The Government of India in supersession of the Information Technology (Intermediary Guidelines) Rules, 2011, has notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as the "Rules") under the Information Technology Act, 2000 ("IT Act") on February 25, 2021. The Rules encapsulate guidelines and rules for intermediaries, OTT platforms, digital news apps, publishers of news and current affairs content and other social media players. In our earlier article in this series, we had discussed the provisions of the Rules pertaining to intermediaries. Through this article we shall explain the applicability of the Code of Ethics, that have been annexed to the Rules and a three-tier grievance redressal mechanism.
The Ministry of Information and Broadcasting (hereinafter referred to as "MIB") has been appointed as the nodal ministry to overlook and administer Part-III of the Rules. Part-III of the Rules pertains to and prescribes a Code of Ethics and procedure and safeguards in relation to digital media, publishers of news and current affairs content.
Applicability of the Code of Ethics
Part III of the Rules is applicable to publishers of news and current affairs content and publishers of online curated content (collectively referred to as "Publishers"). The Rules have identified "publisher of news and current affairs content" as an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content. Whereas a "publisher of online curated content" is a publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content1 over the internet or computer networks, and such other entity called by whatever name, which is functionally similar to publishers of online curated content but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity.
For Part III of the Rules to be applicable to such Publishers, it is essential for the Publishers to either operate in the territory of India or conduct systematic business activity of making its content available in India. A Publisher shall be deemed to operate in the territory of India where such publisher has a physical presence in the territory of India. Further, for the purposes of the Rules, systematic activity has been defined as any structured or organised activity that involves an element of planning, method, continuity or persistence.
Code of Ethics
If Part III of the Rules are applicable to a Publisher, then such a Publisher is obligated to observe and adhere to the relevant code of ethics. Publishers of online curated content are also required to adhere to a code of ethics, which differ from the code of ethics required to be adhered by the publishers of news and current affairs.
Code of Ethics Applicable to Publishers of News and Current Affairs Content
For the purposes of the Rules, a publisher of news and current affairs content must observe and adhere to the (i) Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978; and (ii) Programme Code under Section 5 of the Cable Television Networks (Regulation) Act, 1995. Further such publishers are restrained from publishing or transmitting any other content prohibited under any law in force.
Code of Ethics Applicable to Publishers of Online Curated Content
A publisher of online curated content is required to observe certain general principles before publishing such online curated content. Such publishers cannot transmit or publish or transmit any content that is prohibited under law or by a court. Further before publishing any content, such publishers are required to exercise caution with respect to content that (i) affects the sovereignty; (ii) jeopardises the security of India; (iii) integrity or friendly relations with other countries of India; (iv) incite violence or disturb the maintenance of public order; or (v) displays activities, beliefs, practices or views of any religious or racial group.
These publishers are required to classify their content before publishing, transmitting, or exhibiting the same. Some of the factors that may be used by such publishers are: (i) themes and messages; (ii) violence; (iii) nudity; (iv) sex; (v) language; (vi) drug and substance abuse; and (vii) horror. On the basis of these factors amongst others, the content is required to be classified as:
The code of ethics for such publishers prescribe that such publishers shall prominently display the content's classification and a description of the content at the beginning of the online curated content to enable the viewer to make an informed display. Additionally, for any content classified as "U/A 13+" or higher, these publishers are required to have access control mechanisms including parental locks available for viewing such content. Further to ensure that viewers make an informed decision before viewing content classified as "A", publishers of such content are required to include the classification and consumer advice for such content in any promotional activity or material.
The code of ethics also require publishers of online curated content to take reasonable efforts to improve the accessibility of their content by persons with disabilities. The code of ethics advise that the same be done through the implementation of appropriate access services.
In addition to the factors provided for in the code of ethics for publishers of online curated content, the Rules have also set down guidelines for publishers of online curated content in the schedule to the Rules. These guidelines, which may be read with the factors prescribed in the code of ethics for determining the classification of the content, may assist such publishers to classify online curated content on the basis of (i) context; (ii) theme; (iii) target audience; and (iv) tone and impact.
With respect to context, the publisher may examine the period depicted in the content, the setting of the content, the manner of presentation of content before classifying the content. These publishers may also examine the theme of the content and in particular the treatment of the theme in the content. The guidelines have acknowledged that challenging themes such as drug use, sex, violence, etc. may not be appropriate for children. Publishers may also examine the tone and impact of the content and publishers may even consider the classification entirely on this basis. If a particular content's tone depicts strong themes such as violence, then the same may classified for suitable for appropriate audiences. Target audience has also been provided under the guidelines as a factor for publishers of online curated content to determine the classification of content by them.
The schedule to the Rules also provides a general approach to be taken while classifying content depicting:(i) substance abuse; (ii) imitable behaviour that may impact gullible youth to commit crime, suicide, violence, imitate songs with sexual innuendos, etc.; and (iii) use of expletives and offensive language keeping in mind the sensitivity of the audience would receive a higher classification. Content depicting nudity in a sexual context would attract an "A" classification whereas content depicting sex would receive either a classification of "U/A 16+" or "A", which shall be dependent on the portrayal of the act. Further content depicting violence or content depicting sexual, gender-based or religious discrimination would attract a classification dependent on the nature of its use and the impact such content may have.
As mentioned earlier, if there is a grievance raised in relation to the adherence to the code of ethics by Publishers, the same would be resolved in a three tier structure.
At the first level, i.e. the self-regulation level, the Publisher is required to: (i) establish grievance redressal mechanism; (ii) appoint a grievance officer based in India ("GO") who shall be responsible for redressal of grievances received by him; (iii) provide contact details of the GO on its website; (iv) ensure the GO decides every grievance received within 15 (fifteen) days and communicate the same to the complainant; and (v) become a member of a self-regulating body.
The second level that is the self-regulating body, i.e. a body constituted by the Publisher or through the Publisher's associations. This self-regulating body is required to (i) ensure adherence by a Publisher to the code of ethics; (ii) provide guidance to the Publishers on the code of ethics; (iii) address grievances which have not been resolved by the Publishers; (iv) hear appeals filed by the complainant against the decision of the Publishers; and (v) issue guidance or advisories to the Publishers for ensuring compliance to the code of ethics.
The self-regulating body, i.e. the second level, while disposing a grievance or an appeal may issue the following guidance or advisories to Publishers: (i) warning, censuring, admonishing or reprimanding the Publisher; (ii) require an apology from the Publisher; (iii) require the Publisher to include a warning card or a disclaimer; (iv) in the case of online curated content, direct the Publisher to either (a) reclassify ratings of relevant content; (b) make appropriate modification in the content description, age classification and access control measures; (c) edit synopsis of relevant content; or (d) in case of content where it is satisfied that there is a need for blocking public access of the content (sub-section (1) of section 69A of the IT Act), recommend required action and refer such content to the MIB for consideration by the Oversight Mechanism.
To facilitate the adherence of the code of ethics by the Publishers, the MIB is required to perform the following functions: (i) publish a charter for self-regulating bodies, including codes of practices for such bodies; (ii) establish an Inter-Departmental Committee ("IDC") for hearing grievances; (iii) refer to the IDC grievances arising out of the decision of the self-regulating body, or where no decision has been taken by the self-regulating body, or such other complaints or references relating to violation of code of ethics as it may consider necessary; (iv) issue appropriate guidance and advisories to Publishers; and (v) issue orders and directions to the Publishers for maintenance and adherence to the code of ethics.
We will in Part 3 in the series of articles on the Rules cover in detail the implications of the Rules on Significant Social Media Intermediaries.
1.The Rules define online curated content 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, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content.
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