1. Introduction
This blog post outlines the current regulatory framework applicable to online content and the platforms which host such content. Online content regulation is a hotly debated topic and with due reason. India has seen a surge in online content providers in the past few years. This coupled with the seeming absence of any regulatory oversight is a cause of concern for some people. At one end of the spectrum are those who object to the allegedly vulgar and indecent content aired on these platforms. At the other end of the spectrum are those who believe that no such lines are being crossed and that the right to create and air artistic content flows from the fundamental right to free speech and expression. Multiple petitions[1] have been filed praying for directions to the government to establish a regulatory regime for online content but without much success. Online content platforms have taken cognisance of these concerns and have made attempts at self-regulation in a bid supplant hard regulation. These developments have been explained below in greater detail.
2. Justice for Rights Foundation v. Union of India and other calls for regulation
2.1 Currently, online content is not regulated by any dedicated act or set of rules and regulations, but only by the stipulations of the Information Technology Act, 2002 (“IT Act”). Many have regarded this framework to be inadequate and have approached courts seeking directions for the formulation of exclusive rules/regulations governing online content. Amongst the more important of such endeavours was the civil writ petition (“Petition”) titled ‘Justice for Rights Foundation v. Union of India’[2] (“JRF Case”) filed before the Delhi High Court (“Court”). The Petitioners in the JRF Case sought guidelines from the Court (or, in the alternative, from the government) to regulate online content and the platforms that broadcasted it.[3] The Petitioners also prayed for the removal of objectionable content from such platforms immediately.
2.2 The petitioner prayed for the regulation of online platforms on the following grounds:[4]
2.2.1 Online content objectifies women, contains indecent content and leverages abusive language to attract greater viewership.
2.2.2 Article 19(2) of the Indian Constitution stipulates reasonable restrictions on fundamental rights in the interests of public order, decency or morality.
2.2.3 Online content platforms are unregulated due to which inappropriate content is aired.
2.2.4 Online content platforms do not exercise due diligence on their platform as envisaged under the IT Act.
2.2.5 The central government has not notified any restrictions for these platforms and has also not released guidelines for the removal of restricted content from these platforms.
2.2.6 The fundamental right to carry on trade or business does not extend to carrying on a trade or business which would interfere with the safety, health or peace of the citizens.
2.3 The Petition was aimed at regulating content on platforms such as Netflix and Amazon Prime Video, amongst others, which may have offended the faculties of a section of the viewership.
2.4 In their reply affidavits, the ministry of information and broadcasting (“MIB”) and the ministry of electronics and information technology (“MeitY”)[5], clarified that they did not regulate online content platforms and that there were no provisions directing regulation or licencing for an organisation or establishment for airing content online.
2.5 The Court dismissed the Petition through an order dated 08 February 2019.[6] It seemed convinced that the IT Act and the Information Technology (Intermediaries Guidelines) Rules, 2011[7] framed under it were sufficient to tackle any objectionable content on such platforms. It observed that punishments for publishing or transmitting obscene or sexually explicit content or content depicting children in sexually explicit act, etc. in electronic form were covered under sections 67, 67A and 67B of the IT Act, respectively. Further, sections 68 and 69 allowed the controller (as defined under the IT Act) to give directions to intercept, monitor or decrypt digital information. Therefore, although there was no dedicated instrument for the regulation of online content, the provisions of the IT Act were sufficient to tackle any objectionable content online. On these grounds, the Court held that it could not issue a direction for framing general guidelines or provisions.[8] Later, in an appeal challenging this order, Supreme Court issued notice to the ministries of broadcasting, law and communications.[9] The matter is currently pending before the Supreme Court.
