Analysis of Recent Amendments made in Allocation of Business Rules, 2020: With respect to Digital Media.

Introduction

We all know that media has the power to influence public perceptions. Since time immemorial we have seen that the power of media across the globe no matter, the medium of transforming ideas is offline or virtual. The changing times warrant a revision of the changing ideas of media and technology. As we see today there is a wide range of platforms on digital world itself which seeks to provide its viewers what they want to consume. The new Video-On-Demand came into being, which provides for the freedom to the consumers to please their minds.

digital media

[Image Sources : Shutterstock]

Gone are the days when people used to wait for their favourite shows for weeks, months with limited options provided during that point of time. OTT or Over The Top Platforms are such platform/service that is offering viewers access to movies, TV shows as well as other media. The highlight of these type of services is that these service providers give access to viewers directly through the internet, bypassing cable or satellite. These are more often in regulatory context termed as “publishers of online curated content”. The viewers can at any point of time can access whatever content they wish to watch directly transmitted in electronic form in various devices.

The Notification: Recently, in a sudden move, under “Article 77 of the Constitution of India” the President amended the “Government of India (Allocation of Business Rules), 1961” included the “digital/online media as well as news and current affairs content on online platform into the ambit of the Ministry of Information and Broadcasting”.[i]

“Government of India (Allocation of Business) Rules, 1961”

The President exercises his functions and powers through “Article 77(3) of the Constitution of India”. It states that all the executive actions of the “Government of India” shall be taken in the name of the President. The “Allocation of Business rules”, under the prevalence of “Article 77 (3) of the Constitution” is subjected to the amendments and supersession of all the previous rules and orders by the President. The same is done on the advice of the Council of Ministers. These rules allocate and distribute the business amongst the ministers under various Ministries, Departments, Secretariats and Offices.[ii] Subjects are distributed among such departments including all the PSUs, and subordinate offices.[iii]

Ministry of Information and Broadcasting.

The ministry undertakes the functions in all the matters with respect to Radio and Television broadcasting, press, advertising and visual publicity, publications, films, etc. It also regulates the use of AIR (All India Radio) and Doordarshan. There are regulatory bodies for different broadcasting mediums in place under specific acts including “Cable Television Networks (Regulation) Act, 1995”; “Broadcast Monitoring and Administration of the Prasar Bharati Act, 1990”; “Administration of the Press Council Act, 1978”. There are also other sub-ordinate organizations/bodies in place attached in these rules, some of them are:

  • PIB – Press Information Bureau
  • CBFC – “Central Board of Film Certification”
  • “National Film Archives of India”.
  • All India Radio
  • Doordarshan, etc.

Some of the autonomous organizations are also established in the rules like Indian Institute of Mass Communication, Press Council of India, etc. where the chairman is accountable to the Council and not to the Government and the same will be self-regulatory body.

The need of such move!

As per the definition, clause provided under Section 1(i) “which defines digital content as ‘digital media’ means digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by”:

  1. “An Intermediary
  2. A publisher of news and current affairs content or publisher of online curated content.”[iv]

As of now, there is no law or any autonomous committee which governs the content displayed digitally in the country. In 2020, while hearing a plea forwarded by Adv. Shashank Shekhar Jha and Apurva Arhatia, wherein a formation of a board for regulation and monitoring of content on OTT/ streaming and digital media platforms was been seek. Since there was no code of conduct been in existence for such platforms, a notice was issued by the “Hon’ble Supreme Court to the Ministry of Information and Broadcasting and the Internet and Mobile Association of India regarding the same”.

Earlier in 2018, the “Ministry of Information and Broadcasting” passed an order to form a committee consisting of 10-members, wherein the function of such committee would be framing and suggesting a regulatory framework for online media/news portals. Applicable to those which include entertainment/infotainment sites, digital broadcasting as well as media aggregators. However, the committee got disbanded in July 2018 and was overseen by the panel established under the MEITY.[v] In 2019, the “Code of Best Practices for Online Curated Content Providers” was released by IAMAI. This particular code was a way towards promoting self-regulation mechanism wherein the online providers needed to classify their content in different categories in order to abide by the transparent disclosure system. In order to protect the minors, it was provided under the code to display disclaimers before every age-inappropriate content.  The code also seeks for redressal mechanism for the consumers whereby an individual or a team was appointed to redress consumer oriented issues.

Later in 2020 the IAMAI had introduced the 2nd tier of this code.[vi] The earlier code was signed by some major OTT players like Netflix, Hotstar, Eros, etc. however, the same could not be done with the 2nd tier of the code mentioning lack of adequate consultation and consensus. Resulting to which a revised code was been formulated in consultation with OTT players this time. It was during this entire process, the president of India had amended the Government of India (Allocation of Business Rules), 1961 included the digital/online media as well as news and current affairs content on online platform into the ambit of the Ministry of Information and Broadcasting

The idea behind this was that, all the content were to be regulated under Ministry of Information and Broadcasting and Platform and platforms to be regularised by Ministry of IT. The role of the ministry would be of a facilitator which will make sure that the freedom of expression provided under Article 19 shall not be curtailed.[vii] CBFC and other film and television bodies regulate the public content in India, and it did not covered the online streaming platforms under its purview. The general understanding of such provision to be implemented is to check whether the platforms are publishing any content which is prohibited by the law or is in contravention to public policy. To avoid the consequences of displaying explicit content to the people of all ages, due diligence and caution will have to be put to ensure that such content is not affecting the sovereignty or integrity of India.

