Digital Divide: Is Big Brother Trying to Control the Booming Internet Space? – TheLeaflet – The Leaflet

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

RECENTLY, the government notified theInformation Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021through whichit 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. BothOTTs and digital news mediawill 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 anotification 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).

TheInformation Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, provide for due diligence mechanisms for social media intermediaries, failing which they would be penalised. BothOTTs and digital news mediawill have to inform the I&B Ministry about the details of their entity and publish periodic compliance reports every month.

Supporters of the regulatory regimearguethat it would level the playing field between OTTs and theatrical productions, whereas criticsexpressed concernsover the regulations as they may lead to potential censorship. Several requirements under the Rules arearguablyunconstitutional as they undermine the freedom of expression as well as the right to privacy. The Rules have excessivelydelegated powersto 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 governmentsaimto control the booming internet space, which was otherwise partially free.

Digital content available on the web is subjected to several provisions under theInformation Technology Act, 2000. The government owns theinternet kill switchto remove any content that is objectionable and/or harms Indias interests under Section 69A of the IT Act. Further, as per Rule 3(2)(b), (c) and (e) ofInformation 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 Certificationset up under theCinematograph Act, 1952,whichassigns various certificationsto films before their release.This Act along with theCinematograph (Certification) Rules, 1983and the ministrysGuidelines dated December 6, 1991, form the censorship laws for films.

Further, theCable Television Network (Regulation) Act, 1995enables the government to take certain channels off the air, as was seen in the case ofNDTV India and others. Theprogramme codeprescribed 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 countrys telecommunications via theIndian Telegraph Act, 1885, and theIndian Wireless Telegraphy Act, 1933, which often causes internet shutdown.

Digital content available on the web is subjected to several provisions under theInformation Technology Act, 2000. The government owns theinternet kill switchto remove any content that is objectionable and/or harms Indias interests under Section 69A of the IT Act.

There is a lineardifferencebetween 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 2019had arguedthat the CBFC should not have pre-censorship powers.

In February 2020, a group of OTTslaunchedthe 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 ministryhadmaintainedthat consensus on a self-regulatory model without the governments 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).

There is a lineardifferencebetween regulation and state-sponsored censorship. Unlike censorship, where abuse, nudity or politically sensitive content is bleeped out by the platform, OTTs arecommittedto 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.

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 asPadmaavatandUdta Punjabhad 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 ministrysummonedAmazon Prime officials and the makersthankedthe ministry for guidance and support while deleting the controversial scenes. Thisarguablyset a dangerous precedent for the OTT industry. Despitenot beinglegally 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.

InShreya Singhalv.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.

Despitenot beinglegally 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.

InLife Insurance Corporation of Indiav.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 Courts ruling that halting the documentary broadcast would curtail freedom of speech and expression.

Yet again, inBobby Art International & Ors.v. Om Pal Singh Hoon & Ors.(1996), the Supreme Court heldthat the producers right to freedom of expression could not be restricted.ReiteratingK.A. Abbasv.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 inBobby Artheld 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 inPadmanabh Shankarv. 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 (SeeK.A. Abbascase).

Thus, as noted by the Bombay High Court inPhantom 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 peoples good morals, may be sabotaged by statutory enemies within.

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 inPadmanabh Shankar v. Union Of India(2019) rightly pointed out that content aired over OTT platforms are not public exhibitions and should not be censored.

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 governments 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, asit 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.

The Rules establish a stronger big brother State to watch if citizens are subscribing to content that goes against the governments 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.

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 LibertysFellowship For Freedom in India.The views expressed are personal.)

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