Now streaming: The chilling impact of the brand new IT guidelines
Online video streaming platforms have marked a new beginning for the Indian entertainment industry, offering choices beyond soap operas and formulaic storylines characteristic of traditional media such as cinema and television and designed for more public and family-oriented forms of consumption. However, the specter of government regulation and criminalization haunts this fledgling industry, which has fought off attacks on its creative freedom on several fronts. While recent conversation has focused on the Information Technology Rules 2021 (Intermediate Guidelines and Code of Ethics for Digital Media) announced by the central government on Feb.25, the Busybodies have long tried to censor online video streaming platforms by using petitions to the courts.
The sheer volume of these legal proceedings is staggering – at least 23 petitions have been heard by various Supreme Courts on the subject of regulating online video streaming platforms. Complaints range from wounded religious feelings to moral outrage against depictions of sexuality, but the common thread that connects them is the desire to control what other citizens can observe in the privacy of their homes. Public-interest litigation, which has been a tool to protect the rights of the marginalized and vulnerable, has been armed by self-proclaimed defenders of social, cultural and religious values in an attempt to limit the artistic expression and choice of viewers.
In addition to petitions seeking strict regulation, criminal proceedings have been initiated against employees of companies such as Netflix and Amazon Prime on grounds ranging from a kissing scene between a Hindu girl and a Muslim boy in front of a temple to an allegedly offensive portrayal range of the Hindu deity Shiva. While such FIRs may be related to a specific movie or show, their deterrent effect is much greater, as they cause significant nuisance and compromise the personal freedom of content creators and company executives who may be arrested and jailed underserved. Worryingly, when the Supreme Court heard an anticipation lawsuit from an Amazon Prime employee, it suggested that stricter criminal penalties could be considered for violations of IT rules 2021 policies by regulation or law.
The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the decision-making power of the central government under Section 69A of the IT Act, and the existing three-tier regulatory mechanism and the system for classifying content prescribed by the rules are also unconstitutional from the same reason. To understand why this is so, let’s compare the provisions of the IT Rules 2021 with the parent legislation, Section 69A of the IT Act. Some of the objections set out below were raised in petitions filed by digital news media portals before the Delhi Supreme Court and the Kerala Supreme Court. However, online video streaming platforms, which are also subject to Part III of the IT rules 2021, have not contested these rules yet.
First, the powers under Section 69A can only be exercised in the interests of the “sovereignty and integrity of India, the defense of India, the security of the state, friendly relations with other states or public order, or to prevent incitement to the commission of a recognizable crime on top. “While” propriety or morality “is a reason to adequately restrict freedom of speech under Article 19 (2) of the Constitution, it is intentionally omitted from Section 69A. The implication is that the powers under Section 69A do not regulate online content that can be obscene or sexually explicit. Nevertheless, the IT rules 2021 mandate the classification of online content based on nudity, gender, explicit language and substance abuse, and also mandate access control and age verification mechanisms to prevent such Prevent content.
Second, Section 69A states that central government can instruct “any government agency or intermediary” to block access to online content, but online video streaming platforms do not fall into either of these categories. Companies such as Netflix and Amazon Prime commission or license the films and shows available on their platforms and are not “intermediaries” in the sense of IT law, since, unlike social media platforms such as Facebook and Twitter, they do not allow users to do everything to post what they want without pre-selection. The criminal provision according to § 69A Paragraph 3 also prescribes a custodial sentence or fine only for an “intermediary” who does not comply with the blocking instructions issued by the central government. Therefore, Section 69A, in its current form, does not impose any obligation or liability on content publishers such as online video streaming platforms.
Third, Section 69A only gives central government the power to “block public access or block public access to information generated, transmitted, received, stored or hosted in a computer resource”. However, the range of powers granted under the IT Rules 2021 is much broader and includes the requirement of an apology or disclaimer, reclassification of content, and deletion or modification of content. As a result, the 2021 IT Rules greatly expand the scope of the powers available under Section 69A and facilitate more subtle forms of censorship reminiscent of the CBFC’s model, which is known to require changes to films prior to certification for release.
The three-tier legal framework created according to the rules suffers from the substantive problem of a lack of independence. The third tier, the interdepartmental committee, consists entirely of bureaucrats and there is no guaranteed representation by the judiciary or civil society. The Review Committee, formed under rule 419A of the 1951 Indian Telegraph Rules, is also composed entirely of executive officials. The ability of the Review Committee to act as an adequate procedural guarantee is questionable due to its lack of independence and volume of work.
Many of the changes that the central government is looking to implement through the IT rules in 2021 may be well-intentioned and desirable. However, a constitutional process cannot be sacrificed at the altar of expediency. The solution is to start all over with the publication of a white paper clearly outlining the damage that should be repaired by regulating online video streaming platforms and a meaningful public consultation, not limited to industry representatives is limited. After that, if regulation is still deemed necessary, it must be implemented through legislation being debated in Parliament, rather than relying on powers to set executive rules under Section 69A of the IT Law, which never creates such sophisticated regulation have considered framework and suffers from its own shortcomings.
The author is a litigator with the Internet Freedom Foundation