Is New Social Media Regulation Pre-Censorship of Online Content?

What is the real target of the gazette notification of 10 November, which brings digital audio-visual content, including films and web shows streamed on over-the-top (OTT) platforms, and news and current affairs on online platforms under the ambit of the ministry of information and broadcasting. Does the notification, amount to censorship of film content and does it also amount to pre-censorship of news published by web portals?

The Second Schedule of the Government of India (Allocation of Business) Rules has been amended to include some new entries, including “films and audio-visual programmes”, “news” and “current affairs” content, which fall within the ambit of digital/online media. This means that OTT platforms such as Netflix and Amazon Prime and online news portals have been brought under the control of the Ministry of Information and Broadcasting (MIB).

Other subjects under the purview of the MIB are broadcasting policy and administration, cable television policy, radio, Doordarshan, films, advertising and visual publicity, press, publications, research and reference etc. Now the rules have been notified to include digital/online media related entries as well.

How can “news” be viewed as “films”?

The “news and current affairs” content on online platforms should have been put under the “press” sub-category, but it has been placed under head “films” instead. Is this a mischievous step or a mistaken inclusion?

The Constitution of India authorised pre-censorship of “films”. Yet, the “pre-censorship” of news content amounts to suppression of freedom of speech and expression and makes the press, or media, totally dependent upon the executive wing of government. This is what had been done during the infamous years of Emergency.

The government simply used the Second Schedule of the Allocation of Business Rules, under the heading “Ministry of I&B” to issue a notification on 10 November, that says that “films and audio visual programmes made available by online content providers” and “news and current affairs content on online platforms” would be brought under the I&B Ministry. This move of the Centre has invited criticism from media experts for it could have far-reaching consequences not only on creative expression but on political speeches. An I&B spokesperson claimed that the notification was an attempt to create a “level playing field”, since all other media are regulated.

The digital media industry has also expressed apprehension over possible censorship of political views online. Digital media promoters termed the new notification an attempt by the government to censor content that it may consider “unpalatable”. Some also pointed out that the Information Technology Act already applies to digital media. Madhu Trehan of Newslaundry said, “Censorship and controls smack of colonial elitism where the ruling power doesn’t trust the public because they know what is good for us and we don’t.”

Poonam Agarwal, editor, investigations, TheQuint, said: “This move is a step towards censorship of online news platforms. The government is doing this because some online news portals criticise government policies”. Siddharth Varadarajan, founding editor of TheWire, said, “The underlying impulse of involving the I&B ministry is to introduce special rules to hinder digital media, which has so far bucked the trend in print and TV spaces of giving the government a free ride.” Press Council of India chairperson Justice C K Prasad said, “We are of the view the content should be looked after by a statutory independent body.” Dushyantt Kohli, chief operating officer of Khabri, a digital audio platform, said he was hopeful the growth of the industry would be supported and not impeded. Cyber law expert Pavan Duggal said, “The government must lean in the direction of enabling regulation and ensure such regulations do not tantamount to arbitrary misuse of powers. The golden balance is what the government needs to search for and attain....”

Existing regulations

The Cable Television Network Rules, 1994, (CTNR) governs television programs through the Programming and Advertising Code. The content of cinematographic films is censored under the Cinematograph Act, 1952. General provisions of the law including the Indian Penal Code (IPC), Contempt of Courts Act and Parliamentary Privileges cover the print media content too.

A Public Interest Litigation (PIL) before the Supreme Court had sought the Centre’s response to regulating OTT platforms. In a case about the content aired on Sudarshan TV, the court expressed concern over web-based digital media regulation. The Centre had, during the course of the Sudarshan petition, highlighted the lack of regulation on the web based digital media. The Centre had made the representation that it was necessary to lay down guidelines for “web-based digital media”, which includes “web magazines” and “web-based news channels” and online “newspapers” as they have very wide reach and are “uncontrolled”.

In September, 15 OTT platforms (Netflix, Amazon Prime Video, Disney+ Hotstar, ALTBalaji, ZEE5, Arre, Discovery+, Eros Now, Flickstree, Hoichoi, Hungama, MX Player, Shemaroo, VOOT and Jio Cinema) had come together under the Internet and Mobile Association of India or IAMAI and signed a code of self-regulation to formulate a framework for age classification, “appropriate content” descriptions and access control. MIB rejected the code and asked IAMAI to consider other mechanisms for independent monitoring, such as the Digital Curated Content Complaints Council (DCCC) along with enumeration of prohibited content.

Electronic communication is regulated all over the world. For instance, in the United States the Federal Communications Commission, an independent government agency, regulates radio, television, wire, satellite and cable communications. Though the United States has sophisticated regulations for the Internet, as per free speech principles laid down in the First Amendment, it has minimal content regulation. China, Singapore and South Korea have Internet-specific censorship laws.

Now the Indian government has strongly taken an initiative to control that segment of the media which refuses to toe the line. In India, social media platforms are not dependent upon the licensing for up- or down-linking of networks. Most entities have been not registered in India either. Hence, any entry-barrier for digital platforms is a big challenge.

