1. INTRODUCTION
The Ministry of Information and Broadcasting (the "MIB") notified1 the 'Policy Guidelines for Empanelment of Social Media Platforms with the Bureau of Outreach and Communication'2 (the "Policy") on May 13, 2020. The Policy is aimed at improving the Government's outreach to public by way of advertisements on social media platforms.
The Policy sets out the terms of empanelment and engagement of social media platforms with the Bureau of Outreach and Communication (the "BOC"), a nodal organisation which executes paid outreach campaigns through print, electronic, outdoor, digital media etc. for Ministries and Departments of the Government. The Policy also sets out the terms of the relationship between the BOC and its client Ministries/ Departments.
2. OVERVIEW
The Policy defines a 'Social Media Platform' as a web based and mobile based internet application that allows the creation, access and exchange of user generated content. The content on the social media platform may be in the form of text, audio-visual, graphics, animation or any other form prescribed by the BOC from time to time.
To be eligible for empanelment with the BOC, a social media platform must meet the following requirements:
- Operate under the same domain name for a minimum of 6 months prior to application for empanelment;
- Have a minimum of 25 million unique users per month from within India;
- Have an online panel with demonstrated credibility for booking advertisement space/inventory; and
- Must not be blacklisted or be under a period of suspension by any Ministry, Department, agency or autonomous body of the Government of India or the Government of any State or Union Territories of India.
In order to get empaneled with the BOC, an eligible social media platform is required to make an application to the BOC in the prescribed format and enter into an agreement with the BOC (the "Agreement"). The form of the Agreement has been annexed with the Policy.
The BOC will execute its outreach campaigns by participating in the bidding process of social media platforms for buying advertisement inventory and will determine the relevant social media platform for its campaign based on the target audience, theme and content of proposed activity and the budget and duration of the campaign.
Inter se the client Ministry or Department and the BOC, the BOC shall be responsible for preparing a media plan within the indicated budget, suggesting platforms and expected deliverables, along with the tentative cost. Advertisement campaigns are based on auction of ad inventory and the actual cost of a campaign is determined only upon completion of the campaign; however, the Policy requires the relevant Ministry or Department to place 100% funds, basis estimated costs of the campaign, with the BOC in advance. This is to avoid any adverse impact on the social media campaigns of a Ministry or Department as result of default in payment by another Ministry or Department.
A social media platform engaged by the BOC is required to appoint a point of contact for communication with the BOC. The empaneled social media platform must maintain a real time dashboard which shows the actual quantified outcome of the campaign in the form prescribed or approved by the BOC, execution reports as well as dated reports.
If a social media platform already engaged by the BOC gets suspended or blacklisted by a Ministry, Department, agency or autonomous body of Government of India, public sector undertaking or any State Government or Union Territory, then it will be suspended by the BOC till its suspension/blacklisting is revoked.
The Policy is intended to be valid for a period of 5 years.
3. KEY ISSUES
3.1. Social Media Platform based in India
As per the Policy, the BOC may give preference to social media platforms based in India as long as it does not affect the desired outcome of a campaign. However, the Policy does not provide any clarification as to what constitutes a social media platform "based in India".
It may be noted that the 'Policy Guidelines and Criteria for Empanelment and Rate Fixation for Central Govt Advertisements on Websites'3, issued by the BOC on June 01, 2016 states that "Only the websites which are owned and operated by companies that are incorporated in India will be considered for empanelment. However, websites owned by foreign companies / origin may be eligible if such websites have a wholly owned company registered and operating in India, which looks after their Indian advertisement business." Whether a similar inference can be drawn for 'Social Media Platforms based in India', will have to be clarified by the BOC or the MIB.
3.2. Agreement between BOC and the Social Media Platform
The form of the Agreement annexed to the Policy appears to be biased in favour of the BOC, and will have to be negotiated by Social Media Platforms to arrive at fair and reasonable provisions for both parties.
- Clause I (5) of the Agreement requires the social media
platform to ensure 'that their content is not anti-national
/obscene / indecent / antisocial / violative of communal harmony
and national integrity etc., or deemed objectionable in any form,
or in violation of the extant Cyber Laws of India (Section 67 of
the IT Act, 2000 of the Government of India and any other
provisions made from time-to-time) Further, since the content on
social media platforms is user-based, the Vendor undertakes to
moderate/delete the content if it is found to be anti-national /
obscene / indecent / antisocial / violative of communal harmony and
national integrity etc., or in violation of the extant Cyber Laws
of India (Section 69 of the IT Act, 2000 of the Government of India
and any other provisions made from time-to-time).'
