OTT GUIDELINES, SELF-REGULATION, AND FREEDOM OF EXPRESSION- A CRITIQUE

Sarbesh Chaudhury

Photo by Glenn Carstens-Peters on Unsplash

Abstract

In the age of social media and the pandemic, online content provided across the OTT Platforms is an evolving, updating and expanding source of entertainment. However, owing to the presence of certain polarizing content, which had sparked controversies in the recent past, the Ministry of Information and Broadcasting framed Rules with respect to such content and the grievance redressal mechanism that deals with grievances and complaints against such content published on these platforms. Considering this background, this paper shall analyze these rules with respect to their constitutionality, and will critique the structure proposed by the Ministry to ensure that both administrative regulation and artistic creative freedom are at par.

INTRODUCTION

The social revolution being discussed in this paper is the recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 formulated by the Ministry of Electronics and Information Technology on February 25, 2021. This paper shall deal exclusively with the rules and guidelines regarding cinematographic film and online-curated digital media content on Over The Top¹ Platforms.

This paper has two broad objectives- firstly, comparison of the Regulations proscribed under the Code of Ethics with the ‘Reasonable Restrictions’ under Article 19(2)² of the Constitution, and secondly, analyzing and critiquing the composition of the regulatory and grievance handling mechanism enshrined in these Rules. Such analysis would help in revealing the lacuna in the Regulation framework, and what can be the consequences of such lacuna.

REGULATIONS READ WITH REASONABLE RESTRICTIONS UNDER Art. 19(2)

The historic case of K.A. Abbas v. Union of India³ provided that films have to be treated separately from other art forms, owing to its greater emotional impact. The Supreme Court has acknowledged the stirring impact of cinematographic films and has laid down that the democratic system allows contrary views and representation on any ‘issue of general concern’. Cinematographic films, which constitute the online curated content, enjoy the benefits of Art.19(1)(a) and the reasonable restrictions imposed by Art.19(2) should only be imposed on the ‘anvil of necessity’ and ‘not the quicksand of convenience or expediency’.⁴ The Court acknowledged cinema as a medium for criticism, and thus established the contours of freedom of expression, regulated on the basis of necessity rather than convenience. This section of the paper shall dissect the Rules, and by drawing a comparison with the Reasonable Restrictions under Art.19(2), the constitutionality of such Rules shall be examined.

The Rules, under ‘Chapter VI- Miscellaneous’ specify the Code of Ethics, which need to be followed by publishers on the OTT platforms. The code specifies classification of content on the basis of age, display of such classification along with content description, and acknowledges the requirement of reasonable efforts to be taken by such online publishers to restrict access to sensitive content for children and improve access to content by disabled persons. Part I of the Schedule of such Rules give various grounds on the basis on which content classification needs to be considered- including theme, context, target audience and other factors, while Part II deal with issues such as nudity, violence, discrimination, substance abuse and other aspects which need to be considered and a general approach regarding these issues must be reflected in all classifications, irrespective of the age-group of such classes or segments.

This section of the paper shall analyze the five main or general principles enshrined in the Rules, regarding which the publishers must exercise ‘due caution and discretion’, while exhibiting such content on the OTT platforms.

Rule (i)

Rule II(A)(b)(i) under the Code of Ethics provides that content affecting the ‘sovereignty and integrity of India’ should be considered with due caution. The exact phrase ‘sovereignty and integrity of India’ was inserted into Art.19(2) by the Sixteenth Constitutional Amendment⁵. Durga Das Basu⁶ states that the object of inserting this restriction was to control cries for secession, especially for troubled regions such as Kashmir (pre-abrogation of Art.370). Therefore, any expression which acts as an ‘indirect device’ to carry on movements or depicting content which involves ‘burning the constitution or refusal to take of oaths of allegiance’ or respect the National Flag would be deemed threatening for the integrity and sovereignty of India.⁷ It must be noted that this restriction has hardly ever featured extensively in case-laws till date. However, the reiteration of this principle in the Code of Ethics seems justified, as India has been subject to several attacks from terrorists,⁸ anarchists and separatists⁹ in the past.

