On November 09, 2020, the Central Government issued a notification bringing digital/online media platforms under the ambit of the Ministry of Information and Broadcasting (“MIB“). While there exists a legal framework and judicial pronouncements in respect of electronic and print media, there was no equivalent in respect of digital media. Digital platforms have been unregulated, having no specific regulatory framework barring the provisions of the Information and Technology Act, 2000 (“IT Act“) that they are subject to. Through several case laws and consultation papers and self-regulation codes formulated in the recent past, several attempts have been made to understand the need for and method of regulating digital content. Attempts were made by over the top (“OTT“) players towards developing a more transparent system of self-regulation as the MIB maintained its position of having no control over online content while the courts established the capacity of the IT Act to regulate. The notification issued by the Centre means that online content providers such as Netflix, Hotstar etc. have now been brought under the jurisdiction of the MIB who shall regulate the policies in this aspect. This article briefly summarizes and highlights the background concerning regulation of online content in India.
In a response to a query filed under the Right to Information Act, 2005, the MIB had earlier stated that it did not have the authority to regulate or control online content and that it was not seeking to provide a regulatory framework for OTT platforms1. Thereafter, in October 2018, a public interest litigation (“PIL“) was filed by an NGO which sought separate guidelines for regulating content on online streaming platforms. While dismissing the petition, the Delhi High Court2 stated that MIB was of the view that online platforms were not required to obtain any license from it for displaying its content and that the same was not regulated by it. Further, the Ministry of Electronics and Information Technology (“MeitY“) had stated that it does not regulate content on the internet and that there is no provision for regulating or licensing, for any organization or establishment for putting up content on the internet. However, the IT Act would be applicable and the concerned statutory authority under the IT Act exercising jurisdiction thereunder would be able to take action by virtue of its powers under Section 69 of the IT Act which includes direction for interception, monitoring or decryption of information, blocking of content etc. The Court further stated that Sections 66A and 67B prescribe the punishment for offences such as sending offensive messages through communication service, publishing or transmitting obscene material in any electronic form, publishing or transmitting material containing sexually explicit material, publishing or transmitting material depicting children in bad taste etc. Accordingly, the court stated that while no general power for regulation on the internet platform is available, however, if the internet platform is misused for carrying any information or material which is not permissible under the law then the provisions of the IT Act provide for deterrent action to be taken as and when complaints are received. The court held that it cannot issue a mandamus for framing general guidelines or provisions when there are stringent provisions already in place under the IT Act. The IT Act provided for enough procedural safeguards for taking action in the event of any prohibited act being undertaken by broadcasters or organizations on the online/internet platform.
In October 2020, the Supreme Court of India had issued a notice to the Centre in a PIL whereby the petitioners demanded the creation of an autonomous regulatory system for online content. Through several other case laws in the recent years, the courts have held that online content would not fall under the ambit of the Cinematography Act, 1952 and have frequently dismissed broad petitions seeking censorship of online streaming services. Parallelly, several OTT operators were increasingly adopting self-regulation codes. Last year, big OTT players such as Netflix and Hotstar along with others had signed a self-regulatory code of best practices under the backing of the Internet and Mobile Association of India (IAMAI). The objective of this code was to provide guidelines to content providers for ensuring the interests of the consumers and for conducting themselves in a responsible manner.
The Amendment brought about by the Notification
As per the notification issued, the Government of India (Allocation of Business) Rules, 1961 (“Rules“) have been amended to create a new sub-heading VA in the second schedule, titled “Digital/Online Online Media” and containing the following two (2) entries: i) films and audio-visual programmes made available by online content providers; and ii) news and current affairs content on online platforms. The second schedule under the Rules has a total of nine (9) categories under the MIB which deal with broadcasting policy and administration, cable television policy, radio, doordarshan, films, advertising and visual publicity, press, publications and research and reference. The notification includes the new sub-category VA under the category of films. Thus, by this notification, the MIB shall have the power to regulate policies for OTT platforms.
The Law and the Way Forward
As stated above, the IT Act provides for penalties and imprisonment for transmission of obscene materials. Furthermore, Section 69A of the IT Act gives the Central Government the power to issue directions to block public access to any information online. The IT (Intermediary Guidelines) Rules, 2011 provide a due diligence framework to be observed by intermediaries in respect of information being hosted or published on any computer resource of the intermediary. The guidelines may also be applicable to OTT platforms which qualify as intermediaries under the IT Act. Online platforms are also subject to provisions of the Indian Penal Code, 1860 such as those that criminalize dissemination of defamatory content, deliberate and malicious intent of outraging religious feelings etc. While courts in India have established the capacity of the IT Act to regulate online content with no need for external regulations, the apparent shift from cable television to OTT platforms has been amplified in the post COVID – 19 era, forcing regulators towards establishing a more concrete framework for digital broadcasting. The regulatory framework concerning OTT platforms has been a work in progress and what remains to be seen is the manner in and extent to which the Government proposes to regulate online content as broadcasters and consumers fear extreme regulation or censorship.
1 RTI application dated October 25, 2016, received online vide registration number MOIAB/R/2016/50541 and MIB’s response dated December 2, 2016
2 Justice for Rights Foundation Vs. Union of India WPC no. 11164/2018