Govt’s Efforts to Regulate Online Content May Open a Pandora’s Box

The notification for the creation of the 10 member committee clearly mentions that it will create a framework for regulation.

(Photo: The Quint)

In the aftermath of the botched attempt to regulate journalists for Fake News, one aspect about the committee formed to create a framework for regulating online media is that it isn’t just about news. It’s about all Internet content, including:

• entertainment portals like Netflix, Amazon Prime, EROS Now, ALT Balaji, Vice and others;
• online news portals like scroll, the wire, swarajya, Opindia, timesofindia.com;
• News aggregators like Google News, DIGG etc;
• news/media aggregators like Reddit, and Twitter and Facebook

The notification for the creation of the 10-member committee clearly mentions that it will create a framework for “online media/news portals including digital broadcasting and entertainment /infotainment sites and news/media aggregators”.

With billions of status updates each day, and millions of hours of video uploaded online each minute, it’s not clear how this committee will regulate (police?) online content, or expect platforms to do it pro-actively.

A few key points to consider:

1. Covering All Kinds of Online Content

In an interview with OpIndia’s Nupur Sharma, I&B Minister Smriti Irani clarifies that these guidelines will cover all kinds of online content:

“One has to be very very careful. Though there is a broadcasting code for TV Channels, though there is a code of ethics and the Press Council has an act which mandates all kinds of inquiries and regulations to the same, the Internet, from a broadcast and news perspective, does not have guidelines or policies.”

“Because it is a grey area, that is why we have set up a committee, which comprises of the secretary of law, secretary of I&B, secretary of MHA, we have the IT Ministry secretary on it, we have the MyGov CEO on it, and we have industry representatives, through not only the NBA but also the IBF because general entertainment content is also available online. We also have the Press Council of India.”

“We also added digital radio broadcasting, because that is also an expansive technology which also falls into that grey area, and I’m hopeful that this distinguished panel can give us a policy guideline, and a policy path for the future.”

MediaNama’s Take:

Who is a Broadcaster?

At a TRAI Open House on uplinking and downlinking of video content, Amithabh Kumar of the Zee Group pointed out that historically, Broadcast has been about terrestrial delivery of content, saying:

“Only people who are called broadcasters have a terrestrial license. There is a need now, that on the same network – cable or OTT – content can be delivered from alternative sources. Thus the meaning of content aggregators as broadcasters needs to change. A company like Netflix which produces drama series in the same way as Zee or Sony, they are able to deliver the content without any restriction, but at the same time the people who call themselves broadcasters aren’t able to deliver.”

“The definition of the word broadcaster needs to be reviewed.”

“The people who are called broadcasters are content aggregators, and we need to review whether they come under the same umbrella. Everyone should fall under the same umbrella so long as they are producing or aggregating content. The content aggregators shouldn’t be under regulation.”

So, how will this committee treat a platform like ALTBalaji, which produces its own digital content, and distributes it as well?

2. Impacts the Open Internet

The Internet has led to the breaking down of many regulatory distinctions, and mixing and matching of roles, which gives us great diversity, and allowing everyone the freedom to create content for everyone else. All data is just that: data.

Some questions to consider:

What is Content and What is Communication on the Internet?

The difference between the Internet and other media is this element of interactivity and responsiveness. Is a video response to another video on YouTube content or communication?

What is Professional and Non-Professional Content on the Internet?

So many video bloggers have gone professional, and provide “infotainment”.

How will the committee look at a Multi Channel Network, which aggregates the monetisation of individual content creators? How will they deal with content aggregators like Netflix who are also original content producers? If there are greater restrictions on online content platforms, will that create a regulatory barrier for smaller content aggregators?

What is a News Site and Who is a Journalist?

