Introduction:-
The government has finally come out with draft rules in order to make intermediaries accountable for abuse and misuse of an online platform. It suggests a soft touch over side architecture for the OTT platforms, for social media, and also for digital news portals. The government has cited the 2018 Supreme Court order and the 2019 Supreme Court order as well as several parliamentary debates. Print media and the electronic media are regulated by certain rules and regulations. Print media is regulated by the Press Council of India whereas electronic media is regulated by Cable Television Network Rules of 1994-95, but the online platforms and digital media and news portal didn’t. In 2018, a 10 members committee was formed this committee includes secretaries of the departments of Home, Legal Affairs, Electronics and Information and Technology, and Industrial policy and promotion. It also consists of the CEO of my government, the representative of press council of India and also the representatives of the news broadcasted association. And these committee have certain aims such as: -
o To bring online information dissemination under regulation.
o To propose a policy for foreign direct investment in this media.
o To look at international best practices on such existing regulatory mechanisms.
In 2019, a Supreme Court bench comprising of Chief Justice SA Bobde and Justice AS Bopanna and V Ramasubramanian issued a notice to the Central Government, Ministry of Information and Broadcasting and Internet and Mobile Association of India because many OTT platform were in agreement with this association in order to regulate the content and the Supreme Court order said we definitely need an over side which is regulatory in nature, this could be done by a formation of an association by rules by a board. In 2020,The Information and Broadcasting (I&B) Ministry, had proposed bringing under its purview the content being streamed on several over-the-top (OTT) platforms. Over-the-top platforms are those which are available on the internet and they can be accessible to any person by passing the conventional cable networking like Netflix, you tube, Amazon prime, voot etc.
The New Guidelines:-
If we talk about the ongoing law, as we know that the Information and Technology act has certain rules but they act as an obstacle they are not offensive in nature but they are defensive in nature. So, let’s see some of the sections: -
o Section 43A it says that compensation must be made to any person who has been using a social media platform and in case any negligence arises on the part of the intermediary.
o Section 66A and Section 67B these sections explain about punishment for offensive messages, offensive messages could be on the basis of sexual content, privy breaches and more, these are penal in nature and subject to imprisonment as well as fine.
o Section 69 which includes direction for interception, monitoring or decryption of information, blocking of content etc.
o Section 72 explains if any government employee who have been in the service of the central or state government comes across an information which needs to be persevered in good faith if he/she leeks it then there is a penalty for that.
o Section 72A it says that a person who has been using the services of the service provider if the privacy is breached upon by that particular service provider only then that is also subject to penalty.
o The courts have held that online content would not fall under the ambit of the cinematography Act, 1952.
o OTT platforms signed a self-regulatory mechanism with the Internet and Mobile Association of India (IAMAI).
o The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,2021 envisage a category of significant social media intermediaries, the threshold for which will be announced later.
o Aim- empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights.
o The rules lay down 10 categories of content that the social media platform should not host. These includes content that “threatens the unity, integrity, defense, security, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any foreign; is defamatory obscene, pornographic, pedophilic, invasive of another’s privacy, including bodily privacy; insulting or harassing on the basis of gender; libelous, racially or ethnically objectionable; relating or encouraging money laundering or gambling or otherwise inconsistent with or contrary to laws of India etc.
o A Chief compliance officer in addition to grievance officer.
o An element of due diligence to be followed by the intermediary, falling which the safe harbor provisions would cease to apply.
For Social Media: -
Ø Identify ‘first originators’ of content that authorities consider anti-national.
Ø Appoint grievance officer; resolve the complaint in 15 days.
Ø File monthly compliance reports on complaints received, and action will be taken.
For Digital News: -
Ø Follow Press Council of India, Cable TV Networks (Regulation) Act norms.
Ø Self-regulatory bodies to oversee adherence to code of Ethics.
Ø I&B Ministry to form panel, oversight mechanism.
For OTT Platforms: -
Ø Self-classification of content: the OTT platforms, called as the publishers of online curated content in the rules, would self- classify the content into five age-based categories U (Universal) U/A 7+, U/A 13+, U/A 16+ and A (Adult).
Ø Parental lock-platforms would be required to implement parental locks for reliable age verification mechanisms for content classified as “A”.
Ø Display Rating: it shall prominently display the classification rating specific to each content or program together with a content descriptor informing the user about the nature of the content and advising on viewer description at the beginning of every program enabling the user to make an informed decision, prior to watching the program.
Grievance Redressal Mechanism:-
A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
Level I:Self-regulation by the publisher;
Level II: Self-regulation by the self-regulating bodies of the publishers;
Level III: Oversight mechanism.
The Information Technology Act 2000:-
This act provides legal recognition to the group action done via electronic exchange of information and alternative electronic suggests that of communication or electronic suggests that of communication or electronic commerce transactions. This act also includes the utilization of alternatives to a paper-based technique of communication and knowledge storage to ease the electronic filing of documents with the government agencies. Later on, because of this act some of the amendments have been made in the Indian Penal Code 1860, the Indian proof act 1872, and the Bankers’ Book proof Act 1891, and also the Bank of India Act 1934.
