Guest Post: The 2021 Intermediary Guidelines and their impact on OTT Platforms

This post was authored by Radhika Roy

On 25 February 2021, the Central Government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (‘2021 Rules’). These Rules have been the subject of much controversy as social media intermediaries and media houses have challenged them in various High Courts across the country.  The Bombay High Court in AGIJ Promotion of Nineteenonea Media v Union of India stayed the operation of Rule 9(1) and Rule 9(3), the former provision mandating adherence to the ‘Code of Ethics’ and the latter creating a three-tiered structure to regulate online curated content. The High Court held that these rules contravened Article 19(1)(a) of the Constitution and transgressed the rule-making power delegated by the Information Technology Act, 2000 (‘IT Act’). This was affirmed by the Madras High Court in Digital News Publishers Association v Union of India, which noted that the order passed by the Bombay High Court had a pan-India effect.

While the Information Technology (Intermediary Guidelines), 2011 applied solely to intermediaries, the 2021 Rules cover both intermediaries and publishers of digital content, including OTT platforms (that fall under ‘publisher of online curated content). At the outset, the departure from utilising existing legislations such as the Cinematograph Act, 1952, or the Cable Television Networks (Regulation) Act, 1955, and invoking the IT Act to regulate publishers of film and television is curious. The aforementioned Bombay High Court judgement addressed this, observing that fields which stood occupied by independent legislations could not possibly be brought within the purview of the 2021 Rules.

The regulation of OTT platforms assumes particular significance given the recent controversies concerning web series that allegedly contain objectionable content or offend religious beliefs. For instance, FIRs were lodged against the makers of the web series Tandav, which led to Amazon Prime Video’s India head moving the Supreme Court for protection against arrest. Similarly, Netflix’s A Suitable Boy also triggered a police case after a political leader found the scene wherein the protagonist kissed a Muslim boy at a Hindu temple objectionable. FIRs have also been registered against the makers and producers of Mirzapur for offending religious beliefs, and a petition has been filed before the Supreme Court for portraying the Uttar Pradesh district in a negative manner.       

This blog will first set out how the 2021 Rules are applicable to OTT platforms. Second, it will examine whether the regulatory mechanisms conceived by the 2021 Rules provide unduly broad censorial powers to the Central Government, potentially threatening free speech and expression guaranteed by the Indian Constitution.

The 2021 Rules and OTT Platforms          
In February 2019, the Ministry of Electronics and Information Technology (‘MeitY’) told the Delhi High Court that the IT Act already provided stringent provisions for website blocking (under Section 69A) in case of illegal content on OTT Platforms and therefore, no mandamus could be issued to the Centre for framing general guidelines or separate provisions for OTT content. However, in February 2021, amidst rising controversies revolving around various shows, the Centre notified the 2021 Rules, Part III of which is titled “Code of Ethics and Procedure and Safeguard in Relation to Digital/Online Media”.

Rule 2(u) of the 2021 Rules defines “publisher of online curated content” as any publisher who makes available to users, on demand, audio-visual content (that is owned or licensed by the publisher) via a computer resource over the internet. OTT platforms such as Netflix, Amazon Prime Video, and Disney+Hotstar squarely fall within the ambit of such ‘publishers of online curated content’. Under Rule 8(2) of the 2021 Rules, such publishers are bound by Part III of the 2021 Rules, while Rule 9 requires such publishers to adhere to the ‘Code of Ethics’ found in the Appendix to the 2021 Rules. This Code lays down five broad principles, ranging from age classification of content to exercising due caution and discretion while depicting India’s multi-cultural background.  

Perhaps the most salient feature of Part III is its three-tier structure for redressal of grievances against content, which is applicable to both publishers of news and current affairs and publishers of online curated content. Any complaints that a publisher’s content violates the Code of Ethics or that the publisher is in breach of any rule in Part III of the 2021 Rules are addressed through the following structure:

Beyond the 2021 Rules, there will also be an establishment of an “Online Grievance Portal” by the Ministry of Information & Broadcasting (‘MIB’) where any person who objects to the content of a publisher can register their grievance. This grievance will be electronically directed to the publisher, the Ministry, as well as the self-regulating body.           

