by an “expert committee” constituted by publishers or their associations and headed by a retired judge or an independent eminent person from media, broadcasting, entertainment, child rights, human rights or other relevant fields. Tier three will be an inter-departmental committee consisting of bureaucrats to look into any oversight.

“The mind boggles at the kinds of investment in hiring staff and setting up committees that will now be expected of us,” says an editor of a new digital news platform, requesting anonymity. “We’re all going to be wary about publishing anything against the government now.”

What constitutes ‘good taste’?

The Intermediary Rules seek to regulate digital media to publish news that meet undefined standards of “good taste”. “Who defines what ‘good taste’ constitutes?” questions Delhi lawyer Prasanna S, known for his role in the right to privacy case in the Supreme Court. Anyone can complain to the publisher that a particular piece is not in good taste. If the publisher does not respond within 15 days s/he risks censure without a hearing, unlike regulations for print and electronic media houses.

Severe punishments

Gupta points out that the punitive measures specified by the Intermediary Rules are far-reaching. The MIB has been given emergency powers to block “offensive” or “sensitive” content without giving the publisher an opportunity to explain. The tier-II and III committees also have wide-ranging punitive powers over digital news media and OTT platforms, including the power to warn/censure/admonish/reprimand the publisher, require a warning card or disclaimer, require an apology, reclassify ratings, or even censor the content.

“The regulation of content publishers does not fall within the purview of the IT Act; I fear this is an effort to muzzle the media,” says Prasanna, who is drafting a legal challenge against the rules on behalf of unnamed digital news publishers.

Recent events lend credence to his misgivings. For instance in February, journalist Barkha Dutt’s platform Mojo Story was accused of spreading “fake news” in connection to the deaths of two girls in Unnao.

Prasanna argues that the regulation of news under the IT Act is a contravention of the freedom of press accorded by the Constitution. In the coming months, whether he and other internet freedom advocates succeed in challenging the Intermediary Rules in court or not remains to be seen.