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Kerala HC Restrains Centre on IT Rules 2021

Posted on March 11, 2021 by admin1  328

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Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

  • Definition of Digital Media: It will cover digitised content that can be transmitted over the internet or computer networks.
    • It also includes intermediaries such as Twitter and Facebook, and publishers of news and current affairs content.
    • It also includes so-called curators of such content.
    • Publishers of news and current affairs content will cover online papers, news portals, news agencies, and news aggregators.
  • Not Covered: The act does not include the e-paper of any newspaper because print media comes under the purview of the Press Council of India, anyway, and has to follow established guidelines.
    • It also does not cover news operations that do not qualify as a “systematic business activity” — effectively excluding blogs and non-profit publishers.
  • Online News Media’s treatment at par with Traditional Media: The Digital Media will also be brought under the ambit of section 69(A) of the Information Technology Act.
    • Section 69(A) gives takedown powers to the government.
    • It also deprived the intermediaries of their “safe-harbour protections” under Section 79 of the IT Act.
    • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
    • According to the proposed changes, these acts will also apply to online news and current affairs portals under the Code of Ethics.
  • Three Tier Check Structure: Part III of the rules imposed three-tier complaints and adjudication structure on publishers.
    • Self-regulation.
    • Industry regulatory body headed by a former judge of the Supreme Court and High Court with additional members from an I&B ministry approved panel.
    • Oversight mechanism that includes an inter ministerial committee with the authority to block access to content.
      • Inter ministerial Committee can also take suo motto cognisance of an issue, and any grievance flagged by the ministry.

  • Content Moderation Officers: Social media companies may need to appoint officers who will be responsible for complying with content moderation orders.
  • Originator of Message: New, stricter guidelines make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
  • Grievance redressal portal: The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances.
    • They ask intermediaries to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.
  • Information Disclosure to Competent Authorities: The rules also say that competent authorities, through an order, may demand pertinent information for the purposes of prevention, detection, investigation, prosecution or punishment of crimes.
    • However, It excludes the intermediary from having to disclose the content of the personal messages.

Need of such Stringent Provisions

  • Absence of Regulatory Body: For OTT and social media, there was no regulator like
    • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
  • Poor, Offensive and Abusive Content: The shows like Tandav, AIB roast, etc were highly criticised for their biased and adult content.
    • With deeper reach of smartphones, children and youth are being misled by such content.
    • Presence of Clauses provisioning Reasonable Restrictions over Fundamental Rights.
  • Threat to Traditional Media: Due to less regulation and improving technology, these new social media were threatening and exploiting traditional media.
    • Facebook banned News pages in Australia.
  • Piracy and illegal content sharing: The role of social media was criticised during Delhi Riots, Farmer Protests, etc.
    • Further a lot of fake news were doing errands on such platforms due to lack of accountability.
  • Double Standards as per Country and Government: In the past, social media has shown differential treatment for Europe and Asian Countries.
    • Further, event based bias was also seen in a few cases.
  • Increasing Digital Crimes: Radicalisation, Terrorist recruitment, Digital hacking, Child pornography and other henious crimes, etc are increasing.

Criticism

  • Unconstitutional: It violated Article 19(1)(a) (freedom of speech and expression).
  • Over Regulation: This administrative regulation on digital news media would make it virtually impossible for small or medium-sized publishers, such as the petitioner, to function
    • For the IT Act to be used as a content control mechanism, especially through exercise of powers aimed at intermediaries which do not originally publish content, seems to be an overreach of executive power.
  • Curb Freedom of Artistic Expressions: The present norms put a curb on the Freedom to Artistic Expressions under Article 19.
  • Selective targeting: It has also been alleged that the rules will be more misused than for real regulation.
    • There are instances when the government tried to curb a certain Anti- Government Agendas while ignoring populist fake news.
  • Rising Intolerance and Populist measure: The uproar over series like Tandav and AIB Roast are just a reflection of lack of tolerance.
    • Most arguments like abusive language, against the cultural ethos are either vague or irrelevant as they often depict day to day life.

Way Ahead

  • Independent Authority to moderate the content: The Independent Authority may be appointed in consultation with the Leader of Opposition and Judiciary to ensure a neutral person for regulating the content.
  • Judicial Commission to decide the definitions: The definitions should be precisely defined to avoid any controversy in future.

Source: TH

 
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