Understanding the Impact of the IT Intermediary Guidelines on Digital News Agencies (By: Shourya Pratap Singh Tomar)
Understanding
the Impact of the IT Intermediary Guidelines on Digital News Agencies
Authored
By: Shourya Pratap Singh Tomar
Abstract
In the recent past, the internet has become
the most commonly used tool for communication and dissemination of information.
With the convenience factor, there has also been an increase in the blatant
misuse of the internet specifically with respect to the circulation of “fake
news” and propaganda. The Indian government, having acknowledged the
large-scale abuse of the internet to this extent, introduced new guidelines in
2021 to curtail the same. The legislature passed the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[1]
("Intermediary Guidelines"). These intermediary guidelines are to
supersede the existing Information Technology (IT) Act, 2011[2],
which was possible via Section 87(2)[3] of the original IT act. The
intent of this framework was two fold, the first aspect was to increase the
accountability of social media platforms for dissemination of false
information, to curtail the misuse of such platforms and the second aspect was
to establish a three-tier redressal mechanism for the consumers and users of
such platforms in order to ensure effective grievance resolution. Needless to
say, the impact of such a statutory framework would be adverse and would
heavily reconstruct the way the market functions. This paper aims to analyze the
impact of the new guidelines, laying a special emphasis on the effect of the
said laws on news agencies conducting their business on the internet.
Introduction
To Intermediary Guidelines
The new intermediary guidelines comprise of 3 parts.
While part I includes definitions, part II deals with compliance requirements
with respect to intermediaries. This includes messaging intermediaries like
Whatsapp, Hike, Wechat and Telegram, as well as social media intermediaries
like Instagram, Facebook and Twitter. The regulatory body governing
intermediaries mentioned in part II is the Ministry of Electronics and
Information Technology or (MEITY). Part III on the other hand caters to the
regulation of digital news media and other over the top (OTT) platforms that
include popular streaming services like Hot Star, Netflix, and Amazon prime
inter alia. All agencies that fall under the ambit of part III are governed by
the Ministry of Information and Broadcasting[4]. In this paper, we shall
focus on part III in order to understand and its bearing on various news
agencies.
Section 7 of the Act prescribes that all
publishers of news and current affairs content, as well as the intermediaries which primarily enable the
transmission of news and current affairs content fall under the ambit of part
III. This essentially means that news agencies like dailyhunt, as well as
intermediary agencies like inshorts would have to comply with the robust three
tier mechanism as required by Section 8 of the Act. The 3 tier mechanism
includes:
(a) Level I - Self-regulation by the
applicable entity;
(b) Level II — Self-regulation by the
self-regulating bodies of the applicable entities
(c) Level III - Oversight mechanism by the
Central Government.[5]
Implications
Of The Intermediary Guidelines On News Agencies
The new intermediary guidelines deal with an
important aspect that the previous legislation was silent about, i.e. the
regulation of OTT platforms and digital news agencies while using other
intermediary sites such as Facebook, Twitter or even Inshorts for that matter.
These forums essentially use, disseminate and host news content on their forums
that has been published by other media houses. This puts a large number of
online portals under the ambit of this guideline. The guideline does not
categorically make a distinction between large scale media houses, and any
small publishing agency that might disseminate information on the internet.
That is to say that the guideline does not embark upon a threshold in terms of
the required number of readers or users, like has been the case under part II
for social media intermediaries. This essentially means that any blog or small
scale startup would also be required to comply with the said guidelines as long
as they are publishing content related to news or current affairs as per Rule
2(m) of the guideline. Therefore even content producers operating at a very
small scale like “yourstory” would have to comply with the robust mechanism
being set, which is not very practical or feasible.
Further, Rule 7(2)(b) explicitly states that
the Intermediaries Rules would be applicable to any enterprise that has a
physical presence in India or even in the due course of their business make
their content available in the Indian domain. This essentially means that
despite the requirement of territorial presence existing, it is not mandatory in nature. Any media house that makes its
content available to Indian consumers in a continued manner would therefore be
required to set up their physical presence in India, with an Indian address for
correspondences and appoint officers residing in India. The act does not
explicitly state however
the extent to which Indian authorities will be able to regulate media
circulated by such foreign establishments.
Rule 8(1) mandates that all Digital News agencies must comply with the
‘Code of Ethics’ which have been provided for in the appendix of the
guidelines. The Appendix however is insufficient and vague to the extent that
lays out certain restrictions on the dissemination of news via the internet.
Paragraph 1 of the appendix deals with news agencies and mandates that all
media house establishments must comply with the Conduct of the Press Council[6] of India and Programme Code.[7] This would also heavily
curtail the freedom of speech of online publishers, and the general public
would face heavy restrictions while trying to access free and unfiltered
information. True freedom of expression is a hallmark of a successful
democracy, and this law enhances the restrictions under Article 19(2) of The
Indian Constitution.
Understanding
The 3 Tier Mechanism
As mentioned above, Rule 8(2) mandates a 3
tier mechanism that news agencies are expected to comply with. This has further
been elucidated under Chapter 2,3 and 4 of Part III that. Rule 10 deals with
the Self-Regulating Mechanism or the first tier. At the primary level, digital
news agencies are expected to form an internal grievance redressal procedure
and must appoint an Indian resident as the grievance officer. The second
chapter goes on to explain the power and responsibilities the grievance officer
is bestowed with. He/she must resolve any such grievance within 15 days of
receiving any such complaint, failing which an appeal to second tier, i.e the
i.e. the self-regulating body can be made.