The impact of the 2021 Rules
Films released in theatres in India are subjected to pre-certification from the Central Board of Film Certification (‘CBFC’) as per the Cinematograph Act, 1952, and television programmes are governed as per the Cable Television Network (Regulation) Act, 1995. However, OTT platforms, till now, escaped the scrutiny of the law due to an absence of clarity as to which Ministry would regulate them, i.e., the MietY or the MIB. The matter was resolved in November 2020 when the Government of India (Allocation of Business) Rules, 1961 were amended to include “Films and Audio-Visual programmes made available by online content providers” within the ambit of the  MIB.     

Overregulation and independent regulatory bodies
The 2021 Rules pose a danger of overregulation vis-a-vis OTT platforms; they promote self-censorship and potentially increase government oversight over digital content.  Beginning with the second-tier of the mechanism established by the 2021 Rules, it requires a self-regulatory body to be set up which is to be headed by a Supreme Court or High Court Judge, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other field; the members of this body, not exceeding six, are experts from various fields. Rule 12(3) dictates that the self-regulating body, after constitution, needs to register itself with the MIB. However, this registration is predicated upon the subjective satisfaction of the MIB that the body has been constituted according to Rule 12(2) and has agreed to perform functions laid down in sub-rules (4) and (5), which effectively hinders the independence of the body as the Rules fail to circumscribe the discretion that can be exercised by MIB in refusing registration to the body.

This self-regulating body can sit in appeal as well as issue guidance or advisories to the publishers, including requiring the issuance of apologies or inclusion of warning cards by publishers. However, decisions pertaining to the need to take action to delete or modify content, or instances where the publisher fails to comply with guidance or advisories of the body, are to be referred to the Oversight Mechanism under Rule 13 [Rules 12(5)(e) and 12(7)].   

Additional concerns arise at Level III – the Oversight Mechanism under Rule 13. This Oversight Mechanism requires the MIB to form an Inter-Departmental Committee (‘IDC’), which shall consist of representatives from various other Ministries; the Chairperson

of this Committee is an Authorised Officer appointed by the MIB. Rule 14(2) stipulates that the Committee shall meet periodically to hear complaints arising out of grievances with respect to decisions taken at Level I or II, or complaints referred to it directly by the MIB. This may pose certain challenges — as the IDC, which is constituted and chaired by the MIB, and consists of individuals from other Ministries, will effectively also preside over complaints referred to it by the MIB. Furthermore, the recommendations of the IDC are made to the MIB itself for issuance of appropriate orders and directions for compliance. This has the potential to create a conflict of interest, and it violates the principle of natural justice that one cannot be a judge in their own case.         

A bare perusal of the functions of Level II and Level III portrays that the powers bestowed upon the self-regulating body and the IDC overlap to a great extent. The self-regulating body may be rendered irrelevant as decisions regarding modification or removal of content or punishment of the publisher for failure to comply rest with the IDC. As the IDC is constituted by the MIB and its recommendations are referred to the MIB for issuance of orders to the publishers, for all intents and purposes, the Central Government has the final say in the online content that can be published by OTT platforms. This may make publishers wary and could have a chilling effect on freedom of speech and expression as content unfavourable to or critical of the government in power may be referred to the IDC/MIB and blocked.          

The IDC has considerable discretion when it comes to its position as an Appellate Authority. More importantly, Rule 16 allows the Authorised Officer to block content under Section 69A of the IT Act in any case of emergency may have potential for misuse. To confer upon one individual appointed by the MIB the power to block content, without providing an opportunity for hearing to the publisher, is excessive and does not provide sufficient procedural safeguards; an issue that had been glossed over by the Supreme Court while upholding the constitutionality of Section 69A and Information Technology (Blocking Rules), 2009, in Shreya Singhal v Union of India.  

