Written By Pradyumna Yadav and Anushka Agarwal, IInd Year, UPES, Dehradun.
E-Commerce in India is in its nascent stage yet has rapidly diversified and grown its roots in every individual’s life. This growth and diversification of E-Commerce in India is limitedly regulated to some specific sectors, for instance e-payment portals are now regulated under Payment and Settlement Systems Act, 2007[i] by the Reserve Bank of India or RBI. The moot question lies in an effective and efficient regulation of other remaining sectors, such the content regulation of ‘on demand video streaming platforms’, which is still not governed by a single form of legislation but could be enforced through various provisions of different laws[ii] such as the Information Technology Act, 2000[iii].
‘On demand video streaming platforms’ have served the needs and wants of the traditional consumers, in terms of better accessibility and convenience which has resulted in unanticipated growth in terms of market share[iv]. In order to broadly understand the true character of such portals, core management techniques and theories can be relied upon such as SWOT and PESTEL Analysis, for instant reference ‘O’ in SWOT means opportunities for such platforms to exploit the market due to dearth of a proper law in general and specifically for content regulation. These platforms have initiated a public outcry against uncensored and uncertified video content which are of sexually explicit, vulgar, profane and extremely violent nature, which causes reasonable apprehension in the minds of the traditional consumers or viewers that if such content is exercised in public domain, it would surely cause public disorder.
REGULATION OF ON-DEMAND VIDEO STREAMING PLATFORMS UNDER INDIAN LAWS
Need For Regulation
Popular shows such as ‘Sacred Games’ and ‘Gandi Baat’ were alleged to have content which is vulgar, sexually explicit, depictive of women in objectified manner and containing abusive language in order to attract gullible subscribers. Such nature of content was put forth for adjudication before the Honorable Delhi High Court in the case of Justice for Rights Foundation v. Union of India[v]. Similarly, the show ‘Mirzapur’ contains violent and abusive content which may result in the incitement of any cognizable offence[vi] such as murder and dacoity. ‘Sacred Games’ was also alleged to have depicted derogatory content against the former prime minister of India, Rajiv Gandhi. The derogatory scenes in the show were raised and are being deliberated by Delhi High Court in the case of Nikhil Bhalla v. Union of India &Ors[vii].
Article 19(2) of the Constitution of India puts reasonable restrictions on the fundamental right of freedom of speech and expression on the grounds of security of the state, friendly relations with the foreign states, public order, decency or morality or in relation to the contempt to court, defamation or incitement of any cognizable offence. Shows like ‘Sacred Games’ and ‘Mirzapur’ contain content which affects the morality of the society adversely by broadcasting obscene, vulgar, vile and offensive content which is considered against the interest of the public and are indecent per se. This may also result in incitement of any cognizable offence which can disturb the public order in the society[viii] this gives sufficient reasonable ground for censoring the content telecasted on these online platforms. §292 to §294 of the Indian Penal Code also provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. §292 prohibit the circulation, distribution, exhibition or representation of obscene words in any manner until and unless it is done in the name of arts, literature and religious idea. §293 particularly forbid circulation, distribution and representation of such content to the people below 20 years. These online platforms are exposed to the underage youth, thereby making it obligatory for the regulation of such content and broadcasters to abide with the laws of our country, as exposure of such content is at a greater peril because there is no proper age verification mechanism on such platforms.
What is obscene, vulgar and lewd can best described from the law laid down in the case of Ajay Goswami v. Union of India[ix], a matter would be obscene if a matter appeals prurient interest in sex as determined by average person contemporary standards and lacks serious literary, artistic and scientific value, then the content matter can be categorically stated as obscene and will not be protected under Freedom of Speech and Expression. Clearly the content of some shows on such platforms which raise doubt of obscenity will not be protected under Art. 19(2).
The distinction between on-demand video streaming platforms and other forms of platforms such as movie theatres or DTH movie services is that the circle of privacy increases in the case of on-demand video streaming platforms as content is often restricted to authorized users. By using the security and privacy tools one can control access to content on the streaming platforms according to one’s own terms, thereby restricting the scope of state interference. In the landmark judgement of Justice K.S. Puttaswamy v. Union of India[x], Supreme Court construed right to privacy as a fundamental right within the purview of Article 21. Court in this case, categorically stated that the said right is not absolute and is subjected to reasonable restrictions when there is a ‘compelling state interest’. In the case of Cooper v. Union of India[xi], it was observed that state is established for the purpose of safety of its people, territory and sovereignty, if there is any situation which endangers the restrictions as contemplated in Art. 19(2), state must act for the common good of its constituents. Shows which are vulgar, obscene and violent in nature do harm the public order, morality and decency need to be regulated.
Existing Legal Provisions For Regulation
There exist a plethora of Indian provisions for temporary regulation of the content published on such online platforms until a uniform and single law is formulated for regulation of all forms of E-commerce and matters connected to it thereto. Out of the various legislations, § 67-A and § 69-A of the Information Technology Act, 2000 is the most appropriate and feasible piece of legislation. §67-A states, “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….” and § 69-A (1) states regarding the power of central government authorize blocking the public access to those information on public domains which are likely to cause adverse effect on public order and for preventing incitement to any cognizable offence and others matters concerning state interest.
