Introduction of New OTT Rules

The Government has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘OTT Rules’) to regulate intermediaries, over-the-top content players, and digital news media organisations in light of concerns regarding the publishing of objectionable content on such platforms. The OTT Rules were issued under the Information Technology Act, 2000 (‘IT Act’) and supersede the Information Technology (Intermediaries Guidelines) Rules, 2011 (‘Prior Rules’) which previously regulated intermediaries in India.

While the Prior Rules prescribed due diligence requirements for an intermediary to avail safe harbor provisions under the IT Act, the OTT Rules impose additional obligations on intermediaries (including social media intermediaries and significant social media intermediaries), to (i) implement a grievance redressal mechanism; (ii) periodically inform users of any changes to its privacy policy and terms of use; (iii) retain records of users for 180 days (as opposed to 90 days under the Prior Rules); (iv) provide information to Government agencies within 72 hours in cases where such assistance is sought; and (v) take measures to remove or disable access to content prohibited under the OTT Rules within 24 hours from the receipt of a complaint.

Further, significant social media intermediaries are required to appoint a (i) chief compliance officer; (ii) nodal contact person; and (iii) grievance officer for undertaking functions specified under the OTT Rules. A significant social media intermediary providing primarily messaging services will also be required to enable the identification of the first originator of the information on its computer resource, if required by a Court.

The OTT Rules also regulate digital media and prescribe a code of ethics along with classification standards to be followed by the publishers of news, current affairs and online curated content.

Further, the OTT Rules prescribe a three-tier structure which includes: (i) self regulation by the intermediary / publisher; (ii) regulation by a self-regulating body of the publishers; and (iii) regulation by an inter-departmental committee to exercise oversight, hear and examine grievances.

However, the OTT Rules do not clearly set out the consequences of failure in case of non-compliance with the provisions applicable to digital media.

The Delhi High Court has recently issued notice in a petition filed by a digital news portal challenging the OTT Rules. Further, the Supreme Court has observed that the OTT Rules are mere guidelines and do not provide for a satisfactory mechanism for prosecution.

Published In:Inter Alia - Quarterly Edition - March 2021 [ English Chinese japanese ]
Date: March 31, 2021