2.6 It is noteworthy that this is not the first-time proceedings have been initiated against online content platforms. Earlier, in Nikhil Bhalla v. Union of India and Ors.[10] the petitioner prayed for a grievance redressal mechanism to process complaints against online content and for directions to regulate ‘over-the-top’ (“OTT”) services pursuant to certain dialogues in the Netflix series ‘Sacred Games’. The series allegedly depicted former Prime Minister Rajeev Gandhi in a bad light.[11] The MeitY in its reply[12] to the petition stated that the Court should not grant the prayer because it would impinge on the fundamental right of free speech and expression of the content creators. In coming to this conclusion it placed reliance on the judgment of the Hon’ble Supreme Court in Navtej Singh Johar v. Union of India.[13] While this petition was filed prior to the JRF Case, it was finally heard after the decision in the JRF Case. The Court dismissed this petition, relying on the judgment in the JRF Case. Criminal complaints were also filed in Kolkata[14] and Mumbai[15] against the dialogues maligning Rajeev Gandhi in Sacred Games, but the same were withdrawn soon after.
2.7 The ministry of information and broadcasting set up a ten-member inter-ministerial committee in April 2018 to suggest a regulatory framework for online media and news portals. This committee has representation from the Press Council of India, the News Broadcasters Association and Indian Broadcasters Federation as well. The committee will cover digital broadcasting, entertainment/infotainment sites and news/media aggregators[16] and its report is awaited.
3. Self-regulation
3.1 Online content platforms seem to be cognizant of the attempts to regulate them. In a bid to establish ownership and accountability for the content that they air, some platforms came together to create a voluntary code for self-regulation.[17] In January 2019, the Internet and Mobile Association of India (“IAMAI”) released a code of best practices for online curated content providers (“Code”)[18] which was adopted by players such as Netflix, Hotstar, Reliance Jio, Zee5, AltBalaji, Sony-Liv, Viacom 18, Arre, amongst many others. However, several platforms are yet to adopt it.
3.2 The Code disallows the following:
3.2.1 Content deliberately and maliciously disrespecting the national emblem or national flag;
3.2.2 Content representing a child engaged in real or simulated sexual activities or any representation of the sexual parts of a child for primarily sexual purposes;
3.2.3.Content deliberately and maliciously intending to outrage religious sentiments of any class, section or community;
3.2.4 Content deliberately and maliciously promoting or encouraging terrorism and other forms of violence against the State (of India) or its institutions; and
3.2.5 Content that has been banned for exhibition or distribution by online video service under applicable laws or by any court with competent jurisdiction.
3.3 These online platforms also undertake to classify content into distinct categories such as general/universal viewing, parental guidance, content only meant for age-appropriate audiences, to restrict the viewership of certain content to mature audiences. Further, the platforms undertake to appoint a person/team/department to address any concerns and complaints in relation to the content aired by them.
3.4 This step seems to be aligned to the industry consensus that online platforms should not be singled out for regulation since viewers exercise a high degree of control over the timing and nature of content that they consume. Therefore, such content cannot be compared with that viewed either in multiplexes or on cable where the viewer cannot exercise such control.[19] In similar vein, it can be argued that while the television is a collective medium of content consumption which requires regulation, the same parameters do not apply to mobile phones which are personal mediums of the same.[20]
4. Conclusion
It is noteworthy that in February 2019, the Karnataka High Court issued notice in a petition seeking to bring online platforms under the ambit of the Cinematograph Act, 1952.[21] These interventions have been requested until such time as suitable laws and regulatory bodies for online content regulation are put in place. This is an important development since the Delhi High Court has on multiple occasions refused to intervene in the regulation of online content.[22]. On a separate note, increasingly, conventional television channels are entering the online content space[23]. This has led to an alignment of their interests with those of pure-play OTT service providers, thus giving greater backing to their position. The regulatory framework under which online platforms function presently remains ambiguous and the future months could see exciting activity on this front.
(Authored by Ratul Roshan, Associate with inputs from Anirudh Rastogi, Founder and Managing Partner, Ikigai Law)
[1] See https://www.medianama.com/2019/03/223-karnataka-hc-petition-streaming-platforms-regulation/.
[2] W.P. (C) No. 11164 of 2018. See https://barandbench.com/wp-content/uploads/2018/10/Delhi-HC-Netflix-Amazon-online-shows-Petition.pdf for full text of the petition.
[3] See ‘Prayer’ in W.P. (C) No. 11164 of 2018.
