Naavi.org

An interesting question has been raised by the Indian Corporate sector regarding the applicability of the new Intermediary Guideline to the corporate interaction platforms such as Zoom/Goto Meeting/webex/Google or Team other companies facilitating streaming of content and messaging among users and also the public at large.

A doubt has arisen that given that with more than 5 million users registered with such platforms, will this makes them significant social media intermediaries and whether they  will need to moderate content effectively and have rules in place for moderation.

It is also indicated that the platforms  may not be able to exercise control as in the case of the  attack in Christchurch, in March 2019, which was live streamed on Facebook though after the event,  FaceBook tightened rules for live streaming .

After this incident, 31 countries and several tech companies came together to form a pledge called the “Christchurch call”  initiative.  India also is a signatory. It is believed that Zoom has also joined this pledge  in 2020.

Since  Microsoft Teams and other technologies are also in use in schools for online education, the need to have moderation of live streaming is also relevant in certain circumstances.

The Christchurch call for action was an initiative which which included voluntary commitments from Governments and online service provdiers intended to address the issue of terrorist and violent extremist content online and to prevent the abuse of the internet.

We must remember that all terrorist activities are also considered freedom movements or religious commitments by the section of people who are called terrorists. Hence there will always be differences of opinion whether an act is “Terrorism” or “Religious Action”. In between these two extremes there will be the “Freedom of Speech” protagonists some of whom have a leaning on one of these sides or their own political agenda to try and create mis representative narratives. It is this mis representation from the digital media that this Intermediary rules try to addrss.

As regard live streaming, it is news and it is the journalist who has to show maturity and  discretion. It is also part of the fact which the reporter may not know and hence some events may get broadcast unknowingly.

What needs to be regulated however is the “Conspiracy” and “Planning” to commit a terrorist activity. The Disha Ravi incident in which it is reported that a Zoom meeting was held to discuss the “Terror Plan” is an example of what may have to be regulated.

However, in such cases, it is difficult to blame the intermediary except if the title of the meeting gave any clear indication about the intention. We have discussed this in the past in the case of Bazee.com case whether the title “DPS MMS Video” which was the video sought to be sold in the platform which was the “Obscene” content on the basis of which action was taken against the executives of Bazee.com under Section 79. (2004-2008)

See here for more details on bazee.com case

Under the laws Intermediary is defined in Section 2(w) of the Act and the streaming service provider may come under this definition. However, their “Due Diligence” is in ensuring that a proper Privacy Policy and Terms are provided for the guidance of the user and ensuring that the identity of the owner of a streaming video can be shared with the law enforcement. They may not do a KYC but should be able to collect both declared information such as the e-mail address and physical address but also the meta data such as the IP address at the time of registration.

The 180 days data retention rule may also be applicable to the platforms.

However, the streaming video publishers are like the You Tube. They are the platform used by the other publishers. In the case of You Tube, they become the “Curated Content Publishers”. But the Zoom and others donot “Publish” subsequently and hence donot become the “Media”.

At best the role of Zoom etc will be like a CCTV camera which faithfully captures and broadcasts to the server and may capture events which need to be regulated. But here the platform is a “Pure intermediary” like an ISP and hence the “Social Media” responsibilities donot adhere to them.

The platforms Zoom etc therefore need not to be worried about the new Intermediary guidelines. Also sharing such Videos or content within a community of employees etc may not come under the definition of “Publication”  since no “Public” is involved. Hence the entire set of responsibilities donot apply to the Companies. However, if the content is leaked out to the outside world and creates problems (eg when Whats App messages are forwarded to outside of the original group) the person who was responsible for making a controversial content public should bear the responsibility and the company should be in a position to identify such a person through the meta information about viewing, recording and downloading etc.

(This debate may continue.. Comments are welcome)

Naavi

On 25th February 2021, the Government of India notified a landmark set of rules under Section 79 of Information Technology Act 2000 (ITA 2000) called the Information Technology (Intermediary Guidelines and Digital Media ethics Code) Rules 2021.