Rule (ii)

The second rule deals with content that ‘threatens, endangers or jeopardizes the security of the State.’ Art.19(2) states that reasonable restrictions may be imposed on the interests of ‘security of the State’. However, Art.19(2) does not mention the term ‘threaten, endangers and jeopardize’. Security of the State means any situation where there is an aggravated form of public disorder, thus encompassing both internal and external security of the country.¹⁰ Whether content seeks to the threaten or jeopardize the security of the State must therefore be determined from a ‘reasonable’ point of view. Thus, an order restricting content on this ground of this Code should have a ‘proximate’ and ‘direct’ connection between the restriction and public order.¹¹ In the case of Romesh Thapar v. State of Madras¹², it was held that public order and security are two distinct aspects, and security always includes offences against the State itself. The distinction between what affects a State’s security, and ‘public order’, is vague, owing to the interchangeability of the language, as apparent from the precedents. Thus, this particular principle or restriction suffers from the problem of vagueness as well.¹³

Rule (iii)

The third rule (iii) deals with content ‘which is detrimental to India’s friendly relations with foreign countries’. This principle may not be in verbatim with the restriction in the interest of ‘friendly relations with foreign States’ under Art.19(2) owing to the use of the word ‘countries’ instead of ‘State’. The Supreme Court held that ‘foreign States’ may or may not include foreign countries, though some countries may be recognized as a foreign power but not a foreign State.¹⁴ Thus, only the countries which are deemed to be ‘States’ shall be affected by this restriction. This ground has hardly been the subject of litigation, owing to which interpretation and subsequent restriction on this ground becomes challenging.

Rule (iv)

The fourth rule (iv) deals with content that is likely to ‘incite violence or disturb maintenance of public order’. Here, there is a contrast in the language of the rule and Art.19(2), which considers the interests of ‘public order’ and ‘incitement of an offence’. Here, the two grounds have been merged into one. A fact to be noted here is that ‘incitement to an offence’ has been replaced with incitement to violence. The word ‘violence’ involves a physical harm aspect.¹⁵ A literal interpretation would entail that offences not deemed violent are not recognized by this Code. Thus, a lacunae in this Rule may be that it fails to cover content that incites offences not leading to violence. For example, if the content glorifies or promotes ‘insider trading’ in stock markets¹⁶, then restriction on the basis of these Rules shall not apply- Art.19(2) has to be summoned directly in such case then. It should also be noted that the Supreme Court held that content criticizing any Government or social action could only be restricted if the absence of such restriction would disturb law and order or cause violence¹⁷, but the direct linkage between such restriction and possible result in violence, as envisaged in O.K. Ghosh¹⁸, remains sacrosanct. Therefore, despite the statutory lacuna in the Rule, the application of this restriction should be made on reasonable grounds where a relevant and direct proximity between the restriction and prevention of public disorder or violence can be recognized.¹⁹

Rule (v)

The fifth rule under Rule II(A)© mandates the publisher to consider India’s social, racial, and ethnic fabric, and its multi-religious and multi-racial diversity, before it publishes any online-curated content dealing with the ‘beliefs, practices and views’ of any racial or religious group. This principle may be deemed as an extension of the ‘public order’ and preventing ‘incitement to offence’ regulations under Rule (iv).²⁰ The Supreme Court’s 1957 judgement²¹ must be noted where ‘public order’ was read with Section 295A of the Penal Code, 1860 which criminalizes malicious and intentional expressions against the religious beliefs of any class. The Court held that penal provision would apply to such speech, where the deliberate intention of outraging sentiments had the ‘calculated tendency’ to disrupt public order and was thus constitutional. Therefore, if the content intentionally sought to offend religious sentiments, as in the recent case of the show ‘Tandav’ whereby the makers were denied anticipatory bail by the Allahabad High Court²² but the Supreme Court allowed the investigation to continue while granting them protection,²³ then such expression could not only be regulated but could also incur a criminal charge against the publisher.

