The government, on 25th February 2021, notified the IT Rules 2021 via its official gazette with the objective of regulating Content on Digital media. These rules, under the pretence of promoting self-regulation, seem to have attempted to compromise the Freedom of speech of digital media.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulating OTT platforms instil a sense of doubt among the stakeholders that the new rules are violative of the fundamental rights of creative Freedom and expression of the publishers on the OTT platforms, as well as of individuals consuming the content. These unreasonable impositions on OTT platforms have the potential to restrict free creative expression.

Hidayatullah, C.J. in the case of Abbas v. Union of India, held that the standards set for censoring must make a substantial allowance in favour of Freedom. It was further opined that the extent needs to be saved within these standards for creative art to interpret life and society with some of its foibles along with what is good. Any attempt to regulate the most viewed and expressed form of free media infringes upon the free speech, expression, and artistic Freedom of creators as well as the audience’s right to consume a wide variety of digital content. Even the room reserved for reasonable restriction on speech is surpassed by the current rules, since it equates television telecast and internet content, and deprives the wishing and consenting target audience from consumption of content freely.

Dictating the content to watch on the internet, similar to television telecast, is unfair and restricting. It discourages diverse opinions and poses a threat to the publisher’s right under Article 19(1)(a) of the Constitution. Furthermore, censoring of the content on these internet OTT platforms was provided within the rules, as under Rule 4(b)(ii), on vague and ambiguous grounds like ‘obscene’ and ‘libellous’. The complaints received by the government due to which they legislated the rules were on open-ended grounds of being ‘vulgar’ and violative of ‘religious sentiment’. Additional arbitrary censorship on the internet through the present rules, besides the IT Act, 2000, restricts free opinion.

In the case of Union of India v. Assn Forr Democratic Reform, the Supreme Court stated that one-sided information, or disinformation, equally creates an uninformed citizenry which makes democracy a farce. The Apex Court upheld the Freedom of speech and expression including the right to impart and receive information which includes freedom to hold opinions. Any step that tries to curb this fundamental right would be a backward step in a democracy.

Right to Know: Intrinsic Part of Freedom of Expression of the Viewers

Art. 19(1)(a) of the Constitution guarantees the fundamental rights to free speech and expression. The prerequisite for enjoying this right is knowledge and information. The absence of information on matters of public interest will only encourage wild rumours and speculations and avoidable allegations against individuals and institutions. Therefore, the Right to Information should be, in fact, understood as a Constitutional Right since it is an aspect of the right to free speech and expression, which includes the right to receive and collect information. When the OTT platforms are censored, and only those that favour the government or the regulating authority are allowed to be streamed, the public tends to not know the different perspectives of the issue.

In Life Insurance Corporation of India v. Prof. Manubhai D. Shah, when 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.

Deviation from Due Process of Law and Lack of Legislative Competence

The notification issuing enforcement of these rules is not the competent authority, thus deeming it unconstitutional. In view of Art. 13(3), a law is declared unconstitutional if it is not in conformity with a competent legislating authority. In the case Mahendra Lal Jaini v. State of UP, it was held that a statute in derogation with Art. 13 will be declared void and unconstitutional. The administrative authority issuing the rules also does not have the competence to legislate upon the subject-matter as per the allocation of Business Rules, 1961.

The rules were notified by the Ministry of Electronics and Information Technology (MEITY) which is in charge of matters of Cyber law. However, the ministry in charge of digital media, which is sought to be regulated herein, is a subject matter of MIB. The legal maxim of Generalia specialibus non derogant coupled with Quando aliquid prohibetur ex directo, prohibetur et per obliquum give out the reasoning that Allocation of Business Rules, 1961 must be read not such that the clauses are totally ignored. Thus, the legislating ministry in charge that needs to pass the rules through Parliament is MIB, leading to wrong legislating authority.

Furthermore, the rules are ultra vires of the objective laid down in their parent statute of Information Technology Act, 2000. Sec 79 of the act exempts the intermediary of the liability made available by a third party. Further, in the case of Google India Pvt. Ltd. v. Vishakha Industries and anr the court upheld this safe harbour provision. However, these rules reverse the same when they put the liability on the intermediaries to conduct due diligence on third party information.

