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  • Tanushree vaish

The New Regulations for Social Media and OTT platforms- a boon or bane?

Gone are the days when our content consumption would be solely dependent on televisions, radio newspapers and the occasional book. Life has become faster and the world bigger. The Internet has managed quite successfully to impact all our lives, in a myriad of ways. Social media has not only revolutionized communication and reach, but also widened our horizons, shaping our likes, dislikes and opinions. The media has had to overhaul itself to keep up, with more and more content based apps making their way into the smartphones and computer screens of many, across the world.

A plethora of social media apps is now available on app stores, boasting millions and billions of users. Apps like Facebook, Twitter, Instagram, and Snapchat have become a daily part of the lives of countless. People waiting patiently for the commercial to end to catch their favourite shows has now almost become a relic from the cable TV era. Netflix, Hotstar, Amazon Prime Video are only a few of the OTT platforms bringing us our share of entertainment, at our own convenience, in our own time.

The Information Technology Rules, 2021

Recently, the Government of India has released a new set of rules and regulations to regulate these social media platforms, messaging services, OTT platforms and news portals. These regulations under the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 came with a stern message from the Minister for IT, Ravi Shankar Prasad, warning these platforms about new increased scrutiny.

“All social media is welcome, but — no disrespect — there should not be double standards,” he said.

The issues with regards to social media platforms are predicated mostly on monitoring the platforms for illegal content, fake news and fake user accounts. These social media platforms with larger user bases of a minimum of 50 lakh registered users had to deal with greater compliances. These rules have also made it mandatory for messaging services to identify the originator of the message as a precaution in case of mischief. However it has also been mentioned that the Government may at any point of time require any other social media platform to also comply with rules applicable to significant social media intermediaries, that is if services of such platform create a material risk to the sovereignty or integrity of India.

Changes from the older Information Technology Rules

While these increased regulations are yet to be fully implemented, it does seem that even smaller and lesser-known platforms are having to bear the brunt of user behaviour. As per the new rules, all the social media intermediaries doing business in India, are required to appoint:

  • A Chief Compliance Officer

  • A Nodal Contact Person and

  • Resident Grievance Officer.

These appointees must be Indian residents. The new rules also require these companies to set up a physical office address in India. This mandatory physical presence in India is bound to affect foreign players in terms of setting up infrastructure and deployment of resources and taxation. However, the lack of registration or an indispensable licensing framework for the digital media businesses might boost the interest of these foreign companies to set up branches in India.

In terms of increased monitoring of the content available on these platforms, companies have been asked to maintain required human oversight and regular checks of the automated tools. These technology-based measures are to be deployed to identify information that depicts rape, child sexual abuse or conduct, or information that has previously been removed. Significant social media intermediaries have to set up a method of verification of accounts through mobile numbers and are to be demarcated by a special mark. This is problematic in the sense that the companies can use the information provided for verification as data collected under the privacy policy.

The fact that messaging services will be required to enable identification of the first originator of information, if required by a court order or an order of the Government under Section 69 of the IT Act, brings up issues of the efficacy of the end-to-end encryption offered by services such as Whats App, Telegram, Signal, etc.

Until now, over-the-top platforms (OTT Platforms) curating content had enjoyed a free reign in India in terms of the content made available by them. This ruling, which comes after a wait of almost two decades, has brought much-needed certainty on the characterisation of software transactions, especially for non-resident taxpayers facing the ire of the retrospective amendments. There has been an exponential rise in the number of users in India, using these platforms for their entertainment, and this has naturally also contributed to the growth of the number of platforms that are being offered, catering to the diverse interests of the Indian audience. But, the corollary to this growth has been that several platforms have become embroiled in controversies with regards to questions of obscenity, defamation, hurting of religious sentiments, etc.

The ministry of information and broadcast (MIB) has in the past year stressed some form of regulation of OTT platforms to streamline the sector and held consultations with several stakeholders. But, these new rules consolidate that viewpoint and require the OTT platforms to establish a three-tier grievance redressal mechanism where the first level will comprise regulation by the OTT platform itself through a grievance officer and the second level will be an institutional self-regulatory body formed by publishers of content and their associations.

This self-regulatory body comprises industry experts headed by a retired Supreme Court/ High Court judge /eminent personality in the relevant field. At the third level is an interdepartmental committee constituted by the MIB that will provide oversight and hear appeals for decisions taken at level two or if a complaint is referred to the interdepartmental committee by MIB.

What the implications of these rules and regulations will be, is hard to say just yet, but these definitely restrict the freedom of the platforms by a long shot. While it may be argued that it in turn is good for the unsuspecting audience who can be triggered by whatever is being shown or posted, we have to agree that this increased policing is a jolt to the concept of freedom of speech and expression in this country, already falling in the democracy index.


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