[4] See ‘Grounds’ in W.P. (C) No. 11164 of 2018. The same have been reworded for ease of reference.
[5] Order dated 08.02.2019 in W.P. (C) No. 11164 of 2018, available at https://barandbench.com/wp-content/uploads/2019/02/Justice-for-Rights-Foundation-vs-UOI_watermark.pdf.
[6] Order dated 08.02.2019 in W.P. (C) No. 11164 of 2018, available at https://barandbench.com/wp-content/uploads/2019/02/Justice-for-Rights-Foundation-vs-UOI_watermark.pdf.
[7] See https://www.wipo.int/edocs/lexdocs/laws/en/in/in099en.pdf
[8] Order dated 08.02.2019 in W.P. (C) No. 11164 of 2018, available at https://barandbench.com/wp-content/uploads/2019/02/Justice-for-Rights-Foundation-vs-UOI_watermark.pdf.
[9] See https://www.thehindu.com/entertainment/online-streaming-supreme-court-seeks-centres-reply-on-plea-to-regulate-content/article27093664.ece.
[10] W.P. (C) No. 7123/2018.
[11] Business Standard, Plea seeking regulation on web series’ contents filed in HC, available at https://www.business-standard.com/article/news-ians/plea-seeking-regulation-on-web-series-contents-filed-in-hc-118081701073_1.html.
[12] See https://www.medianama.com/wp-content/uploads/SA-of-MEITY-in-Nikhil-Bhalla-case_20181212132630.pdf.
[13] (2018) 1 SCC 791.
[14] See https://timesofindia.indiatimes.com/city/kolkata/north-kolkata-congress-worker-lodges-complaint-against-sacred-games/articleshow/64936272.cms.
[15] See https://www.thequint.com/entertainment/celebrities/complaint-filed-against-sacred-games-for-maligning-rajiv-gandhi.
[16] See https://indianexpress.com/article/india/ib-ministry-forms-committee-to-regulate-online-media-smriti-irani-5125324/.
[17] Hindu Business Line, Online content providers sign a voluntary code of best practices for self-censorship, available at https://www.thehindubusinessline.com/info-tech/online-content-providers-sign-a-voluntary-code-of-best-practices-for-self-censorship/article26016945.ece.
[18] See https://www.medianama.com/wp-content/uploads/Consolidated-Draft-14012019.pdf.
[19] Regulation of Content Available On Video-On-Demand Players Like Netflix, Amazon Prime, Zee5, Hotstar, Khurana and Khurana, Advocates and IP Attorneys, available at https://www.khuranaandkhurana.com/2018/11/08/regulation-of-content-available-on-video-on-demand-players-like-netflix-amazon-prime-zee5-hotstar/ (Last accessed on March 26, 2019).
[20] Namita Singh, Sacred Games: Petitioner seeks regulation for OTT platforms on account of public order, available at https://www.medianama.com/2018/12/223-sacred-games-petitioner-regulatory-mechanism-ott-platforms/.
[21] Medianama, PIL in Karnataka HC seeks to regulate streaming platforms under Cinematograph Act, available at https://www.medianama.com/2019/03/223-karnataka-hc-petition-streaming-platforms-regulation/. See also http://www.indialegallive.com/constitutional-law-news/supreme-court-news/online-entertainment-contentious-content-65653.
[22] Medianama, The Accidental PM: Delhi HC dismisses ban on trailer, directs petitioners to file PIL, available at https://www.medianama.com/2019/01/223-the-accidental-prime-minister-ban-delhi-hc/.
Also see, Aroon Deep, Sacred Games row: Delhi HC asks petitioner to justify PIL; Kolkata complaint withdrawn, Medianama, available at https://www.medianama.com/2018/07/223-sacred-games-row-delhi-hc-asks-petitioner-to-justify-pil-kolkata-complaint-withdrawn/.
[23] See https://www.livemint.com/Consumer/TZKZSgraxfEBbjY7TyNqeN/Balaji-launches-online-streaming-platform-ALTBalaji.html.
