Thursday, December 3, 2020

Ambiguous Digital Media Regulation

  • Whether Union is targeting the Freedom of Expression?

Since Wednesday  the print and electronic media are repeatedly publicising a news item saying that the Centre is going to regulate the internet content, which was left unregulated till today.  The media added colourful headlines saying, “Digital Media leashed”, “now it will not be possible to write whatever one likes on social media”, “From now digital media content would be as per wishes of the Centre”. None of these reports are clear as to how the content is going to be ‘censored’ or ‘pre-censored’.

Media did not bother to know whether social media was earlier regulated or not, or to tell how it is going to be regulated?

“Man is born free, but he is everywhere in chains” is a famous statement. Rousseau asserts that modern states repress the physical freedom that is our birth right and do nothing to secure the civil freedom for the sake of which we enter into civil society. He suggests legitimate political authority comes only from a social contract agreed upon by all citizens for their mutual preservation.

“Born free” statement aptly applies to ‘The Internet’ nowadays. The internet that changed our lives so profoundly that it is difficult to imagine living without it. Are we going to burden the free internet with new regulations?

While everyone should be free to observe their personal beliefs in private, Rousseau suggests that the state also requires all citizens to observe a public religion that encourages good citizenship.

Now the Government of India is extending its censorship power to the cinema content on the Internet platform and surreptitiously attempting to censor the ‘news & current affairs’. if the Centre succeeds in pre-censoring the news content of the social media, ‘the emergency’ of 1975 will resurrect its ugly head.

News is categorised as Film

A very clever bureaucrat is drafting notifications for the Government of India. The ‘news and current affairs’ content on the online platforms has been not added under the sub-category of ‘Press” but has been placed under head ‘Films”. It is accepted for over decades under the Constitution of India that ‘films’ can be pre-censored.  The ‘pre-censorship’ of the movies is quite legal while that of news content amounts to suppression of freedom of speech and expression and makes ‘press’ or ‘media’ totally dependent upon the executive government, that happened during the infamous years of emergency.

Ambiguous Digital Media Regulation

The bureaucrat is very clever in advising the government not to bring any ordinance, but simply use the Second Schedule of Government of India (Allocation of Business) Rules, 1961 under the heading “Ministry of Information and Broadcasting” to issue notification on November 10, published on Gazette, that says that ‘films and audio visual programmes made available by online content providers’ and ‘news and current affairs content on online platforms” would be brought under the Ministry.  Under these Rules 1961, the Ministry has nine major categories dealing with broadcasting policy administration, cable tv policy, radio, Doordarshan, films, advertising and visual publicity, press, publications, and research and reference.

The officers are trying to convince the press that it was only shift of control from Ministry of IT to Ministry of IB, as the digital platform of OTT etc are earlier under Ministry of IT but now such content will be regulated by IB. Their main objective appears to be to bring OTT platform under the regulation on par with Print, Radio, TV and Films.  The Online Space is government by the Information Technology Act, 2000. The Government draws super-powers from this enactment to block, filter and take down the content online. The Executive can issue orders turning off the internet services completely.  Blocking the internet services is the highest form of limitation on the media and communication.   

Earlier attempts: High Power Committee

In 2018 the then Minister for I & B has issued a circular on April 2 in the name of curbing fake news which was more seen as attempt to muzzle the press. Apart from merely attempting to clamp down on fake news, the order has envisaged the suspension of a journalist’s accreditation on the basis of a complaint. Prime Minister Modi has ordered the Minister Smriti Irani to withdraw the circular.

Thereafter another official “order” was issued by the ministry on April 4, constituting a high-level 10-member committee comprising the secretaries of the ministries of information and broadcasting, electronics and information technology, home affairs, legal affairs and the department of industrial policy and promotion as members to “delineate the sphere of online information dissemination which needs to be brought under regulation, on the lines applicable for print and electronic media”.

It was also stated that the committee would also “recommend appropriate policy formulation for online media/news portal and online content platforms, including digital broadcasting which encompasses entertainment/infotainment and news/media aggregators, keeping in mind the extant FDI norms, programme and advertising code for TV channels, norms circulated by PCI, code of ethics framed by NBA and norms prescribed by IBF.”  Another term of reference is to “analyse the international scenario on such existing regulatory mechanism with a view to incorporate the best practices”.

