## Content %% Notes for 'New Media and Governance' elective session on *digital laws* at Kautilya %% ### Room check 1. What is an intermediary? - means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes 2. What is safe harbour? 3. Do we have a functional privacy law? 4. What is 'Digital India Bill'? ### Levers of information control - ![[Levers of control over information flows.png]] - What else is possible? ### Where are we today? - Incentives (inferred or stated) ^[*Credit Apar Gupta*] - Economic Growth - National Security / Security - Welfare / Service Delivery - We are living through a period where the laws/policies/rules of engagement with the internet, sometimes broader society, are being re-written. And some older ones are being used more aggressively. Including, but not limited to: - Digital Personal Data Protection Act - Telecommunications Act - Information Technology Rules, 2021 + amendments in 2022 and 2023 - 3 Criminal Laws - Blocking Rules 2009 (old) - Control and Discretion + Centralisation. - What are some tenets? - Is the problem statement always clearly defined / spelled out? - Define -> Evidence -> Alternatives -> Criteria Selection -> Outcome Projection -> Confronting Tradeoffs -> Decision making (If you've done Bardach's 8-fold path)) - Have open - transparent / consultations taken place? - Do you know what others said? Could you respond? - Did the government make spell out its thinking clearly? Do we know why things changed / why things didn't change? - What is the institutional design like? - What are the safeguards written into laws? What are the accountability measures built-in (along with the broader record)? - Erosion of existing ones (DPDPA and RTI) - Was it a surprise introduction? / How many opposition MPs were suspended when the laws were passed? ^[*Ridiculous that this even needs to be a consideration.*] - Citizen - state power balance? - (potentially) inverted accountability systems #### IT Rules (a good example of what it wrong with how things happen today) - 2021 - Co-administered by MeitY, MIB. - Very different in form and substance from the last consultation in December 2018 (which itself was held after reports about closed-door consultations) - Grievance, Compliance officers - Referred to as Landing Laws / Hostage-taking Laws based on how they can be used. - Traceability requirements - Challenged in Delhi High Court by Facebook and Whatsapp. No significant movement - Regulation of Digital Media - News / Curated Content platforms - Tiered regulatory structure, with the Executive branch controlling effectively controlling the top tier. - High courts have stayed certain sections pertaining with oversight of news publishers. Cases were transferred to Supreme Court, then to Delhi High Court. No meaningful movement in years. - 2022 - Consultation: Released, withdrawn and released again with a press note but no changes to the amendments proposed. - Change of obligations for due diligence (safe harbour implications) from informing users, to making reasonable efforts to cause users from - Barely any pushback apart from civil society - Grievance Appellate Committees: Executive-appointed committees that can override platform content moderation decisions. - 2023 - Fact Check Unit - Consultation: Snuck in on the day of a deadline extension for gaming amendments - Consequence of expanding due diligence obligations. All intermediaries would be required to take action against information/content flagged as fake, false, or misleading by a fact checking unit notified by MeitY. - Challenged in Bombay HC, and ultimately stayed after an initial split verdict of a 2-judge bench. - Implications of not having a interim stay. - Formal and informal pressure - > Reportage by the _Washington Post_ and Article 14 show that these rules and a combination of formal and informal pressure have enabled these ministries to exert greater control over [social media platforms](https://www.washingtonpost.com/world/2023/11/08/india-twitter-online-censorship/), [streaming services](https://www.washingtonpost.com/world/2023/11/20/india-netflix-amazon-movies-self-censorship/), and [content producers](https://article-14.com/post/how-a-modi-era-ecosystem-of-official-unofficial-censorship-is-transforming-india-s-film-industries-679fdbcd6f914). As per the IT Secretary, in a recent [interview](https://timesofindia.indiatimes.com/india/no-australia-like-plan-in-india-to-ban-social-media-for-kids-it-secretary-s-krishnan/articleshow/116973271.cms), “compliance is … going up tremendously.” ### Beer 🍺, Biceps 💪, and Broadcasting 1. ==A disproportionate allocation of attention/resources in public discourse and by our state institutions.== a. Also, the agenda-setting role played by some sections of media 2. A society that is unable/unwilling to have an honest, difficult and complex conversation with itself, and would rather cede that space to the Indian state. 3. ==An all-too-eager executive branch waiting to cast itself as a hero but is primarily interested in amassing more power and discretion.