Is MediaNama a professional blog or a news organisation? Am I a blogger or a journalist? Why should there be a legal distinction between the two? Is news breaking on Twitter an act of journalism? How will it be regulated? Who regulates it? Journalism is no longer the exclusive prerogative of a journalist, and it shouldn’t be. If there are greater restrictions on journalists than on bloggers, why would someone choose to be a journalist?

If you start creating these distinctions, they will harm the creation of diverse and plural content. In effect, we run the risk of the government possibly penalising people for the content that they create because they’re not registered, and the impact largely is going to be on user-generated content, and upstarts.

This could end up being a walled garden for India, and lend itself to the balkanisation of the Internet.

3. The Ministry of Information and Broadcasting Does Not Have Jurisdiction:

There are at least two instances of questions in Parliament to consider here:

This committee was constituted just 20 days after Col Rajyavardhan Rathore, Minister of State for I&B said in response to a question in parliament that:

Policy matters relating to information technology and internet are governed by the Information Technology Act, 2000 administered by Ministry of Electronics and Information Technology (MeitY). Presently, this Ministry [Information & Broadcasting] has no legislation/ policy to register or issue licenses to online news channels/ portals.

What is not clear here is what changed in these 20 days for a committee to be constituted. Note that both the MPs who asked this question about registration or broadcasting licenses of online news channels, are BJP MPs:

Sunil Kumar Singh and Santosh Ahlawat.

Secondly, in December last year, Kesineni Srinivas, from the TDP, which was then allied with the BJP, had asked the I&B Ministry about regulation of paid streaming and video on demand services. Rathore had then responded by saying that:

“Ministry of Information & Broadcasting does not regulate paid streaming and video on demand services provided over the internet. However, there are enough safeguards available under the Information Technology Act, 2000 which is administered by Ministry of Electronics and Information Technology (MEITY) for content appearing on paid streaming and video on demand services provided over the internet.”

MEITY is empowered to block information/websites/URLs under Section 69A of the Information Technology Act, 2000. This Section has provisions for blocking of Universal Resource Locators only in specific scenarios of (i) Defence of India (ii) Sovereignty and Integrity of India (iii) Security of State (iv) Foreign relations with foreign States (v) Public Order (vi) or for preventing incitement to the commission of any cognisable offence relating to above.

Sections 67, 67A and 67B of the IT Act makes publishing/ transmitting/hosting of pornographic content including child pornographic content criminal offence. Law Enforcement agencies regularly monitor the web and social media and take appropriate action for blocking of such URLs whenever they notice hosting of objectionable contents as per provision of rules notified under Section 69A of Information Technology Act 2000.

In fact, the Ministry of IT had responded to a question on online streaming in 2016, with IT RS Prasad saying that:

“At present there is no regulatory framework for online streaming services”, and,

“(b)The content telecast on private satellite TV channels is regulated as per provisions of Programme and Advertising Codes prescribed under the cable Television Networks (Regulation) Act, 1995 and Cable Television Network Rules, 1994 framed thereunder. The said codes are not applicable to online streaming services such as Netflix.”

Again, in December 2016, Rathore had appeared to cede jurisdictional ground to the Ministry of IT, saying in response to questions from MPs V Sathyabama and PR Sentilnathan, both from the AIADMK. In response to a question about whether the ministry of I&B has “constituted committees with regard to broadcast and internet journalism”, Rathore said that:

“With regard to internet journalism, Ministry of Electronic and Information Technology has stated that there is no Committee constituted with regard to content on internet.”

MediaNama’s Take:

• Any regulatory powers will have to be drawn from a legislation, and as such the I&B Ministry has no jurisdiction to constitute for this committee to regulate online content. That remit, as indicated by Rathore’s response, lies with the IT Ministry.

• Even the I&B Ministry, as I learned at a TRAI Open House on uplinking and downlinking guidelines yesterday, does not directly regulate TV channels. They regulate carriage of content, but also control the channels through controlling the uplinking and downlinking of channels. A Mohan of Zee said at the open house yesterday: “Broadcasters are not licensees. It’s uplinking and downlinking permissions, and there’s no statutory source for this. Since broadcasters use licensed infrastructure, therefore the broadcasters are also deemed to be a licensee. A user cannot be deemed to be a licensee if the infra used is under license.”

