With this announcement, the process of regulation, which began in 2018 with the amendment of the draft intermediary rules within the IT Act of 2000, has finally got some closure in a way. But stakeholders see many of the norms as contentious.
Curiously, the government has clubbed online news media and current affairs portals with OTT and social media platforms, or intermediaries, under the new rules, proposing a regulatory architecture which includes a three-tier structure for grievance redressal. Though not separate, these rules were largely modelled on content guidelines that govern television news and print media.
Defending the move, a senior government official says the code effectively ensures that “the gap in accountability is plugged”.
Another senior government official says every website is covered by these rules. “There was a vacuum, considering that the Press Council of India guidelines only covered epapers (replicas) of physical dailies. For instance, ET.com was not covered under PCI rules.
Now, it will be covered under these rules.”
The gazetted version of the rules, which were notified after Union ministers Ravi Shankar Prasad and Prakash Javadekar announced the rules during a press conference, also gave the secretary of the information and broadcasting ministry the powers to block news and current affairs content “in case of emergency” under Section 69A of the IT act, which was seemingly “unprecedented”. Until these rules were notified, blocking orders under this section were only vested with the Ministry of Electronics and Information Technology. These powers have now been extended to the I&B ministry as well.
On Saturday, the government clarified that the provision for interim blocking directions to be issued by the I&B ministry “in a case of emergency nature” was the same provision that was being exercised for the past 11 years by IT ministry under the Information Technology Rules, 2009. “There is no new provision which has been made,” it added.
A senior editor of a national daily says, “This affects us because until now, we were not under the ambit of 69A and its blocking orders. Anyone could file cases, and the government could use these powers to order online websites to take down a story. In the rules, they seemed to have given themselves that power.” The editor requested anonymity as the person is not authorised to speak to the media. “It’s almost as if they slipped it in during the press conference,” the editor adds.
The move would place online news and current affairs websites on the same level as social media platforms like Twitter and Facebook, which were already governed by these rules. It also comes at a time when the barriers of content creation and the ability to set up “news websites” have been lowered by the internet. Anything remotely dealing with current affairs can now be placed under this category. “This clearly assumes that online news and current affairs websites were publishing user-generated content, and were allegedly not following journalistic norms and code of conduct and ethics. That is unprecedented,” says a publisher of a news and current affairs website.
Dhanya Rajendran, the editor-in-chief of Bengaluru-based The News Minute and chairperson of DIGIPUB News India Foundation, says, “The first problem is that the government is trying to define news organisations as intermediaries and bring us under the IT Act but this is a flawed argument because we are not intermediaries.” DIGIPUB, an association of digital news media organisations, has written to the Union ministers of information and broadcasting and electronics and IT highlighting their concerns with the new rules. The second concern, these publishers and lawyers say, is at the heart of these rules and involves the setting up of an elaborate three-tiered grievance redressal mechanism.
According to the rules, online news media organisations are expected to set up a grievance officer, who will be responsible for compliance. The second-tier would consist of an independent self-regulatory body, constituted by the publishers themselves or their industry associations, and headed by a retired high court or Supreme Court judge or an eminent person. And the third-tier would feature an inter-ministerial oversight mechanism, with the secretary in the I&B ministry taking the final call on the recommendations of the oversight panel.
This, some publishers say, is likely to be weaponised by actors belonging to political “IT cells” or organised troll armies. “What is stopping an IT cell of a political party from sharing a link with a story they don’t like or agree with on their thousands of WhatsApp groups, and then flooding the grievance officers with emails or objections? This is ripe for weaponisation by these actors,” says a publisher of a news and current affairs website on condition of anonymity.
Rajendran of The News Minute adds, “The grievance portal under the new guidelines will lead to censoring of news. The inter-departmental committee and draconian powers to the secretary of the IT department is basically a sanction for the government to decide what news can be blocked or taken down. This is not a right the executive has under the Constitution.”
These regulations could lead to constant harassment and even result in online news publishers going out of business, say some. For instance, the publisher of the news website who did not want to be named says, “At the end of six months, let us say there are 40-60 stories that have been taken down because of these grievance requests over a six-month period, and this in spite of us following journalistic norms and ethics to the T. It could mean they would call us a fake news website and ask us to shut down. This is designed to harass publishers from doing their jobs.”
Apar Gupta, executive director of Internet Freedom Foundation, says, “The level of compliances also requires the appointment of a grievance officer being part of a self-regulatory body, which will also not be economically feasible. In fact, it will cause a lot of people who comment on news and current affairs from being prevented from systematically engaged in larger socio-political debates.”
Gupta adds, “The oversight mechanism being created is not through an act of Parliament and vests a high amount of government discretion with a body principally composed of civil servants with a lot of power — from issuing censures to even directing the blocking of a specific web page containing a particular news item, or an entire website, or a page itself on a social media platform of an online digital news media entity or an individual.”