ABSTRACT
Over-the-Top video platforms (hereinafter referred to as OTT) though emerged as content hosting platforms but soon after their dawn, they commenced the production of movies, web series and documentaries. These platforms use artificial intelligence to suggest the viewer to choose from the variety of content being provided by them. To make everyone feel comfortable in our society, the Indian Constitution has ensured a variety of freedoms including the freedom to express freely subjected to reasonable restrictions. Technical advancement has necessitated intellectual freedom for an individual to ensure the dissemination of their ideologies. Consumption of digital content has become a norm rather than an exception in the past half-decade which has resulted in high demand for OTT platforms like Netflix, Amazon Prime, Disney+ Hotstar, Zee5 etc. which shows highly diverse content. The upsurge of these OTTs amounts to a leading illustration of artistic independence and expression not only of those involved in producing such content but also of individuals consuming it. In absence of specific regulation, these platforms have been enjoying their creative freedom to the full extent without any fear as compared to the content offered by television or cinema which is being regulated by CBFC, BCCC and other regulatory bodies. Though “Article 19(1)(a) of the Indian Constitution” has provided fundamental liberty to acquire and disseminate information as an important aspect of liberty of speech and expression, but same has to be regulated also. To ensure that creative freedom does not instill violent behavior, portray obscenity, and distort the moral fabric of society, censorship is a must. But the question that looms here is that is there any need for regulation of OTT platforms as any censorship on the content where the viewer has the right to choose what to view may amount to a violation of freedom of speech and expression and the right to privacy. Moreover, nowadays censorship is being used for suppressing religious opinions, political criticism, and expression of sexuality. The hassle of regulation on OTT platforms can have an abundance of far-reaching implications (unnecessary suppression of fundamental rights) requiring a complete legislative framework even more apparent.
- INTRODUCTION
India is one of the largest democracies in the world wherein media is considered the fourth pillar of democracy. Media has the immense responsibility and power of expression which influences the ideology of the masses. In the recent past, T.V. and print media were the only means of news and entertainment.
It is natural to see the emergence of new means of entertainment like Over-the-Top Video Streaming Platforms with the unprecedented evolution of technology. These platforms have flourished in a short span of time making it feasible for the consumers to use the online content when they desire to do so. It has also created a wide opportunity for those associated with the entertainment industry i.e., producers, content creators, actors/actresses etc. Furthermore, the comfort of availability of OTTs has carried with it a wider range of challenges and issues in regulating fake information, propaganda and obscene material available online.[i]
“Media formats like print, radio, television and film are being regulated by the respective boards whereas in the absence of specific provisions to regulate the content these platforms fell under the purview of the IT Act, 2000[ii].” The non-existence of specific regulatory statutes or authorities had opened the flood gates for the content creators in the form of creative freedom to produce content as per the choice of the viewers and to distribute the content without any certification from the censor board of India.
Availability of unique and wide content has aroused many controversies also i.e., some are of the opinion that the quality and genuineness of the online content is not appropriate for one and all or is challenging for further whys and wherefores, which eventually resulted in demand for regulation of the content on OTT platforms.
Numerous petitions have been filed in various High Courts of the country as well as in the Supreme Court of India. As per the directions of the Supreme Court of India, “the Government of India on November 9th, 2020 notified an amendment to the Government of India (Allocation of Business) Rules, 1961 by adding Online/Digital Media in the Second Schedule of the Rules, under the Ministry of Information and Broadcasting (Soochna Aur Prasaran Mantralaya) as entry 22A and 22B”.
However, this has led to an important debate related to the destruction of human rights (right to choose of the viewer) vis-à-vis censorship over creative freedom. As these regulations will not only limit the formation of original content but may permit the government to enforce needless censorship on the fundamental right of the creator of the content and well as of the viewers.
Though Rules of 2021[iii]have been considered to be a welcome move and a move in a positive direction. Even though content posted on cyberspace must get regulated but it will be interesting to see how MIB[iv] frames the guidelines to regulate the online content and balance the freedom of expression of the content creators.