As rightly pointed out by the secretary of “Ministry of Information and Broadcasting” Amit Khare in the “Confederation of Indian Industry’s Big Picture Summit” that the content displayed online and offline should have at least some form of resemblance in order to collect all the content under one bracket. Placing the content is different from placing the platform, since the content seeks to reflect the creation and management of the same to figure out what one is communicating, how is it been communicated, and who are the audience you are communicating it to? While on the other side, the platform seeks to deal with where the content has been displayed. This is the reason why both of these are been given to different ministries, managing the platforms are more technical in nature hence, been put under the ambit of Ministry of IT while the content has to be governed under MIB.

Conclusion

Without a doubt, the Ministry faces a monumental task, one that encompasses not only the introduction of new legislation, but also its implementation and enforcement, which would present a greater challenge due to the involvement of a wide range of interested parties. Since these are just the policies and regulations in place, this Self-regulatory Code still lacks the proper implementation and execution of such guidelines.

There is still a lot of room for interpretation when it comes to how these repercussions will play out for intermediaries, platforms, and content creators. The aforementioned stakeholders, along with the rest of the “binge-watching” community, is currently awaiting the regulations that the government may bring regarding the manner in which their content is to be regulated; however, all signs seem to be a precursor to regulation and interference through heavy legislation.

To bring OTT content under its purview, the I&B ministry contacted the “Ministry of Electronics and Information Technology” (MEITY) to inquire about the possibility of having MEITY transfer regulatory authority over websites to the I&B ministry without having to amend the IT Ministry’s remitting Information Technology Act, 2000. It was intended to clarify roles by giving MEITY responsibility for metadata, personal data, and non-personal data, and giving the MIB legislative authority over content-related issues across all platforms. The MIB’s ability to negotiate with OTT platforms, many of which previously believed the ministry lacked the legislative power to control them, will also be strengthened by this.

Author: Apoorva Sharma, Narsee Monjee Institute of Management Studies (NMIMS) School of Law Navi Mumbai, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFRENCES

  • A Review on IT Rules 2021: A Positive or a Negative Restriction on Digital Media and OTT Platforms? https://www.livelaw.in/law-firms/law-firm-articles-/it-rules-2021-digital-media-ott-platforms-186065?infinitescroll=1
  • Takes The First Step Towards Regulating OTT Platforms In India. https://www.foxmandal.in/Insights/govt-takes-the-first-step-towards-regulating-ott-platforms-in-india/
  • The Government of India (Allocation of Business) Rules, 1961. https://cabsec.gov.in/writereaddata/allocationbusinessrule/completeaobrules/english/1_Upload_3190.pdf
  • Online news platforms, streaming services such as Netflix now under I & B ministry’s regulation. https://scroll.in/latest/978235/online-news-platforms-streaming-services-such-as-netflix-now-under-i-b-ministrys-regulation
  • Centre’s move to regulate OTT platforms was to bring content under one place, says I&B ministry. https://scroll.in/latest/981513/centres-move-to-regulate-ott-platforms-was-to-bring-content-under-one-place-says-i-b-ministry
  • to regulate OTT, online news platforms. https://www.hindustantimes.com/india-news/govt-to-regulate-ott-online-news-platforms/story-JGd9C2zEKHZ9Rgiug3d9XM.html
  • What is OTT platform? Which regulations govern it? https://www.business-standard.com/podcast/current-affairs/what-is-ott-platform-which-regulations-govern-it-122021500049_1.html
  • President Brings OTT Content Within The Ambit of I & B Ministry By Amending The GOI Allocation Of Business Rules, 1961. https://iprmentlaw.com/2020/11/11/breaking-president-brings-ott-content-within-the-ambit-of-ib-ministry-by-amending-the-goi-allocation-of-business-rules-1961-read-notification/
  • I&B Ministry to regulate OTT platforms, digital media now. https://economictimes.indiatimes.com/industry/media/entertainment/media/ib-ministry-to-regulate-ott-platforms-digital-media-now/articleshow/79181487.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
  • Regulation Of Content On OTT Platforms: Pros and Cons. https://www.iralr.in/post/regulation-of-content-on-ott-platforms-pros-and-cons

[i] Notification dated 9 November 2020 https://iprmentlaw.com/wp-content/uploads/2020/11/Notification-President.pdf

[ii] Schedule 1 of the Government of India (Allocation of Business) Rules, 1961.

[iii] Schedule 2 of the Government of India (Allocation of Business) Rules, 1961.

[iv] Information Technology Rules, 2021.

[v] Ministry of Electronics and Information Technology.

[vi] Self-Regulation for Online Curated Content Providers, 2020.

[vii] Constitution of India.

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