Since the regulation is against the “Digital Media” it is a sensitive regulation which will definitely be opposed by the media and the Government would have to face the allegation that this in attempt to muzzle the Press.

We already have the Maharashtra Police under the Shivasena Government behaving like a mafia against the Republic TV, Ms Kangana Raut, a Retired Naval Officer, the BARC officials etc completely discrediting the police force in the entire country by misapplying law to serve political masters. In 2012 it was again the Maharashtra Police who arrested two girls from Palghar which eventually led to the scrapping of Section 66A.

Now a Manipur Magistrate appears to have committed a blunder which will discredit the new notification and strengthen the voice of the opponents that the notification can be misused and hence should be scrapped. It is possible that just as in the case of Section 66A, even the Supreme Court did not identify that the Palghar girl’s arrest was not because of the Section 66A being anti constitutional but because the local police made the mistake of invoking the section when it did not apply to the given context. The fact that all Courts including the Magistrate’s court which committed the two girls to judicial custody for 15 days, the Mumbai High Court and also the Supreme Court failed to recognize that Section 66A applied to “Messages” and not to “Publications” like Facebook or Twitter and proceed to scrap it ostensibly to uphold freedom of expression.

The Manipur magistrate’s order which is reproduced below indicates that the Magistrate has failed to appreciate the objective of Section 79 of ITA 2000 and the subject notification.

The Wire.in has promptly highlighted the issue of the notice .

Though it appears that the notice was subsequently withdrawn, it is clear that the Magistrate had not applied his mind before issuing the order.

It must be realized that Section 79 of ITA 2000 is not an independent penal section of ITA 2000 and no body can be punished or fined solely for being in violation of Section 79 or its rules. Section 79 is a Safe harbor section which says that if an Intermediary has committed any offence, it can claim protection as provided in the Section 79 and the rules.

Hence the notice is ultra-vires the powers of the Magistrate and it had no value. Withdrawal of the notice was therefore correct and meant to limit the damage to the publication to which the notice was issued but cannot prevent the damage to the reputation of the lower judiciary.

The publication has rightly indicated that it may take legal action against the Police and the DM for harassment.  A similar action against the Maharashtra Police is long overdue and this case may trigger similar action against the Shivasena Police also.

This is however not a Section 79 issue or the issue that the notification is curbing the “Freedom of Speech”. The issue is that our Police and the lower Judiciary donot know the law correctly and mis apply the law routinely. Action should therefore be taken against those who are responsible for educating the magistrates, the Police and the Public Prosecutors.

This education also has to happen through the media only. Hopefully the journalists will understand the law properly and ensure that mis-information is not spread on what the law is not.

Naavi

The Government of India is trying to fight the Information war with the Twitter which had started the Greta-Disha Attack on the Integrity and sovereignty of India. It was unfortunate that the ASJ hearing the bail pleas of Disha Ravi did not consider the organized campaign culminating in the attack on Red Fort as not a “Conspiracy” even at the prima facie level and let the accused free. This may result in the continuation of the assault with greater vigour in the coming days.  The situation is similar to what the Indian army might have faced in 1962 in the Chinese front with Jawaharlal Nehru holding the Indian army back and subsequently in the J&K front before the current regime showed the courage to fight the enemy with tact and force.

In a bid to defend the Information border of India, the Ministry of IT and I&B jointly have launched an operation to bring some regulations on the digital media which can rightly be called similar to the surgical strike of the Indian army on terrorist hide outs. Just as the surgical strike of the army was a controlled attack on specific elements and did not escalate into a war, this Information counter war fare is also a selective counter attack which was necessary and has to be controlled with checks and balances so that it does not get misused.

In the current context in India we are not surprised that every  major decision of the Government will be questioned in the Supreme Court and we have reached a situation where we will not be surprised if some body files a PIL on why Mr Modi took Covaxin dose and publicized it.

The so called “Media” has become so irresponsible and biased that they are inviting this type of regulation. The way Twitter management refused to honour the directions of the Government of India was an alarming sign which could not be ignored by any self respecting nation.