“Mr. Sudhir Mishra, the Managing Partner of the law firm, Trust Legal advocates & Consultants based in New Delhi who has a major practice in Media Law, says: The government is committed to freedom of speech and expression as enshrined in the Constitution of India which gives the right to every individual to make a decision on what they want to watch. The contents need not be censored and certified like by the Central Board of Film Certification, however, it should be regulated in view of the sexually explicit, vulgar, defamatory, false and unsuitable content which is easily accessible for viewers especially under the age of 18 years.”[v]
- OTT PLATFORMS AND CONTROVERSY
“A streaming video service given directly to viewers via the internet is known as an Over-the-top media service.” Television’s role as a source of information have been overtaken by these platforms. The absence of a regulatory body on the content being streamed on these platforms has resulted in the enjoyment of freedom of expression resulting in many cases where FIRs have been lodged[vi] against many web series run by these platforms i.e., web series XXX season 2 produced by Ekta Kapoor, Gandi Baat as it depicted objectionable content, has obscenity, hurt religious sentiments, Web series Mirzapur for the portrayal of UP’s Mirzapur district in bad shape, Sacred Games for including some speculative lines about former Prime Minister Sh. Rajiv Gandhi in Bofors scandal, Leila which chastised for propagating Hinduphobia, which offended Hindus and was widely criticized by the viewers and many more like Bombay Begums, Pataal Lok, Family Man-1 and 2, Ashram, Gunjan Saxena on the grounds of tarnishing social setup of Indian society by showing vulgar, obscene, violent content.
The recent one is Tandav starring Saif Ali Khan on Amazon Prime which has also been taken to Allahabad High Court and then later to the Supreme Court of India for depicting UP police personnel inappropriately, hurting religious sentiments and adversely portraying the character playing the prime minister in a political drama.[vii]
All these controversies are the result of the disrespect of the guidelines that mandate verification of accounts, access control etc. by the OTT players. These matters must get determined as per the Indian laws. For example, although conventional media is conscious of the provisions of IPC[viii] which deals with the advancement of hatred among communities, violence, defamation etc., the content on the online platforms appears to be unresponsive to all this. The discourteous comments posted on social media about women professionals in media or other fields and the incapability of the Indian state to deal with such behavior make one believes whether the IPC is even applicable in cyberspace.”
To bring an end to this controversy of content regulation, the Indian digital and OTT players can follow the regulations followed in Australia and UK. A code has been drawn up by the digital companies in Australia, named the “Australian Code of Practice on Disinformation and Misinformation” and was released only recently by the Digital Industry Group.
UK Government is about to come up with a new law to make online companies accountable for destructive content resulting in the punishment also. The objective of the projected “Online Safety Bill” is to safeguard internet users and handle those platforms which indorse violence, terrorist material, child abuse, cyberbullying etc. “Digital Secretary Oliver Dowden was quoted as saying, I’m unabashedly pro-tech but that can’t mean a tech free-for-all”.
This, in a sense, sums up the current mood on this issue across a few democracies of the world.
- JUDICIAL INTERVENTION ON OTT PLATFORMS
In the initial years, India did not have any rules or policy framework for regulating the content over the OTT streaming services which resulted in a regulatory vacuum leading to complaints being filed in the Courts[ix] and self-regulatory actions by the industry players.
With this, the Government has tried to censor content on the grounds of public morality, communal harmony, protecting history, etc. These online applications and services have transformed outmoded sectors and transformed the economic landscape of the markets.[x]
The admiration of these platforms has brought new regulatory issues for the government. With the current legislative position of India, the censorship rules governing the online space are likely to apply to the content provided by the OTT service companies as such content is accessible over the internet. In the case of “Shreya Singhal vs. Union of India”[xi], the Supreme Court ruled that “user-generated content cannot be censored online, but delegated the question of on-demand video content, as ones provided by OTT services, to the Information Technology Act of 2000. The Act has a content regulation provision that empowers the government to regulate intermediaries, including OTT platforms.[xii]”
The policy vacuum on the content regulation issue has opened the flood gates of litigations in the courts as people resorted to the judicial system when they had apprehensions associated with controversial content available on OTT platforms.