Another speaker mentioned that these uplinking and downlinking rules were created through an executive order, and not an act of Parliament.

4. How Will the Ministry Deal With Content That Doesn’t Confirm to its “Content Code”?

The global Internet is one that allows access to content everywhere: That something that someone creates is Mexico or Brazil is also accessible to all of us here in India; that a video and animation company like Chu Chu TV can create Nursery Rhymes from India, which are viewed across the world. If a site in Brazil doesn’t conform to India’s content code for the Internet, will that site be banned? Will it have to censor its content just to make it available in India?

The government still does secret blocking of content using Section 69 of the IT Act, which was upheld by the Supreme Court of India, based on the premise that there is due process.

5. Will Porn be Banned?

Remember #Pornban? When the government had withdrawn the ban on porn, the then Attorney General of India Mukul Rohatgi had said in court that:

“Geographic frontiers are no longer frontiers. If it (porn) can be distributed, it can be stopped. How can you stop it on the phone? The other thing is that if someone wants to watch in the privacy of their bedroom, how can we stop that? These are now issues of 19(1)”.

“Can we be moral policing? We are talking about digital India as an inclusive program. The prime minister’s website has a mygov.in platform, and he has asked people to give inputs on his independence day speech, and Swachh Bharat. Crores of people can congregate there.”

5. How Will Platforms Deal With a Content Code?

What will YouTube do with content that might violate a content code? How will it even check for a violation of the content code? Will it restrict access to content to just verified Indian content? Will Reddit be restricted only to the Indian sub-reddit? Will there be regional bans, or will there be censorship?

The expectation will be on these platforms to regulate the content from their users, and this lends itself to censorship from these platforms. Note that take-down of content used to previously be based on Section 79 of the IT Act, wherein content was taken down based on a complaint from users, and this led to excessive censorship from aggregators and publishers.

This also comes at a time when the general view, following Facebook and Cambridge Analytica, is that the days of self regulation, and safe harbour protections for “intermediaries” are over.

In essence, will platforms resort to:

• Moderation and pre-censorship?
• Active assessment of content, such as in case of YouTube and the usage of Content ID?
• Global or local removal of content?

6. Centralisation of Access to Content Enables Government Control:

Any kind of control is only possible with the shrinking of the open web: That access to content and services is now largely in the hands of behemoths like Google, Facebook (and WhatsApp), Amazon, Netflix, Tencent, Baidu, Apple, Alibaba (which owns UC Browser) and others, means that there is a centralisation of access with these entities.

Governments have struggled to control the decentralised Internet, but now can use these “platforms” and “aggregators” to control the Internet.

7. Who Will Define the Parameters For Regulating Online Content and News?

Historically, the government gives itself broad and vague parameters for regulating content, which in turn gives itself discretionary power to censor or take-down. Remember that with 66A, people could be arrested for messages that were “annoying” or “disparaging”.

This did not meet the constitutional standards of Article 19(1), and was seen as unreasonably restrictive; there is little doubt that any code of conduct that is brought in, and goes beyond the reasonable restrictions in Article 19(2) (and its interpretation), will be challenged in courts.

8. What Kind of Transparency Will Be Available For Users?

Will they just get a 404 error, or a regional block where the content doesn’t show up? What kind of notice be shown to users? Technically, the government is supposed to even publish a list of books it has banned in the country. Will there be a list of videos? Is there any room for recourse here for someone whose content has been banned? Will the standards of take-downs be made public?

( The piece was first published on Medianama.com. Nikhil Pahwa is the founder of Medianama. This is an opinion piece and the views expressed above are the author's own. The Quint neither endorses nor is responsible for the same.)