This lack of competent authority deviates from legislating under due process of law as per Art. 21, subsequently raising constitutional validity questions under Art. 13 of the Constitution. The rules are also not in consonance with the Universal Self-Regulation Code (2019) as proposed by the Internet and Mobile Association of India (IAMAI).

IT Rules Manifest Arbitrariness

Article 14 is a guarantee against any executive action which may be arbitrary, causes illegal discrimination and is unequal in nature. A State action shall not be arbitrary and unreasonable. Article 14 strikes down arbitrariness in State action and ensures complete fairness and equal treatment of individuals. The present Rules notified by the Ministry of Electronics and Information Technology (MEITY) is an arbitrary and over-regulating legislation, with the potential of state censorship. 

Article 14 is said to be infringed when different classes of people who are similarly circumstanced are treated differently to their prejudice. This differential treatment has no reasonable relation to the object sought to be achieved by the law. The most accepted jurisprudence of the concept of equality is “equals should be treated alike” and ” unequals ought not to be treated unequally.” Telecasts on television are quite different from streaming over OTT platforms. Unlike the viewers of television, users of OTT platforms such as Netflix, Hotstar, and Amazon are provided the ability to search for content over the internet and choose what they watch. In the case of Nikhil Bhalla v. Union of India, the court took a liberal and expansive stance inputting censorship over the dialogues of an OTT Platform web series. The court was of the opinion that it didn’t want to curtail anybody’s rights.

Streaming content on OTT platforms being different from traditional broadcasting. It is essential to not regulate it under the same bracket of television censorship. These rules tend to regulate unequal entities equally, thus being in disconformity with Article 14. If it is censored, the content may stoop to the same level as television content. This may discourage investment in OTT platforms. OTT platforms created many employment opportunities, and lack of investment may reverse the progress.

Lack of Legislative Competence under Article 13 of the Indian Constitution

A statute needs to be passed in legislative competence, such that it does not violate Part III or any other provisions of the Constitution. If the said statute is in derogation of the same, the matter will constitute grounds for a plea against an action that is ultra vires the Constitution. If a law is violative of any fundamental right enshrined in Part III of the Constitution, it would be unenforceable in view of the provision under Article 13(2) of the Constitution.

Considering the shortcomings of the present rules, these should be withdrawn, and an expert committee to be set up with public consultation to establish a reasonable framework that is not arbitrary and is constitutional, ensuring the quality and free content is available to the viewers at their discretion.

Conclusion

In Bobby Art International & Ors. v. Om Pal Singh Hoon & Ors., the Supreme Court held that the producers’ right to Freedom of expression could not be restricted and also stated that films dealing with socially relevant themes must be subjected to the least censorship. The controversial yet socially relevant content on the OTT platforms being protested against fails to be subjected to the censorship standard given in the precedent under Chapter IV of the rules. This provision puts state regulation on the platforms, in addition to self-regulation that completely loses the objective of least censorship, the mandate provided under the precedent. Censoring only OTT platforms leaving the entire internet is unfair.

The implementation of these rules has abridged the fundamental rights of publishers who use OTT platforms, who are natural persons under the law or citizens. The Karnataka High Court in Padmanabh Shankar v. Union Of India, rightly pointed out that the content aired over OTT platforms are not public exhibitions and should not be censored on the reasoning as absurd as the one such as “social interests matter over individual freedom.”

Considering all the above stated aspects, it is of utmost importance that these constitutionally invalid rules are withdrawn and an expert committee to be set up with public consultation to establish a reasonable framework.

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ABOUT THE AUTHORS

Rithvika D S

Rithvika DS is a second-year BBA LLB(Hons) student from School of Law Christ University. She holds interest in research and commercial law.

Lolita Delma Crasta

Lolita Delma Crasta is a second-year BA LLB(Hons) student  at School of Law Christ University. She is an avid reader and has a deep rooted interest in technology Law.