The Ministry of Information and Broadcasting (“MIB”) has said that it will issue a list of prohibited content for online curated content providers (“OCC Providers”) such as Netflix, Hotstar, and Amazon Prime. This list of prohibited content will include content that portrays women in a “denigrating” manner or displays the incorrect map of India. Controversies surrounding online web-series like ‘Leila’ (allegedly portraying Hinduism in a negative light) or ‘the Family Man’ (allegedly creating sympathy for terrorists), have sparked the discussion to regulate OCC Providers. The government may even introduce a certification process for online streaming platforms.
Previously, several writ petitions have been made to the courts to regulate online content. However, the courts have either outrightly rejected or disposed such petitions after hearing. The Karnataka High Court rejected a petition (Padmanabh Shankar v Netflix (W.P. 6050/2019) to regulate online content, where it was argued that online videos fall within the definition of “cinematograph” under the Cinematograph Act, 1952 (“CTA”) and therefore, should be regulated under the CTA. However, the Karnataka High Court held that online videos did not fall within the definition of the word “cinematograph” under the CTA and therefore, such videos could not be regulated by the CTA. The court may have arrived at this decision after evaluating the practical outcome of regulating all videos (posted on the internet) under the CTA. Such an outcome would involve a screening and certification even for user created videos shared between users on WhatsApp.
Currently, online content is already regulated by the Information Technology Act, 2000 (“IT Act”). Along with the IT Act, the IAMAI Code for Best Practices for Online Curated Content Providers (“Code”) also regulates online content. The Code has been signed by several OCC Providers. However, key players like Amazon Prime have not signed the Code. The Code disallows content that portrays women in “denigrating” manner, “maliciously” disrespects the national flag, “maliciously” intends to outrage religious sentiments, “deliberately and maliciously” promotes or encourages terrorism, and content that has been banned for exhibition or distribution by any law or court.
The major problems with regulating online content are:
First, if online content is regulated under a regime similar to the CTA, then would the censorship and certification process apply to any user generated content (i.e. content created by lay people/users) uploaded on platforms like YouTube, Facebook, Instagram and TikTok? How will the government differentiate between the platforms that qualify as OCC Providers (not Intermediaries) or platforms like TikTok based on user generated content (which qualify as Intermediaries) or platforms that are offer both curated (i.e. content specifically selected by companies like Netflix for streaming on their platforms) and user generated content (like videos posted by users on YouTube)?
Second, since the OCC Players operate on pulling the viewers to their platform as opposed to pushing out content through television and cinema halls, shouldn’t the viewers hold some responsibility for what they watch? In addition, does parents’ failure to monitor the kind of content consumed by their children warrant a ban on content otherwise enjoyed by several others? The CTA’s objective was to certify the public exhibition of cinematographic content. Interestingly, the term “public exhibition” is not defined under the CTA. But does viewing a season of ‘Sacred Games’ alone, in the privacy of your home, amount to public exhibition? How will the government decide whether any content is “denigrating” to women or “maliciously” intending to outrage religious sentiments, since the mindset of the each individual viewer is highly subjective. If not, then should the government regulate what Indians watch in the privacy of their homes? Does such regulation fit well with the principles of a democratic society that respects freedom of speech and expression?
Strict regulation (including certification similar to the CTA) of online content may not be feasible for the growth of content driven digital economy. Such regulation will hinder innovation and hurt the growth of content-based Indian startups like ShareChat, PoPXo, etc. The government should be mindful of the impact that regulating online content will have on the startup ecosystem and the freedom of speech and expression in India.
This post is authored by Associate, Ila Tyagi, with inputs from Principal Associate, Tanya Sadana and Senior Associate, Aman Taneja at Ikigai Law.