Rule of ‘Morality’ operating in Part II

The various issues dealt with Part II of the Schedule, like substance abuse, sex, discrimination, and other issues can be compared to imposing reasonable restrictions in the interests of ‘decency’ and ‘morality’ in the society under Art.19(2). The Guideline states that classification of online content should take account of these issues, and the varying degree of portrayal of such issues calls for greater degrees of classification (which includes giving a content description). These guidelines do not expressly prohibit portrayal of these issues, but simply call for greater classification and more vivid description of such content. What is considered ‘decent’ or ‘moral’ is a subjective test, and may be established by the ‘obscenity’ standard tests set by the Supreme Court most recently in Aveek Sarkar v. State of West Bengal²⁴. The Aveek Sarkar case established the ‘Community Standards’ test (the Roth test²⁵) which directs the court to consider what the society as a whole regards to be immoral or obscene in the current time period, and the content is to be considered in its whole, along with its messaging and context, rather than focusing solely on the part dealing with the aforementioned issues. The Court even placed reliance on a Canadian judgement²⁶, which held that explicit sex per se is not obscene unless it is violent or involves children, thereby implying the legality in the liberty of depicting erotica or ‘pornography’ in a responsible manner. The Aveek Sarkar case held that the test of obscenity and morality to be considered for constitutional or criminal purposes was the ‘community standards test’²⁷, and it replaced the Hicklin test²⁸. The Hicklin test stated that “The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” It was upheld in the controversial Ranjit D. Udeshi²⁹ case which was microscopic in its approach and was only concerned with the part of the content containing the immoral or indecent material and not considering the whole content in its entirety. Therefore, the aforementioned standard of morality laid down in the Aveek Sarkar case has to be adopted by both the publisher as well as the regulating body, and the Judiciary to determine the ‘morality’ of the content.

Inference-

Therefore, it can be found that Regulations are extensions or derived from the Art. 19(2) Restrictions, although some restrictions suffer from vagueness or a lack of clarity, the consequences of which will henceforth be discussed in the Regulation Mechanism aspect.

STRUCTURE AND CONSEQUENCES OF THE REGUALTION MECHANISM

The Rules propose a three-tier grievance handling and redressal mechanism, which comprises of-

First Tier

The Rules propose a three-tier redressal mechanism for content published online. The first tier is a Self-Regulating Mechanism headed by a Grievance Officer, appointed by the publisher, acting as the node among the complainant, the self-regulating body and the Ministry of Information and Broadcasting. Such self-regulation includes classification and display of content description, as well as ensure that decisions regarding each grievance are handled in 12 days.

Such self-regulation, coupled with the Code of Ethics and the afore-mentioned ‘principles, leads to a phenomenon, observed in common parlance as the ‘chilling effect’. Gautam Bhatia³⁰ points out that, owing to the ‘boundless sea of uncertainty’ in the regulation formation, the content producer and publisher becomes prone to the chilling effect, whereby the fear and apprehension of illegal or controversial expression results in a ‘practice of self-censorship’ over speech and expression over which they otherwise have legitimate rights over. Such chilling effect is troubling as it results in ‘substantial harassment and threatens the personal liberty of content creators and company executives who could face arrest and undertrial imprisonment’.³¹ In the case of Anand Patwardhan³², the Supreme Court held that the restrictions to freedom of speech can only be curtailed under Art.19(2) and in ‘no other manner’, and if such content, despite being deemed controversial or immoral, does not satisfy the Art. 19(2) test, then the censorship of such content should not be deemed constitutional on grounds of ‘reasonable restrictions.’ The problem however lies in the fact that only the courts are equipped to deal with the content to satisfy the application of the Art. 19(2) test. However, for such stage to be reached, it involves a lengthy process of expensive litigation, public relations management, and several other aspects- troubles which many publishers often do not wish to leverage for their liberty of expression. Thus, this chilling effect is a natural consequence arising from this self-regulating mechanism tier-structure.

Second Tier

The second tier is an independent Self-Regulating Body headed by a retired judge of the Supreme/High Court(s) and other eminent experts of various fields. This Body shall ensure the adherence of the publishers to the Code of Ethics, as well as handle appeals by the complainants against the decisions of the Grievance Officer of the publishing platform. The Rules provide the Body with an ambit of powers while dealing with appeals within a period of 15 days for such online-curated content, namely directing the publisher to reclassify age-based ratings, make modifications to content descriptions, or edit the synopsis of such content. In case of content instigating the commission of a cognizable offence³³ or violating S.69A of The IT Act³⁴, then it may refer such content to the Ministry.

