Notwithstanding the Bombay High Court’s interim order last week staying certain clauses of the Information Technology Rules, 2021, especially those relating to adherence to a code of ethics, which the digital media industry welcomed, video streaming services (OTT or over-the-top) said they would continue treading cautiously on content.
The court had passed the interim order in a petition challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The court stayed parts of Rule 9 (1) and Rule (3). The former mandates publishers to adhere to a code of ethics.
While digital news media firms welcomed the order and said the court is cognizant of the need for freedom of speech and expression, streaming services’ executives and lawyers pointed to the higher pressure on streaming platforms given the controversies around shows like Tandav. Over-the-top (OTT) streaming platforms would prefer to play safe, they said.
Platforms will continue to eschew political and religious issues owing to more stringent rules, greater scrutiny and clampdown if this interim order is overturned. Lawyers said that reasonable restrictions with respect to other laws continue to exist, as does the inter-ministerial committee as the oversight body.
“This may be seen as some sort of temporary relief (for OTT players) but there is no finality to it and it cannot be relied upon because we don’t know when this order may be overturned or upheld,” said Marathi film producer Akshay Bardapurkar, founder of OTT platform Planet Marathi. Most platforms, including theirs, Bardapurkar said, are taking recourse to self-censorship to avoid any narratives touching upon political or religious issues so as to “not hurt any sentiments.”
A senior executive at an OTT platform said the Tandav controversy showed that backlash doesn’t just stop at online trolling. It can actually extend to FIRs and arrests of platform executives. “While the news is heartening in the larger scheme of things, platforms will continue to be wary and examine every creative decision with a legal microscope. Protests will continue as always because the government will still be unhappy with many voices or what it may deem misinformation as entertainment,” said a filmmaker working on a slate of web originals.
Filmmaker Goldie Behl who has backed shows like Hello Mini (MX Player) and RejctX (ZEE5) agreed it’s always good to have a legal opinion before your content goes to the public at large, especially if you are dealing with sensitive issues.
Prashant Phillips, partner at Lakshmikumaran & Sridharan Attorneys said while the interim order relieves OTT platforms, for the time being, from compliance with the substantive requirement to comply with the Code of Ethics, the powers of the I&B ministry in blocking information, furnishing of information and requirements relating to grievance redressal continue to remain valid.
Despite the stay, the authorized officer and interdepartmental committee, as and when constituted, may issue directions to OTT platforms in response to published content which may be, in their view, contrary to the Intermediaries Guidelines, Philips said.
When it comes to experimentation with themes and genres, OTT platforms have faced immense backlash in the past due to the content published, said Siddharth Mahajan, partner at Athena Legal. “Despite stay on the 2021 Rules, there are other laws under which government could act against the content which they assume to be controversial. Therefore, it is imperative for these platforms to be cautious, experimentation is not restricted but has to be exercised with a degree of care as the Constitution guarantees reasonable restrictions on the freedom of speech,” he said.
Shreya Suri, partner at legal firm IndusLaw said while OTTs are not required to adhere to the Code of Ethics prescribed in the IT Rules, pursuant to the interim stay, they may still be required to ensure that the content available for public access does not violate the provisions of the IT Act, 2000 that, for instance, prohibits the publication and transmission of any obscene material that is lascivious in nature.
“Further, content will continue to remain subject to the reasonable restrictions on the freedom of speech and expression provided in our Constitution which may be imposed on a case-by-case basis, (such as) in the interest of the sovereignty and integrity of India or for preventing incitement to the commission of any cognizable offence relating to the same,” Suri said.