Social media and OTT (over-the-top) video streaming platforms are likely to request government for an extension of the deadline to comply with the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, that came with 25 May as deadline, said legal and policy experts.
Among large social media platforms, only homegrown Koo has fully complied with the new rules while Facebook said requires time to discuss issues which need more engagement with the government.
“We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform,” said a Facebook spokesperson.
Micro blogging site Twitter declined to comment on the same while a query sent to Google remained unanswered.
Sajai Singh, partner at law firm J Sagar Associates said that situation in the country, reeling under the pandemic, has changed since the guidelines were released in February.
“I feel platforms will be asking the government for an extension of the deadline for compliance. Additionally, I also expect more discussions and consultations between the two parties when it comes to certain clauses in the guidelines which are technically not possible to implement (breaking the end-to-end encryption for traceability purpose),” Singh said. He said a mutually beneficial conclusion needs to be reached between the platforms and the government, “which not only respects the local laws but also protects millions of users that use these services.”
Under the rules, significant social media intermediaries (with user base of more than 50 lakh), are required to appoint a chief compliance officer, a nodal contact person who will coordinate with law enforcement agencies and a resident grievance officer. All three have to be residents of India. Other than this, social media platforms have to track a message’s originator if the government or a court asks them to. They will have to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaint.
Gurshabad Grover, senior policy officer at the Centre for Internet and Society (CIS) said that non-compliance of the guidelines will lead to platforms losing conditional immunity provided to intermediaries under Section 79 of the IT Act. This will make platforms liable for third-party content and data posted on their platforms by users. “Practically speaking, it’s unfeasible to hold platforms accountable for content being posted by users. I expect a postponement in the date of compliance and some kind of conversation between the ministry and the platforms to arrive at a consensus,” Grover said.
Complying with the requirement of traceability where platforms will be asked for the details of first originator of a particular message shared in a private chat, is even trickier, he said. “It will be a challenge for companies like Facebook that operate private chat platforms like WhatsApp and Messenger,” he added.
Meanwhile, even video streaming platforms have yet to put complaints mechanism and other requirements in place. Though websites of services like Disney+ Hotstar, ZEE5, VOOT and MX Player list email IDs which consumer complaints can be sent to, the services did not respond to Mint’s queries on whether they had appointed grievance redressal officers. Netflix declined to comment on the same.
“Over the last three months, the Prime Video team has worked tirelessly to ready the service to be compliant with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (New Rules). With a view towards prioritising the empowerment of our diverse and discerning viewers to make informed viewing choices, we have successfully adapted our processes to make Prime Video a video streaming service compliant with the New Rules,” an Amazon Prime Video spokesperson said. Among other services, only SonyLIV listed the name of an individual for grievances to be addressed to.
The government rules also state that no news or content company shall transmit or publish anything prohibited under any law for the time being in force, or that has been prohibited by any court of competent jurisdiction. An applicable entity shall take into consideration factors such as “the sovereignty and integrity of India…security of the state…India’s friendly relations with foreign countries, India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.” All of this, even as it clarifies explicit sexual content will be classified and made available only for adult audiences.
I&B ministry didn’t respond to Mint’s queries on the government’s take on compliance, or otherwise, by OTT platforms.
To be sure, most entertainment companies have resorted to legal advice around possibly problematic content for about three years now and platforms were already taking a circumspect approach given controversies around shows like Leila, Sacred Games and Ghoul.
“From content creators’ end, we have been including necessary provisions in contracts and content clearance reports pertaining to adherence of the guidelines,” said Chandrima Mitra, partner at DSK Legal whose firm makes contracts for producers backing shows for OTT platforms and who, in turn, engage writers and directors. Live Mint