OTT + News ≠ Digital Media

Interestingly, while the heading of Part III uses the term 'digital media', the term has not been referred to in any provision of Part III. Part III mainly applies to 'publisher of news and current affairs content' and 'publishers of online curated content' if such publishers are either having a physical presence in India or undertake a business activity of making their content available in India. The ambit of both the categories of publishers can be explained through a review of a series of definitions.

Section 2(u) of the New Rules defines 'publishers of online curated content' to mean a publisher that: (i) has a significant role in determining the online curated content that is being made available; (ii) enables users to access online curated content; and (iii) is a natural or artificial person who is sharing the curated content in the course of systematic business, professional or commercial activity. Further, Section 2(q) of the New Rules explains 'online curated content' to mean "any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content".

By now, we know that audio podcasts, web series, movies, TV shows are categorised as online curated content and their publishers are mainly Over-the-top (OTT) platforms such as Hotstar, Voot, Mx Player, etc. But this is not just about the OTT Platforms. It is more than that. Amidst the ongoing pandemic, most of the educational institutions have shifted to virtual classrooms giving a major boost to the edtech industry. Many Universities in collaboration with edtech players provide their students with recorded videos or live sessions as a part of a self-curated curriculum. The content in most cases is made available on demand after they have paid their tuition fees and is not available in public domain. Arguably such universities would fall within the four corners of 'publisher of online curated content' and may have to comply with the provisions of the New Rules.

Similarly, provisions of the New Rules also outline the scope of 'publisher of news and current affairs content'. For ease of our understanding, this can be explained as follows:

Figure 1

As depicted above, the scope of a news and current affairs content includes digital media where the context, substance, purpose, import and meaning of such content permits. The New Rules are silent on who decides such context, purpose and meaning. Is the onus on the publisher or the readers of the content? Further, the New Rules do not explicitly include or exclude the 'not-for-profit' publishers. Unless the relevant Ministry issues a clarification in this regard, it is on the judicial officers to interpret the scope of 'systematic business, professional or commercial activity'. Moreover, newspapers exclude any periodical which is not printed on a regular basis or are printed after intervals longer than a week. The reason for treating such periodicals differently from regular newspapers is best known to the Government. This definition misses an important element of publishing i.e. the platform where the content is published. Is it in a closed group of selected people or in a public domain? The term 'online paper' is wide enough to include any published piece of content that is noteworthy such as a society run online newsletter. Arguably, this could even stretch to the landmark judgments published in public domain. It will be interesting to follow how judicial courts interpret the interplay between news content and online curated content. The term 'digital media' also includes digital content processed by a publisher of online curated content, even though the online curated content by its definition will always exclude the news content, the intended purpose of the draftsmen is unclear. Given that the New Rules apply to each publisher residing in India and publisher undertaking business with a target audience as Indian citizens, this may act as a barrier for Indian citizens to export their services to foreign digital media players and for foreign players to continue their operations in India. For instance, an online publication that covers current affairs of India but is based out of a foreign country will now have to employ Indian residents for fulfilling the obligations under the New Rules. This may also have indirect tax implications for such foreign players.

We will leave you with some food for thought here, do you think if a University itself or through its health partner writes to its students and employees through a closely circulated online paper about Covid-19 vaccination, will they become a publisher of news and current affairs content? Here is another one, what about the platforms which maintain a repository of judicial precedents? Each time a new judgment is added to the platform, it is a piece of news and current affairs content available online in the course of business activity. So, do they also have to abide by the code of ethics and other requirements under the New Rules?

This article is the second part in the series covering the New Guidelines. The first part highlighting the impact on social media intermediaries can be accessed here.

The authors are New Delhi based practising TMT lawyers. Views are personal.