It must be acknowledged that the need for the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, released on February 25, can hardly be disputed. First, they can bring to book “significant” internet platforms (those above five million users) such as Facebook, Google and WhatsApp, which have so far enjoyed immunity under Section 79 of the Information Technology Act – a ‘safe harbour’ clause that protects them from being hauled up for content hosted by them. Now, their elbow room has been squeezed. The world over, these tech giants have been associated with breach of data, national security and individual privacy, besides hosting incendiary stuff (distinct from an expression of a difference of opinion) that can disrupt peace and harmony. Second, the OTT platforms such as Amazon Prime, Netflix and Hotstar, which put out curated content without certification can no longer continue in this manner. In a positive move, they will have to grade their content under various types of adult and child viewing, while subjecting themselves to a three tier system of complaints and grievance redressal. Large intermediaries too have to appoint grievance and nodal officers to screen complaints. These checks and balances are necessary.
But there can be no escaping the hint of regulatory overreach, with implications for individual and media freedoms, when it comes to the application of regulations to the digital news media. To begin with, the Rules have sought to water down Section 79, arguably beyond the original scope of the law. In that case, the law itself would need to be amended. A situation where intermediaries exercise self censorship, looking over their shoulder for vigilante complaints or suo motu acts by the State to block or take down content under Section 69 of the IT Act, is not a desirable one. End-to-end encryption can be sacrificed for tracing the offenders, whether these are suspected miscreants, terrorists or those posting defamatory or obscene content. While this may help deal with crimes of sexual perversion, the danger of misuse in other situations is very real. In the case of both OTT and social media platforms, grievance redressal systems can be gamed by vested interests. That the Rules allow government to influence the appointment of panel members makes things rather uncomfortable.
Above all, digital news media has been unfairly and arbitrarily clubbed with OTT platforms. There can be no case for subjecting news and entertainment entities to the same set of rules. Besides, this combination does not correspond with the provisions of the IT Act, and opens itself to legal challenge. The view that print media is regulated, but not its digital counterpart is not convincing. Reasonable restrictions to freedom of speech have been spelt out in the Constitution (Article 19), as well as in the code of ethics for journalists. Over-regulation will stifle freedom of expression. The time-tested concept of self-regulation should not be sacrificed.