With the pandemic looming large, the cinema Industry is gradually adopting OTT platforms. In recent times, movies like Mirzapur, Sacred Games and others drew some flak for their “explicit content”. Some content creators say web titles draw their charm from being realistic, or rustic, and unapologetic. India’s theatre business has long bowed before the diktats of the Censor Board, while the Indian Broadcasting Foundation and the Broadcasting Content Complaints Council have regulated TV content. (At present, the Press Council of India or PCI regulates print media, the News Broadcasters Association or NBA monitors news channels, the Advertising Standards Council of India ASCI controls advertising content, while the Central Board of Film Certification CBFC looks into films.)

Last year, the government capped foreign direct investment (FDI) in digital media at 26%. Last month, through a clarification, it added that a majority of directors on the board of a digital news platform, and its chief executive officer, should be Indian citizens. Also, foreigners deployed by them for over 60 days would need security clearance.

What happened to the High-Power Committee?

On 2 April 2018, in the name of curbing fake news, the Minister for I&B at the time, Smriti Irani, issued a circular which was seen more as an attempt to muzzle the press. The order envisaged suspending a journalist’s accreditation on the basis of complaints regarding his or her work. Prime Minister Narendra Modi has ordered the Irani to withdraw that circular in response to mounting criticism.

Thereafter, another official “order” was issued by the ministry on 4 April, constituting a 10-member high-level committee comprising secretaries of the MIB, electronics and IT, home and legal affairs and the Department of Industrial Policy and Promotion to “delineate the sphere of online information dissemination which needs to be brought under regulation, on the lines applicable for print and electronic media”.

The committee would also “recommend appropriate policy formulation” for online media and news portal and online content platforms including digital broadcasting, which encompasses entertainment, infotainment and news aggregators, keeping in mind FDI norms, the programme and advertising code for TV channels, the norms circulated by the PCI, the code of ethics framed by the NBA and norms prescribed by IBF (Indian Broadcasting Federation). Its other term of reference is to analyse international regulatory mechanisms and incorporate best practices.

The order explained that while TV channels are required to adhere to the programme and advertising codes in the CTNR Act, 1995, which has a “well-settled mechanism” to deal with violations, and that the PCI has norms to regulate print media, “there are no norms or guidelines to regulate online media websites and news portals including digital broadcasting”. Therefore, the committee would frame and suggest a regulatory framework for online media/news portals and so on, but it is not known whether this committee has submitted report or not.

Journalists protest

In May 2018, the Centre tried to extend the broadcast media regulations to social media and digital media platforms. Then, over a hundred journalists and professionals working in online media wrote to the I&B minister opposing the proposal. They were concerned that licensing and content regulation could drastically impact the digital medium, which has widened the scope of freedom of speech and expression and strengthened democratic societies.

A digital media professional has urged the government to consider the approach of other democracies in dealing with online content. “Any hasty action by the government will likely result in overreach, therefore, we believe the starting point for the government should be to study the global best practices for online content regulation...”’ On the point that there are no existing regulatory norms, the letter said, “Even a cursory reading of the IT Act would reveal that all content is covered under its scope. The Act....[also] incorporates stiff punishments for [violations]. Similarly, several other laws, such as the IPC, also contain clear dos and donts for sharing content, including over the Internet. Therefore, to say that there are no norms and guidelines for content online is contrary to facts.”

Condemning the statement of the ministry that online content needs to be regulated just like print and electronic media, the letter stated, “...online content is different from print and television content, because most of it is produced by individual citizens in exercise of their constitutional right to freedom of expression, and embodies two way communication and interactivity, and not just publishing... Much of online content is...protected by Article 19... an individual has the same right to free speech and expression whether by word of mouth, writing, printing, pictures or any other mode. Therefore, restrictions that do not apply to offline speech cannot be used to control online speech either.”

The journalists finally opposed additional regulations on Internet content saying that could raise the possibility of “widespread abuse and attempts to suppress political dissent” by the government or its regulating agencies.

Information and communications technologies have made it possible for the media to do and say what governments don’t want them to—often this means that they simply facilitate multiple voices, dissent, criticism, alternative opinions, doing what the political Opposition fails to do, debating people’s issues, which are often not possible to do in traditional constitutional platforms, or are simply proscribed by the huge spread of partisan news on the traditional print and electronica media platforms. Today, social media platforms represent a certain freedom of voice. Partial and pro-government media are losing credibility, while thousands of social media platforms are exposing the bankruptcy of state policies, without fear, despite abuse of power, including charges of sedition and contempt of courts.

The space for this freedom will shrink if the notification is used with an iron hand by ruling parties at the Centre or states. Continuous bashing of social media in the traditional media is nothing but their way to prepare a backdrop against which draconian laws can be framed to curb social media voices. The media and political parties have to understand this hidden agenda and resist the invention of regulatory powers beyond Constitutional limits and prevent their possible misuse.

The writer is a former Central Information Commissioner. The views are personal.