India: Content Regulation of Online Platforms – Supreme Court Issue Notice

May 14, 2019

Content Regulation of Online Platforms

With the content market growing day-by-day, it has become a point of concern for many that whether the contents must be available in India without any regulation and certification. In a country of diversity of languages, large population and major religions in the world, the content regulation is one essential feature, in order to manage the interest of diverse section of people in India.

At present, online streaming is the most viewed and content managed platform which is not controlled by any authority for content regulation. Since there is no regulatory authority on controlling and certifying the contents of these online platform, therefore the content streamed are free from any censorship and restriction on type of contents streamed. With majority of online platforms like Netflix, Hotstar, YouTube, AltBalaji etc. streaming adult and sexually explicit contents on its platform, therefore, it has now become another debate for controlling the contents of online streaming in India.

A Delhi based NGO, Justice for Rights Foundation has approached the Hon’ble Supreme Court of India, in an appeal arising out of judgment passed by the High Court of Delhi, claiming that the online platforms are streaming contents without any license and a lot of content streamed on these platform have not been passed by Central Board for Film Certification. In view thereof, in absence of any regulatory guidelines or certifications, it will be difficult for the authorities to restrict the adult and obscene contents streamed by the online platforms. The Hon’ble Supreme Court of India, in SLP (C) No.10937/2019, upon hearing the petitioner has issued notice to the Union of India.

Earlier in 2018, in the matter JUSTICE FOR RIGHTS FOUNDATION vs. UNION OF INDIA (W.P.(C) 11164/2018), before the Hon’ble Delhi High Court, the petitioner claimed that most of the online platform are streaming adult contents that includes obscene language, pornographic, sexually explicit and women objectifying contents, without any license and any regulations. Further the petitioner added that when cable operators and DTH operators are regulated then why are online platforms free from any certification and regulation. Accordingly, petitioner sought a writ of mandamus to the respondents to bring into place regulation to control the contents of the broadcast made by these organizations on the online platform. In a reply filed by Ministry of Information and Broadcasting, clearly stated that online platforms were not required to obtain any license for displaying their contents and the same is not regulated by the Ministry of Information and Broadcasting. Further, Ministry of Electronics and Information Technology also informed the court that they do not regulate the content on internet and there is no provision for regulating or licensing for an organization or establishment for putting up content on the internet. Therefore, no general power for regulation or material in the internet platform, however, if the contents were being misused for carrying information or material which were not permissible under law then the provisions of Information and Technology Act 2000 would be applicable, which provides for deterrent action to be taken and as and when complaints are received, and the statutory competent authority shall take necessary action in the matter. The relevant sections of the Information and Technology Act 2000, are:

  1. Section 69 of the Act – includes direction for interception, monitoring or decryption of information,
    blocking of content etc.
  2. Section 66A of the Act – punishments have been provided for sending offensive messages through
    communication service etc.
  3. Section 67 of the Act – Punishments are also provided for publishing or transmitting obscene material in
    any electronic form.
  4. Section 67A – punishment for publishing or transmitting of material containing sexually explicit act,
    etc. in electronic form.
  5. Section 67B – provides for punishment for publishing or transmitting material depicting children in
    a bad taste.
  6. Section 68 – power is conferred to the Controller to give directions in above cases.

Taking into consideration the above provisions of the Information and Technology Act 2000 and submissions by respective ministries, the court observed that if there are organization which exhibit or transmit any contents that violates the statutory provisions of the Information and Technology Act 2000 and contains prohibitory material, a complaint under the aforesaid provision to the statutory authority can be made, and therefore, the court held that there is no reason for bringing into place any guidelines or statutory regulation for the said purpose when the Information and Technology Act itself provide for enough procedural safeguards for taking action in the event of any prohibited act being undertaken by the broadcasters or organizations in the internet/online platform.

A similar petition in Mr. Padmanabh Shankar vs. Union of India (W.P. 6050/2019), a Bengaluru resident, before the Hon’ble Karnataka High Court, praying for regulating the online broadcasting contents by the online platforms and set up necessary authority to regulate and certify the contents which are being online streamed by these platforms.

In light of the notice issued by the Hon’ble Supreme Court of India, there will a further debate and final say on whether the online platforms like Netflix, Amazon Prime Video, Hotstar, YouTube, AltBalaji etc. will have to take license for streaming contents and if licenses are required then which authority will certify and regulate the contents.

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