If the Government does not take action now, just as the opposition cried that the Government had ceded land to China along the LAC and the media was harping on such unimaginative narrative, the Government would have been termed weak.

Now that the notification has been finally issued a new war of words have started with one  part of the media raising their campaign that the notification is anti democratic etc. Contrary to what some journalists are complaining this notification for “Intermediary Regulation” which includes the tracing of the origin of a message was proposed in December 2018 itself and put in back burner because the Government did not have the courage to take on the criticisms. The Media regulation part may be new but it is just a replication of the print and TV regulation into the digital media regulation. Hence there should be no reason to say that this notification was done secretly. The Twitter incident could have strengthened the resolve which was absent in the past.

We need to react positively

While Naavi.org has reacted to the notification with a service “Digital Media Compliance Guidance Center” to help small and medium digital media publications, the larger organizations may oppose even the “Self Regulation” and continue to fight for what they call Press Freedom which has today become “Freedom to sell news for money”.

Let us not forget that Greta Thunberg and Rihanna were allegedly paid large sums of money to post a few lines on Twitter and such supporters may have larger funds to support the friendly journalists who can sell their souls. The OTT platforms have been using soft and hard pornography without any control besides using content in motivated serials and films to meet nefarious designs which are anti national.

The media as we see today is no longer the “Free and Fearless Ramnath Goenka Indian Express of the Emergency times”.  It is a commercial organization which makes money by advertisements and soft porn besides paid articles and even editorials. This tendency is seen more in Digital Media though it started from the Print and TV media. The Print and TV media already have regulations and what has now happenned now is that a similar regulatory system has been proposed even for the Digital Media where it is more required.  However some part of the media which is used to commercialization of news are perturbed that now they will be accountable for what they publish in the digital media.

The Hindu has come up with its long editorial and the senior journalist Mr Shekar Gupta in his You  Tube channel made an extensive reference to it in one of his recent publications. Others have come up with their own criticisms, some of which are indexed here.

These channels did not raise their voice when Naavi.org pointed out how You Tube was blocking Praveen Mohan because they thought he was posting content about “Temples” or the “String” channel which posted a critical video on George Soros and exposed the conspiracy of the Twitter-Disha-Greta-Rihanna gang.

Hindu has long converted itself into an Anti-Hindu Propaganda vehicle and it cannot be expected to react to the Praveen Mohan or String channels. But Shekar Gupta is more balanced in his channel and I would like to see if he can react even now on the YouTube hypocrisy in blocking Praveen Mohan and String.

Let me take a few of the points raised in some of these critical articles and give my perspective.

Neither the Hindu nor Mr Shekar Gupta can oppose the introduction of “Code of Ethics” or “Self Regulation”. Hindu concedes “While there is not much that is wrong with the Code of Ethics per se, ” but introduces the “Yes, But Game” by stating “what is problematic is that it will take little to bring this regulatory mechanism to vicious life.”

This speculation is fine and all of us have to move to ensure that this is not misused by any Government more so if a Government of the type we have in Maharashtra is in power. But Hindu has to be non partisan to be able to make comments of this nature since it has lost trust as an independent journal.

The rules want a “Grievance Redressal Mechanism” to be put in place which is similar to the current practice of some media having “Ombudsman”. There is a Press Council already and Cable TV regulations which have been accepted by the industry. Then it is difficult to understand  this ” Kolaveri”  when it comes to Internet media.

Hindu says that the new rules have increased compliance burden for social media platforms. So What?.. After GDPR came in was there no increased compliance burden on the industry because of “Privacy”? Now after the PDPA India will there not be an increased compliance burden on the data processing industry?… Should they complain that it is not the responsibility of the commercial IT industry to protect the human right of “Privacy”?. Why should there be a special privilege to the Media?…after they have become paid stooges of international Information terrorists?

Mr Shekar Gupta was largely balanced in his views but still had a complaint about the Level III regulatory mechanism involving the Oversight system at the ministry level.