== #### What the state did... *Published [here](https://www.techpolicy.press/a-lack-of-sense-and-censorability-in-india/)* on 2025-03-06. ^[There have been more developments since this was published.] ![[Pasted image 20250310134549.png]] ![[Pasted image 20250310134610.png]] #### Broadcasting Services (Regulation) Bill, Legacy and Implications - As per its [explanatory note](https://mib.gov.in/sites/default/files/2024-02/SOLICITING%20SUGGESTIONSFEEDBACKSCOMMENTSINPUTSVIEWS%20FROM%20GENERAL%20PUBLICSTAKEHOLDERS%20ON%20THE%20DRAFT%20BROADCASTING%20SERVICES%20%28REGULATION%29%20BILL%2C%202023%20%282%29.pdf), the stated purpose of the Broadcasting Bill is 'to streamline the regulatory framework and provide a cohesive legal framework for the diverse broadcasting services’ and bring broadcasters, cable and satellite, radio, internet and terrestrial broadcasting networks under a single bill. - A draft version was released for public consultation in December 2023. - A few months after this consultation concluded (shortly after the general elections) the Hindustan Times [reported](https://www.hindustantimes.com/india-news/new-draft-of-broadcasting-bill-news-influencers-may-be-classified-as-broadcasters-101721961764666.html) that an updated version was circulated among specific stakeholders. - Secretive process, only watermarked physical copies [were](https://www.hindustantimes.com/india-news/broadcasting-bill-still-in-drafting-stage-mib-tells-rs-101722058753083.html) given out along with an ‘undertaking’ that the draft version would not be shared any further. - After consistent [pushback](https://internetfreedom.in/a-broadcasting-summary/#:~:text=Pushback%20by%20community%2C%20creators%2C%20and%20digital%20rights%20organisations) from content creators and civil society, the union government [withdrew](https://www.moneycontrol.com/technology/govt-asks-stakeholders-to-return-copies-of-controversial-broadcasting-bill-sources-article-12794175.html) the bill through a [post](https://x.com/MIB_India/status/1823028351935672507) on X. It did so without publicly acknowledging the existence of the 2024 version but instead stating that the consultation period for the 2023 draft had been extended. - ![[Pasted image 20250310151105.png]] ##### Contents of the BIll(s) ![[Pasted image 20250310145847.png]] ![[Pasted image 20250310144227.png]] - Reported by [HT](https://www.hindustantimes.com/india-news/new-draft-of-broadcasting-bill-news-influencers-may-be-classified-as-broadcasters-101721961764666.html) - > The new version also defines “news and current affairs programmes” to include “texts” apart from the existing “audio, visual or audio-visual content, sign, signals, writing, images” which are “transmitted directly or using a broadcasting network”. The definitions of ‘programme’ and ‘broadcasting’ have also been revised to include “texts” and “textual programmes”, respectively. - defined previously undefined phrases “professional” and “systematic activity” as “_a person engaged in an occupation or vocation_” and “_any structured or organized activity that involves an element of planning, method, continuity or persistence_” - Likely to be a threshold. #### Obligations + Penalties *I recommend going through the actual bill, I am summarising / paraphrasing large parts of it here. Also note that there is a lot of confusion since there were 2 drafts, and the current status is not clear.* - 3-tier structure + content evaluation committees for self-certification (committees have their own specific constitution criteria). - Tier 1 - Self regulation - Grievance officer, join SRO. - Appeals to SRO or BAC. - Tier 2 - Self regulatory organisation (SRO) - Can impose penalties and fines - Tier 3 - Broadcast Advisory Council - Constituted by Union Government. 1 chair person, 5 ex-officio positions (MIB, MWCD, MHA, MEA, MSJE), 5 *eminent persons* - Can hear appeals against Tier 2, complains referred to it by the union government ##### Powers (currently, some of their applicability is unclear) - Inspection - Seize and confiscate equipment (2024 draft specified Cable and Radio, but with the ability to notify additional types) - Prohibit transmission of programme or operation of broadcaster or broadcasting network - ![[Pasted image 20250310160146.png]] ##### Penalties ###### For "contravention of provisions of this Act." > Where an offence under this Act has been committed by a company, ==every person who, at the time the offence was committed, was in charge of, and was responsible to==, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly ###### For "contravention of provisions other than Programme code and Advertisement Code" - Advisory, censure, warning, penalty ###### For "contraventions of Programme code and** Advertisement Code" ![[Pasted image 20250310155053.png]] ###### Summary of Penalties from the Schedules [Source](https://internetfreedom.in/penalties-broadcasting-bill-2023/) ![[Pasted image 20250310160415.png]] ![[Pasted image 20250310160458.png]] ![[Pasted image 20250310160523.png]] https://content.internetfreedom.in/api/files/divco3ywedt9rpe/hzhs6jimaj7wg72/cheat_sheet_on_penalties_under_broadcasting_bill_2024_iff_YOjP00DDuH.pdf %% ## Related Notes ## Disclaimers ![[Disclaimer-Microblog]] ![[Disclaimer-Writing]] ## Colophon %% %% title:: 2025-03-10 Regulating the Internet type:: [[output]] tags:: url:: file:: creator:: Prateek Waghre %% %% created:: [[2025-03-10]] status:: [[bean]] %%