The objectives of this act are:
Grant legal recognition to any or all transactions are done via electronic exchange of information or alternative electronic suggests that of communication or e-commerce, intact of the sooner paper-based technique of communication.
Legal recognition to digital signatures for the authentication of any data or matters requiring legal authentication.
Facilitate the electronic filing of documents with government agencies and combined departments.
Facilitate the electronic storage of information.
Offer legal sanctions and collectively facilitate the electronic transfer of funds between banks and money establishments.
Offences& their Punishments:-
Section 65 -Tampering with computer source documents
Imprisonment up to three years or/and with fine up to Rs.2,00,000
Section 66 - Hacking with computer system
Imprisonment up to three years or/and with fine up to Rs.5,00,000
Section 66B - Receiving stolen computer or communication device
Imprisonment up to three years, or/and with fine up to Rs.1,00,000
Section 66C - Using password of another person
Imprisonment up to three years, or/and with fine up to Rs.1,00,000
Section 66D - Cheating using computer resource
Imprisonment up to three years, or/and with fine up to Rs.1,00,000
Section 66E - Publishing private images of others
Imprisonment up to three years, or/and with fine up to Rs.2,00,000
Section 66F - Act of cyber-terrorism
Imprisonment up to life.
Section 67 - publishing information which is obscene in electronic form.
Imprisonment up to five years, or/and with fine up to Rs.1,000,000
Section 67A - Publishing images containing sexual acts
Imprisonment up to seven years, or/and with fine up to Rs.1,000,000
Section 67B - Publishing child porn or predating children online
Imprisonment up to five years, or/and with fine up to Rs.1,000,000 on first conviction.
Imprisonment up to seven years, or/and with fine up to Rs.1,000,000 on second conviction.
Section 67C - Failure to maintain records
Imprisonment up to three years, or/and with fine.
Section 68 - Failure/ refusal to comply with orders
Imprisonment up to three years or/and with fine up to Rs.1,00,000
Section 69 - Failure/ refusal to decrypt data
Imprisonment up to seven years and possible fine.
Section 70 - Securing access or attempting to secure access to a protected system
Imprisonment up to ten years or/and with fine.
Section 71 - Misrepresentation
Imprisonment up to 2 years, or/and with fine up to Rs.1,00,000
Section 72 - Breach of confidentiality and privacy
Imprisonment up to 2 years or/and with fine up to Rs.1,00,000
Section 72A - Disclosure of information in breach of lawful contract
Imprisonment up to 3 years or/and with fine up to Rs.5,00,000
Section 73 - Publishing electronic signature certificate false in certain particulars
Imprisonment up to 2 years or/and with fine up to Rs.1,00,000
Section 74 - Publication for fraudulent purpose
Imprisonment up to 2 years or/and with fine up to Rs.1,00,000
Amendments:-
A major amendment was made in 2008. This added section 66A which penalized sending offensive messages. It also introduced section 69 which gave authorities the power of interception or monitoring or decryption of any information through and computer resource. Additionally, it introduced provisions addressing pornography, child porn, cyber terrorism and voyeurism. And on 22 December 2008, the amendment was passed.
Differences between the Information Technology Act 2000 and Information Technology Act 2021:-
The primary objective of the IT Act 2000 is:
Granting legal recognition to any or all transactions is done through electronic information exchange; alternative suggests that of transaction or e-commerce intact of the sooner paper-based communication. Whereas the Information Technology Rules,2021 will let govt. regulate digital news platforms. It will also be applicable to OTT content providers. The new document cites powers conferred to it under section 87 of the Information Technology Act, 2000.
In Information Technology Act 2021-
The original act addressed electronic documents, e-signature and authentication of those records. It also enacted penalties for security breach offences including damaging computer systems or committing cyber terrorism. The Information Technology Rules 2021 appears to have resolved these issues. The IT Rules 2021 have divided the social media intermediaries into two categories are as follows:
Social media intermediary
Significant social media intermediary
Conclusion:-
Regulation holds a crucial place in a liberal democracy. If we see then there are some advantages as well as some disadvantages of these rules. Like now the content created will be filtered out. Now age-appropriate content would be provided to a particular age and it should also be content-sensitive creativity. Because of the mechanism when it comes to grievance redressal the accountability also increases. As well as it contains a Demographic inclination sensor. If we talk about the disadvantages of this rule then, there will be Digital Hegemony that means if the government will bring everything into a centralized manner then there will be Hegemony and the conventional media that comes under the central government the same treatment would be given to other media as well. It will be also having a restriction on freedom of speech and expression according to Article 19 of the Indian Constitution.
References: -
~ Pragyna Panigrahi
2nd Year, B.A. LL.B (H)
Amity Law School, Amity University,
Chhattisgarh