This issue got highlighted when a writ petition was filed before Delhi High Court in the case of Justice for Rights Foundation vs. Union of India[xiii] looking for directions from Court (or, in the substitute, from the Government) to legalize online content and the platforms that tend to broadcast it[xiv]. The main aim of this petition was to regulate the content being played on platforms such as Amazon Prime, Netflix, Zee5, etc. which might have offended a section of viewers.[xv]
MEITY[xvi] in the present case responded by an affidavit in the court that content regulation on the internet does not fall within their jurisdiction.[xvii] Hence it was observed by the High Court that specific provisions of the IT Act, 2000 are applicable and the action can be taken by the concerned authority by virtue of powers available to them under the Act[xviii]
In the case of “Nikhil Bhalla vs. Union of India[xix], which was about the controversial show Sacred Games, a petition was filed in the Delhi HC against Netflix and Phantom”[xx] alleging that derogatory language has been used against former Prime Minister Rajiv Gandhi and demanded the exclusion of two ‘offensive’ scenes, and three ‘objectionable remarks’ (including subtitles) against the former Prime Minister and his family. The Petition further stated that the show “incorrectly depicts historical events of the country which include the Bofors case, case of Shah Bano, Babri Masjid case and communal riots,[xxi]” The Petitioner requested the Court to issue guidelines to regulate OTT media service providers. The Centre, in its response, humbly submitted that “the Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith, and worship. It also says that India is ‘a sovereign, democratic republic’. Freedom of thought and expression is a cardinal value of paramount significance under our constitutional scheme.” The Centre placed reliance on the mandate of the Constitution and the provision relating to the IT Act and Rules framed thereunder.
The Delhi High Court, in its order, placed reliance on the above Justice for Freedom case, especially concerning the provisions of the IT Act, 2000 especially Sections 67[xxii], 67A[xxiii], 67B[xxiv] and 69[xxv]and dismissed the petition by viewing that there is no need for the issue of a writ of mandamus and rules for the regulation of the content where the existing provisions under the IT Act and the rules framed therein are sufficient for the issue in consideration. “The Court also held that actors could not be held accountable for enacting their characters, and a person was entitled to express his views, which might be right or wrong.”[xxvi]
Following the uproar against the variety of controversial content on the video streaming OTT platform, a writ petition was before the Karnataka HC in the case of “Padmanabh Shanka vs. Union of India [xxvii]on the issue of whether the transmission or broadcast of any films, cinemas, or serials and other multimedia content through the internet will come within the definition of ‘cinematograph’ under Clause (c) of Section 2 of the Cinematograph Act, 1952”[xxviii].
In a similar PIL filed before the “Bombay High Court” [xxix]concerning streaming of the show ‘Gandi Baat’ by AltBalaji, which according to the Petitioner, was offensive against women, and the nudity, violence, and vulgarity of language in the show like Sacred Games, the Petitioner sought setting up of an independent body to pre-screen and regulate the content on the platforms. It also sought action against all media which broadcasted content that was ‘obscene, nude and vulgar’ and argued that it is a cognizable offense under the “Cinematograph Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act, and Information Technology Act”. Following the arguments, the Court issued notice to the MIB[xxx] seeking their replies in light of this plea seeking regulation of such web series.
Another Petition was filed before the Madhya Pradesh HC by the Maatr foundation[xxxi] relating to the regulation of content streaming on OTT platforms. The Petitioner based its petition on the view that the content is lewd, unfettered, uncertified, sexually explicit, vulgar and legally constrained. The Petitioner raised a plea emphasizing that these content streamers objectify women and show them in a shabby way and fill their minds with lewd feelings resulting in the violation of the fundamental right to live with dignity. It was further contended by the petitioner that companies providing online streaming services should be considered intermediaries for offenses under “Sections 67, 67A and 67B of the IT Act.” It was further claimed that sections 292[xxxii], 293[xxxiii], 294[xxxiv] of the IPC, the relevant provisions of the Indecent Representation of Women (Prohibition) Act, and Articles 21[xxxv], 19(1)(a)[xxxvi], 51A(e)[xxxvii] of the Indian Constitution are also applicable to the objectionable and obscene content on these platforms.[xxxviii]
- PRESENT CONDITIONS
In light of the powers under Section 87(2) of IT Act, on 25 February 2021, the Centre framed “the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011, and the same will be effective from May 26, 2021.”[xxxix]
“Harmonizing the need for regulation to keep out intolerable online content that endorses violence and vulgarity with the want to preserve our constitutional values and freedom of expression is at the core of the new rules which have been formulated by the Union government to address concerns regarding new media.”[xl]
But this present move of the Central Government to make OTT platforms subjected to IBM[xli] has led to a new controversial deliberation. The outlines of this debate emphasize constitutional safeties for free speech in a democracy, the limitations of artistic freedom, business competitiveness and innovation, and the overall role of the state in a boundary-less, connected world. The majority is of the view that this corporate surveillance and cartelization on the pretext of regulation should not result in a violation of individual freedoms.
