New regulations on social media, OTT evoke divergent views from experts

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New Delhi: The government's new regulations for social media platforms and over-the-top (OTT) players Thursday (February 25) evoked divergent responses from experts with one section welcoming them, some saying they would be valid till they contain reasonable restrictions while few opposed on grounds of infringement of privacy and free speech under the Constitution.

The move drew sharp criticism from Siddharth Varadarajan, editor of digital news platform The Wire who said it amounted to killing freedom of the press. BJP leaders, however, welcomed the guidelines saying they give a fair opportunity to users.

The Centre Thursday announced sweeping regulations for social media firms like Facebook and Twitter as well as OTT players such as Netflix, requiring them to remove any content flagged by authorities within 36 hours and setting up a complaint redressal mechanism with an officer being based in the country.

The regulations also make it mandatory for platforms such as Twitter and WhatsApp to identify the originator of a message that authorities consider to be anti-national and against security and sovereignty of the country.

Renowned journalist Siddharth Varadarajan said, "Granting an inter-ministerial committee of bureaucrats the power to pass judgment on what can and can't be published or to decide on whether a media platform has responded adequately to grievances raised by members of the public has no basis in law and will amount to killing freedom of the press in India."

He further said that the existing laws already define the reasonable restrictions on press freedom in India and "any reader or government official with a grievance is free to seek a legal remedy provided it falls within the four walls of the 'reasonable restrictions' defined by the Constitution and 70 years of Indian jurisprudence on them".

"The media cannot be compelled to address 'grievances' that go beyond that Lakshman Rekha," he said.

Additionally, Bollywood producer Ekta Kapoor and directors Priyadarshan and Vikram Bhatt were among those who welcomed the guidelines, saying there cannot be creative freedom without responsibility.

Kapoor, who also runs an OTT platform Alt Balaji, said the new regulations will provide a level playing field to everyone.

Priyadarshan, known for films such as "Hera Pheri" and "Hungama", called it "a great step" by the government, while "Ghulam" director Bhatt said the new guidelines should not be confused with censorship.

Director Onir, however, said the new guidelines did not favour artists.

Political activist and columnist Tehseen Poonawalla was critical about the regulation of digital press, saying it will attack the independence of the media.

"The Draft IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are problematic and attack the Freedom of Speech and Freedom of Press. The Govt intends to regulate Digital Press & Media with IT rules . This will attack the independence of the media !!" he tweeted.

Among the legal fraternity, while senior advocate Ajit Sinha said if the restrictions were reasonable, then the rules can be imposed, senior advocate Menaka Guruswamy said it will impact privacy rights and the freedom of press.

Sinha, however, added that the prima facie view is that these social media platforms will be governed by the Indian law and the government will have the power to regulate.

"The social media rules will be valid till the time they contain reasonable restrictions under Article 19 (freedom of speech and expression). If the restrictions are reasonable then certainly the rules can be imposed," he added.

"The prima facie view is that now these social media platforms will be governed by the Indian law...And the government will have the power to regulate... Unreasonable restrictions, if any, in the rules can be the only factor which can be used to challenge them in the court of law," Sinha said.

Guruswamy raised the question as to how bureaucrats can decide what the contents of OTT platforms be and the courts are there to hear such concerns.

She said end-to-end encryption provided by the platforms to protect privacy of the users would end by forcing to reveal the identity of the originator of the content.

"The new Information Technology Rules, 2021, seek to regulate social media intermediaries like WhatsApp and Signal. By forcing the identity of the originator to be disclosed, this will burden the end to end encryption facility that is provided by these platforms. This will impact privacy, speech, express and conscience rights under the Constitution," Guruswamy said.

She further said, “the rules also forced the OTT platforms like Netflix and Amazon Prime to be subjected to oversight by the government, which will impact artistic creativity and expression.”

"Who are bureaucrats to decide what the content should be? The courts are already there at present to hear concerns. Finally, the rules by seeking to regulate digital media will hurt freedom of press. How can you regulate the press by the IT Act? This has not happened before. What happens to freedom of press, speech expression," she added.

Welcoming the regulations, advocate Mrinal Bharti said freedom of speech was of paramount importance but it also entailed responsibility and accountability.

"It's a welcome step to regulate this platform. Freedom of speech is of paramount importance but it also entails responsibility and accountability. These rules place importance on self governance and ensure a grievance redressal mechanism,” she said. 

"Since, misinformation and misuse needs to be controlled, these rules will pave the way for it. However, it will be interesting to watch how this unfolds," Bharti said.

Union Information and Broadcasting Minister Prakash Javadekar said there is a need for an institutional mechanism for all media platforms to exercise a responsible freedom.

"TV and print media have certain codes but there are no such rules for OTT platforms and digital platforms yet. There have to be some rules for digital platforms. There is a need for an institutional mechanism for all media platforms as every freedom has to be responsible freedom," he said.