Laws Governing Social Media and OTT Platforms in India

Introduction

With the advancement in technology, social media has become an integral part of our life. We may for a second forget to breathe but we never forget to post daily quotes, comments, or selfies on our social media accounts. The Internet has surrounded us just like a spider’s web and our private lives are much exposed to the public sphere than ever. Being over addicted to its use we have fallen prey to the shackles of these platforms and they now have our every personal information, even more than our family members. Availability of such information many times results in cases of social abuse. Such huge databases also empower these companies to do monopoly. So, to regulate such odd and ill behavior of these tech giants, certain rules and regulations are needed to be put in place. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 is one of such regulations which regulate the social media and OTT platforms in India. Several other laws also regulate these platforms and prevent individual rights violations.

Information Technology Act 

Social media platforms in India are regulated by the Information Technology Act 2000. This act regulates and deals with the issues that arise out on these platforms. Under this Act, the various social media platforms are defined as “intermediaries” and they are liable for any act or omission that is punishable under Indian laws.

Section 66A 

Section 66A of the Information Technology Act focuses on the regulation of social media. It prohibits the transmission of any offensive video, audio, or text message. Under this section, the circulation of fake messages sent to cause distress and annoyance is also an actionable offense. Any person who circulates something offensive, fake, harassing or defamatory on the internet and causes inconvenience or disruption in the society through his message or post is liable to be imprisoned for three years and in some cases fine is also imposed.

Section 79

Section 79 of the IT Act mandates these social media intermediaries to observe certain guidelines in order to prevent themselves from any future liability arising because of any third party. These guidelines were first issued in the year 2011 but later on, were amended in the year 2021. Under section 79 of the IT Act if a fake or misleading and defamatory post or message has been put on the social media by a user then the social media intermediary is not liable for any of the act done by the third party or the user until and unless the intermediary has taken all precautions and care and is not involved in the modification or promotion of the message. This defense is also not available to the intermediary in the cases in which they have aided or conspired the transmission of such message on their platform.

Scrapping down of Section 66A by Supreme Court

Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in the year 2015 in the landmark judgement of Shreya Singhal and Ors. Vs Union of India. The Apex court found cyber law provisions of this section vague and unconstitutional. It was declared against the freedom of speech and expression. The court observed that this section created an offense based on undefined actions such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution. The court also observed that a proper dividing line was absent for considering something as offensive or inoffensive. This section also has no procedural safeguards like other sections of law. Above all, it was violative of both Article 19 (freedom of speech and expression) and Article 21 (right to life). The Supreme Court did not strike Section 69 A and Section 79 Of the Information Technology Act.

Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021

The government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 on February 25, 2021, intending to establish a soft-touch oversight mechanism for the social media, OTT, and digital media platforms in the country. The new rules were being drafted since 2018 and these are an amendment to the Intermediaries guidelines of 2011. These guidelines are divided into three parts. The first part defines all the terms used in the guidelines, the second part provides for the requirements or procedures that must be observed by a social media intermediary and the last part deals with the various mandatory procedures and checks to be observed by the digital media.

Regulation of social media platforms

• It is now mandatory for every social media platform to publish the rules and regulations, privacy policy, and user agreement on its website as well as on the mobile app for easy access to the users.
• They must also inform the users not to publish something on their platform which belongs to someone else or is false and untrue. Further, the users should be informed to restrict from sharing defamatory, obscene, pornographic, or privacy breaching contents.
• The intermediaries should periodically inform their users that in case the user fails to comply with the rules and privacy policy of the platform then the intermediaries have all the rights to terminate the user account of such users.
• The intermediaries are also restricted from hosting any unlawful information which is prohibited under any law effective at that time for maintaining the integrity and sovereignty of India.
• If in case such information is hosted on the platform of the intermediaries then they are required to remove that information as soon as possible but not beyond thirty-six hours after being notified.
• The users would have the right to get informed by these platforms for any privacy policy or regulation changes.
• These companies are bound to take all the necessary steps to secure their databases from any cyber-attack and they need to comply with all security measures and procedures as mentioned in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011.
• The intermediary is required to report cyber security incidents and share related information with the Indian Computer Emergency Response Team 
• They are required to share information with the authorized government agency for the identification of the criminal or the prevention of the crime; within seventy-two hours of formal receipt of such orders. 
• These platforms also need to establish a system for the identification of the first originator or the creator of a false and misleading content or message.
• Additionally, under the new guidelines, the social media intermediaries beyond a notified threshold will be classified as significant social media intermediaries (SSMIs) and these intermediaries need to comply with extra procedures.
• The SSMIs are required to appoint an Indian resident as the Chief Compliance Officer who would be liable for compliance with these rules.
• Further, they need to appoint a nodal contact person for coordination with the law officers and an Indian resident as the Resident Grievance Officer to address and resolve the grievances of the users.
• Non-compliance with any of these rules and regulations would result in stricter actions against the intermediaries.