MAJOR OUTLINES OF THE NEW RULES
For OTT platforms a grievance redressal system has to be established.
There has to be an appointment of a chief compliance officer by social media houses. It should be accompanied by the appointment of nodal contact person who should remain in touch with law enforcement agencies 24/7.
These social media platforms will also have to name a grievance officer who will list the complaint within 24 hours and will dispose of the same within 24 hours from the filing of the complaint.
On a complaint related to content that might be against the dignity of the users, promoting nudity, sexual act or impersonation etc. the same content has to be removed from the platform within 24 hours of filing of the complaint.
OTT platforms will be duty-bound to publish reports on a monthly basis showing the number of complaints received and their redressal.
- IMPACT OF COVID
The Covid-19 pandemic has resulted in a remarkable upsurge in the usage of online content across platforms, hovering fears about consistency with other alike media and the destruction of communal, cultural and even ethical standards. While there is no golden rule to measure the relevance of these objections, it is vital to address them through a fair process that addresses the issues as well as reinforces our confidence in democratic values.
- FREEDOM OF SPEECH VIS-À-VIS NEED FOR REGULATION
In a democratic set up freedom to hold opinions, and to receive and share information are dire necessities to ensure the availability of basic human rights. “But the same should be exposed to such limitations and conditions as obligatory in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
It is to be noted that certification from the CBFC[xlii] is a must before the release of a movie in a theatre or on satellite and the content is regulated as per “the Cinematograph Act, 1952, the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994”, while no such explicit guideline was there for the governance of content on OTT Platforms.
“OTT platforms have flourished and captured the market in recent times. OTT subscribers more than doubled between August 2019 and August 2020, with screen time increasing 300%. Disney+ reached 60.5mn in early August 2020, and Netflix, which had 167mn subscribers at the end of 2019, saw global subscriptions surge to almost 183 million in April 2020 and reach nearly 193 million by July 2020 as per a PWC report.”
It has perfectly been said that size always requires scrutiny. Technological advancements on the internet have given birth to factual challenges and questions associated to the rights and safety of the user and it is high time that government should retort to all these issues with appropriate legislation. The Rules of 2021 putting OTT platforms under the I&B will soon change the set-up of OTT platforms, which had so far absconded any type of regulation.
But these principles need thoughtful deliberation so that it does not expose or impend the autonomies of users/citizens, rather provide regulation that guards the environment that empowers the development of the internet and at the same time keeps the internet open and free which will retain the capacity to foster innovation and economic growth.
“National jurisdiction can be a solution to ensure sovereignty in the global environment that OTT possesses. Any form of regulation cannot progress or be implemented without adequately resolving issues of jurisdiction. The issue of jurisdiction can be tackled to an extent by mandating the OTT platforms/companies to have a registered office or at least one formal office in the country in which it operates and/or provides its services.”
The challenges of global internet governance also require consideration as it is essential for the formation of policies and some mechanism for joint action among the countries for finding implementation capacity and creating some mechanism that functions at a global level to ensure protection of freedom of speech and expression.
- SELF REGULATION VS. GOVERNMENT INTERVENTION
“Self-regulation encourages creativity and makes content creators more responsive to its viewers. It’s worked well for broadcast media, and there’s no reason for it not to do so for curated video content.”
As compared to traditional media platforms, OTT platforms provide unique and distinctive content. “Series like Karenjit Kaur: The Untold Story and Lust Stories have unique and explicit content and narratives of religious, political, social, and sexual inhibitions. This type of content comes under the garb of ‘inappropriate and sensitive content’ and is subject to censorship.” No producer following the conventional mode delves into such narrative and passes the tests of ‘appropriate content’ in the eyes of the CBFC without changes and edits. The only reason such movies and shows are released on OTT platforms and not through the mainstream channels is the absence of a regulatory framework censoring content across these platforms[xliii] . OTT platforms allow the content creators to broaden their genres and experiment with the content and the narrative, often restricted in the mainstream media channels[xliv]. With no separate regulation or guidelines to oversee the video content on video streaming, OTT platforms like Netflix, Prime Video, Alt Balaji, self-regulation is the only immediate solution to regulate the controversial content streamed across the country.
