Regulation of Content Available On Video-On-Demand Players Like Netflix, Amazon Prime, Zee5, Hotstar

There are various video-on-demand streaming (VOD) platforms like Netflix, Amazon Prime, Hulu, Hotstar etc. which provide online streaming services allowing people watch a wide-variety of contents like TV Shows, web-series, sitcoms, movies, documentaries etc. What makes these VOD’s different from a typical television channel or a movie theatre is that they allow the viewer to choose and decide what, where and when to watch the videos we like. Therefore, one can enjoy unlimited viewing of the content available on such online streaming platforms without taking pain of watching a single commercial. These platforms are subscription based , a person can avail the services from these platforms which include video contents along with rating guides and episode synopsis in-order to help viewers decide what they want to watch and what they don’t. However, these VOD’s are facing multiple court cases wherein there are allegations of depicting contents on their apps which are not morally good for the society.  Before going into the details of the issue, it is important to understand the reason why such issue has arisen in the first place. For a better understanding let’s have a look at the petition filed before the Delhi and the Bombay High Court.

The Petition

Few days back, a PIL has been filed in Delhi High Court by an NGO called Justice for Rights Foundation seeking framing of guidelines to regulate the functioning of online media streaming platforms /on-demand entertainment apps such as Netflix, Amazon and others[1] alleging that they show “unregulated”, “uncertified”, “sexually explicit”, “vulgar”, “inappropriate”, “religiously forbidden” and “legally restricted” content. Some of their shows often “depict women in objectifying manner”. In August, 2018 the Ministry of Information and Broadcasting has received an application to ban shows like Sacred Games, Game of Thrones, Spartacus etc. in India. The petition was filed before the Hon’ble court seeking guidelines in order to regulate the uncertified, pornographic, sexually explicit, vulgar, profane and legally restricted contents broadcasted on the online platforms including Netflix, Amazon etc. seeking a writ of mandamus to the respondents to frame legal provisions/guidelines in order to regulate the said online platforms and contents broadcasted on the online platforms, and to direct the respondents to pass necessary directions to all such online platforms to remove such content with immediate effect. It was alleged that these shows contain “obscene, nude and vulgar scenes” which are cognizable offences under the Cinematography Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act and the Information Technology Act. For instance, content from ‘Charlie and the Chocolate Factory’ where the scene depicting animal (the holy ‘Cow’) abusive is available for view (for viewers of age 7 years and above) on Amazon Prime video.

A similar petition has also been filed before the Nagpur bench of Bombay High Court by Divya Gontia against AltBalaji for broadcasting show ‘Gandi Baat’ and against Netflix for ‘Sacred Games’.[2] In this case, the petitioner has approached the court under Article 226 and 227 of the Indian Constitution in the interest of securing justice to the general public of the country and especially members/supporters of Indian National Congress whose revered figure Shri Rajiv Gandhi is sought to be defamed in the name of artistic freedom. It was alleged that the show ‘Sacred Games’ has inappropriate dialogues, speeches and even political attacks which are derogatory in nature and harms the reputation of the former Prime minister Shri Rajiv Gandhi. The petitioners have taken the reference of Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal where the court observed that in today’s context electronic media has become the most powerful tool because of its audio visual impact and its widest range covering almost all the sections of the society and can be easily accessible by the children at home. [3] Further, it was also alleged that the show incorrectly depicts historical events of the country like Bofors case, Shah Bano case, Babri Masjid case and communal riots, which is maligning the reputation of the former Prime Minister Rajiv Gandhi and also defames him internationally. The petitioners have taken the plea that the portrayal of historical figures especially a former prime minister has to be done in a historically accurate manner and creativity cannot be used as a pretext to malign or sully their image. Also, it is reprehensible that only for the sake of TRP and to earn some profit the producers have come down to such a level that they have projected former prime minister in the bad light when he is a role model to millions of Indians.

What Are The Consequences?

In the aforementioned petition filed before Delhi High Court, the main issue before the court is that Netflix and Amazon are broadcasting illegal and morally inept contents on the on-demand web shows which are vulgar, vile and violent. The petition was filed seeking intervention from the High Court to clamp down on the “unregulated, uncertified, sexually explicit, vulgar, profane and legally restricted content broadcasted on the online platforms including Netflix, Amazon Prime Video etc. The petitioner has demanded the Hon’ble High Court to frame regulatory guidelines for online shows and to ban objectionable content on online shows. In case if the court has accepted the arguments of the petitioner, then there are highly likely chances that these on-demand entertainment apps can face possible ban. However, the matter was not taken up since the bench did not assemble and it is expected to be taken up next on November 14.

Are There No Laws To Restrict Such Platforms?

The answer to this question is NO. There are various acts that govern different domains; however, since such VOD platforms are actually a mix of many domains, there is no single law which covers it completely. For example, in the above mentioned petition ,it was alleged that the contents depicted in these VODs platforms is violative to the Information Technology Act, 2000 (hereinafter referred to as the ‘IT Act’). Section 79 of the IT Act puts onus on the intermediaries to observe due diligence while discharging their duties under the act and to observe guidelines as prescribed by the Central government. However, Section 79 of the IT Act does not apply to all the online platforms in the present case as a blanket provisions as these platforms stream third party content and also give self generated content.

