"Online Web Platforms Need To Be Regulated By Statutory Body In The Interest Of Public Morality And Decency " : NGO Submits Before Supreme Court

Justice For Rights Foundation, has submitted before Supreme Court that an effective control of content on OTT platforms cannot be done without legislation, and regulation of these platforms by statutory body is necessary in interest of public morality and decency. 

The submissions have been made in its rejoinder affidavit filed in response to the counter affidavit filed by Central government and Ministry of Communications, in matter regarding regulation of content on OTT platforms.  

Supreme Court is scheduled to hear on Tuesday a plea by NGO Justice For Rights Foundation filed seeking regulation of functioning online media streaming platforms like Netflix, Amazon Prime Video, Hotstar etc. by the government. 

A three-judge Bench of Justice DY Chandrachud, Justice MR Shah and Justice Sanjiv Khanna will hear a batch of pleas filed regarding regulation of content on OTT platforms like like Netflix, Prime Video, Disney Hotstar etc.

It will be heard with Central Government's transfer petition seeking transfer of cases pending in different High Courts for regulation of OTT platforms. A division bench of Justices S Abdul Nazeer and Sanjiv Khanna had issued notice on Centre's plea last month and tagged it with other petitions. 

The rejoinder filed by the NGO through through Advocate Satyam Singh has stated that content broadcasted by the OTT platforms are violative of the provisions of the Indian Penal Code, 1860, Information Technology Act, 2000, the Indecent Representation of Women (Prohibition) Act, 1986, and the other applicable laws. It has been admitted the government does not regulate the content broadcasted by the OTT platforms, and there is no provision for regulating and licensing the content broadcasted by OTT platforms. Therefore, the content produced and streamed by the OTT platforms remain out of the regulatory purview. 

According to the petitioner the online web platforms needs to be regulated by a statutory body in interest of public morality and decency as the content available on such platforms being non-licensed and non-censored is available in general public without any reasonable restrictions being imposed. 

The petitioner has stated that web series like Tandav, Mirzapur 2, Ak Vs Ak and A Suitable Boy have allegedly hurt religious, social and regional sentiments, and have allegedly damaged social harmony. 

The petitioner has referred to legal action taken against some of the web series, including FIR against the producers of web series Mirzapur and OTT platform Amazon Prime Video and makers of Amazon Prime web series 'Tandav' for allegedly hurting religious sentiments.

The petitioner has opined that self-regulation by OTT streaming platforms have not been effective, and have not served any meaningful purpose. 15 OTT platforms had come together under the aegis of the Internet and Mobile Associations of India (IAMAI) in September, 2020 to sign a code of Self-regulation, formulating a framework for age classification, appropriate content description and access control. The Ministry of Information and Broadcasting (MIB), however, rejected the code and asked IAMAI to look at other mechanisms. 

The petitioner relying on a news article published by the Indian express, stated that the Government has expressed its displeasure with the self-regulatory model proposed by the IAMAI for content on online streaming services and OTT players, as it lacks independent third- party monitoring, does not have a well-defined Code of Ethics, does not clearly enumerate prohibited content.

The Ministry of Electronics and Information Technology (MeiTY) administers the power and functions as provided in the IT Act, 2000 and rules and it has been admitted by the respondent that the Act provides for disablement of content for public access only in limited circumstances. Therefore it is evident from this admission on the part of Respondents that the provisions of IT Act, 2000, are not adequate to curb the growing menace of the OTT platforms.

The petitioner has opined that the provisions of IT ACT, 2000 are not adequate to meet the challenges posed by the OTT platforms and are in the nature of mere criminal proceedings with the punitive measures based on complaints filed with the police authorities and contain no provisions to guide general decisions related to content creation and dissemination in the digital media ecosystem. 

Further the petitioner has contended that the government in its affidavit has only dealt with the content of the OTT platforms which was one of the aspects of the Petition and have not clarified their stand with respect to license, certification and lack of grievance portal. 

"The answering Respondents fell into oblivion the fact that the certification can only be provided before a particular content is broadcasted or can be broadcasted and once the content has been telecasted for public display, then it does not serve any useful purpose for the public at large." the rejoinder has stated. 

The petitioner has further made note of the recent notification issued by the central government to regulate online content. It has stated that while till now there was no law or autonomous body governing digital content in India, the government through Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has brought OTT platforms like Netflix, Amazon Prime Video and Disney+ Hotstar besides other online news and current affairs content under the ambit of the Ministry of Information and Broadcasting, giving it powers to regulate policies and rules for the digital space. 

According to the petitioner, while the intent of the Government in bringing out new IT guidelines for OTT platforms are commendable, it suffers from many flaws, defects and loopholes. It is of significant concern that purview of IT Act, 2000, has been expanded to bring digital news media and OTT under its regulatory ambit without legislative action. 

"The ability to issue rules under a statue - i. e. to frame subordinate legislation - is by its nature a limited, constrained power. When the Union Government issues subordinate rules, it is limited to substantive provisions laid out by Parliament in the original act passed by the latter - the executive branch is subordinate to what Parliament has permitted it and cannot use its rule making power to seek to issue primary legislation by itself. " the petitioner has stated. 

The petitioner has further argued that the Government of India has palpably failed to take into consideration the screening of content telecasted on OTT platforms, which is need of the hour considering the content shown on OTT platforms is vulgar, pornographic and profane.

The petitioner has relied on a news report that stated that the Supreme Court has made it amply clear to OTT platforms like Netflix and Amazon that it is in favour of "screening" content shown by them, saying that some of the films hosted by the platform were pornographic. The observations were made by Justice Ashok Bhushan led Bench while hearing plea by Amazon Prime's commercial head, against the Allahabad High Court decision denying her pre-arrest bail in connection with the probe into Tandav, Amazon's web series. 

According to the petitioner, the new IT Rules are more in the nature of guidelines without any effective mechanism for its proper implementation, and do not provide for any penalty or punishment for violation of the Rules. Without legislation, there cannot be an effective control of content on OTT platforms. 

The Petitioner has further cited Supreme Court's observations in Aparna Purohit's case pertaining to the web series Tandav, that a perusal of the Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines. It was also submitted by Solicitor General Tushar Mehta that the Government will consider and take appropriate steps for regulation or legislation as may be found fit by the Government and place it before the Court. 

The present petition Justice for Rights Foundation was filed against Feb 8th 2019 judgement of the Delhi High Court. The NGO had claimed that online media streaming platforms show content which is "unregulated and uncertified" for public viewing. 

The Delhi High Court bench of Chief Justice Rajendra Menon and Justice V K Rao rejected the petition after the Ministry of Information and Broadcasting informed it that online platforms are not required to obtain any licence from the ministry. 

The NGO had argued in HC that television series like "Sacred Games", "Game of Thrones" and "Spartacus", shown on platforms like Netflix, contain "vulgar, profane, sexually explicit, pornographic, morally unethical and virulent" content which often "depict women in objectifying manner".

The plea before the High Court was filed seeking guidelines to regulate the unregulated, uncertified, sexually explicit, vulgar, pornographic, profane and legally restricted contents broadcasted on the online platforms including Netflix, Amazon Prime etc.