Self-regulation alludes to responsibilities and duties laid down and assigned to the media administrators to implement and execute by themselves, which they voluntarily and intentionally decided. Such guidelines have the character of attractive goals, rules, or principles instead of mandatory and fixed standards to be accomplished significant and compelling self-guideline gives the chance to adjust rapidly to the reviving specialized technical advancement across the globe and, when appropriately encased in collaboration with the Government, is desirable over compulsory regulations laid down by the legislature[xlv].The general advantages of self-regulation incorporate effectiveness, expanded adaptability, expanded incentives for compliance, and diminished expense[xlvi]. “A carefully organized program underlining self-regulation is particularly agreeable and harmonious given the wide variety of content available across the OTT platforms[xlvii] It is interesting to note that after a Supreme Court intervention pursuant to public interest litigation, OTT platforms were given an opportunity to establish a self-regulation code, which did not attract much traction from the players concerned. The present government orders have not specified anything more than an allocation of a subject (OTT content platforms) to the Information and Broadcasting Ministry.”[xlviii]
- CONCLUSION
The great visionary “Dr. Ambedkar, while discussing the Draft Constitution of India on the issues of freedom of speech, quoted a judgment of the US Supreme Court Gitlow v New York in justification of the limitation on the right of free speech contained in Article 13: It is a fundamental principle, long-established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
Hence in light of the given discussion, a debate is required wherein issues related to transportation of individual’s independence in a digital space can be highlighted. “This will be a process of evolution, where multiple interests will clash, time-honoured maxims, traditions and precedence’s will be questioned, and almost everything that we hold dear will be put to test. The answers will lie in the Constitution and its interpretation by honourable judges, learned legislators, thinkers and academicians. And the people will watch this reality show unfolding on their myriad screens as we debate, question and evolve.”
This Manuscript is a part of the Conference organised by School of Law, Lovely Professional University and the Authors are Neeru Mittal, Research Scholar & Assistant Professor cum Hod (B.A.LL.B (Hons.) & LL.B) School of Law, Lovely Professional University, Punjab and Vanita Khanna, Assistant Professor, Department of Laws, Guru Nanak Dev University, Jalandhar.
BIBLIOGRAPHY
[i] Trust legal, Much required regulation of digital content is here’ available at ‘Much required regulation of digital content is here’ – Exchange4media (last seen on 23/3/2022)
[ii] Information Technology Act, 2000
[iii] The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
[iv] Ministry of Information and Broadcasting
[v] ibid
[vi] under section 294, 298 of IPC and other relevant provisions of IT Act, 2000
[vii] S. Singh, OTT: Censorship vs Right to Freedom of Speech and Expression, available at OTT: Censorship vs Right to Freedom of Speech and Expression – Legal Desire, last seen on 23/3/2022
[viii] Indian Penal Code, 1860
[ix] High Courts and The Supreme Court in India respectively
[x] J. Pandey, An Over-The-Top Approach to Internet Regulation in Developing Countries, available at An Over-The-Top Approach to Internet Regulation in Developing Countries | Electronic Frontier Foundation (eff.org), last seen on 23/3/2022
[xi] Shreya Singhal v. Union of India, MANU/SC/0329/2015
[xii] Shubangi, OTT STREAMING SERVICES – How to Regulate, available at https://www.readkong.com/page/ott-streaming-services-9919884 , last seen on 23/3/2022
[xiii] W.P.(C) 11164/2018
[xiv]IKIGAI Law, available at Will Sacred Games 2 Be Sanitised? A Summary of The Debate on Online Content Regulation In India | Ikigai Law, last seen on 23/3/2022
[xv] ibid
[xvi] Ministry of Electronics and Information Technology
[xvii] OTT Platforms brought under Government Regulation, available at OTT Platforms brought under Government Regulation – Obhan & Associates (obhanandassociates.com), last seen on 23/3/2022
[xviii] IN THE HIGH COURT OF DELHI AT NEW DELHI, available at Justice-for-Rights-Foundation-vs-UOI_watermark.pdf (assettype.com), last seen on 23/3/2022
[xix] W.P(C) 7123/2018
[xx] Phantom Group is the producer of Sacred Games.
