Issue of Digital/Social media regulations in India
In the backdrop of the increasing popularity of online platforms (OTT, Social Media Etc.) in India and world over in the recent times, many efforts are being made to regulate the content being posted on them.
The latest attempt in this row has been made by the Kerala Government. Kerala government has recently amended the Kerala Police Act by incorporating a new Section, 118 (A).
Provisions of the controversial Kerala law
- Any person who sends or creates any information that is offensive or is intended to offend or threaten another person, through any means of communication, is liable to face imprisonment of five years or a fine of Rs 10,000 or both.
- Make the offence as a cognisable(Police can arrest the person without warrant and investigate the person without the permission of the Court) and provides a punishment of three years.
|Ø Criminal defamation under the IPC is a non-cognisable offence and no police officer can register an FIR for the offence; it can only be prosecuted as a private complaint. Apart from that, the punishment prescribed in IPC is only two years.
Ø Similar offence for Sec. 199 Cr.P.C.: No court shall take cognisance of defamation unless the aggrieved party files a complaint.
- As per the government, Section 118(A) is meant to protect people, particularly women, transgenders and other vulnerable sections from social media abuse.
Relevant points from judgments:
- In Shreya Singhal Case Supreme court said that when a provision of law suffers from Vagueness and unclear about the terms and penal provisions used then that provision of law can be struck down by the judiciary (Supreme Court struck down Section 66Aof IT Act and also Section 118(d) of Kerala Police Act as a violation of Fundamental Rights enshrined under Article 19 (1))
- Kerala High court itself said
“Existing laws which deal with the defamation and other allied offences are sufficient to address these kinds of issues. So, there is no need for separate legislation for offences like defamation, modesty of women and transgender etc.,”
- By making defamatory utterances cognisable and raising the prison term, the Kerala ordinance effectively amends the IPC and Cr.P.C., a move for which the Centre’s (President’s) assent is mandatory, as it is in conflict with central laws.
Regulations of Digital media
Recently, the government has brought digital/online media platforms, films release on OTT, and audio-visual programs, under the ambit of the Ministry of Information and Broadcasting from the ambit of the Ministry of Electronics and Information Technology.
New regulations added 2 new categories i.e.
- Films and Audio Visual programmes made available by online content providers
- News and Current Affairs on online platforms such as Facebook, Twitter and Instagram
In recent cases involving Sudarshan news, the government on the requirement of regulating the electronic media stated that regulating the digital media was more pressing.
At present, the News Broadcasters Association (NBA) represents the news channels, the Press Council of India regulates the print media, the Central Board of Film Certification (CBFC) monitors film, while the Advertising Standards Council of India regulates advertising.
Last month, a law was passed stating that digital news platforms could not have more than 26% foreign investment.
Need for regulating OTT platforms
- Video streaming services such as Netflix and Amazon Prime have become key distributors for new movies and entertainment content during the COVID restrictions and have multiplied their subscribers in India in recent years. But they do not require any certification before any new releases.
- In contrast, new movies, before theatrical release, have to get through the certification process of the Central Board of Film Certification.
Need for regulating digital/social media platforms
- Ability of digital/social Media to Reach, Scale and size is huge compare to print and other media.
- While electronic media in India is regulated by the Cable Television Networks (Regulation) Act of 1995, there was no law or body to oversee digital content. Some people are taking an undue advantage which leads to too much voice and noise in social media.
- Recently, India has seen a surge in the number of fake news items in circulation, especially on WhatsApp and Face book.
- Absence of editorial control in digital/ social media leads to large scale user-generated content which is unregulated
- In 2018, fake information that was circulated on WhatsApp led to the lynching of five men in Maharashtra and there are many such instances.
- In this time, when India is in conflict with its neighbouring countries like China and Pakistan, there is a possibility of Foreign-funded digital platforms running to defame our country.
- There is also evidence of fake information influencing the process of election in the USA which undermines the root of democracy.
Issues in regulating the OTTs, digital and social media
- When it comes to regulating digital news content, new regulations may end up facilitating more governmental interference and censorship which impacts the Right to freedom of speech and expression (Article 19(1))
- It is expected that regulations might be instrumental in suppressing the freedom, enjoyed by digital media till now and might be targeted at a section that has been bold and forthright in speaking truth to power.
- Digital platforms were till now able to openly create the movies/videos on politically sensitive subjects, now they have to bow down to the political pressures.
- If the government is providing any legislation to regulate the social/digital media then the wider/free for all media houses and persons might face a number of allegations which leads to a huge inflow of cases to the judiciary which is already overburdened.
- The government turned down the self-regulatory proposal proposed by the 15 OTT platforms collectively under the Internet and Mobile Association of India (IAMAI) in September this year.
Important provisions of Self-regulatory Proposal by OTTs
Proposed two-tier structure as part of the self-regulatory regime
o 1st tier: Consumer Complaints Department or an internal committee, as well as an advisory panel, which will deal with complaints, appeals, and escalations.
This is the three-member committee of which two of whom will be executives of the streaming service, and one an “independent external advisor” who is not be employed by the company in any capacity.
o 2nd tier: formation of Digital Curated Content Complaints Council (DCCCC) chaired by a retired judge of the Supreme Court or High Court along with an enumeration of prohibited content.
Government Rejected the proposal as the current model does not have third party monitoring options, lacks a well-defined Code of Ethics, the minority status of independent advisor and also gives an unclear picture of content prohibition.
Government also asked IAMAI to look at other self-regulatory models since the government does not support the current one.
- From Social/digital media side has to have a corporate responsibility
- Misinformation has to tackle with information like the one did by YouTube in tackling false information.
- They have to publish transparency reports from their side like Facebook
- From the Government Side
- The government should pass an Act like that of the US to establish a self-regulatory system for media platforms and to hire content moderators to moderate the contents getting published on their platform
- With recent reports posting a number of internet connections recently crossed the 750 million milestones in India, Digital Literacy Programmes has to be encouraged along with Digital India Mission
- Model Code of Conduct implemented by Election Commission of India has been effective and efficient in curbing fake news and misinformation in social/digital media during elections, Government should appoint a study committee to explore the scalability of the same to other aspects as well.
- From Society
- People should understand that freedom in social/digital media should complement with responsibilities envisaged in the Fundamental Duties.
Regulating social/digital media cannot be done from one side. All the stakeholders should have to contribute for the betterment of the platform as a whole is the key else India might follow the USA (Most Americans get their News from suspicious internet source which resulted in extreme polarization of citizen’s view).