Synopsis: The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) New IT Rules 2021 suffers from numerous flaws. Due to this, experts have questioned their efficacy and legality.
- The online streaming industry has grown multifold in recent years and has made a unique space of itself vis-a-vis cinema and television.
- However, the intended government regulation under new IT rules 2021 deters the creative freedom of industry. It is a grave concern at a time when the industry is already facing multiple challenges.
Challenges prior to new regulation:
- Multiple court petitions have been filed against online streaming platforms due to inappropriate content. The concern generally pertains to religious sentiments or the display of obscene sexual content. The result is restrictions on artistic expression and viewer choice.
- In some cases, FIRs lodged directly against the artists or company employees of platforms like Netflix and Amazon. This causes substantial harassment and undermines the personal liberty of content creators.
Flaws in new IT rules:
- Inconsistency with Parent Act (Section 69A of IT Act): Powers under Section 69A can be exercised in the interest of “sovereignty and integrity of India, defence of India, security of the State etc. grounds.
- However, a ground of decency and morality is not mentioned under the section. But rules allow the government to regulate platforms on such ground.
- Similarly, Section empowers the central government to direct “any agency of the Government or intermediary” to block access to online content. However, online video streaming platforms do not fall into either of these two categories but still are covered under the new rules.
- The Section allows the government to block access of any information to the public generated or transmitted on a computer. Nonetheless, rules give greater power of demanding an apology or re-classifying the content that breeds subtle censorship.
- Lack of Independent Regulation: The proposed three-tier regulatory framework falls short of independent functioning.
- For instance, the Inter-Departmental committee which makes the 3rd tier will be mainly formed by bureaucracy. Further, there is no compulsory judicial/civil society representation at this level.
- Similarly, the review committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 for examining the government order, comprises only government officials.
- The government should release a white paper stating the intended objectives to be achieved by regulating online streaming platforms. Prior to this, a meaningful public consultation involving all the concerned stakeholders should be done.
- Further, if stringent regulation is desired, then it must be done through the legislative branch. As executive rule-making power under Section 69A never contemplated the creation of such an elaborate regulatory framework.