This article is written by K.S. Manaswi pursuing B.A. L.L.B. The author in this article has analysed the case of Justice for Rights Foundation v. Union of India on the OTT services.
The 21st century is the time of evolving technologies, the last two decades have seen major growth in terms of technological innovation. This evolution has acted like a harbinger of happiness for almost every facet of life. However, it is important to take note of the fact that these evolving technologies at times lack a proper set of regulations to govern them. Law making authorities across the globe have been facing issues in regulating these services which are commonly known as Over The Top (OTT) services. Until recently, these services were treated like a gift of the 21st century but now various litigations and discussions have brought into light the dark side of these services which makes it essential for the government to give an urgent attention to the laws governing these services.
The intermediaries under the IT Act, 2000 are exempted under the safe harbor principle as it is supposedly agreed as of today that they don’t have knowledge of the content that is being posted on their platforms due to various reasons.
This is paper will analyse the regulations through the case comments on the recent judgment of the Supreme Court in the year of 2019 namely “Justice for Rights Foundation v Union of India” which has recently grabbed attention by academicians and technocrats regarding the future of OTT laws in India and the role that (Telecom Regulatory Authority of India) TRAI will play in regulating them.
Over-the-top services, mostly referred to as OTT services, are a buzz-expression for services carried over the networks, delivering value to customers, but without any carrier service provider being involved in planning, selling, provisioning, or servicing them, these services do not involve any traditional telco booking revenue directly from them.
As a result of technological revolution, we are surrounded by these services in every aspect of human functioning. Common examples of these services are WhatsApp, Instagram, Skype, Netflix, Amazon and YouTube etc.
OTT services are diverse in terms of their range, they are a mix of technologies, vendors, and platforms. Technically, OTT services includes:
- Downloaded applications which use point-to-point technology & the compute-power of the user’s computer to deliver Internet Provider services,
- Peer-to-Peer (PTP), mesh network delivered & supported applications,
- Widgets hosted on Portals, meant to keep users inside the portal environment.
These services are a gift of technology to the 21st century. They’ve made lives convenient in various aspects. They’ve helped in advancing the entertainment industry; they’ve developed the concept of quick communication for both professional and personal relationships. OTT services have facilitated multi-faceted growth of our society.
However, this boon is accompanied by a bane which the world is trying to curb. As there is a lack of jurisprudence in this field, the regulations and laws regarding the same either do not exist or are extremely ambiguous to be of any good. Thus, forming a grey area in various fields of law such as Intellectual Property Rights, Entertainment laws, Telecommunication laws and to a extent even the Fundamental Rights such as Freedom of speech and privacy.
For the past few years, OTT services have gained excessive popularity around the world which has led to various socio-legal disputes. Different jurisdictions have taken different stands on these disputes but one thing that is common is that there is uncertainty with respect to adoption of legal framework for the OTT services. Indian Courts and media houses have been facing the same problem. There have been several instances which have been brought to the Court of Law in India.
Taking into consideration the broad impact of OTT in an individual’s life, dealing with the nitty-gritty involved in functioning related to all these platforms is not possible. Thus, we would like to limit the scope of this paper to OTT services providing videography content such as YouTube, Netflix etc.
Brief of the case
The rise in the OTT services paved a path for many web developers to make profits. But the regulations for the same have always remained an issue. Until recently, no efforts were made for making rules or regulations in India but with the growing reach and awareness of these services have made it inevitable for the law-making authorities to take note of these services. Additionally, increasing litigation has made sure that these services land in top priority.
A recent judgment by the Delhi High Court, the NGO named Justice for Rights foundation filed a writ petition for seeking guidelines for the use of OTT services in the country. It was filed in order to regulate the vulgar, legally restricted contents. Some of these contents have also been categorized as obscene, uncertified and profane. This petition was however dismissed by the Chief Justice of the Delhi High Court Rajendra Menon and Justice V Kameswar Rao. According to the petitioners, one must follow the reasonable restriction imposed by the constitution of India. Article 19(2), The Constitution of India, 1950 imposes reasonable restrictions on the freedom of speech. It was contended by the petitioners that these unregulated contents affect the children, youth, minors etc. According to the petitioner, the content provided by the OTT services were violative of the Indian Penal Code, 1850 (herein referred to as IPC), the Information Technology Act, 2000 and The Indecent Representation of Women (Prohibition) Act, 1986.
The laws governing these services in India have not been amended to accommodate the rise of such new technologies. These OTT services are largely self-regulated and do not have a proper framework for their functioning in India. However, keeping in mind the broad ambit of OTT’s we would like to restrict our comment only for motion picture laws in India.
