If we have to determine one of the important and burning issues in the current law and technology era, then the sentence shall not be completed without considering the evolution of big techs, or tech giants if I may use so; to that of the inability of both developed and developing countries in regulating the same. Looking from a law student’s point of view and also according to various law and technology experts in India, we live in a world of opportunities where different problems arise with respect to increasing technological developments in the world. These problems tend to affect right from the rights of citizens to regulating those new entities with respect to specific jurisdiction. One of such interesting topics is the recent regulations that were initiated as part of IT rules; 2021 is regulating OTT platforms which have given rise to various questions from various stakeholders. This article will never be an adjudication of those rules as to whether they are right or not, as the same is the duty of our judiciary to look into it. This article will look at the general laws that are prevalent in India in recent times governing these newly born OTT platforms such as prime, Netflix, etc.
Do we have laws regulating OTTs?
It has to be noted that prior to the emergence of recent Information Technology rules, 2021 – which turned out to be the most criticized and arbitrary exercise of powers in the hands of government but were also noted to be appreciated for initiation of regulating these platforms and restricting their over-powered manner – there was no specific law relating to the same. Apart from that, we should know what existed before that. In India, the Government of India (Allocation of Business) Rules, 1961 states that the Ministry of Electronics and Information technology shall have the power to enact and regulate anything over the internet and technology. Coming to OTT, since no law was regulating the same before the rules of 2021, they were required to comply with all the fundamental laws such as the constitution, criminal laws such as IPC and CrPC, etc. Information technology act also ensures that intermediaries do not surpass their limits just because they are intermediaries under section 69A or 79 of the act of 2000.
What do IT (Intermediary guidelines) rules, 2021, inform us?
Let us look into the recent rules that were formulated by the government of India under their so-called powers conferred under the Information technology act of 2000. What does it say? Part 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, deals with the code of ethics and procedure in relation to digital media. Part 3 has been informed to be applied to publishers of online curated content and publishers of news and current affairs content in the digital media.
Let us look at the definition of online curated content under the said rules to define OTT platforms. Definition under rule 2(q) defines Online curated content as follows:
“any curated catalog of audio-visual content, other than news and current affairs content, which is owned by, licensed to, or contracted to be transmitted by a publisher of online curated content, and made available on-demand, including but not limited through subscription, over the internet or computer networks, and includes films, audiovisual programs, documentaries, television programs, serials, podcasts, and other such content.”
Rule 9(3) of the said 2021 rules provides for the three-tier grievance mechanism, which includes three different levels in order to operate within the territory of India and is mandatory. Firstly, there shall be self-regulation by the publishers of OCC, whereas secondly, there shall be self-regulation by the self-regulating bodies of those publishers, and lastly, there will be an oversight mechanism by the central government. These three have been criticized by many, but I will refer to them later in the article.
Chapter 1 of the Rules deals with the Grievance redressal mechanism, where any person who has any grievance with respect to any of the content published by the publisher he shall provide the grievance to the redressal mechanism, which shall be established by the respective publisher under rule 11 of the 2021 rules.
Code of Ethics for OCC under IT rules, 2021:
IT rules 2021 does not only provide for a redressal mechanism for any grievances but also frames a rulebook called a code of ethics for both the publishers of news and current affairs content and also for the publishers of Online curated content such as OTT platforms etc.
With respect to the code of ethics, the rules firstly frame the general principles to be followed by those who come under the definition of Online curated content. It states that publishers of OCC shall not be allowed to violate any laws that are in place or any order of the court, which has the competent jurisdiction for the same. Along with this, it has also been mentioned that OCC shall not publish the contents, which are,
- against the sovereignty and integrity of the nation,
- against the security of the country,
- anything which would affect the friendly relationship between the foreign countries and
- Lastly, anything which would degrade or violate the public order in the country.
The rule also enables the classification of contents and also the display of such contents. Another important code of ethics is that there is a proper restriction that is placed on certain kinds of content for the purpose of protecting children. The rule pushes the publishers to enable a measure for the accessibility of the online content by persons with disabilities.
These are some of the important measures that are to be ensured as part of the duties and regulations of the online curated content publishers such as OTT platforms.
Conclusion:
We should understand why there are a lot of hues and cries for the enactment of these rules by the Indian government from the side of publishers? It was contended that the central government had no power to come up with these rules of 2021, and by enacting this, it was contended that the rules go beyond or Ultra vires to what has been mentioned in the Information technology act of 2000, which is the parent act of rules 2021. There were also contentions being raised for restricting the creative freedom of the news or online content publishers and bringing them within the purview of censorship which was heavily criticized. But, on the other hand, the defense of the government was that all actions under rules were made keeping in mind the public interest and the nation’s interest. It seems to be a good argument in this recent time as the big tech giants slightly take over the market and their dominance.
