It’s a great way to break the ice. Is the new show on Netflix better than the one currently showing on Hotstar? What’s the latest movie on Amazon Prime? Spanning across all cultures and generations the Indian entertainment market is now the fastest growing market globally, with the video OTT market set to reach $1.7 billion by 2023. With increasing subscriptions, more content and improved connectivity the sector is no doubt at an inflection point. However, there will always be a twist in the tale.
Recently, there have been a spate of PILs seeking to regulate online curated content (OCC) hosted by the likes of Netflix, Hotstar, Amazon Prime and other similar OCC services, over content that a section of the masses views unfavourably and consider obscene, or tending to incite hatred amongst sections of society. The reason cited for the PILs is that the programming contains material that would be an offence under the Indian Penal Code, 1860 (IPC). The IPC helps the state safeguard the personal fundamental rights of individuals, and public morals of the society. Consequently, the IPC prosecutes those acts that are adverse to an individual’s personal liberties and which affect the interests of the society at large.
Special leave petition
Courts in India have usually approached such petitions conservatively, refusing to intervene, and choosing not to interfere in the legitimate commercial interests of entities engaged in OCC services, as long as they are compliant with the extant regulatory framework.
However, the Supreme Court in a special leave petition filed by Justice For Rights appears to have deviated from the above policy, and has issued a notice to the central government to state its intention on separately regulating such OCC available to the Indian consumer. This was despite the Ministry of Information and Broadcasting stating in the original public interest litigation filed before the Delhi High Court that it did not intend to do so, since the existing legislative framework was sufficient and comprehensive, and moreover, already mitigated any apprehension of vulgar content being broadcast.
On the other hand, the public interest litigation, and the special leave petition stress that such material would not be permitted for public distribution on television or in cinemas, since they are subject to stringent regulation, which do not apply to OCC.
The crux of it boils down to a simple issue – maintaining the rights of freedom and privacy of individuals in India vis-à-vis overstepping the regulatory framework surrounding obscenity and sedition in India.
Important judgements by the Supreme Court and High Court have reiterated an individual’s right to privacy and recognised the rights of individuals to privately view adult content respectively (This judgment by the HC was set in the backdrop of restrictions applicable to cable operators and cable service providers to not transmit any programmes unsuitable for unrestricted public exhibition, distinguishing it from private viewing).
Another noteworthy point to bring into the discussion is the fundamental right to conduct business. The right to conduct business is enshrined in Article 19(1)(g) of the Indian Constitution. The legislature is, however, also empowered to impose ‘reasonable’ restrictions on this right in the broader interest of the general public.
To determine the reasonableness of the restrictions the nature of the business and conditions prevailing in the particular trade need to be considered. There is therefore no overarching rule which encompasses all businesses in India.
Given the above context, it is also important to understand what construes as obscenity and sedition according to our law. The Supreme Court has clarified that the moral standard for obscenity is dynamic, and evolves with the perception of the society at large rather than an individual; sedition is committed when a section of society is roused to disorder and violence, or anti-national behaviour. In both cases, the underlying point is that obscenity and sedition have to be set in the context of each individual, and impossible to empirically quantify.
The Information Technology Act, 2000 (IT Act), which currently governs such online curated content also penalises obscenity and sedition, if they are committed using electronic media. In fact, the tests prescribed to determine if electronic content is ‘obscene’ under the IT Act are comparable with those set out in the IPC, and an intermediary is duty bound to remove any content that contravenes the standards set by the legislation.
There is also a spirit of self-regulation in the industry where certain OCC providers have signed up to the Code for Self-Regulation of Online Curated Content Providers (Code), undertaking to conduct themselves responsibly and in a transparent manner.
To summarise, the content provider’s responsibility is limited to hosting content which is in compliance with the relevant regulatory framework, whilst the consumer has the freedom to make an informed choice, and the right to privacy to view such content. Also, the private consumption of such content is not barred under IPC or any relevant law.
So long as the OCC provider has complied with the IT Act, its fundamental right to carry on business in India should not be impeded. Any additional over-regulation would be regressive.
PILs like those filed by Justice For Rights demonstrate an apparent lack of understanding of the nature of services provided by OCC providers – private consensual content dissemination, pursuant to a legal commercial agreement between the consumer and the service provider, for which there is no necessity to regulate.
In recent times, there has been a regulatory thrust towards increasing access of content to consumers, with a spate of measures taken by the government to make internet available to a wider audience, and to lower the cost and broaden the reach of television programming. Any overregulation would fly in the face of, and be contrary to such regulatory measures.
One hopes that the judiciary and the legislature respect the choice of and privacy of the consumers, and the fundamental right to business of the service providers. One also hopes that any orders of the Supreme Court of India on this matter penalise and discourage cantankerous PILs like the present matter.
Ananthram Ganesh is Associate Partner and Sidharth Kamat is Associate at Economic Laws Practice. The information contained in this article is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any particular individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a particular situation. There can be no assurance that the judicial/quasi judicial authorities may not take a position contrary to the views mentioned herein. The views of the authors are personal and may not be attributed to ELP.