India has a wide variety of laws that regulate the motion pictures, information technologies and different companies that are run on the web portals. The motion pictures are regulated by the Cinematography Act, 1952 and its rules thereafter. These rules and the act are amended from time to time due to the technological changes. One of the major reasons for the change is the Information Technology Act, 2000 (herein referred as the IT Act).The Cinematography Act, 1952 (herein referred as the Cinematography Act) deals with the motion picture certification and its distribution to the public but the problem with this act is that it doesn’t investigate the new changes in these motion pictures. It only focuses upon the traditional way of these films being made or viewed. But the trends have changed now.
The IT Act, which came into force after the development of the internet in India in the year of 2000, deals with the legal recognition for the transactions that are carried out by the means of electronic data and communications. The IT act tried to bring in a paperless economy and also aimed to have legal impositions of everything being transacted on the internet or through electronic means.
The glitch with these two is that none of these acts have a jurisdiction over these OTT services, and hence the petitioners are asking for guidelines for the content that is being uploaded on these platforms.
Why India needs such norms also revolves on the recent development made by TRAI. TRAI introduced new subscription rates for the DTH service providers which might shift the consumers to the OTT services due to its cheap availability. According to the statistics, approximately 80% of the consumers are likely to shift to the OTT services.
The petitioners claimed that these online streaming affect the dignity of women as it shows them in the bad light. Thus, it affects the Right to Life and Liberty as enshrined under Article 21. Nudity, obscenity and vulgarity are against the morals of a woman hood, as claimed by the petitioners. They also claimed that these services were violative of Restriction to the freedom of speech and expression as under Article 19(2) of the Constitution, as the content that is viewed is against decency and morality of the state (State of Karnataka v. Dr. Pravin Bhai Thogadia). Also, the respondents have not fulfilled the due diligence as required by the Section 79(2) of the IT Act and Section 79 (3) of the Act. As per the petitioners, the fundamental freedom of trade and business (Article 19(1)(g), The Constitution of India, 1950) should be restrictive, and the trade and business should not hamper the safety, health and peace of the citizens.
But this petition was dismissed in the High Court of Delhi saying that these online platforms are not required to obtain licenses from the government. The High Court emphasized on the self-regulatory code that was made in the month of January, 2019 by some of the online platforms including Amazon, Netflix, Hulu etc coming together as an association, namely The Internet and Mobile Association of India (Herein referred as the IMAI). This Code is named as the “Code of Best Practices for Online Curated Content Providers.” This Code provides that the online platforms should not provide for content which is:
- Banned by Indian Court
- Disrespecting the National Emblem
- Which outrages the religious sentiments
- Promotes violence or supports terrorism
- Sexual acts by children.
Relying upon this Code, the High court had dismissed the petition for regularizing the content on online platforms.
The petitioners went to the Supreme Court through the Special Leave to Appeal. The Supreme Court has sent a notice to the Centre to make necessary guidelines for the electronic platforms showing such content to its viewers.
These types of petitions have been across the country and one such major hurdle which came across the Madras High Court was of TikTok. Madras High Court had put a ban on TikTok application due to the access to pornographic content through this platform. The Supreme Court lifted this ban as this would affect the freedom of trade and business; but also, directed for the guidelines to be laid down for the use of such platforms.
The society is changing rapidly, and the law must be amended accordingly. It is a necessity for the Centre to adopt such guidelines for the health, safety and the benefit of the public at large. Though, progressive steps have been taken up by TRAI on this matter but we as a growing nation which is advancing in every field majorly lack in providing a regulated platform to these services which in the world of social media govern every circle of human activity.
Taking into consideration, Sacred Games is one of the web series that has received criticism and dissatisfaction due to the violence, nudity and obscenity shown in the show. Regarding this allegedly objectionable content a plea was filed in the Delhi High court and Netflix had to change a word in the English subtitles because it was derogatory as held by the divisional bench of Judges Sanjiv Khanna and Justice Chander Shekhar.
Another example of the same is a new show, aired on Amazon Prime, namely Made in Heaven, it has been contended that the show depicts nudity and clips that could affect the public at large. Even though there were self-regulations, the content on these platforms does not get investigated before airing. These are just a few examples which deal with content which is accessed by the demographic dividend of this nation and at times even by the children.
It is important to focus on these services and provide them a uniform platform largely because they are growing as entertainment giants in this era; if their liberty is not restricted, it will result in major ruckus considering their reach in the world. Though, this is a new technology and laws for the same will take time to advance but sincere efforts are needed on part of the government for handling this situation which might in future turn into a “menace”.
- Mike Pertaria, OTT Services in a boom?, available on http://www.pipelinepub.com/1207/pdf/Article_3.pdf.
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