Here, the independence of the Body is a valid concern. Naming it as an ‘independent’ body does not connote the body free from political interference and vendetta. There is no statutory or blanket rule of denoting someone as an ‘expert’ of a particular field.³⁵ Furthermore, having a member of the judiciary does not render independence, as such member is a retired judge. A retired judge of the Supreme Court or High Court is no longer a part of the independent body, which is the Judiciary. Furthermore, ex-Chief Justice of India’s candidature to the Rajya Sabha is a relevant modern example³⁶ which iterates that retired judges too can have political ambitions. Thus, the Body formed does not make the enshrined ‘independence’ sacrosanct. Another pertinent fact to be noted is that such self-regulation body is to be self-constituted i.e., as long as the mandate of the number and class of members are being fulfilled, they can self-constitute such body and register themselves. There is no procedure or provision mentioned for appointment of such body or such body being acknowledged or approved by any member of the Legislature or Executive. This allows several like-minded, motivated individuals to constitute a body without any fair scrutiny or oversight, which may also hamper the ‘independence’ this provision seeks to ensure.

Third Tier

The third tier is an Oversight Mechanism coordinated by the Ministry of Information and Broadcasting itself. Here, the oversight is exercised by an Inter-departmental committee comprising members of several other Ministries, who have the power (similar to the powers of the Self-Regulating Body) to recommend changes and modifications regarding the concerned online-curated content to the Ministry. The Ministry has the power to issue orders and directions to the publishers for compliance, after considering the recommendations proposed by the Committee.

A prominent critique of this tier-structure is the directory or non-binding nature of the recommendations of the Inter-Departmental Committee. The Ministry of Information and Broadcasting has the absolute power to issue orders for compliance, after ‘taking into consideration’ the recommendations. Thus, the Ministry has autonomy to reject these recommendations and issue a substantially alternate order owing to the absolute coordination powers this tier-structure vests in it. Such arbitrariness and undiluted governmental control over the impugned are critical in a democracy, especially if such content is perceived to be a dissent against governmental or social policies and norms. This would not only lead to arbitrariness but also undermines the working of an efficient government machinery, where fragments within the government have conflicting opinions. This inter-departmental battle would prejudice the online content creators the most adversely, as they are being subject to the whims of the inter-governmental departments having the more influential say in matters of administration and governance.³⁷

Furthermore, the Rules do not clearly establish the judicial recourse which could be taken, if there is a dissent or grievance against the final order issued by the Ministry. The grievant publisher has the Constitutional Right to file a writ petition against such order, claiming violation of Art.19(1)(a) before the Supreme Court or the High Courts. Similarly, the grievant complainant may allege the violation of any other Fundamental Right to file a writ petition under Articles 32 or 226. However, the Rules suffer from the problem of vagueness. A literary interpretation of the Rules shall entail that the Oversight Mechanism body is the ultimate recourse platform for grievance redressal. These Rules do not even hint or direct towards a judicial procedure which could be followed against the Ministerial order. Hence, this ultimately leaves the burden on the judiciary with a lengthy litigation process to specify the judicial recourse to followed for an appeal against such order or direction.

THE SOCIAL REVOLUTION- CONCLUSION

Therefore, a critique of the Mechanism structure reveals that, although the Regulations are coherent with the Constitutional regulations under Art.19(2), the implementation of the Regulations by the Grievance handling mechanism opens a wide array of issues. ‘Non-arbitrariness’ is the essence of rule of law, and all power must have ‘legal limits’.³⁸ These issues including the above-discussed chilling effect, lack of independence, and greater Ministry autonomy and centralization of power, without any express procedure for judicial recourse, can thus have adverse effects on the Freedom of Expression under Art.19(1)(a), pertaining to online curated content. The solution forward would be to mitigate the problems by reducing the Ministry’s scope of arbitrariness decision-making so that free speech and expression, as a vital pillar of any democracy, may thrive.