But this Level III mechanism comes only after the failure of the Level I which is entirely under the control of the publisher and Level II which is a self regulating body set up by the industry itself. Under Level III, there would be an Authorized officer and a Committee to “Recommend to the I&B Secretary”. Finally if it is considered necessary and expedient, an action can be initiated which of course would be subject to judicial oversight as well.

Today there are many advocates who are willing to take up PIL for trivial issues and there would be no dearth of legal support to the journalists who may be unfairly charged by the Government.

It must be also remembered that the powers which result in removal of content is basically vested with the Judiciary and where it is used by the Authorized officer or the Government, it is only in cases where exceptions are available under article 19(2) and some Child abuse and Obscenity issues.

Hence the objections of the media are knee jerk reactions and should not disturb the Government. The Supreme Court will eventually adjudicate on this issue and at that time, it should not be swayed by the “Media Pressure” and act independently in the interest of the Indian public.

This debate will continue. But we are looking forward to the notification of the Authorized official and the procedure for setting up of the Self Regulatory body-Level II. Naavi.org would invite the responsible digital media to support the move of this regulation since it will help serious professional journalists to stay in the field and weed out fly by night operators.

Naavi is organizing awareness programs to enable small and individual journalists to organize themselves and remain compliant. One such webinars will be held on 3rd March 2021 as part of the Jnaana Vardhini Program of FDPPI.  Any group of Journalists interested in availing this opportunity may contact Naavi.

Naavi

The Hindu: A wolf in watchdog’s clothing” Hindu

New Government rules for OTT Content….Shekar Gupta 

Scroll.in: Why India’s new rules for social media, news sites are anti-democratic, unconstitutional

With the notification of the new Intermediary Guidelines 2021 (Information Technology [Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021] notified on 25th February 2021, the Digital Publication scenario in India has changed substantially.

It will take some time for the full impact of this Surgical strike by the joint operations of the Ministries of IT and I&B to sink in to the industry.

The changes will affect all the large Intermediaries like Twitter, FaceBook, YouTube, WhatsApp, Telegram etc., the emerging Indian companies like Koo, Tooter, Arattai, as well as a number of YouTube Channels such as Shekar Gupta’s Channel , The News Minute  or other similar channels. The OTT Channels such as HotStar, ZeeTV, JioTV etc will all be coming within the provisions of the guidelines.

The compliance requirements in principle applies to any digital publication which has News content and therefore applicable to many blogs though by virtue of a smaller exposure they may not be coming directly under the definition of the “Significant Social Media Intermediary” or a “Publisher”.

The compliance requirements are not simple and will also need to incorporate a Grievance Redressal Mechanism.

Naavi has been operating the ODRGLOBAL.IN which is an online grievance redressal system and is ideally suited to be adopted for the requirements of this type. Naavi has also been engaged in ITA 2008 compliance as well as Personal Data Protection Compliance (GDPR, Indian PDPA etc).

Recognizing the needs of the Digital Media Publishers, Naavi has launched a new service namely “Digital Media Compliance Guidance Center” (DMCGC).

DMCGC will provide compliance consultancy to enable organizations maintaining news websites and news apps to maintain compliance as envisaged under the rules.

Non Compliance of the Intermediary guidelines would be like exposing the media organization to a volley of AK 47 bullets without as much of even a shirt to wear on, let alone a bullet proof vest.

The service would be provided through Ujvala Consultants Private Limited the Techno Legal compliance consultancy company.

Interested persons may contact Naavi through e-mail

Naavi

(More information will follow)

ICANN has announced that it has terminated the license given to Net4India as a domain name registrar.

The announcement  states

Quote

“LOS ANGELES – 26 February 2021 – Today, the Internet Corporation for Assigned Names and Numbers (ICANN) announced the termination of the Registrar Accreditation Agreement (RAA) with Net 4 India Limited as a result of its failure to cure multiple breaches of the RAA”

UNQUOTE

The detailed notification is available here.

