Creating a legitimate digital regulatory regime
There may be a range of immediate or proximate causes for regulating Over The Top (OTT) platforms and/or online news media — from fake news to hate speech; from content that hurts religious sentiments to pornography; from a plausible intent of creating level-playing fields to ensuring the protection of rights of children to national security.
However, such a cause has to manifest through appropriate channels or its very existence is bound to fail. And therein lies the key issue in Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Digital Media Code), which seeks to regulate two distinct types of publishers — OTT platforms carrying curated content and online news media — under a common regulatory framework.
It does seem reasonable when a government says it wants to apply a level-playing field between traditional media and online media. It seems more than fair when it says that it only wishes to regulate, and not restrict, and resorts to a predominantly self–regulatory mechanism. We also often end up having a misplaced belief in restrictions, under the guise of regulation, if sugar-coated with the promise of security.
The Digital Media Code fails to conform to, and, in fact, confounds, every settled constitutional mandate for lawmaking — the very obvious premise that law is to be made by the lawmakers i.e. the legislature and not the executive.
That fundamental rights come with restrictions is clear. But that does not give unfettered rights to even the legislature to invoke such restrictions. Even a law enacted by Parliament, to enforce a legitimate state aim, has to ensure proportionality, which has a “rational nexus between the objects and the means adopted to achieve them” (Puttaswamy v. UOI or Privacy Judgment, 2017). And such lawmaking cannot be usurped by the executive.
The Digital Media Code has been formulated rather speciously, under Section 87 (1) & (2)(z) & (zg) of the Information Technology Act, 2000 (as amended) (“IT Act”) i.e., the rulemaking power. Rule-making or subordinate legislations are intended to carry out the purpose of an enactment. Subordinate legislations have to stay within the boundaries of the parent provision, which has the imprimatur of the legislature. The Supreme Court’s caution that “a powerful executive may unduly overstep the limits of delegation” (Devi Das Gopal Krishnan v. State of Punjab, 1967) has come to pass in the formulation of the Code.
The above provisions relate to exemptions or protections to intermediaries and their duty to block content online pursuant to orders passed, as per due process. Neither provision can extend to non-intermediaries, which is what the publishers of curated content or news media would be classified under. That the Code itself carves out a separate category for intermediaries buttresses this assumption and makes it patently flawed.
Both entertainment and news are regulated for traditional media. To want similar regulations for online entertainment or news would not, in itself, be unfair or arbitrary. But clubbing both these together and regulating them on par is unsustainable. News, in particular, is not and cannot be subject to excessive legislation. Censorship, for instance, of news, is anathema to a democratic construct. That, in effect, is what invoking blocking rules, for regulating news achieves. And that is a further ground to sustain a strike down of the Digital Media Code through judicial review, for want of proportionality.
The raison d’etre
for the regulations i.e. of ensuring a level-playing field and several provisions for regulating OTT are welcome and follow global trends, including standardised age gating ratings and self-regulatory mechanisms. The methodology adapted is however irreparably flawed and unconstitutional.
Be it self-regulation or soft regulation, even oversight, if the same laws and regulations, as those applicable for traditional media, had been invoked, including delegated legislation, it would have been the right step forward.
To resort to subordinate legislation under a completely unrelated parliamentary law, using provisions that are inapplicable, undermines the core of the Constitution and is nothing more than a futile exercise bound to fail from its very inception.
From an industry perspective, it is imperative that proportionality replaces fury so that constructive suggestions are put forth to ensure that national and citizen interests are protected, in a constitutionally sustainable manner while protecting stakeholder interests. There is enough within the deeply flawed regulations that are essential for ensuring victim rights, particularly of women and children; protecting against the pandemic of fake news and hate speech; age gating and other acceptable standards that qualify as reasonable restrictions on free speech. There cannot be one-sided rhetoric either from the government or the naysayers. It is imperative that the good does not get thrown out with the bad and effective remedial action is mediated by all stakeholders.
There cannot be one-sided rhetoric either from the government or the naysayers. It is imperative that the good does not get thrown out with the bad and effective remedial action is mediated by all stakeholders.