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Monday, April 12, 2021

Now streaming: The chilling effect of the new IT rules

The IT Rules 2021 seek regulatory parity, but threaten to curb creative freedom.

Written by Devdutta Mukhopadhyay |
Updated: March 11, 2021 8:41:18 am
The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the central government’s rule-making power under Section 69A of the IT Act.

Online video streaming platforms have marked a new dawn for the Indian entertainment industry, providing choices beyond soap operas and formulaic storylines characteristic of traditional mediums like cinema and television that were designed for more public and family-oriented forms of consumption. However, the spectre of government regulation and criminalisation haunts this fledgling industry which has been fighting off attacks to its creative freedom on multiple fronts. While most recent conversation has focused on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 notified by the central government on February 25, busybodies have been trying to censor online video streaming platforms by petitioning the courts for a long time.

The sheer volume of these court cases is staggering — at least 23 petitions were being heard by different high courts on the issue of regulation of online video streaming platforms. The grievances range from wounded religious sentiments to moral outrage against depictions of sexuality but the common thread that unites them is a desire to control what other citizens may watch in the privacy of their homes. Public interest litigation, which was a tool meant to protect the rights of the marginalised and vulnerable, has been weaponised by self-appointed defenders of social, cultural and religious values to curtail artistic expression and viewer choice.

In addition to petitions seeking heavy-handed regulation, criminal proceedings have been initiated against employees of companies like Netflix and Amazon Prime for reasons ranging from a kissing scene between a Hindu girl and a Muslim boy against the backdrop of a temple to an allegedly offensive portrayal of the Hindu deity, Shiva. While such FIRs may be in the context of specific films or shows, their chilling effect is much wider because they cause substantial harassment and threaten the personal liberty of content creators and company executives who could face arrest and undertrial imprisonment. Worryingly, while hearing the anticipatory bail plea of an Amazon Prime employee, the Supreme Court has suggested that harsher criminal penalties could be considered for violation of guidelines under the IT Rules 2021 through regulation or legislation.

The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the central government’s rule-making power under Section 69A of the IT Act, and the existing three-tier regulatory mechanism and content classification system prescribed under the rules are also unconstitutional for the same reason. To understand why this is so, let us compare the provisions of the IT Rules 2021 with its parent legislation, Section 69A of the IT Act. Some of the objections presented below have been raised in petitions filed by digital news media portals before the Delhi High Court and the Kerala High Court but online video streaming platforms, which are also subject to Part III of the IT Rules 2021, have not challenged the Rules yet.

First, the powers under Section 69A can be exercised only in the interest of “sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above.” While “decency or morality” is a ground available under Article 19(2) of the Constitution to impose reasonable restrictions upon free speech, it has been deliberately omitted from the text of Section 69A. The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit. Despite this, the IT Rules 2021 require classification of online content based on nudity, sex, expletive language and substance abuse and also mandate access control and age verification mechanisms to prevent viewing of such content.

Second, Section 69A states that the central government may direct “any agency of the Government or intermediary” to block access to online content but online video streaming platforms do not fall into either of these two categories. Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms, and they are not an “intermediary” under the IT Act because unlike social media platforms such as Facebook and Twitter, they do not allow users to post whatever they wish without any pre-selection. The penal provision under Section 69A(3) also prescribes imprisonment or fine only for an “intermediary” who fails to comply with blocking directions issued by the central government. Therefore, in its present form, Section 69A does not impose any obligations or liability upon publishers of content such as online video streaming platforms.

Third, Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.” However, the range of powers granted under the IT Rules 2021 is much broader and includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content. As a result, the IT Rules 2021 significantly expand the scope of powers available under Section 69A and facilitate subtler forms of censorship which are reminiscent of the model followed by the CBFC which is notorious for requiring modifications to films before certifying them for release.

The three-tier regulatory framework created under the rules suffers from the substantive problem of lack of independence. The third tier, which is the Inter-Departmental Committee, comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society. The Review Committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 also solely consists of officials belonging to the executive branch. The ability of the Review Committee to serve as an adequate procedural safeguard is questionable because of its lack of independence and its volume of work.

Many of the changes that the central government seeks to implement through the IT Rules 2021 may be well-intentioned and desirable. However, constitutional due process cannot be sacrificed at the altar of expediency. The solution is to start afresh with publication of a white paper which clearly outlines the harms that are sought to be addressed through regulation of online video streaming platforms and meaningful public consultation which is not limited to industry representatives. After that, if regulation is still deemed to be necessary, then it must be implemented through legislation which is debated in Parliament instead of relying upon executive rule-making powers under Section 69A of the IT Act which never contemplated the creation of such an elaborate regulatory framework and suffers from flaws of its own.

This article first appeared in the print edition on March 11, 2021 under the title ‘Heavy touch regulation’.
The author is a Litigation Counsel at Internet Freedom Foundation

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