In Hiralal M. Shah v The Central Board of Film Certification, Bombay,  an order of the Joint Secretary to the Government of India directing a Marathi feature film to not be certified for public exhibition was challenged andthe Bombay High Court held that the Joint Secretary was not qualified to judge the effects of the film on the public, nor did he have the experience in examination of films. The High Court observed that allowing a bureaucrat to sit in judgement over the same would make “a mockery of the substantive right of appeal conferred on the producer”. According to the Court, it was difficult to comprehend why an informed decision by an expert body, i.e. the Film Certification Appellate Tribunal constituted under the Cinematograph Act, 1952, was to be replaced with the moral standards of a bureaucrat. A similar mechanism for regulation is being constructed by way of the 2021 Rules. 

The three-tier mechanism stipulated by the 2021 Rules also raises the query as to why OTT platforms need to be regulated under the IT Act in the first place. If regulation is required, instead of adverting to the IT Act or the Cinematograph Act, 1952, which regulates traditional media, the regulatory system envisaged under the Cinematograph Act can be emulated to some extent in an alternate legislation solely governing OTT platforms. While the Cinematograph Act may be inadequate in terms of regulating new media, the current IT Rules stretch the boundaries of rule-making power of the Parliament by delving into an area of regulation that is not permissible under the IT Act.            

The 2021 Rules are subordinate legislation, and it remains contested whether Part III of the Rules could have been promulgated using the rule-making power conferred on the Central Government under the IT Act. In the case of State of Tamil Nadu v P. Krishnamoorthy, the Supreme Court held that delegated legislation could be challenged if there was failure to conform to the statute under which it was made or if it exceeded the limits of authority conferred by the enabling Act, or if there was manifest arbitrariness or unreasonableness (to an extent where the Court may say that the legislature never intended to give authority to make such rules). With respect to the 2021 Rules, when such broad and arbitrary powers are being conferred on entities which could restrict fundamental rights under Articles 19(1)(a) and 19(1)(g), it should stem from a parent Act that lays down the objective and purpose that drives such regulation. The IT Act only regulates content to the extent of specific offences under Sections 66F, 67, 67A, 67B etc. that are to be judicially assessed, and Section 79 lays down guidelines that must be followed by intermediaries to avail of safe harbour. However, by introducing a distinct class of entities that must adhere to “digital media ethics” and must constitute their own regulation bodies, there is prima facie overreach by the 2021 Rules.       

Are the IT Rules Violative of the Constitutional Rights of Free Speech and Expression?
The three-tier mechanism under the 2021 Rules may have a chilling effect on creators and producers who may be disincentivized from publishing and distributing content that could potentially be considered offensive to even a small section of society. For example, even in absence of the 2021 Rules, the makers of Tandav agreed to make voluntary cuts and tendered an apology. Similarly, despite the partial stay of the 2021 Rules by the High Courts of Bombay and Madras, OTT platforms have stated that they will play it safe and exercise restraint over potentially controversial content. After the 2021 Rules, criticism that offends the sensibilities of an individual could potentially result in a grievance under Part III, ultimately leading to content being restricted.       

In addition to this, the Code of Ethics appended to Part III states that a publisher shall “exercise due caution and discretion” in relation to content featuring the activities, beliefs, practices, or views of any racial or religious group. This higher degree of responsibility, which is ambiguous, may restrict the artistic expression of OTT Platforms. In Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the IT Act, holding that “where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable”. By stating that the Constitution did not permit the legislature “to set a net large enough to catch all possible offenders and leave it to the Court to step in and decide who could be held guilty”, the Supreme Court decisively ruled that a law which is vague would be void. Although a breach of the 2021 Rules does not have penal consequences, the Code of Ethics utilises open-ended, broad language whose interpretation could confer excessive discretion on the IDC in deciding what content to remove.     