Ambiguous Digital Media Regulation

Objectives of the Committee

This order explained the reasons for constituting this Committee. It said that while television channels are required to adhere to the programme and advertising codes mentioned in the Cable Television Networks (Regulation) Act, 1995, “there exists a well-settled mechanism for dealing with any violations thereof” and ‘the PCI has its own norms to regulate the print media, but “there are no norms or guidelines to regulate the online media websites and news portals including digital broadcasting”. Therefore, that order has noted that “it has been decided to constitute a committee to frame and suggest a regulatory framework for online media/new portals including digital broadcasting and entertainment/infotainment sites and news/media aggregators.”It is not known whether this committee has submitted report or not.

Regulations on media

It is basically not correct to say that various kinds of media were not regulated.  Most powerful law that is in the hands of the government is the Information Technology Act, 2000. This Act provided for criminal liability of “intermediaries” for the content that they upload or circulate.

Under Section 69A of the IT Act, online content can also be and is taken down entirely. This section was upheld by the Supreme Court as constitutional. The process of issuing blocking orders is criticised to be “opaque and the reasoning offered in orders is not subject to public scrutiny”.

There are several instances of the government using these powers to direct the service providers and social media platforms from taking down posts or pages or block certain websites. For this they have mostly used the ground of copyright violation/content piracy. Other ground is that the hosting of content that was deemed offensive. With this executive power, the government has made the foreign digital platforms like Facebook, Twitter and YouTube to comply with these demands.

Besides this strong hand of regulatory framework of the IT Act, the digital media outlets are generally subjected to the same criminal laws, and rules governing the publication or dissemination of other forms of content, such as the laws of civil and criminal defamation, and other relevant provisions of the Indian Penal Code.

Necessary and expedient

Section 20 of Cable TV Regulation Network Act empowered the government to prohibit transmission of content whenever it is “necessary or expedient” and in the interest of “public order, decency or morality,” or when there is a threat to the sovereignty, integrity or friendly relations of India with other states. Section 6 as well as the Programme Code is concerned with content that shows contempt for India’s various communities or has the ability to incite violence. These are open ended and ambiguous terms that can be used to curb the content on tv. Government also can issue advisories, warnings and orders, based on the Programme Code. There are cases where the transmission was fully prohibited. For example, AajTak was given an advisory for organizing and broadcasting a sting operation around Muzaffarnagar riots. Janmat TV-Live India had broadcast a sting operation on prostitutes, while AajTak and ABP which has telecast a conversation allegedly between terrorists. In most of these case advisories were issued.

Press Council

For print media, Press Council of India is established in 1966, which has limited powers to censure newspapers and editors. There are no powers to PCI to impose any punitive sanctions. The PCI can at the most warn, admonish or censure or disapprove or ask the newspapers to publish clarifications.

Cinema content

For cinemas the Government of India has the Cinematography Act that gave power to examine the content of the cinema and permit various kinds of exhibitions including the cutting of certain scenes. Earlier the government was aiming at regulating the digital broadcasting, which means to formulate a policy that would regulate news and current affairs content telecast through YouTube, Facebook and WhatsApp with the same vigour of control over conventional broadcasting. At present the government does not allow private FM stations to broadcast news and current affairs. But this kind of prohibition is not possible to web radios.

Another huge space for the people is to upload any video content through YouTube or WhatsApp which can be easily accessed to by all other people in India or abroad. Unlimited number of video channels emerged on varied subjects including news and current affairs. There is no condition imposed to secure license from I and B Ministry.

Recently the Centre assured the Supreme Court while hearing the writ petition on controversy over the content vilifying the Muslim Community telecast by Sudarshan News, to bring in regulation for digital media. At the same time the affidavit filed by the officer of the Ministry of Information and Broadcasting stated that sufficient framework and judicial pronouncements were already available to regulate the electronic and print media. But there were no controls over digital media, the Ministry stated.

One year ago, in 2019, it was reported that government was contemplating a censor law to control the streaming of cinema content through Netflix, Hotstar or Amazon Prime etc on the complaints alleging that content was obscene or insulting to religious sentiment.

Code of Self-Regulation

The Internet and Mobile Association of India (IAMAI) launched the ‘Code for Self-Regulation of Online Curated Content Providers’ on February 5, 2020. Earlier a ‘Code of Best Practices for Online Curated Content Providers’ was developed in January 2019.

