Tl;dr
To assist in ongoing challenges to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, we reached out to the Oxford Pro Bono Publico (OPBP) - a research centre at the Oxford University Faculty of Law. We requested specific research on laws in other countries about the regulation of social media platforms, digital news media and OTT platforms. OPBP has published their research report in December 2021, about the laws in other jurisdictions.
Background
The Oxford Pro Bono Publico (OPBP) is a research centre where research is by law students of the Oxford University. OPBP provides pro bono legal research assistance, on international and comparative law, to those individuals and organisations who work on a pro bono basis. OPBP has produced more than 50 research project outputs across a huge range of jurisdictions and issues - from women’s inheritance rights in Botswana to India’s digital news media laws. In December 2021, on IFF’s request, OPBP published a report on the regulation of digital media and intermediaries in 7 countries.
Challenges to the Constitutionality of IT Rules in India
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) were issued by the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) in February, 2021. These Rules considerably increase government control and influence over social media platforms, over-the-top video content platforms (OTT Platforms), and digital news media. They are unconstitutional, undemocratic and significantly impact the lives of millions of Indians online.
The IT Rules, 2021 are also contentious. There are at least 17 challenges to the constitutional validity of the IT Rules, 2021 before 6-7 High Courts of India. IFF has provided legal representation to affected parties in 2 of these challenges - LiveLaw Media Pvt. Ltd. before the Kerala High Court and Mr. T. M. Krishna before the Madras High Court.
The Kerala High Court, in March 2021, ordered that no coercive action be taken against LiveLaw Media under the IT Rules, 2021. In September 2021, The Madras High Court affirmed a stay order passed by Bombay High Court on rules relating to digital news media and OTT Platforms. The Madras High Court also ordered that any action in respect of social media intermediaries will be subject to the final decision of the petition.
The Union Government has filed transfer petitions before the Supreme Court to consolidate all the numerous challenges pending before various High Courts. This petition has not been heard yet.
IFF reached out to OPBP for research assistance on IT Rules
In the context of these litigations, IFF requested OPBP to provide an international law perspective on how social media intermediaries, digital news platforms and OTT platforms are regulated in other countries and jurisdictions. Since the research is conducted by the researchers of Oxford University in a pro bono capacity with limited resources, we selected the following countries on which OPBP could focus the research: Argentina, Australia, Canada, Chile, European Union, Germany, United States of America. These countries were chosen to reflect geographic, historical, economic and political diversity to maintain fairness, and eliminate biases towards the outcome.
IFF also provided specific questions to OPBP to guide their research, and to ensure that the research focused towards the context of the IT Rules. We asked:
- What are the circumstances in which a social media intermediary and its officers may be held liable for content posted on its website/mobile app?
- Can the government order that content be removed, and if so in what circumstances, and what types of content?
- What is the nature of the content that a court can order to be taken down from a social media intermediary?
- What are the conditions in which intermediaries may be compelled to 'unmask' anonymous speakers and identify originators of content?
- In what circumstances, if any, may a government authority order that an online news item must be removed from any website?
- What are the tests or standards for determining whether an online news article/page needs to be removed?
- Is the order of a court/tribunal a prerequisite for removal of online content?
- How is the content hosted by over-the-top on-demand video streaming platforms (OTT platforms) regulated?
- In what circumstances, if any, may a government authority order that content hosted by an OTT platform must be modified, or removed from any website?
What did the report find?
In general, the regulation of social media, digital news media and OTT platforms is an emerging area, with countries across the world grappling with the need for regulation while also balancing free speech and expression concerns. In countries where specific regulatory tools designed for online platforms are absent, a patchwork of laws governing speech, media and information in the physical space have been extended to digital content. These may range from tort law, copyright law, regulation for publications and media to criminal laws prohibiting dissemination and/or publication of some kinds of content. The South American and European countries are also influenced by the regional human rights jurisprudence. Considering difficulties raised by extending these laws to different platforms, jurisdictions have increasingly been considering more targeted legislation. As this report was being written, laws in several jurisdictions remained in flux, with new laws being recently introduced or draft bills being considered.
In respect of social media platforms, the Report found that the cross-cutting themes that emerged related to - whether liability for content posted was linked to knowledge of the unlawful nature or illegality of content, whether procedures for the removal of such content were detailed, and specification of timelines for response in taking down of content. Majority of the jurisdictions that were examined impose liability based on knowledge of unlawfulness of content, with removable content often linked to their criminal code. With respect to liability, many of the cases largely fall under intellectual property violations and defamation laws. Special attention is paid across jurisdictions to certain categories of unlawful content such as pornography especially those involving minors, offences threatening state security like terrorism, and decency laws which often have expeditious timelines attached for removal.
The report found that removal or takedown of news media content is generally difficult in other countries, except in cases of copyright. In the absence of specific legislation, the regulation of online news media in the majority of the jurisdictions covered was an extension of print media laws. In comparison to social media, in some jurisdictions the standard for intervention and removal for news media content appeared to be the same, but in other jurisdictions it was higher due to the countervailing concerns regarding freedom of press.
Finally, for OTT Platforms, the Report found that this area appears to be broadly based on self-regulation or is unregulated. Though in some jurisdictions, such as Argentina, Canada, Chile, etc., a proposed regulation is in the offing.
We thank the research coordinators, researchers, supervisors, and the entire team at Oxford Pro Bono Publico. In particular, we would like to thank Mr. Sameer Rashid Bhat, Ms. Gayathree Devi KT, Ms. Vandita Khanna, Ms. Rupavardhini Balakrishnan Raju and Ms. Mihika Poddar for their invaluable assistance and coordination support throughout the research process.
This research will be invaluable in assisting the Court, particularly on perspectives from other jurisdictions on how to approach the regulation of speech on the internet.