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1. Henceforth, referred to as ‘OTT’.
2. Henceforth, the word ‘Article’ shall be written as ‘Art.’ followed by the Article number.
3. K.A. Abbas v. Union of India, MANU SC 0053 1970, Para 21.
4. Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.
5. The Sixteenth Constitutional Amendment, 1978 took effect from 20.06.1979.
6. 2 Durga Das Basu, Commentary On The Constitution Of India 2436 (Justice Chandrachud, Justice Subramani, Justice Banerjee (Eds.) 8th Ed. 2007).
7. Id. At Note 4.
8. Kanishka Sarkar, India will never forget the wounds inflicted during 2008 Mumbai terror attacks: PM Modi, Hindustan Times, November 26, 2020.
9. The most recent Naxalite attack is cited hereby- Mujib Mashal & Hari Kumar, Maoist Insurgents Kill 23 Indian Forces in Ambush, N.Y. Times, April 4, 2021.
10. Santokh Singh v. Delhi Administration, AIR 1973 SC 1091, at Para 6.
11. O.K. Ghosh v. E.X. Joseph, AIR 1962 SC 812, at Page 814.
12. Romesh Thapar v. State of Madras, AIR 1950 SC 124, at Page 130.
13. This concept of ‘vagueness’ of the Statute or Rules was envisaged in the judgement of Shreya Singhal v. Union of India MANU SC 0329 2015.
14. Jagan Nath Sathu v. Union of India, AIR 1960 SC 675, at Para 4.
15. Merriam Webster definition of ‘Violence’- “the use of physical force so as to injure, abuse, damage, or destroy”.
16. Insider Trading is an offence under Section 12(A)(d) of The Securities and Exchange Board of India (SEBI) Act, 1992.
17. Kedar Nath v. State of Bihar, AIR 1962 SC 955.
18. Ibid. at Note 11.
19. A reference can also be made to the distinction between illocutionary and perlocutionary speech and expression, where regulation of such expression depends on its nature and extent. Referred in Lawrence Liang, Oxford Handbook of the Indian Constitution, Free Speech and Expression 826 (Sujit Choudhary, Madhav Khosla & Pratap Bhanu Mehta (eds.) Oxford 2016).
20. Superintendent, Central Prison v. Ram Manohar Lohia AIR 1960 SC 633; Lawrence Liang, Oxford Handbook of the Indian Constitution, Free Speech and Expression 828 (Sujit Choudhary, Madhav Khosla & Pratap Bhanu Mehta (eds.) Oxford 2016).
21. Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 329.
22. Aparna Purohit v. State of Uttar Pradesh, Allahabad High Court, CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. — 2640 of 2021, decided on February 21, 2021.
23. Aparna Purohit v. State of Uttar Pradesh, Supreme Court of India, Special Leave to Appeal (Crl.) №1983/2021, decided on March 5, 2021.
24. Aveek Sarkar v. State of West Bengal, MANU SC 0081 2014.
25. The Community Standards test was first established in Roth v United States 354 US 476 (1957).
26. Regina v. Butler (1992) 1 SCR 45; cited in Aveek Sarkar v. State of West Bengal.
27. Para 24; Ibid., at Note 14.
28. Regina v. Hicklin 1868 L.R. 2 Q.B. 360.
29. Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
30. Gautam bhatia, Offend, Shock or Disturb- Free Speech under the Indian Constitution, Chapter Two- Common Concepts 29 (Oxford University Press 2016).
31. Devdutta Mukhopadhyay, Now streaming: The chilling effect of the new IT rules, Indian Express, March 11, 2021.
32. Anand Patwardhan v. Union of India, AIR 1997 Bom 25.
33. Offences are classified ‘Cognizable’ or ‘Non-cognizable’ under The First Schedule of The Code of Criminal Procedure, 1973.
34. Section 69A of The Information Technology Act, 2000.
35. Section 45 of The Evidence Act, 1872 regards ‘experts’ as those ‘skilled in such foreign law, science or art’. However, this definition is not extensive or unambiguous as regarding a person as ‘skilled’ is regarded to be a matter of subjectivity.
36. Sobhana K. Nair, As former CJI Ranjan Gogoi takes oath as Rajya Sabha member, Opposition walks out, The Hindu, March 19, 2021.
37. Tanu Banerjee, Ishan Johri & Garima Kedia, New Rules for OTT Platforms- Regulations or Restrictions, Financial Express, March 6, 2021.
38. Abhinav Chandrachud, How Legitimate Is Non-Arbitrariness? Constitutional Invalidation In The Light Of Mardia Chemicals V. Union Of India, INDIAN J. CONSTI LAW (2008).

The first author is a Year IV B.B.A. LL.B. (Hons.) student at the Jindal Global Law School, O.P. Jindal Global University.

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