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Should the programmes transmitted through the internet by social media giants be regulated and censored? The Supreme Court has other cases to fall back on to arrive at a final verdict

By Venkatasubramanian

The question whether online entertainment service providers and intermediaries like Netflix, Amazon Prime Video, Hotstar, etc, should come under a regulatory regime and be subjected to prior censorship is not easy to decide. Those who argue in favour of regulation for such content say it is inherently discriminatory to exempt the internet from it when similar content in theatres or television channels is subject to regulation and censorship. Those who argue against such regulation underline the practical difficulties of regulating the internet.

On May 10, a Supreme Court bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna agreed to hear an appeal filed by Delhi-based NGO Justice for Rights Foundation against a Delhi High Court’s order of February 8. The High Court bench of Chief Justice Rajendra Menon and Justice V Kameswar Rao had dismissed the Foundation’s PIL seeking directions to the centre to frame legal provisions/guidelines to regulate online platforms and content broadcast through them. It also sought directions to all online platforms to remove legally restricted content with immediate effect.

The centre submitted to the High Court that the online platforms are not required to obtain any licence from the Ministry of Information and Broadcasting for displaying their content and the same is not regulated by it. The Union Ministry of Electronics and Information Technology (MEIT) too informed the High Court that it does not regulate content on the internet and there was no provision for regulating or licensing an organisation or establishment for putting up content on the internet. However, MEIT submitted that the provisions of the Information and Technology Act, 2000, are applicable, and the concerned statutory authority exercising jurisdiction under the Act can take action under Section 69. This section includes direction for interception, monitoring or decryption of information, blocking of content, etc.

MEIT further claimed that under Section 66A, punishments have been provided for sending offensive messages through communication services, and so on. Punishments are also provided for publishing or transmitting obscene material in any electronic form under Section 67. Section 67A prescribes punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form.   Section 67B provides for punishment for publishing or transmitting material depicting children in bad taste. More power is conferred under Section 68 to the Controller to give directions in such cases.

However, on March 12, a High Court bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani corrected the February 8 order insofar as it was erroneously held that action against online platforms could be taken under Section 66A of the ITA. This provision was held ultra vires by the Supreme Court in Shreya Singhal v Union of India in 2015. “Therefore, reference to Section 66A in para 4 of order dated 08.02.2019 is deleted and the petitioner is at liberty to take recourse under the relevant provisions of the ITA, 2000,” the bench stated.

But for this correction, the bench reiterated its February 8 order which expressed the Court’s inability to issue a mandamus for framing general guidelines or provisions when there are stringent provisions already in place under ITA. “In case the petitioner feels that any of the contents exhibited or transmitted by the organisations detailed in the writ petition violates the statutory provisions of the ITA or the Rule and contains prohibitory material as is detailed therein, the petitioner can very well make a complaint under the aforesaid provision to the statutory authority and we are hopeful that the authorities shall look into the matter,” the bench concluded before dismissing the petition.

The centre submitted before the High Court that although no general power for regulation of material in the internet platform is available, in case of misuse, then ITA provides for deterrent action to be taken by the competent statutory authority “as and when complaints are received”.

The Foundation alleged in its petition that due to the absence of a licensing or regulating body, the respondents are creating a special class of broadcasters and discriminating against customers, regular movie producers, cable TV operators and D2H operators. “We are not asking for a ban on online entertainment, but only seeking regulation, and pre-screening scrutiny of the content,” Satyam Singh Rajput, founder and national president of the Justice for Rights Foundation told India Legal.

A similar petition is pending before the Karnataka High Court, which too has issued a notice to the respondents.  Filed by Padmanabh Shankar, the petition prays for a declaration that transmission or broadcast of any films, cinema, serials and other multimedia content through the internet shall come within the definition of Section 2(c) of the Cinematograph Act, 1952. Section 2(c) defines cinematograph as including any apparatus for the representation of moving pictures or series of pictures. Watching the said multimedia content intramural would amount to public exhibition, thereby requiring regulation. It wanted the Court to direct the centre to come out with suitable legislation to set up a board or authority to sanction the films, cinema, serials and other multimedia content transmitted or broadcast through the internet for public exhibition with the help of advisory panels at regional centres. In this case, Netflix, YouTube, Hotstar, Amazon Prime and Alt Digital Media Entertainment Limited have been named as respondents.

