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November 19, 2020

Online Blog, Content & News shall now fall under Ministry of Information and Broadcasting

by CA Shivam Jaiswal in Compliance Law, Corporate Law

Online Blog, Content & News shall now fall under Ministry of Information and Broadcasting

The Centre recently issued an order for bringing online news portals and content providers under the Ministry of Information and Broadcasting.

The Ministry of Information and Broadcasting is one of the vital Ministries that represent the face of the government in reaching out to the masses. The Ministry is entrusted with the task of disseminating information about government policies, schemes and programmes through the different medium of mass communication covering radio, television, press, social media, printed publicity like booklets; posters, outdoor publicity including through traditional modes of communication such as dance, drama, folk recitals, puppet shows etc.

The Ministry is also the focal point as regards policy matters related to private broadcasting sector, administering of the public broadcasting service- Prasar Bharati, multi-media advertising and publicity of the policies and programmes of the Union Government, film promotion and certification and regulation of print media.

A gazette notification issued by President Ram Nath Kovind recently issued stated 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 heading “Ministry of Information and Broadcasting” in the Second Schedule of Government of India (Allocation of Business) Rules, 1961.

What led to this regulation?

The move to regulate online media was first initiated in March 2018, by then minister for I&B Smriti Irani. The following month, her ministry issued a circular saying that in order to fight the rise in fake news in print and electronic media, the government had decided that journalists who had complaints of creating/propagating fake news against them, would immediately have their press accreditation suspended.

Though the Prime Minister’s Office asked the ministry to withdraw this circular, it did not hide the fact that the thought process for curbing the freedom of online media had been set rolling.

A report by the Centre for Communication Governance (CCG) at the National Law University in Delhi had then revealed that online platforms are already heavily regulated.

The online space is governed by the Information Technology Act, 2000, some parts of which were struck down by courts as unconstitutional. However, the government is still empowered to block, filter and take down content online or even turn off internet access completely. These options have been excised regularly by the Indian government.

The CCG report said that though online media space (both news and non-news) seems like the Wild West in terms of the volume of content and the kind of transgressions which proliferate on the platform, Indian laws are already quite strict on the online space. Many punitive measures that were introduced by the UPA government have been taken forward by the NDA government, the report observed.

The report also pointed out that under Section 69A of the IT Act, online content can also be and is taken down entirely. Though this section too was challenged in court, it was upheld as constitutional. Usually, the report said, the process of issuing blocking orders is “opaque and the reasoning offered in orders is not subject to public scrutiny”.

In an affidavit that was signed by an under-secretary in the MIB, the Centre said sufficient framework and judicial pronouncements already existed with regard to electronic and print media. However, this was not the case with digital media, the affidavit said.

In October 2019, Reuters reported that the government was considering a law to censor streaming platforms like Netflix, Hotstar and Amazon Prime after several court cases and complaints were filed alleging that some content was “obscene or insulted religious sentiment”.

While the law did not come, four major players signed a self-regulation code in February this year, sparking concerns that the move is a precursor to self-censorship and “for online streaming to go down the path of TV”.

In July this year, the I&B Ministry had proposed bringing under its purview the content being streamed on such platforms. It had asked Ministry of Electronics and IT (MeitY) to identify ways for transfer of power so that it (I&B) could regulate online content without the need for any amendments to the Information Technology Act, 2000.

In September, the government had disapproved of the self-regulatory model proposed by the Internet and Mobile Association of India (IAMAI) for the OTT platforms in India. In a letter to IAMAI, the MIB had said that it will not be supporting the proposed model while suggesting that IAMAI take a cue from self-regulatory models of Broadcasting Content Complaints Council (BCCC) and News Broadcasting Standards Authority (NBSA).

It had also raised concerns about the lack of an independent third-party monitoring and a governing code of ethics of the model. It also informed IAMAI that the proposed mechanism does not clearly define prohibited content, and it also drew attention to the issue of conflict of interest at the second and third-tier level.

IAMAI’s proposed model had suggested a two-tier structure chaired by a retired judge of SC or HC, with the Digital Curated Content Complaints Council (DCCCC) acting at the second level.

The government also said that there’s no classification of the prohibited content and the advisory panel of the second tier comprises of Online Curated Content Providers(OCCPs) as opposed to an independent organisation like DCCP (which was proposed earlier). The ministry pointed out that the one independent member on the panel will therefore be in minority.

What will be the effect of the said notification?

Through this notification, the Ministry of I&B will get the power to regulate policies for over the top (OTT) platforms. It had earlier written to the Ministry of Electronics and IT (MeitY) about for transfer of control over the OTT platforms.

Earlier, the OTT content came under the preview of the Ministry of Electronics & Information Technology (MeitY). Henceforth, MIB will be regulating both TV as well as digital content. Similarly, online news portals were not covered under a regulatory framework, unlike their TV and print counterparts.

The Schedule under the Allocation of Business Rules 1961 has under the “Ministry of Information and Broadcasting”, nine major categories dealing with broadcasting policy and administration, cable television policy, radio, Doordarshan, films, advertising and visual publicity, press, publications, and research and reference.

Now, even the “news and current affairs content on online platforms’, has been added after entry 22, which falls under the sub-category of “Films” and not “Press”. In simple words, online news portals, online content providers shall now fall under the Ministry of Information and Broadcasting.  Sensor will now be applied on OTT platforms like Netflix, Hotstar, Amazon etc.

The move is seen as the first step to framing of content guidelines for OTT platforms on the lines of broadcasting.

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