Recently, the government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 through which it 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. Both OTTs and digital news media will 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 a notification 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.
Supporters of the regulatory regime argue that it would level the playing field between OTTs and theatrical productions, whereas critics expressed concerns over the regulations as they may lead to potential censorship. Several requirements under the Rules are arguably unconstitutional as they undermine the freedom of expression as well as the right to privacy. The Rules have excessively delegated powers to 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 government’s aim to control the booming internet space, which was otherwise partially free. Digital content available on the web is subjected to several provisions under the Information Technology Act, 2000. The government owns the “internet kill switch” to remove any content that is objectionable and/or harms India’s interests under Section 69A of the IT Act. Further, as per Rule 3(2)(b), (c) and (e) of Information 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 Certification set up under the Cinematograph Act, 1952, which assigns various certifications to films before their release. This Act along with the Cinematograph (Certification) Rules, 1983 and the ministry’s Guidelines dated December 6, 1991, form the censorship laws for films. There is a linear difference between 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. However, 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. 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.