This clause is of particular concern since it creates a contractual obligation on the social media platform to monitor, moderate and delete user generated content to comply with the wide and sweeping language used in the clause. Terms such as 'anti-national' and 'anti-social' are not defined under the Agreement and are also not used under the Information Technology Act, 2000 (the "IT Act"), which creates offences only on specific grounds of identity theft, cheating by personation, violation of privacy, cyber terrorism, transmission of obscene materials and transmission of material depicting children in sexually explicit acts.
Moreover, social media platforms have safe harbour as intermediaries under Section 79 of the IT Act subject to compliance with the requirements set out therein and the Information Technology (Intermediaries Guidelines) Rules, 2011. In Shreya Singhal v. Union of India4, the Supreme Court read down Section 79(3) of the IT Act to clarify that an intermediary would be liable only if it fails to remove or disable access to certain material after receiving "actual knowledge" i.e. a court order and/or a notification by the appropriate Government or its agency which must strictly conform to the subject matters laid down under Article 19(2) of the Constitution of India. Social media platforms being neutral platforms for third parties to interact should not be required to monitor material and exercise their own judgement on whether same is unlawful.
It appears that Clause I(5) of the Agreement seeks to create an obligation on social media platforms, for regulation of user generated content, which is wider and more onerous than what is provided under the IT Act. - The Agreement can be terminated only at the instance of the BOC. Social media platforms do not have the right to terminate or suspend the Agreement even in case of default or delay in the payment of the consideration on the part of the BOC.
- The Agreement provides for dispute resolution by a sole arbitrator to be appointed by the BOC. This clause is also contrary to the law as laid down by the Supreme Court in Perkins Eastman Architects DPC & Anr v. HSCC (India) Ltd5, holding that a party cannot be vested with the unilateral power to appoint a sole arbitrator and constitute an arbitral tribunal.
4. INDUSLAW VIEW
The MIB has previously issued policy guidelines for systematic execution of advertising campaigns on print media6, television channels7, radio8, internet and websites9 for various Ministries and Departments of the Government through the BOC. With the issuance of this Policy, it appears that Ministries and Departments may now allocate a part of their advertising budgets towards advertisements on social media platforms as well. This is a positive step by the Government and will certainly benefit social media platforms, especially at a time when advertising spends on various platforms have taken a substantial dip. Additionally, it is also evident from the Policy that the Government recognizes the influence that social media platforms wield on their users and intends to target these users, especially youth, through its outreach campaigns.
However, it may be noted that the Policy has been notified without any consultation on the draft with stakeholders, primarily, social media platforms.
Further, the Policy sketches out only the broad requirements and procedure for the empanelment of a social media platform with the BOC for publishing government advertisements. Several provisions of the Policy as well as the form of the Agreement are completely biased in favour of the BOC. Finer nuances of the terms of engagement of social media platforms will have to be further discussed, and fairer and more reasonable terms of empanelment may have to be negotiated between the BOC and the relevant social media platform based on the advertising model, nature of campaigns etc.
Footnotes
1. There appeared to be a lack of clarity on whether the Policy is a draft policy or has it in fact been notified by the MIB. The IndusLaw team spoke to the BOC officials to clarify this, who confirmed that the Policy has been notified by MIB and is in effect from May 13, 2020.
2.http://www.davp.nic.in/writereaddata/announce/Adv12171352020.pdf
3. http://www.davp.nic.in/writereaddata/announce/Internet_Policy02052019.pdf
4. (2015) 5 SCC 1.
5. 2019 SCC Online SC 1517.
6. http://www.boc.nic.in/Intr_guidline.html
7. http://davp.nic.in/writereaddata/announce/Adv10822952019.pdf
8. https://mib.gov.in/sites/default/files/Pvt%20FM%20Radio%20Policy_0.pdf; http://www.davp.nic.in/writereaddata/announce/cm_g_rate_card.pdf
9. http://www.davp.nic.in/writereaddata/announce/Internet_Policy02052019.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