In order to bring ‘on demand video streaming platforms’ per se under the ambit of Information Technology Act and §69-A, these bodies need to fall within the definition of ‘intermediaries’ as given under section 2(1)(w) of the act. ‘On demand video streaming platforms’ would fall within the definition of ‘Intermediaries’ as per the law laid down in the case of Myspace Inc. v. Respondent: Super Cassettes Industries Ltd[xii], they would under fall under the definition of intermediaries because they are aggregators of films, series and other multimedia content, which when demanded by customers are provided to them and consideration for the same is received by such aggregators through a self-designed subscription model.
Moreover, when the content is obscene and depicting women in objectionable manner would surely attract the provisions of Indecent Representation of Women (Prohibition) Act, 1986 and charge under §509 of Indian Penal Code, 1860 against the producers of such shows. § 3 and §4 of Indecent Representation of Women (Prohibition) Act, 1986 deals with prohibition on transmitting and publishing indecent representation of women in any form the only exception made thereto lies in, if it has been done so in interest of arts, literature and religious purposes, but does not include the domain for films solely for ‘entertainment’ purposes. Clearly such alleged content on ‘Sacred Games’ and ‘Gandi Baat’ can be brought under the ambit of Indecent Representation of Women (Prohibition) Act, 1986.
Unfortunately, these ‘on demand video streaming platform’ are self-regulated by their own terms and conditions which vary from platform to platform, thereby resulting irregularity in content regulation.
In the case of Justice for Rights Foundation v. Union of India, the court had dismissed the case citing reason that there are already stringent provisions in Information Technology Act, 2000 for redressing the issue of content regulation, therefore enforcement and implementation of information technology act is an onus upon the central government now. As ‘on-demand online video players’ steadily replace movie theatres and broadcast television, the pressure will grow on the government to adopt extension of reasonable restrictions as contemplated under Art. 19(2) to cyberspace or treat this as an opportunity to display forbearance or perhaps even innovation. It is the suggestion of authors to bring following possible changes in regulatory frameworks governing e-content regulation: –
1. Parliament of India should legislate for uniform and flexible legislation which will regulate this form of media because India always had a separate legislation for different form of medium of entertainment, for example Press Council Act, 1978[xiii]. Legislative power for the same is vested through Item No. 31 of List- I, 7th Schedule, Constitution of India.
2. Suitable amendments in Cinematograph Act, 1952 and Cable Television Networks (Regulation) Act, 1985 with respect to bringing on-video demand online platforms in their interpretation and regulation clause need to be made. The reason why amendments need to be made in these legislations is because currently they do not cover online platforms, such as section 2(c) of Cinematograph Act, 1952. Furthermore, Cable Television Networks (Regulation) Act, 1985 regulates the content broadcasters such as Star India Private Limited but unfortunately casts ambiguity with regard to its online extension ‘Hotstar’, in order to remove such ambiguities amendment are dire need of the time.
3. Committee set up for regulation of content telecasted online by Ministry of Information and Broadcasting should formulate the framework it was supposed to formulate in the year of 2018[xiv]. So that when this framework is published through official gazette of India, would be treated as a ‘law’ from the purview of Art. 13(3).
[i] Reserve bank of India,Certificates of Authorisation issued by the Reserve Bank of India under the Payment and Settlement Systems Act, 2007 for Setting up and Operating Payment System in India, https://rbi.org.in/scripts/publicationsview.aspx?id=12043. Last seen 01/03/2019
[ii] Nishith Desai Associates, E-Commerce in India: Legal, Tax and Regulatory Analysis, http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/E-Commerce_in_India.pdf , Last Seen 01/03/2019.
[iii] Indian Penal Code, Act No. 45 of 1860. Indecent Representation of Women (Prohibition) Act, Act No. 60 of 1986.
[iv] Yuvraj Malik, Netflix & Amazon slug it out in India’s competitive video streaming market, Business Standards https://www.business-standard.com/article/companies/global-giants-netflix-amazon-prime-grab-a-large-chunk-of-india-s-ott-space-118112201161_1.html , Last seen 04/03/2019.
[v] Delhi High Court, W.P(C) 111164/2018.
Petition available on https://barandbench.com/wp-content/uploads/2018/10/Delhi-HC-Netflix-Amazon-online-shows-Petition.pdf Last seen 04/03/2019.
[vi] In the matter of Incidence of Gang Rape in a Boarding School v. State of Uttarakhand and Ors, MANU-UC0740, (2018).
[vii] Delhi High Court, W.P(C) 7123/2018.
[viii] Supra Note VI.
[ix] 1 SCC 143, (2007). Shri Chandrakant Kalyandas Kakodar v. State of Maharashtra, 2 SCC 687, (1969). Aveek Sankar v. State of Maharashtra. Roth v. United States 354 U.S 476, (1957).
[x]10 SCC 1, (2017).
[xi] 1 SCC 248, (1970).
[xiii] Cinematograph Act, Act No. 37 of 1952. Cable Television Networks (Regulation) Act, Act No. 7 of 1985.
[xiv] Ministry of Information and Broadcasting, Constitution of Committee for framing regulation regulations for online media/ news portals and online content, Order dated 4th April 2018.
**image source: https://www.engadget.com/2018/10/04/europe-approves-content-quotas-netflix-amazon