Govt rules for online media to include takedown power
The Union government wants to treat online news media publishers at par with traditional media publishers, such as newspapers and news channels, and also bring them under the ambit of section 69(A) of the Information Technology Act that gives takedown powers to the government, according to new guidelines yet to be put in force.
Digital media, as defined in a document that lays out the government’s framework to regulate online content, will cover digitised content that can be transmitted over the internet or computer networks. It includes intermediaries such as Twitter and Facebook, and publishers of news and current affairs content. It also includes so-called curators of such content.
So far, online news media has not been unregulated, with the information & broadcasting ministry brining it under its ambit last year, but not yet formalising rules for it. Nor are intermediaries, especially social media companies that take refuge in their intermediary status when it comes to owing up responsibility for content. According to the guidelines titled Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, digital news media publishers will need to follow rules that apply to print and electronic media.
Publishers of news and current affairs content will cover online papers, news portals, news agencies, and news aggregators, but not include the e-paper of any newspaper (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.
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. They are expected to follow the norms, with the government also planning to put in place a three-tier self-regulation system to ensure compliance with the Code.
According to the document, reviewed by HT, a significant publisher of news would have to operate in the territory of India and will be classified as such as long as it has at least 500,000 subscribers or 5 million followers. HT learns that some of these provisions are still being evaluated and may change.
Those qualifying under the significant publisher of news category will have to register with Broadcast Seva, a government run portal that operates under the ministry of information and technology.
The three-tier framework includes self-regulation, an 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, and an oversight mechanism that includes an interministerial committee with the authority to block access to content.
The interministerial committee, which is proposed to form the apex of the regulation system, can act on a complaint, take suo motu cognisance of an issue, and any grievance flagged by the ministry.
There are various steps that the government can take to act on non-compliance with the Code, with the most extreme step being blocking access for the public under section 69(A) that covers threat to public order.
The extension of 69(A) to digital news publishers and OTT platforms in so much as it gives takedown powers to the government, is a contentious area, said experts.
NS Nappinai, Supreme Court advocate and founder of Cyber Saathi, said that proposed rules have to be evaluated for sustainability under the parent Act, ie, the IT Act. “A rule can only be framed within the ambit of the parent provision,” she said. “In case 69(A) is extended to cover online news agencies then the rule will have to be analysed in context of the law enacted by Parliament, which extend at present only to Intermediaries.”
“Hence when Intermediaries disseminate news such as Facebook or Twitter, they can be made subject to orders under section 69(A) of IT Act,” she said.
Section 69(A) became a point of contention earlier this month when Twitter, which is an intermediary, was asked to take down accounts of journalists and news media organisation. Twitter refused to comply with the government’s orders, stating that the content was newsworthy and constituted free speech. The action had prompted the government to threaten penal provisions.
“Twitter is bound to comply with a government order, but they can legally challenge the enforcement using due process,” Nappinai added.
Internet Freedom Foundation trustee Apar Gupta agreed.
“There is a very large question of the existence of legislative power for what these rules are intending to do and whether they are often going beyond the letter and spirit of the Information Technology Act,” Gupta said. “Regulation posed on basis of the Technology Act cannot extend to news providers and OTT platforms, as neither constitute intermediaries.”
Gupta added that there has always been some form of regulation of news media, but it has either been done via a statutory provision or under the journalistic ethics enforced by Press Council of India.
“For the IT Act to be used as 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.”