KEY FEACHERS FROM GOVT.’S NEW GUIDELINES ON SOCIAL MEDIA AND OTT PLATFORMS

The Central Government has issued a set of new guidelines with a view to regulate social media, online streaming, and digital content platforms. The new guidelines aim to introduce a change in legislation to incorporate self-regulation mechanisms in giant IT companies like Facebook, Google, Twitter, etc. In a press conference held on Thursday 25.02.2021 the Union Minister Mr. Jai Shankar Prasad and Union Minister Mr. Prakash Javdekar briefed the media about new guidelines which regulate the social media, and OTT platforms. The Union Minister Mr. Prasad said that new rules will empower users of social media. It seeks to address peoples’ wide-ranging concerns while removing any misapprehension about curbing creativity and freedom of speech and expression. The new rules about digital media and OTT focus more on in-house and self-regulation mechanisms whereby a robust grievance redressal mechanism has been provided while upholding journalistic and creative freedom. 

1. Power of Central Government under 69A of The Information Technology Act, 2000 Section 69A empowers the Government to issue directions for blocking public access of any information through any computer resource. The Govt. in the interest of sovereignty and integrity of India, defense of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, may direct any Govt. agency or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

The law empowers the government to prescribe the procedure and safeguards subject to which such blocking for access by the public may be carried out. The intermediary who fails to comply with the direction issued can be punished with imprisonment for a term which may extend to 7 years and shall also be liable to a fine. 2. Judicial Aspects In Shreya Singhal v. Union of India [2015] 5 SCC 1, the constitutionality of Section69A and the Blocking Rules, was challenged and upheld by the Court citing safeguards were adequate, narrowly constructed, and constitutional.

However, the Court stated that the Blocking Rules include both the right to be heard and the right to appeal. The orders must be in writing with an explanation and reason for the ban, allowing them to be challenged by writ petition, and allow for reasonable efforts to contact the originator of the content for a pre-decisional hearing. The compliance with the Court’s directions is still an illusion. The rules also provide an executive to keep the order confidential. There is no public record available to verify if any hearing has taken place as mandated under the Rules. It shall be noticed that Section69A is a narrowly drawn provision with several safeguards.

First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary to do so.

Secondly, such necessity is relatable only to some of the subjects set out in Article 19 (2).

Thirdly, the reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution. Similarly, in Ram Jethmalani v. Union of India, [2011] 13 taxmann.com 189/202 Taxman 115 (SC), the Court explained that the State had an obligation to disclose information to satisfy the right to remedy as established in Article 32 of India’s Constitution.

The Government must record separate reasons for banning each app in a fair and transparent manner. In Anuradha Bhasin v. Union of India, W.P.(Civil) No. 1031 of 2019, dated 10-1-2019, the Court while emphasizes the importance of the internet in trade and business held that the internet also plays a very important role in trade and commerce, and some businesses were completely dependent on the internet. Therefore, the freedom of trade and commerce by using the internet was also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6). 3.

Rationale and Justification for New Guidelines: These Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of any rights belonging to the users. In this direction, the following developments are noteworthy: The Supreme Court in suo-moto writ petition (Prajjawala case) vide order dated 11/12/2018 had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos, and sites in content hosting platforms and other applications. The Supreme Court vide order dated 24/09/2019 had directed the Ministry of Electronics and Information Technology to appraise the timeline in respect of completing the process of notifying the new rules.

There was a Calling Attention Motion on the misuse of social media and spread of fake news in the Rajya Sabha and the Minister had conveyed to the house on 26/07/2018, the resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law. He had conveyed this after repeated demands from the Members of the Parliament to take corrective measures