ICANN has also indicated a domain name transition process as follows:

Domain Name Transition Process

To protect domain name registrants, ICANN will follow the De-Accredited Registrar Transition Procedure to commence the domain name transition process and will solicit bids for a qualified ICANN-accredited registrar to manage the domain names currently managed by Net 4 India.
ICANN reserves all of its rights under the RAA. Please note the rights and obligations required to continue in effect after the expiration of the RAA, including but not limited to:

Sections

3.4 : Retention of Registered Name Holder and Registration Data;

3.9 Accreditation Fees;

5.8: Resolution of Disputes Under this Agreement; and

5.9 Limitations on Monetary Remedies for Violations of this Agreement.

Net 4 India has current and past due accreditation fees for the total outstanding amount of
US$4,142.64. Please immediately submit payment to ICANN Accounting.

This does not include accrued fees for the period of 1 January 2021 through 14 October 2021 that become billable upon termination and once all transactions have been reported. Additionally, Net 4 India will be invoiced for the remainder of the yearly fees owed to ICANN and any variable fees corresponding to transactions reported through 13 March 2021.

All these fees are required to be paid to ICANN pursuant to Section 3.9 of the RAA.

If you have questions or require assistance, please contact Leticia Castillo at leticia.castillo@icann.org.

P.S: Ongoing requests are expected to be transferred in bulk to the transferee registrar if any.

Naavi

In December 2018, Government of India came up with a draft Intermediary guidelines under Section 79 of ITA 2000/8.

Some of the articles written at that time are available below in this link

Most of the points discussed at that time (Refer article Meity Needs to take assistance of techno legal experts on Section 79)are relevant even today.

Now the Government has come up with a new guideline with effect from today. We shall only focus on discussing some new thoughts that are included in this guideline.

The 2018 version of the guideline was  prompted by the issues surrounding WhatsApp being used for spreading fake news and social disharmony. At that time Government wanted to ensure that the origin of messages in WhatsApp should be traceable. However as usual there was an opposition from the “Cyber Nay-Sayers” who shouted that the guidelines were unconstitutional etc and the MeitY developed a cold feet and kept the guideline under wraps.

Now that the Twitter saga has forced the hands of the Government, Meity has gathered some courage and also took the assistance of the I & B Ministry to draft a new set of guidelines.  Some of these guidelines will also be part of the Personal Data Protection Act when passed.

The new issue that has been taken up now is the regulation of the OTT platform where serials and small screen films carrying content which is obscene, spreading disharmony in the country etc were being published without even a cursory censorship to which the cinematographic films are subjected to.

Hence this notification combines a regulation of the Digital media which could claim to be an “Intermediary” under ITA 2000/8 when it comes to avoiding liabilities. However, as Naavi.org has explained from time to time, many of the service providers cannot be considered as “Intermediaries” as defined under the ITA 2000 since they have ownership of the content.

One of the points the new regulation focusses is the creation of a three level regulation, first at the self regulatory level of the platform, then at the industry level and later at the Government level.

The notification is clear that the social media intermediary shall respond both to the Court order as well as the order from the Government for removal of content taking care that the directions of the Government shall be issued only for reasons stated in Article 19(2) of the Constitution as reasonable exceptions to the freedom of speech.

Hence the directions cannot be questioned in the Court of law as unconstitutional though it cannot be ruled out that the habitual PIL agents would file an objection in the Supreme Court stating that the Government may misuse the powers.

What is notable is the suggestion for a Central Grievance portal besides an industry level regulatory body like the Press Council. The intermediaries are also required to voluntarily submit a half yearly statements of grievances received and resolved at their end.

One of the provisions included in the PDPB 2019 namely providing an opportunity to the registered users of the significant social data intermediaries to verify themselves. Any digital news publisher with over 5 lakh subscribers or 50 lakh followers of the services will be required to notify some information about the organization to the Ministry of I &B.

Naavi.org welcomes the guidelines. What is missing however in the guideline is the penalty for not adhering to the guidelines. It is presumed that not being compliant with the guideline could lead to blocking of the service.

More details of the requirements are contained in the notification, a copy of which is available here.

Naavi

P.S: Notification on the threshold limit of 50 lakh registered users for a significant social media intermediary was issued separately as S.O. 942(E) (Dated 25th February 2021)