Under India’s constitutional structure, free expression can only be limited to the extent prescribed by Article 19(2), and courts scrutinise any restrictions of expression stringently due to the centrality of free speech and expression to the continued maintenance of constitutional democracy. In S. Rangarajan v P. Jagivan Ram, the Supreme Court observed that the medium of a movie was a legitimate mode to address issues of general concern. Further, the producer had the right to ‘think out’ and project his own message despite the disapproval of others; “it is a part of democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies”. The Apex Court further stated that it was the duty of the State to protect the freedom of expression. In K.A. Abbas v Union of India, the Supreme Court upheld the constitutionality of censorship under the Cinematograph Act, but cautioned that the censorship could only be in the interest of society, and that if it ventured beyond this arena, it could be questioned on the ground that a legitimate power was being misused.  

In the aforementioned cases, the courts, while upholding censorship guidelines, acknowledged that the same had to be grounded within the four corners of Article 19(2), and the standard for censorship had to be that of an ordinary individual of common sense and prudence, and not that of a hypersensitive individual. However, in recent times, there have been regular outcries against films and web series which may offend the sensitivities of the certain sections of the public. It must be noted that the Government also has a duty to protect the speakers of unpopular opinions, and restrictions on the freedom of speech must only be a last resort when the situations provided for in Article 19(2) (e.g., public order or security of the State) are at stake. Such an approach would help allay the concerns of publishers who may otherwise either resist from creating content that could be potentially controversial or remove or modify scenes.

Conclusion
A mechanism that risks the overregulation of content on OTT platforms, as well as grants significant discretion to the Ministry by way of formation of the IDC has the potential to dilute constitutional rights. Further, with India’s burgeoning influence as a producer of cultural content, such a rigid and subjective manner of regulation inhibits artistic expression and may have a chilling effect on the exercise of free speech and expression. Publishing of content on OTT platforms is different from traditional broadcasting in the way that it is made available to the public. Streaming of content on OTT platforms is based on an ‘on-demand’ principle where viewers actively choose the content they wish to consume, and thus it may require specialised regulation. A balanced approach should be adopted for regulation of OTT platforms which adhere to the values embedded in the Constitution as well as guidelines envisioned by the Supreme Court in judgements discussed above.

This blog was written with the support of the Friedrich Naumann Foundation for Freedom.

Streaming platforms and self-censorship: An Indian perspective

By Arpita Biswas

Introduction

In May 2017, a movie titled ‘Angry Indian Goddesses’ was released on Netflix India. A censored version of the film, originally intended for theatrical release was made available. Critics brought attention to the self-censorship Netflix was resorting to, in the absence of censorship guidelines for streaming platforms. While theatrical releases are regulated by the Central Board of Film Certification, their jurisdiction does not extend to online platforms, as was recently made evident through an RTI response from the Ministry of Information and Broadcasting. Eventually, the director of ‘Angry Indian Goddesses’ informed viewers that Netflix had insisted on making the censored version available themselves.

Other platforms like Amazon Prime and Hotstar also indulge in the precarious practice of ‘self-censorship’. As per the law, films meant for theatrical release are certified by the CBFC. Through the process of certification, the CBFC has the power to request edits to the film. However, there is no legal stipulation for streaming services to censor content as the CBFC would. In some instances, documentaries, which were not intended for theatrical release in India, were available on streaming platforms in their censored forms. This post will navigate this phenomena of self-censorship.

What is the applicable law?  

Prior to the RTI response by the Ministry of Information and Broadcasting, there has been speculation over whether streaming platforms are Internet Protocol Television services (IPTV). IPTVs in India are bound by the Cable Television Networks (Regulation) Act, 1995, and need a license provided by the Department of Telecommunications to function. However, streaming services are considered to be over-the-top (OTT) services, and are not bound by the same regulations.