The subsequent chapter specifies that news
entities must establish a “self-regulating” body that would comprise publishers
and/or publishing associations, that would be presided over by either a retired
high court or supreme court judge, or an eminent activist from the media and
broadcasting sector inter alia. This body has the power to warn/upbraid/punish
a publisher for any violation, and may also request an apology from the
publisher. They also have the power to censor content as per its discretion.
This said independent body is further required to be registered with the
MI&B making it a form of Meta Regulation in place. Despite being recognized
as the second tier, in reality it is the first layer of government control. In case
the publisher does not adhere to the directions of the said body, the central
government constituting the third tier can adjudicate over the matter.
The third and final tier is the
inter-departmental committee that would function as an oversight mechanism and
would comprise representatives ranging from various ministries and government
portfolios, as mentioned under
Rule 13. The committee would be headed by a Joint Secretary of the Ministry of
Information and Broadcasting who would be acting as the ex officio chairman.
This essentially creates an adjudicating body that consists of only executive
members of the government, thereby giving the executive judiciary
functions. All pending or appealed
matters from the lower tiers will be presided upon by the said committee, and
Rule 13 also empowers the committee to delete or modify content as per its
discretion in case they are of the opinion that it might propagate or incite
the commission of offenses against public order.
Other
Compliance Requirements
Media houses would now also have to maintain a
record of the contents transmitted by it for a period of 60 days, that they
would have to furnish when asked for by any government agency, the central
government or the self-regulating body as per Rule 17(3). Rule 16 also makes it
compulsory for every online news disseminating forum with a subscription of
more than five lakh users or following more than fifty lakh must inform the
Broadcast Seva of its operation in the Indian market, as long as it operates in
India or provides news as a systematic business activity. The news agency or
current affair forum would be required to do within 60 days of meeting the
requisite of subscription or followers as may apply. On failing to do so rule
16(4) prescribes that the entity can continue functioning and carry on their
business but must comply with rule 18, which in turn states that such companies
would be penalized under Section 45 of the Information Technologies Act[8].
Further, if any entity violates any of the aforementioned compliance
requirements, they would be liable to punitive action under Section 45, which
would require them to pay a penalty not greater than Thirty Five Thousand
Rupees, or a fine to the aggrieved person not exceeding Twenty Five Thousand
Rupees.
Analysis
Of The Guidelines
Firstly, as already established the original
IT Act did not include news agencies under its ambit, which essentially means
that the guideline lacks a legislative backing to regulate such media houses.
These guidelines aim to include news agencies which is something that is not
envisaged in the parent act, therefore in a way the guideline is exceeding the
limits of the original act. Further in lieu of Section 79 of the IT act, which
stipulates that such producers are given a ‘safe harbor’ as they are given
immunity from liabilities in certain cases, these guidelines can be deemed
ultra vires, as it contradicts the original intention envisaged by the
legislature while forming the original statutory framework. In essence, the
guidelines provide the executive with indirect regulation of the news curated
on the internet and disregards the existing procedure of parliamentary scrutiny
and potential subsequent adjudication by the judiciary.
Further the definition of “publisher of news
and current affairs content” as per Rule 2(u) is rather vague and ambiguous,
that can be misused by the executive arbitrarily. As per the definition,
newspapers and e-papers that are replicas of newspapers are not included under
the purview of these guidelines. This essentially creates a loophole wherein
large scale news agencies like The Times Of India and The Hindu inter alia
would not have to comply with these guidelines. Not only does this create an
additional burden on smaller scale publishers who operate only through the
digital prints, but also creates a differentia that is not intangible in nature
within the news publishing sector. The executive is now empowered to
arbitrarily censure and restrict media being published on the internet which is
ultra vires of Article 19(1)(a) [9]and
19(1)(g)[10], by
creating restrictions on free speech and freedom to practice profession and
carry on trade and business. There is no valid justification for treating
e-paper copies and digital news agencies that solely use the internet as a
medium to go about their business.
Moreover, the requirement under Rule 16 of
notification to the Broadcast Seva by news agencies has been implemented
without any reasoning or valid justification. In the past, when the news
agencies were required to register themselves as per the Press and Registration
of Books Act, 1867, it was done with the intention of preserving copies of
publications. However, considering that now all the publications are on the
internet, and there is an automatic record of the same, such notifications are
counter-productive and futile in nature, that essentially just increases the
burden on media house agencies. Therefore, the requirement under Rule 16 must
be done away with or re-examined.
Conclusion
Therefore in conclusion, there are various
socio-legal issues with the intermediary guidelines proposed by the government.
Not only does it have impeding effects on the freedom of speech and expression
and access to free information, but is also violative of various constitutional
principles. The executive has bestowed itself with powers beyond its capacity
by the setting up of the “inter-departmental committee” which is a camouflaged
attempt to give itself judicial powers over the adjudication of matters concerning
digital news and current affairs. Further, they have also undermined the
legislature as previously the government was to bring about these changes
through a legislation, which would have gone through proper parliamentary
scrutiny. However, the executive has managed to implement such changes by
bypassing legislative debate on the same.