That we need revised intermediary rules is trite. User rights have received much needed fillip, especially with expedited takedown mechanisms for child sexual abuse, morphed pictures and what is colloquially referred to as revenge porn. Inclusion of the Prajwala directions, which were themselves consensus proposals from internet companies, empowers victims.
Regulation of OTT content through age gating and use of technology tools to prevent child sexual abuse content and violation of privacy are again needed. That online news media ought to be regulated to make them on a par with print media again is a fair premise. The mode and manner of the execution of both of these however are unfortunately untenable and the concern is that with the 2021 Rules resorting to grave overreach, the very tenuous legality of some of these provisions may impact the important additions being brought in for social media regulation.
Part III is the contentious portion that applies to news and current affairs publishers and intermediaries and publishers and intermediaries of online curated content. Printed newspapers and their digitised equivalent have been clearly kept out of this regulation. Part III sets out some examples to illustrate the kind of aggregated and curated OTT and news content it wishes to regulate and here comes the inconsistency.
The 2021 Rules have been framed based on two stated provisions: the intermediary exemptions under Section 79 IT Act and Section 69(A), which is for blocking of online content. Framing of rules is an executive act undertaken as subordinate legislation. Hence the delegation is fenced within the ambit of the parent provision and cannot exceed the same.
The above provisions are unequivocally applicable only to intermediaries: those entities which are, as the name suggests, mere platform providers, who neither generate or curate the content or have any control over the sender or recipient or the content they share. The minute an entity has such control, it is no longer an intermediary and hence cannot be regulated under Section 79 or directed to block content under Section 69(A).
The illustrations used in the 2021 Rules specifically advert to content generated and/ or news curated by the entity, as those who are being regulated under Part III. Two forms of intermediaries – for news and current affairs and curated content – are regulated under Part III, which is sustainable. However this Part III also applies to ‘publishers’ of news and current affairs and curated content.
The very fact that a publisher has control over the content disentitles them to be categorised as ‘intermediary’. To frame rules therefore for OTT, which may not fall within the category of ‘intermediary’ and online news media, which will possibly not fall within this category may therefore be totally unsustainable.
Several provisions in Part III including age gating through global classifications, delineating self-regulation from soft regulations, apart from the important additions for regulating intermediaries, are all welcome but to introduce them under provisions intended to regulate intermediaries is clearly misconceived and untenable. Further Section 69(A) of the IT Act specifically adverts to blocking orders that may be passed against government agencies or intermediaries.
There is no scope for expanding this applicability to non-intermediary categories, which is what has been attempted through inclusion of OTT and news media, which publish their own or curated content. Hence to this extent the 2021 Rules are inviting a strikedown. Given that creation of level playing platforms and protection of children are the focus of the additions in Part III it may be expedient for government to forthwith review and to correct this obvious flaw.