The status of streaming platforms has been considered by the judiciary as well. In 2016, a petition was filed in the Delhi High Court stating that the online streaming service Hotstar had made ‘soft pornographic’ content available on their platform. The petition stated that Hotstar, as an IPTV service, was in contravention of the downlinking guidelines. In response, Hotstar debated their status as an IPTV service and also categorically stated that they did not host any content that could be considered to be ‘soft pornography’.

This case has not made any progress since 2016, and there seems to be no judicial consensus on the status of streaming platforms as IPTV service providers.

In a recent judgment titled Raksha Jyoti Foundation vs. Union of India, the Punjab and Haryana High Court made references to an affidavit filed by the CBFC which would ensure that deleted parts of a film are not further released by other means. This would be carried out through undertakings, which the directors/producers would be held to. This system would effectively ensure that uncensored films are not made available on streaming platforms. It is unclear what the current position of this censorship procedure is, but if carried out, it would be in conflict with the RTI response.

Platform specific guidelines

Platforms like Netflix haven’t published censorship guidelines of their own, but they do have separate ‘maturity ratings’ according to country and region. The CEO of Netflix has also stated that they would have ‘airplane cuts’ of movies for different regions, stating that ‘entertainment companies have to make compromises over time’.

Why self-censorship?

Despite the absence of censorship laws applicable to streaming platforms, there are still other laws applicable to these platforms in India. As mentioned above, the downlinking guidelines were one such set of rules which were considered applicable. In addition, statutes like the Information Technology Act, 2000 and the Indian Penal Code, 1860 would also be applicable. It could be the case that streaming platforms are censoring content to ensure that they are in compliance with other statutes.

There is also a possibility that international services like Netflix and Amazon Prime are trying to find their place in the Indian market without drawing attention for the wrong reasons. Amazon for instance has publicly stated that they intend to keep in mind ‘Indian cultural sensitivities’ while making content available. In addition, platforms like Hotstar are run by parent companies like Star India, with ancillary business interests that they would be interested in protecting.

Conclusion

Unexpectedly, streaming platforms, which were meant to be avenues of free media in an age of heavily regulated television content, are following the same route as traditional media outlets.

This trend of self-censorship on streaming websites is similar to other internet platforms, who resort to self-censorship to avoid legal trouble. The tendency to ‘err on the side of caution’ is similar to platforms adhering to the intermediary liability laws in India. This form of tip-toeing around issues of regulation has led to a chilling effect on other internet platforms and could also lead to ‘over-censorship’ on streaming websites.

It is disconcerting that streaming websites are censoring content in the absence of laws, and leaves us speculating about the state of freedom of expression once censorship laws are in place.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

Censorship & certification – Outlining the CBFC’s role under law

The Central Board of Film Certification (CBFC) functions as the primary body certifying films for public exhibition in India. It is guided by the Cinematograph Act, 1952, and various rules and guidelines in determining the nature of certification to be granted to a film. However, over the past few months, reports about the CBFC’s alleged overreach – moving from certification of films to moral policing, for instance, by denying certification to films which address LGBTQ issues – have made the news.  This post outlines the legal framework within which the CBFC operates and discuss the prospects for change within this framework.

The CBFC was constituted under the Cinematograph Act, 1952 (Act), which aims to provide for the certification of cinematograph films for exhibition. Specifically, the CBFC was set up for the purpose of ‘sanctioning films for public exhibition’. The law however, also allows the CBFC to require modifications to be made to a film before providing such sanction / certification.

Over time, the CBFC has increasingly used this power to direct cuts in films for various reasons, leading to it being commonly referred to as the ‘censor board’. In recent months, the CBFC has stirred up controversy in relation to certification (or the lack thereof), of films with subject matter ranging from feminism / women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation drive. The increasing possibility that a film will not even be granted certification for public exhibition, has led to fears that self-censorship will become a norm.

