Digital Divide: Is Big Brother Trying to Control the Booming Internet Space?

The attempt by the government to control news, online content and social media intermediaries through the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 smacks of censorship. Several requirements under the Rules are unconstitutional as they undermine the freedom of expression and right to privacy. They have excessively delegated powers to the executive, even though the government is not legally empowered to do so. But the Supreme Court has often held that the right to freedom of expression cannot be restricted, writes MD TASNIMUL HASSAN

—

RECENTLY, the government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 through which it seeks to control rather than regulate publishers of news/current affairs content and online curated content (including over-the-top platforms). The Rules also provide for due diligence mechanisms for social media intermediaries, failing which they would be penalised. Both OTTs and digital news media will have to inform the Ministry of Information and Broadcasting about the details of their entity and publish periodic compliance reports every month.

Earlier, the government through a notification dated November 9, 2020, amended the Government of India (Allocation of Business) Rules, 1961, and brought specific categories of internet content (films and audio-visual programmes/news and current affairs) within the control of the Ministry.

There have been a number of controversies where the creators either pre-emptively removed the entire episode or deleted a few scenes, based on political malice ("The John Oliver Show", "Patriot Act", "Madam Secretary") or invited confrontations because of religious backfiring ("Tanishq", "A Suitable Boy").

Supporters of the regulatory regime argue that it would level the playing field between OTTs and theatrical productions, whereas critics expressed concerns over the regulations as they may lead to potential censorship. Several requirements under the Rules are arguably unconstitutional as they undermine the freedom of expression as well as the right to privacy. The Rules have excessively delegated powers to the executive, even though the government is not legally empowered to do so. Moreover, there already are several provisions to that effect and these Rules essentially fulfil the government's aim to control the booming internet space, which was otherwise partially free.

EXISTING LAWS 

Digital content available on the web is subjected to several provisions under the Information Technology Act, 2000. The government owns the "internet kill switch" to remove any content that is objectionable and/or harms India's interests under Section 69A of the IT Act. Further, as per Rule 3(2)(b), (c) and (e) of Information Technology (Intermediary Guidelines) Rules, 2011, due diligence is to be observed by intermediaries in respect of the information being hosted or published on any computer resource; which may also be applied to OTTs as they qualify as intermediaries.

The censorship of films is undertaken by the Central Board of Film Certification set up under the Cinematograph Act, 1952, which assigns various certifications to films before their release. This Act along with the Cinematograph (Certification) Rules, 1983 and the ministry's Guidelines dated December 6, 1991, form the censorship laws for films.

Further, the Cable Television Network (Regulation) Act, 1995 enables the government to take certain channels off the air, as was seen in the case of NDTV India and others. The programme code prescribed under this Act prohibits the broadcast of news that violates decency or attacks community or religious sentiments, and any violation of the code is investigated by an inter-ministerial committee. Moreover, the government controls the country's telecommunications via the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933, which often causes internet shutdown.

CENSORSHIP, REGULATION OR SELF-REGULATION?

There is a linear difference between regulation and state-sponsored censorship, though regulation might often lead to censorship. Unlike censorship, where abuse, nudity or politically sensitive content is bleeped out by the platform either voluntarily or under some external pressure, OTTs are committed to ensuring there is no such content that disrespects the national emblem and flag or "promotes and encourages disrespect to the sovereignty and integrity of India". IT Parliamentary Committee chairperson Shashi Tharoor in January 2019 had argued that the CBFC "should not have pre-censorship powers".

In February 2020, a group of OTTs launched the Digital Curated Content Complaint Council, which required its members to censor content that promoted violence, contained child sexual abuse material or which was banned by a court, while providing for a consumer grievance redressal mechanism. In September 2020, OTTs, including Disney+Hotstar, Amazon Prime Video and Netflix, released a self-regulatory code titled, "Universal Self-Regulation Code for Online Curated Content Providers," though it could not garner government support. The ministry had maintained that consensus on "a self-regulatory model without the government's intervention" is good enough for them to function.

The strong rights argument against censorship, which often comes in the guise of regulation, is that the content is on-demand, where viewers have the choice to pay and subsequently choose what they want to watch. Conversely, the arguments against self-regulation are that the platforms lack clarity when it comes to detailing all manners of regulation and that no one should be a judge in their own cause (there being a conflict of interest of OTTs with the complainants).

Nevertheless, there is no concrete argument that after censorship or possible certification or even regulation, there would not be opposition to it. For instance, films such as Padmaavat and Udta Punjab had attracted considerable controversies even after they were certified by the CBFC. Tandav, a series aired over Amazon Prime Video, was another one which ran into controversy. The I&B ministry summoned Amazon Prime officials and the makers thanked the ministry for "guidance and support" while deleting the controversial scenes. This arguably set a dangerous precedent for the OTT industry. Despite not being legally bound to, OTTs have been self-censoring their content. Imagine what would unfold when they would be legally bound to so, with the government sitting in their backyard.

WHAT THE COURTS SAY 

In Shreya Singhal v. Union of India (2015), the Supreme Court ruled that online user-generated content cannot be censored until there is a direct incitement to violence, but delegated the question of on-demand content, like that provided by OTTs, to the IT Act.

In Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992), as Doordarshan refused to broadcast "Beyond Genocide", a documentary on the Bhopal gas tragedy, the Supreme Court agreed with the High Court's ruling that halting the documentary broadcast would curtail freedom of speech and expression.

Yet again, in Bobby Art International & Ors. v. Om Pal Singh Hoon & Ors. (1996), the Supreme Court held that the producers' right to freedom of expression could not be restricted. Reiterating K.A. Abbas v. Union of India (1970), wherein M. Hidayatullah, C.J., held that, "[t]he standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good," the Supreme Court in Bobby Art held that films dealing with socially relevant themes must be subjected to the least censorship.

Indian courts, more often than not, have taken a stance in favour of free speech, which is the second greatest constitutional right after that to life and personal liberty. The Karnataka High Court in Padmanabh Shankar v. Union Of India (2019) rightly pointed out that content aired over OTT platforms are not public exhibitions and should not be censored on the reasoning as absurd as "social interests matter over individual freedom" (See K.A. Abbas case).

Thus, as noted by the Bombay High Court in Phantom Films Pvt. Ltd. v. The Central Board for Film Certification (2016), "…The ultimate censorious power over the censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certificated, the legislation, meant by Parliament to protect people's good morals, may be sabotaged by statutory enemies within…."

FREE SPEECH AND EXPRESSION

The Rules seek to override the existing provisions and establish a stronger "big brother" State to watch if citizens are subscribing to content that goes against the government's vested interests. Thus, the regulations have the tendency to create a Stalinist pre-censorship regime by limiting narratives that impact political gains of the government, as it revives the censorship framework prescribed under the 1995 Cable Television Act, in the digital broadcasting domain.

Censorship in the guise of regulation, which is what the Rules are set to do, will discourage political opinions and creativity. This may lead to the production of one-track-mind content that we usually see on TV or in theatres. The regulation will also have a chilling effect on free speech as creators would now refrain from depicting scenes attracting controversies even in a parallel world.

A self-regulatory body would do the greater good to a greater number as the audience will have the option to watch diverse forms of artistic presentation instead of being fed propaganda through conservative portrayals and narrow sceneries. Nonetheless, OTTs should provide appropriate disclaimers and age verification mechanisms for any particular content.

(Md Tasnimul Hassan is a law undergraduate at Jamia Millia Islamia, Delhi. He is a part of the first cohort of South Asia Students For Liberty's Fellowship For Freedom in India. The views expressed are personal.)