19 May 2018

The Regulation of Online Content

For years now, there's been talk of how "online content must be regulated" as if content online isn't already regulated; it is. By over thirty statutes and reams of subordinate legislation.

The most recent formal attempt to regulate content online has probably been manifested through a decision of the Ministry of Information and Broadcasting to constitute a committee to suggest a regulatory framework for online media and news portals. The minister in charge has since been divested of the portfolio, and what progress, if any, was made isn't clear. In fact, it isn't even entirely clear that the MIB had the jurisdiction to step on to such a path without the Ministry of Electronics and Information Technology clearly being on board.

Whatever does or doesn't come of this attempt to regulate online content, what's all but certain is that it isn't the last we'll hear of the subject. After all, the regulation of free speech with its potential to (re)shape socio-political discourse, is often a priority for governments and it is not constitutionally impermissible.

There are several problems with the current approach that seems to have been adopted though: the plan appears to be to create an additional layer of law governing the substance of online content over and above existing laws rather than examining the dynamics between the stakeholders who create, disseminate, and consume it.

Amongst the concerns this limited approach presents are definitional Issues. Despite the enthusiasm to regulate online content, it isn't at all clear who or what specifically would be regulated by yet another layer of substantive content law. After all, the lines between a group blog and "the press" can be blurred. Neither is it easy to separate information, misinformation, and disinformation into watertight categories.

Making matters worse is the fact that Indian laws do not always clearly differentiate between content and carriage issues which has, at times, resulted in parallel legal processes dealing with virtually the same subject matter. For example, it isn't always immediately clear how to separate the jurisdiction of TRAI, the telecom authority, from that of judicial processes to deal with copyright when it comes to, say, IPTV especially if it involves the broadcast of live content where a copyrightable work may be contained in an ephemeral signal however briefly.

In addition to this, while there are provisions in both copyright law and information technology law which can be used to protect intermediaries from liability for content which their users post, there is little in the way of regulation to protect users from intermediaries. What we require is rights-based regulation which requires companies adhere to minimum standards to protect the public, and that cannot be achieved through additional regulation which merely defines what the substance of legitimate content may be.

When MNCs use templates across international borders, we also need to question how they ensure that the templates comply with Indian law. And, in the few cases where intermediaries, MNCs or not, are required to conduct some form of due diligence or self regulation, particularly to avail of the protections afforded to them by law in relation to user-generated content, it is worth asking what exactly is required by the law of them and at precisely what point legal liability will kick in should due diligence or self-regulation fail.

Apart from self-regulation is the question of judicial regulation. Even within that realm, we should be asking what constitute legitimate modes of content regulation. Thus far, attempts to regulate content law by and through the courts have not always resulted in solutions which are ideal as, for example, the well-intentioned misadventure with the auto-block theory (that sought to block specific words found online without reference to their context) demonstrated.

It is clear that PILs should not be a tool for personal fame or one which could damage the separation of powers. Perhaps, at the very least, one could require that decisions made in PILs are limited to interpretating law without straying into the field of creating law. And perhaps one could also demand that a clear nexus be established between the subject matter of a PIL and the party filing it. This is one step lower than the legal concept of "nexus" contemplates but the intended social purpose of PILs may justify not adhering to a higher standard.

None of these are issues which have been dealt with in any depth in the context of online content regulation in India. However, they are issues which deserve to be considered. An additional layer of purely content-based regulation would be superfluous but that does not mean that there is no room for improvement in the current legal framework. We just need to ask the right questions.

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