Q&A with MAGNAH LAW PARTNERS on the new rules for digital media intermediaries and OTT platforms
On February 25, 2021, the Government of India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules), under the Information Technology Act, 2000. Raghunath Ananthapur, Partner at Magnah Law Partners, and his associate Prithvika Prasad answer some of the commonly asked questions that many broadcasters and content owners across the world have when it comes to operating digital media and OTT in India.
What is the scope and application of the new rules?
The new rules applies to ‘Intermediaries’ and to ‘Publishers’ in relation to digital media.
Who are ‘Intermediaries’ and ‘Publishers’?
Intermediaries are widely defined to mean all kinds of online service providers, that, on behalf of another person, processes or provides any service in respect of digital content. The 2021 Rules introduce two new classes of intermediaries - Social Media Intermediaries (SMI) and Significant Social Media Intermediaries (SSMI). SMIs are intermediaries that primarily or solely enable online interaction between two or more users and allow them to create, upload, share, disseminate, modify or access information using its services, and SSMIs are those SMIs that have over 50 (fifty) lakh registered users in India. The 2021 Rules contain a set of compliance requirements applicable to all intermediaries in general, while also subjecting SSMIs to an additional set of compliances.
‘Publishers,’ on the other hand, can be either publishers of news and current affairs content or of online curated content (OCC).
A ‘publisher of OCC’ is one who plays a significant role in determining the OCC made available to users, and makes available a computer resource that allows users to access such content over the internet or computer networks, also includes such other such entities that are functionally similar to publishers of OCC. (Publisher).
However, an individual or user who is transmitting OCC in the course of a systematic business, professional or commercial activity is excluded from falling under the definition of such a publisher.
The 2021 Rules apply to:
A Publisher having a physical presence on the territory of India, or
A Publisher conducting a systematic business activity of making its content available in India.
What is Online Curated Content? Would OTT fall under its definition?
Yes, Over-the-Top content (OTT) would fall under the definition of OCC, and an OTT Platform would be considered as a Publisher of OCC, as OCC is defined as:
Any curated catalogue of audio-visual content, other than news and current affairs content,
Which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand,
With such service being offered through a subscription mode or otherwise, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content.
How is OCC to be classified?
OCC is to be classified based on its content, while adhering to the following guidelines:
Consideration of relevant factors: A publisher should not transmit, publish or exhibit any content that is prohibited under any law or by a competent court. Due heed must be paid to India’s multi-racial and multi-religious background, and caution must be exercised in relation to content that affects the sovereignty and integrity of India, compromises the security of the State, affects India’s friendly relations with foreign countries, and that which is likely to incite violence or disturb public order.
Assignment of content ratings: A publisher is to classify OCC through age-restricted content ratings of U, U/A 7+, U/A 13+, U/A 16+, and A. Such classification is to be on the basis of themes and messages, violence, nudity, sex, language, drug and substance abuse, and horror. Print, television, or online promotional material should include content ratings.
Viewer discretion advisory and content descriptor: Each content or programme must begin with a viewer discretion advisory, along with the classification rating and a content descriptor that informs the user about the nature of the content.
What are the access-control mechanisms to be put in place?
Access-control mechanisms: OCC that is rated higher than U/A 13+ must have access-control mechanisms, including parental locks, and A rated content must have a reliable age verification mechanism.
Improving access to persons with disabilities: Reasonable efforts are to be taken to improve accessibility of OCC to persons with disabilities through appropriate access services.
Do publishers have any other obligations to comply with?
Publishers that have a physical presence in India have obligations with respect to furnishing details regarding their entity to the Ministry of Information and Broadcasting within 30 (thirty) days of publication of the 2021 Rules or 30 (thirty) days from start of their operations in Indian territory or their coming into existence, publishing of a monthly compliance report, and grievance redressal.
How is the grievance redressal mechanism set up under the 2021 Rules?
Any person having a grievance regarding the content published by a publisher in relation to the Code of Ethics can make complaints through the established grievance redressal mechanism. Publishers are to appoint an India-based Grievance Officer to receive and acknowledge complaints within (24) twenty-four hours, and address them within 15 (fifteen) days of its receipt. They must also join a self-regulating body of publishers that is registered with the MIB. The self-regulating body is empowered to oversee publishers’ adherence to the Code of Ethics and also hear appeals from the decisions of the Grievance Officer. Grievance appeals arising from decisions taken by the Grievance Officer or the self-regulating body are to be heard by an Inter-Departmental Committee constituted as part of a governmental oversight mechanism.