Further, the Cinematograph Act, 1952 is not applicable to an online movie streaming service as the same along with its rules only govern the censorship of films in Theatres and Television, and content that is streamed online does not fall under the domain of Cinematograph Act. Further, the Section 3 of the Cinematograph Act provides for the establishment of Central Board of film Certification   (CBFC) and the purpose behind is to certify films which are intended for “public exhibition”. The term “public exhibition” has not been defined anywhere in the act or its rules therefore, there is issue of interpretation involved that whether public exhibition would include only to film available for watching only in public places like Multiplex or it would also include video content available to public for watching whether in public or private.

The Cable Television Network (Regulation) Act, 1995 governs the cable network operators, and under Rule 6(n) of the Cable Television Network (Regulation) Rules, 1994 they are required to ensure that the films that can be accessed by their viewers should be certified from CBFC. Going by this analogy, the term “exhibition” of films can be said to include “exhibition” of films for private viewing by the public.

Why These Acts Cannot Be Applied To Video–On-Demand Platforms?

However, the problem persists as different media are regulated by different legislative frameworks, one cannot compare Netflix or Amazon prime with a multiplex as Netflix provides viewing in Private. We can also not compare Netflix with a Cable operator as they have pre fixed sequence of content and viewer can not choose what and when and where he wants to view the content, all he can do is to change the channel, but he does not have any control over the sequence of the content, whereas in the case of video-on-Demand Platforms viewer has absolute control over what, when, where he want to watch. Another major difference between Cable operator and video-on-demand platforms is that the former uses satellite signals to distribute content whereas the latter uses networks of telecom operator and hence they cannot be equated.

Indecent Representation of Women

The scenes depicted on these online entertainment apps are also violative to the Indecent Representation of Women (Prohibition) Act (IRWA), 1986 which seeks to “prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures etc”.  The Act penalizes persons involved in the publication, distribution and packaging of prohibited materials however, such material can be published for scientific purposes or representation of ancient monuments. Recently, the Nagpur bench of the Bombay High Court took a strong view over pornographic contents of Netflix, Amazon Prime, Hotstar and other channels on internet and directed the Information and Broadcasting Ministry to initiate effective steps to control and regulate these contents. The bench comprising of Justice Bhushan Dharmadhikari and Justice Murlidhar Giratkar also directed the concerned ministries to set up a pre-screening committee for monitoring the contents before they are released on online media. The direction issued by the High court will be helpful in curbing crudity, sexual or unsavoury language, vulgar actions, nudity, sex and immodesty on web series.

Right To Free Speech And Expression

These video-on-demand cannot be left to broadcast unrestricted, unregulated content in the name of right to free speech and expression, as even the fundamental right of freedom of speech and expression granted under article 19(1)(a) of the constitution of India, 1950 is also subject to certain restrictions, like respect of the rights or reputation of others, protection of national security or of public order or of public health or morals etc. The word ‘reasonable restriction’ corresponds to the societal norms of decency. The contents shown on such online platforms are definitely violative of Article 19 of the Indian Constitution and therefore the said platforms are bound by reasonable restrictions guaranteed under article 19(2). The fundamental right to carry on trade or business does not extend to carry on trade or business of products or equipment that could interfere with the safety, health or peace of the citizens. Furthermore, the said content on such online platforms shows women in bad light and merely as an object which is also violative of their fundamental right to live with dignity as enshrined under article 21.

Conclusion

In the above backdrop, it is high time for the government to come up with stringent laws in order to put a check on the contents that are not morally appropriate for the society. In the present case, no efforts were made to regulate the said online platforms or to remove such legally restricted contents in order to put an end to this problem. This ignorance of the government actually provides such platforms another opportunity to perpetuate the illegality. The said online platforms go unchecked due to lack of certifications or legislations and are not regulated properly because of lack of guidelines or provisions of law specifically dealing with such contents. Now, it really becomes important to tackle such online platforms which operate unregulated and unchecked on an urgent basis.

I strongly believe that anything that disturbs public tranquility or public peace disturbs public order. The right of freedom of speech and expression cannot be extended in order to accommodate “just anything” to be beamed in every home especially when it concerns the former prime minister of our country who is a hero to the millions of people. Netflix in the present case have taken undue liberty and have completely distorted the historical facts which directly impact the reputation of Shri Rajiv Gandhi and are highly slanderous. In Kanu Biswas v. State of West Bengal case, the court held that “in order to determine the effect of an act on the law and order situation in the society, it is important to see the disturbance of the current life of the community which leads to the disturbance in the public order.”[4] We believe that the inaction on the part of the Information and Broadcasting ministry in not taking a proactive step to control and regulate the online streaming platforms led to the violation of Fundamental Rights guaranteed under Article 19 and 21 of the Indian constitution because there is an inseparable interconnection between freedom of speech and stability of society.

We believe that the screening of pornographic contents, vulgar gestures and talks are overriding the Indian culture and morality and there is no controlling and monitoring authority for such video-on-demand platforms. Therefore, it becomes important that there must be a monitoring machinery to control such web contents. Also, in interest of the public at large, the Hon’ble court must impose deletions on visuals and dialogues relating to former Prime Minister Rajiv Gandhi which are found to be derogatory in nature and under article 19(2) reasonable restrictions can be imposed on freedom of speech and expression on account of ‘Public order’ which is synonymous with public peace, safety and tranquility.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development and  Mr. Rishabh Tripathi, Legal Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com.

References:

[1]  Justice for Rights Foundation v. Union of India W.P (C) No. 11164/2018.

[2]  Nikhil Bhalla v. Union of India Writ Petition (Civil) Number 2018/7123.

[3]  Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal (1995) 2 SCC 161.

[4]  Kanu Biswas v. State of West Bengal [1972] 3 SCR 831.

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