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Shackle to netflix and chill

It is believed by many that regulating the internet is an oxymoron but the current scheme of things show otherwise as countries like China, Russia are making the internet service providers subject to their local laws. It means no matter where the internet service providers are situated or based if they have an impact on computers and network in these countries, they have to comply with the local laws otherwise their services will be blocked.

As of now blocking of services have proven to be notoriously ineffective because there are various tools and indirect ways to access the blocked information but there is growing realization amongst the governments around the world to regulate their cyber space. The countries are now talking about cyber sovereignty which however has certain inherent problems which are needed to be addressed first:
# There is a contradiction between the spirit of the internet and cyber sovereignty; it may result in fragmentation of internet as every country in the name of cyber sovereignty may cause to set up separate cyberspace of its own.[1]

# There is another contradiction of human rights with cyber sovereignty as it may violate the principle of freedom of speech; state intervention in the cyberspace will restrict the free flow of information so, keeping up with recent trends a PIL has been filed in Supreme Court to regulate the content of online streaming platform like Netflix, Amazon, Hotstar, etc., it is argued by the petitioners that there is no licensing authority, no certification like for films releasing in Cinema halls and no governing mechanism for these platforms. However, this PIL is not of its first kind various other PIL in various High Court has been filed against some specific shows streamed by these platforms. For example against Netflix Original Series Sacred Games, Alt Balaji’s Gandi Baat and many more. They all are either pending or are rejected so this petition hopefully will settle the matter once and for all.

Little History of the matter
It all started with an RTI application filed by the petitioner to the Ministry of Information and Broadcasting which seeks rules or regulations governing the online streaming platforms and its content. The ministry replied in its response to the RTI application that:
1.the ministry is not aware of the licensing authority
2.the Section 79 of the Information Technology Act, 2000 is applicable to these platforms as they are intermediaries according to Section 2(1)(w) of the same Act which says that:

intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes[2]

Writ petition in High Court
The Petitioners then filed a writ petition under Article 226 of the Constitution to the Delhi High Court seeking guidelines in order to regulate the unregulated, uncertified, and legally restricted contents broadcasted on the online platforms including Netflix, Amazon Prime Video, etc., or; seeking a writ, order or direction in the nature of a writ of mandamus or any other writ, order or direction in the similar nature to the respondents to frame legal guidelines in order to regulate the said online platforms and contents broadcasted or streamed and direct the respondents to pass necessary directions to all online platforms to remove such contents with immediate effect[3].

The ministry in a notice issued by the Delhi High Court filed an affidavit and said that the online platform are not required to obtain any license from the Ministry of Information or Broadcasting for displaying their contents and the same is not regulated by the said Ministry. It further stated that they do not regulate the content of aforesaid platforms and they also do not have a legal mechanism for regulating or licensing of these organizations and establishment for putting up their content on the internet. It also cited many other provisions of the IT act which can provide a remedy to any person aggrieved by any content on these streaming platforms if it is obscene or hurt their religious sentiments and shock societal conscious or sensitivities.

The High Court even cited Section 66A of the IT Act which is scraped inShreya Singhalcase but that is another matter. However, all these remedies cited by the High Court are post-screening of the content that is there is no pre-screening measures which are applicable to films releasing in Cinema Halls such as certification from Central Film Certification Board and compliance with Cinematograph Act.

The petitioners have argued in their petition that these streaming platforms are not intermediaries so Section 79 is not applicable to them and if it is applicable then the concerned authority has failed to exercise the requisite due-diligence under Section 79(2)(c) of the IT Act.

However Delhi High Court was not impressed by these arguments and held that:

it is stated that no general power for regulation or material in the internet platform is available. But if the internet platform is misused for carrying information or material which are not permissible under law then the provisions of the Information Technology Act provides for deterrent action to be taken and as and when complaints are received, the statutory competent authority takes action in the matter. In case the petitioner feels that any of the contents exhibited or transmitted by the organizations detailed in the writ petition violates the statutory provisions of the Information and Technology Act 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[4].

This decision by the Delhi High Court is hailed by some as progressive because now the government cannot hamper their Netflix and chill phenomenon as it saved these platforms from heavy licensing and their discretion on what to watch on the internet is intact. The Delhi High Court is also said to be influenced by the decision of these streaming giants to self-regulation. All these streaming platforms Netflix, Hotstar and a clutch of other platforms have signed a self-regulatory code for not showing in India any content considered disrespectful to national symbols and religions, in a bid to avoid a potential censorship crackdown in the booming market[5].

Under the code, the players will ensure that they do not deliberately and maliciously make available any content which disrespects the national emblem or national flag; or shows a child engaged in real or simulated sexual activities. Also prohibited is content which outrages religious sentiments of any class, section or community; which promotes or encourages terrorism; and content that has beenbanned from distribution by online streaming platforms under law or by any court[6].