The 2019 code had nine signatories but Netflix, Zee5, AltBalaji, Arre and ErosNow were not among them. 2020 code has four signatories: Hotstar, Voot, Jio and SonyLiv. Major platforms like Amazon (Prime) and Google (YouTube Premium) did not join this code.

How the code was developed, who were consulted?

This Code 2020 seeks to establish an independent enforcement authority called the Digital Content Complaint Council (DCCC) to oversee a signatory’s content related practices. This DCCC mechanism is eerily similar and largely derivative of the Broadcast Content Complaints Council (BCCC) (under the Indian Broadcasting Foundation) which essentially governs content on non-news and television channels in India.

The proposed DCCC is meant to be chaired by a retired high court or Supreme Court judge. Also, the DCCC is designed to include three members from national level statutory commissions like the National Commission for Women (NCW), the National Commission for Protection of Child Rights (NCPCR) or the National Human Rights Commission (NHRC).

It is not known how this code has been developed, who the stakeholders consulted and how effective it could be. The code gives power to remove the content i.e., to censor the digital content of cinema, news and current affairs, on very ambiguous grounds.Hence it is not possible to give legal status to this code also.

Journalists protest

During May 2018, the centre tried to extend the same regulations of broadcast media to the social media and digital media platforms. Then over a hundred journalists and professionals working online media wrote to Union Minister for I & B expressing the concern over such proposal.

The journalists letter expressed concerns that bringing regulation like licensing and content regulation could have a drastic impact on the digital medium,which is widened the scope of freedom of speech and expression and strengthened the democratic societies across the world.

What was the approach of other democracies?

A digital media professional has urged the government to look at the approach taken by other democracies in dealing with issues of online content. “Any hasty action by the government will likely result in overreach, therefore, we believe that the starting point for the government should be to study the global best practices for online content regulation. Many advanced democracies have already debated this and come up with good frameworks that ensure free speech and transparent regulation.”’

On the point that there are no norms, the letter said, “Even a cursory reading of the IT Act would reveal that all content is covered under its scope. The Act in fact goes beyond laying down guidelines and incorporates stiff punishments for those who violate the content norms laid down in it. Similarly, several other laws, such as the Indian Penal Code, also contain clear dos and don’ts for sharing of content, including over the Internet. Therefore, to say that there are no norms and guidelines for content online is contrary to facts”.

Online content is different from print, TV.

Condemning the statement of the ministry that online content “needs to be brought under regulation on the lines applicable to print and electronic media,” the letter stated:“Our position is that online content is different from print and television content, because most of it is produced by individual citizens in exercise of their constitutional right to freedom of expression, and embodies two way communication and interactivity, and not just publishing. Online, it is also difficult to distinguish between publishing and communications. Much of online content is borne out of an individual’s need to express opinions and exercise artistic freedom, protected by Article 19 of the Indian Constitution. It is also worth noting that, according to the Indian Constitution, an individual has the same right to free speech and expression whether by word of mouth, writing, printing, pictures or any other mode. Therefore, restrictions that do not apply to offline speech cannot be used to control online speech either. On the other hand, provisions that apply to offline behaviour – such as the IPC – are equally applicable, and regularly applied, to online content”.

Journalists oppose additional regulations

The journalists in that letter finally opposed the additional regulations on Internet content saying that would “1. Impinge upon the individual citizen’s freedom of expression guaranteed by the Constitution, and/or2. open up the possibility of widespread abuse and attempts to suppress political dissent by the government and/or the regulating agency. We request you to consider these responses and call upon the government to withdraw its plans to create additional rules for regulation of online content”.

A renewed attempt to curb?

The present attempt of the Union Government to control the content of the cinema on digital platform and also news and current affairs has every potential issue of imposing pre-censorship kind of restrictions on the freedom of speech and expression which is not envisaged under Article 19(1)(a) and (2). If the notification signed by the President on 10 November 2020 means another attempt to curb the criticism. Censoring cinema content could not be a major issue, as that was already permitted, but extending similar restrictions to news content will suppress the voices, opposition, dissent and criticism, which is totally against democracy.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Former Central Information Commissioner, and teacher of Law

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