This fear seems to have permeated into the online video streaming industry already. Today, it isn’t clear whether streaming service providers are required to abide by the certification norms under the Act. While streaming platforms differ in their approach, and some providers choose to stream unedited i.e. ‘un-censored’ content, others are choosing to make only certified versions of films available online. There have also been controversial claims of service providers choosing to edit / censor content beyond the requirements of the CBFC.

The legal framework within which the CBFC operates is outlined below.

As described above, the CBFC is the sanctioning body which certifies films for public exhibition. The Act also allows for the setting up of regional centers or ‘advisory panels’ to assist the CBFC in its functions.

The Act provides that any person who wishes to exhibit a film should make an application to the CBFC for certification. The CBFC may (after examining the film, or having it examined):

• sanction the film for unrestricted public exhibition, subject to requiring a caution to be provided stating that parents / guardians may consider whether a film is suitable for viewing by a child if required (i.e. grant a U or UA certificate)
• sanction the film for public exhibition restricted to adult viewers (i.e. grant an A certificate)
• sanction the film for public exhibition restricted to members of a certain profession or class of persons based on the nature of the film (i.e. grant an S certificate)
• direct that certain modifications are made to the film before sanctioning the film for exhibition as described above, or
• refuse to sanction the film for public exhibition.

The Act, as well as the Cinematograph (Certification) Rules, 1983, also provide detailed procedures for the appointment of members of the CBFC and the advisory panels, and appellate bodies, applications for certification, and appeals to the decision of the CBFC. The Act also provides for revisionary powers of the Central government in relation to the decisions of the CBFC.

In addition to the above, the Act provides principles on the basis of which the CBFC may refuse to certify a film – namely, “if a film or any part of it is against the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of an offence”.

These principles are further supplemented by the certification guidelines issued by the Central Government in 1991, in accordance with the powers granted to it under the Act.

These guidelines provide five objectives for film certification under the Act: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social changes; (d) the medium of film provides clean and healthy entertainment; and (e) the film is of aesthetic value and cinematically of a good standard.

In order to meet these objectives, the guidelines require the CBFC to ensure that films do not contain (a) scenes that glorify / justify activities such as violence, drinking, smoking or drug addiction, (b) scenes that denigrate women, (c) scenes that involve sexual violence or depict sexual perversions, or (d) scenes that show violence against children, among many others.

The language used in many of these guidelines, while perhaps well intended, is vague, and allows for wide discretion in certification subject entirely to the sensibilities of the individual members of the CBFC.

In 2016, the Ministry of Information & Broadcasting set up a committee to evolve broad, but clear guidelines/ procedures to guide the CBFC in the certification of films. The committee was headed by noted film maker Mr. Shyam Benegal. The committee, in its report, has expressed the view that it is not for the CBFC to act as a ‘moral compass’, and decide on what constitutes glorification or promotion of certain issues.

The committee’s report suggests that the only function of the CBFC should be to determine which category of viewers a film can be exhibited to. The committee’s report has suggested new guidelines, with the following objectives: (i) children and adults are protected from potentially harmful or otherwise unsuitable content; (ii) audiences (and parents / those responsible for children) are empowered to make informed viewing decisions; (iii) artistic expression and creative freedom are not unduly curbed in the classification of films; (iv) the process of certification is responsive to social changes.

The committee’s recommendations are yet to be implemented, however, news reports suggest that work is currently underway to modify the new guidelines suggested in the report.

It is interesting to note that the committee’s report does not address the issue of certification requirements for films available on online streaming platforms. In March 2016, the CBFC had suggested that it would require all or film-makers, producers, and directors in India to sign an undertaking stating that they would not share with / release ‘excised portions of a feature or a film to anybody’, including streaming service providers.An affidavit to this effect was accepted by the Punjab & Haryana High Court, which suggested in its order that such steps would be sufficient to ensure that ‘censored’ content would not be available. However, later that year, the Ministry of Information and Broadcasting confirmed in a response to an RTI application, that they do not intend to regulate or censor online content.