At Present: Public Interest Litigation in the Supreme Court
Now the petitioners have approached the Supreme Court for addressing their grievances. They have argued in their petition that the absence of guidelines to govern these platforms government agencies are creating a special separate class and discriminating against the customers, cable tv operators, producers, and D2H operators. To elucidate this point let us consider an example- Mr. A produced a movie and then he sends it to Censor Board for certification and Cinematograph Act is also applicable to this movie. So, now if that movie contains a scene which is prohibited under the said act it has to be deleted in order to get the certificate from the board so that it could be released. Now Mr. B produced another movie which contains full frontal nudity which is totally prohibited under the Cinematograph Act but he decided to release his movie on Netflix now he no longer required to comply with the act and also does not require any certificate. This loophole in the law is exploited by filmmakers and it is violating the principle of equality by discriminating between to class of producers.

However this contention is not very practical because every producer will want his movie to be released in cinema halls as it will make it more profitable and for that if he had to cut some scenes to get a release it can be done as evident from many instances, for example, the movie Udta Punjab was asked to cut 95 scenes from the movie and title of the movie were changed from Padmavati to Padmaavat and many more. These streaming platforms are still in an evolving phase so it is still desirable to get a release in cinema halls. But this position is transient as in future this situation might change and this lacuna in law can be exploited by filmmakers to avoid the formalities of laws applicable to movies releasing in Cinema Halls.

The counter-argument or rather the stand of Ministry and Delhi High Court agreeing with it are that these platforms are intermediaries as defined in the IT Act so regulations imposed on intermediaries under Section 79 is applicable to them. The petitioners argue that these platforms are not necessarily intermediaries as they not only always third-party streaming the other person content sometimes they also develop their own content and broadcast it.

Whether this argument is tenable or not is now up to on Supreme Court to decide but for the sake of argument here let us assume they are intermediaries so Section 79(2) (c) will be applicable on them. It means they are required to exercise due diligence but the problem is that there are no specific parameters of due diligence neither in the Act or Rules under it. No parameters have been formulated keeping in mind the requirement of peculiar business operation of online streaming platforms.

The lacuna lies here on the lack of imagination on the side of government to come up with an adequate enabling legal framework and specific parameters for due-diligence for online service providers.

What did the petitioners want?
As it is already mentioned here that this petition is seen by some as a hostile petition which is threatening their discretion as a viewer and putting an obstacle on ‘Netflix and Chill’but as put by the Petitioner lawyer Mr. Harpreet S Hora that this is not a hostile petition and the regulation or censoring of content is the last concern of the petitioners as obscenity are very subjective which can only be dealt when these questions are decided first and these questions are:
# Whether these online streaming platforms have a license
# Whether these online streaming platforms have any regulation
# Whether these online streaming platforms have any certification

It is argues by the Petitioner that preventive laws are also needed because for every matter one cannot file an FIR or approach the court under the IT Act and if there are preventive laws for films releasing on Cinema Halls or for showing movies on TV by cable operators or D2H operators then why not for these streaming giants.

At this point of time there are two options available for these platforms either to opt for self-regulation which they have done but it is to be done for formally and specifically and has to be done by all of them as Amazon Prime Video has not signed the code mentioned above or they can willfully neglect the law and not bothered by any local law. But the latter approach is not feasible in long run as the government all around the world are realising the need to regulate the internet and only way to slow down this process is self-regulation only. Internet as a paradigm is beyond regulation. However, things are changing rapidly more and more countries are waking up for the need for regulating the content on the internet within their physical geographical boundaries such as Russia is coming up with its data localization laws, Chinese laws data localization laws are said to be the world’s most elaborate and covers vast data which had its impact on the Chinese System or mobiles in China. Information Technology Act, 2000 also echoed this position almost two decades back under Section 1 and Section 75 of the Act which says that this act is applicable to any person of any nationality if it affects the network in India. However, India as a nation completely failed to implement and we are in a state of conundrum relating to Cyber Sovereignty.

As argued by the petitioner to apply similar regulation for cinema halls on online streaming platform in ground reality is very difficult and challenging primarily because people can be physically located outside a nation’s territorial jurisdiction and there are also some inherent limitations of all the laws applicable now on producers, cable operators or D2H operators, etc.

In our constitution the fundamental rights are not absolute they are subject of reasonable restrictions. Freedom of speech and expression guaranteed in Article 19(1) is subject to Article 19(2) so no one can say that he or she is unregulated and Internet cannot violate the fundamental principle and the basic structure of Constitution.

[1]A three –perspective theory of cyber sovereignty by Hao Yeli,
[2]Section 2(1)(w) of IT Act,2000.
[3]Justice for Rights Foundation vs. Union of India,

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