Through the Cinematograph Act, unrestricted public exhibition of films which affect human sensibilities by showing excess of vulgarity, obscenity or depravity, or scenes degrading women in any manner are largely contained. The Act has also, more or less successfully, regulated or prevented the usage of words which are contemptuous of social, religious practices, etc.

Shankar cited relevant case laws to support his prayers. In K.A. Abbas v Union of India (1970), the Supreme Court justified censorship of films because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. Therefore, it has as much potential for evil as it has for good and has an equal potential to instil or cultivate violent or good behaviour, the Court had held.

In Amitabh Bacchhan Corporation Ltd. V Om Pal Singh Hoon (1996), the Delhi High Court held that producers and directors cannot create a taste for sex and violence and contend that there is popular demand for the same. Constitutional values and statutory standards as interpreted by the Supreme Court have to guide us; it is not the shifting popular will, but our fundamental assessments of human values and the purpose of society that should govern, the Court observed.

In S Rangarajan vs P Jagjeevan Ram, (1989), the Supreme Court held that in the name of innovation, we cannot throw away general human morality and wisdom. The Censor Board, it said, need not have an orthodox or conservative look, but must display more sensitivity to the motives, which have a markedly deleterious effect to lower the moral standards of the viewers, especially the young.

Shankar, in his petition, points to the flaws in the existing legal regime, which limit our potential to regulate the transmission of entertainment through the internet.

As per Section 79 of the ITA, under certain circumstances, intermediaries are exempted from liability. Any person who provides internet service would be called an intermediary. Intermediaries like Google, Yahoo, Netflix and Hotstar have either a policy document or an agreement with their content generators which gives them the right to decide whether they are going to publish the content or transmit the same to users. As they take up the responsibility of deciding whose and which content can be transmitted by them, they cannot claim any protection under Section 79 of the ITA, Shankar contends in his petition.

In Shreya Singhal, the Supreme Court observed: “Section 79 being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. Under Section 69A, blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. There are only two ways in which a blocking order can be passed—one by the designated officer after complying with the 2009 rules and the other by the designated officer when he has to follow an order passed by the competent court.”

Shankar’s plea for judicial intervention to ensure regulation of the internet relies on the following grounds: It is only by the intervention of the Supreme Court in the Hero Cup judgment (Secretary, MIB v Cricket Association of Bengal, 1995) that the foundation was laid for regulation of content broadcast by cable TV operators through cinema and television. Even though the Cinematograph Act or the Cable Television Network Regulation Act of 1995 are silent with regard to broadcasting of films, cinema, serials and other multimedia content via internet, the law should be declared to state that the Acts shall apply for the same. In Laxmi Video Theatres vs State of Haryana (1993), the Supreme Court interpreted Section 2(c) of the Cinematograph Act to include DVDs and VCRs within the meaning of the word “apparatus” and consequently held that the Act shall also apply to films broadcast through VCRs, DVDs, and so on.

The petition cites a case in Uttarakhand wherein a Class Xth girl was brutally gang raped by two minors, who admitted having watched pornographic material on the internet, before the commission of the offence.

In Super Cassette Limited v Board of Film Certificate and others, it was held that watching a movie through the medium of DVDs and VCDs would amount to public exhibition. Shankar, therefore, argued that even if an individual watches any movies or films on the internet within the four walls of his home, it would amount to public exhibition, and hence, regulation is justified.

It is likely that the Supreme Court may transfer the pending petition before the Karnataka HC to itself when it hears the Foundation’s appeal against the Delhi High Court’s February 8 order.

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