[xxi] Delhi HC to hear plea against Netflix show ‘Sacred Games …. available at Delhi HC to hear plea against Netflix show ‘Sacred Games’ for allegedly defaming Rajiv Gandhi | India News,The Indian Express, last seen on 23/3/2022
[xxii] 67 Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. ]
[xxiii] 67A Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. ]
[xxiv] 67B Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. -Whoever-
(a) publishes or transmites or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually esplicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online, or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either discription for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious purposes.
Explanation. -For the purposes of this section “children” means a person who has not completed the age of 18 years.]
[xxv] Power to issue directions for interception or monitoring or decryption of any information through any computer resource. –
(1) Where the Central Government or a State Government or any of its officers specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.
(2) The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-
(a) provide access to or secure access to the computer resource generating, transmitting, receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]
[xxvi] ibid
[xxvii] (W.P. 6050/2019)
[xxviii] KARNATAKA HIGH COURT RULES THAT ONLINE CONTENT CANNOT BE …. available at https://iprmentlaw.com/2019/09/07/karnataka-high-court-rules-that-online-content-cannot-beregulated-under-the-cinematograph-act-read-judgement/, last seen on 23/3/2022
[xxix] Divya Ganeshprasad Gontia v. Union of India, Public Interest Litigation No. 127/2018 (High Court of Judicature at Bombay, Nagpur Bench), last seen on 23/3/2022
[xxx] Ministry of Information and Broadcasting
[xxxi] (WP 18801/2019)
[xxxii] Sale, etc., of obscene books, etc.
138 [( 1 ) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or. embodied in it].
139 [(2)] Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished 140[on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees].
140 [Exception- This section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art of learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]
[xxxiii] Sale, etc., of obscene objects to young person: Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished 140[on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees].
[xxxiv] Obscene acts and songs Whoever, to the annoyance of others-
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]
[xxxv] Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
[xxxvi] Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
[xxxvii] (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
[xxxviii] OTT Regulations: MP HC Seeks Response From Govt, Netflix, Others (inc42.com) (last visited 23/3/2022)
[xxxix] The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 – INSIGHTSIAS (insightsonindia.com), last seen on 29/4/2022
[xl] A.S. Prakash, Centre’s new IT rules were much-needed to ensure online platforms are subject to law of the land | The Indian Express(last seen on 23/3/2022)
[xli] Information and Broadcasting Ministry
[xlii] Central Board of Film Certification
[xliii] Dr. M. Machill, Self-Regulation of Internet Content (Bertelsmann Foundation, Gütersloh 2004), available at BertelsmannProposal.pdf (cdt.org), last seen on 10/9/2021.
[xliv] K. McDonald, The Netflix Effect: Technology and Entertainment in the 21St Century (Wiley Periodicals, Inc 2017), last seen on 10/9/2021
[xlv] A. Md. Isa*, W. A. W. Mahmud, W. I. W. Sulaiman and M. A. Pitchan, Netflix And Dilemma of Content Regulation in Malaysia’ (2019) Vol. 28 International Journal of Advanced Science and Technology, available at https://www.researchgate.net/publication/338823027_Netflix_and_Dilemma_of_Content_Regulation_in_Malaysia, last seen on 22/3/2021
[xlvi] Dr. M. Machill, Self-Regulation of Internet Content (Bertelsmann Foundation, Gütersloh 2004), available at BertelsmannProposal.pdf (cdt.org), last seen on 10/9/2021
[xlvii] A. Smith, L. Jones, K. Mitchell, C. Newlin & S. Hamby, Netflix and Cope”: Down Time as a Potential Form of Coping and Self-Regulation, available at (PDF) “Netflix and Cope”: Down Time as a Potential Form of Coping and Self-Regulation (researchgate.net), last seen on 10/9/2021
[xlviii] B. Singh and K. Jain, Does regulating digital content hurt freedom of speech? available at Does regulating digital content hurt freedom of speech? – The Daily Guardian, last seen on 23/3/2022