Regulation of OTT platforms and Digital Media

• OTT platforms and digital media platforms are required to comply with a three-tier regulation mechanism. The first two levels have a self-regulatory mechanism and the third level has an oversight mechanism.
• At the first self-regulatory mechanism level, these platforms need to appoint a Grievance Officer and establish a proper grievance redressal mechanism. The Grievance Officer would be the person who would first deal with any grievance relating to the Code of Ethics. He would act as a facilitator for the interaction between the complainant, self-regulatory body, and the government.
• The Grievance Officer needs to make a decision within fifteen days of the filing of the grievance and convey the same to the complainant in that time period.
• At the second level of the self-regulatory mechanism, these platforms must appoint a self-regulatory body of publishers who would look after the proper adherence to the Code of Ethics. This body would also address the grievances which were not resolved at the primary level in the specified time period.
• This regulatory body should be headed by a retired judge of the Supreme Court, High Court, or an eminent person from the field of media.
• The committee can also warn and direct the publisher to rectify the ratings, modify the content or its age classification, or edit content if it is found offensive or objectionable and may also refer it to the Ministry by recommending its complete modification or deletion.
• If in any case, the regulatory body fails to resolve the grievance within fifteen days then it may recommend and refer the grievance to the Oversight Mechanism.
• At the last level, there is Oversight Mechanism. This Oversight would be conducted with the involvement of the Ministry of Broadcasting. The Ministry will publish a charter for self-regulating bodies which would include the Codes of Practices. The committee constituted by the ministry can issue orders to the publishers. This committee also has the power to block content on an emergency basis but such orders are subject to the approval of the committee headed by the Cabinet Secretary.

Other Laws which regulate social media 

• Article 19 of the Indian Constitution talks about freedom of speech and expression but the state can restrict such freedom if it violates someone else’s rights or is against the interest of the citizens. So, even though posting on social media is a freedom of speech and expression but if the same post is defamatory or false and misleading then the restrictions under Article 19 can be imposed on such posts.
• The Indian Penal Code also has strict provisions for any harmful, defamatory, obscene, or misleading posts. IPC Section- 295A: intentionally insulting religion or religious beliefs. Section- 153A: promoting enmity between groups on the ground of religion, race, etc. section-499: defamation, Section- 505: conducting of public mischief. Section-509: insulting the modesty of women. Section-506: criminal intimidation and section-124A: sedition is also relevant provisions in such cases.
• Section 499 and 500 of IPC protect a person from any kind of social media abuse.
• Section 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1998 has provisions for punishing the person who circulates and promotes obscenity or pornography through pictures or posts.

Is regulation against freedom of speech and expression?

Freedom of speech and expression as provided by our constitution is one of the most important elements of a Democracy. But our constitution framers after much analysis and deep thinking have put certain restrictions to this freedom. The presence of such restrictions ensures the stability and continuity of democracy. Someone’s freedom of speech should never become a curse for another. The use of such freedoms is justified only to the extent it is not violative of someone else’s freedom. Democracy should never compromise on its safety, integrity, and sovereignty. If these regulations do not exist in place, then there would be a state of complete chaos where everyone will do everything they wish. Certain regulations would always prevent the dignity and respect of every citizen and then only there could be social justice. So, even if such restrictions are violative of the freedom of speech, they are justified for being in good faith of the state and its citizens. 

How can you file your grievances?

If a person believes that if a certain content or post is violative of his/her rights then he/she may file his grievance with the Grievance Officer of the media entity and demand remedies. Further, if the Grievance Officer fails to resolve the grievance, then the person may approach the higher authorities of the company who have been designated for grievance redressal. The email and the other contact details of the Grievance Officer and other authorities are displayed on the website and app of these social media companies. Even after filing of the grievance, if the grievance is not resolved by the company in the specified period, the person may approach the government authorities or the court and demand adequate remedies. Our constitution ensures the protection of everyone’s rights and such violation of personal rights is dealt with iron hands.

Conclusion

Regulation of online content and posts is a hefty task. With the increase in the reach of the internet and its users, it’s getting even tougher. Today the major social media companies have revenue that is more the reserves of many countries. These companies through their platforms control a major portion of almost every country’s economy and with their malpractices, they have so much personal data of the users that they can paralyze major economies of the world. Also, there have been many instances when social media companies ended up blocking harmless content because of certain biases and even did not comply with government orders. This has always occurred because of a lack of rules and regulations to regulate the behaviour of these tech giants. Nevertheless, the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 is a good start in this direction. With its soft-touch and self-regulatory mechanism and a three-level grievance redressal mechanism, it can certainly prove to be effective in the regulation of these platforms. The Code of Ethics also attempts to regulate the classification of films and the contents on the OTT platforms. These regulations also have to face criticism for being violative of freedom of speech and expression but if this freedom is curbed for national integrity and sovereignty then it’s completely justified. The government needs to take a firm stand to strike a balance between the protection and safeguarding of the rights of victims of social media and the freedom of expression of an individual. These rules would bring more transparency and ensure respect for the rights of individual users while filtering their contents or capturing their private data. 

This article is authored by Pranshu Shandilya, student at Institute of Law, Nirma University

References

1. https://en.wikipedia.org/wiki/Information_Technology_Act,_2000
2. https://www.drishtiias.com/daily-updates/daily-news-analysis/section-66a-of-the-it-act
3. https://indiankanoon.org/doc/844026/
4. https://en.wikipedia.org/wiki/Shreya_Singhal_v._Union_of_India#:~:text=Union%20of%20India%20is%20a,and%20intermediary%20liability%20in%20India.&text=It%20held%20that%20online%20intermediaries,a%20court%20or%20government%20authority.
5. https://indiankanoon.org/doc/110813550/
6. https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf
7. https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/
8. https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021