Regulation Of Online Curated Content In India
WHAT IS CONTENT CURATION
Content curation is the process of finding and collecting online content and presenting the best
pieces in a structured way. It is supposed to attract mass audience to the provider. The clutch of the
Online Curated Content (OCC) Providers in India is majorly the Over the Top (OTT) platforms like
Netflix, Hotstar, Amazon Prime Video, et cetera. These OTTs hold a huge customer base that
includes people of all age groups, may it be kids or aged persons. “The art of the cameraman, with
trick photography, vista vision and three dimensional representation, has made the cinema picture
more true to life than even the theatre or indeed any other form of representative art. The motion
picture is able to stir up emotions more deeply than any other product of art. Its effect particularly
on children and adolescents is very great since their immaturity makes them more willingly suspend
their disbelief than mature men and women. They also remember the action in the picture and try to
emulate or/ imitate what they have seen.”1 Moreover, India’s video streaming industry is all set to
grow at a CAGR of 21.82% to reach Rs. 11,977 crore by 2023. 2 Hence, regulation of OCC
streaming on various platforms is vital.
APPLICABILITY OF LAWS
CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995
The Act was introduced to regulate the operation of cable television networks across the country
and any matters related to the same. Therefore, it does not apply to the OCCs since the Act does not
take any online content into consideration.
CINEMATOGRAPH ACT, 1952
The Act is not applicable to OCCs as clearly held in the case of Mr. Padmanabh Shankar v
Union of India & Ors3 wherein the issue raised via the PIL was that whether the transmission or
broadcast of any films, cinemas or serials and other multimedia content through the internet will
come within the definition of 'cinematograph' under Clause (c) of Section 2 of the Cinematograph
Act, 1952. The Bench adjudged and is directly quoted- “If we take into consideration the concept of
internet and how the internet operates, it is impossible to accept the submission that the films or
serials which are transmitted or exhibited through internet will constitute films within the meaning
1 K. A. Abbas v. The Union Of India & Anr [1971 SCR (2) 446]
2 Jha, L., 2019. India’S Video Streaming Industry To Grow At 22%: Pwc Report. [online] Livemint. [Accessed 4 June
2020].
3 Mr. Padmanabh Shankar v Union of India & Ors [Writ Petition No.6050/2019]
of Clause (dd) of Section 2 of the said Act of 1952. In fact, if we consider the concept of internet, it
is very difficult to accept the contention that through the internet there is an exhibition of films or
serials. The internet contemplates transfer of files in response to the requests made by the users.”
INFORMATION TECHNOLOGY(IT) ACT, 2000
Censorship- Article 19(1)(a) of the Constitution protects the right to free speech and expression
irrespective of the medium of communication. While the Courts have interpreted this right in a
broad manner, Art. 19(2) permits reasonable restrictions to be placed on the right in view of
public policy concerns. Purportedly in accordance with Art. 19(2), the IT Act contains numerous
provisions that can be used to censor online content – notably in Sections 69A and 79.
- S.69A authorises the government to block any content from being accessed by the public on
various grounds- (i) in the interest of sovereignty and integrity of India, (ii) defence of India (iii)
security of the state, (iv) in the interest of friendly relationship with foreign states, (v) for public
order and (vi) for the prevention of any cognizable offence in relation to the above. 4 An
intermediary who fails to comply with directions to block content is liable to be imprisoned for
up to seven years. This provision ensures that the government can block any content it deems to
fall within the fairly broad conditions.
- S.79 of the IT Act requires an Intermediary to observe certain guidelines in order to avail of
exemption from liability. These guidelines mandate that the Intermediary must take down any
information that is inter alia grossly harmful, harassing, blasphemous, defamatory, obscene,
pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically
objectionable, disparaging, relating or encouraging money laundering or gambling, harm minors
in any way or otherwise unlawful in any manner whatever, acting upon private complaint or if
they discover such content on their own.
- OPINION- This provision essentially makes all intermediaries into watchdogs of the Internet
“
with very limited provisions as to recourse or safeguards - for instance there is no requirement to
produce a court order before mandating a take down. The requirement to act on private
complaint on such numerous grounds is disturbing and could be used as a back-door means of
”
censorship.
Issue Of Obscenity- When it comes to regulation of OCC under the IT Act, 2000, the major issue
raised often is the Issue Of Obscenity. Our country inhabits diversified population with differing
definitions of ‘morality’ and ‘obscenity’ and which is why works of art, literature and like are
questioned on such grounds. The question of obscenity attracted attention in the case of Ranjit D.
Udeshi v. State of Maharashtra and has been controversial since. As regards to online content, this
4 Nishithdesai.com. 2019. Discussion Paper: Online Curated Content Regulation. [online] [Accessed 4 June 2020].
issue is dealt by IT Act and certain provisions of IPC. In the case of Sharat Babu Digumarti v.
Government [Nct Of Delhi]5, it was opined, “Obscenity pertaining to electronic record falls
under the scheme of the IT Act. We have also referred to Sections 79 and 81 of the IT Act. Once
the special provisions having the overriding effect do cover a criminal act and the offender, he
gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic
forms of transmission is covered by the IT Act, which is a special law. It is settled position in law
that a special law shall prevail over the general and prior laws.”
The Information Technology Act, 2000 governs online curated content and penalises obscenity and
sedition, if they are committed using electronic media. In fact, the tests prescribed to determine if
electronic content is ‘obscene’ under the IT Act are comparable with those set out in the IPC, and
an intermediary is duty bound to remove any content that contravenes the standards set by the
legislation.6
INDIAN PENAL CODE(IPC), 1860
The IPC is applicable to the online content as well.
• The Code under S.124 prohibits the use of words either spoken or written, signs, visible
representations, or otherwise, which bring or attempt to bring into hatred or contempt, or excite
or attempt to excite disaffection towards the Government established by Law in India, essentially
any act of Sedition. So any online content falling under the prohibited area will be tried.
• S.292 holds an offence to sell, distribute, import, export, exhibit, advertise, circulate, etc. such
obscene content.
• It prohibits defamatory content under S.499 read with S.500
UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
As per S.13 of the Act, an ‘unlawful activity’ has been defined as any action taken by an individual
or association (whether by committing an act or by words, either spoken or written, or by signs or
by visible representation or otherwise), which is intended to bring about the cessation of a part of
the territory of India, which disclaims, questions or disrupts the sovereignty or territorial integrity of
India, or which causes or is intended to cause disaffection against India.
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
5 Sharat Babu Digumarti v. Government [Nct Of Delhi] [CRIMINAL APPEAL NO. 1222 OF 2016, Supreme Court]
6 Kamat, S. and Ganesh, A., 2019. Regulation Of Online Curated Content: It’S Impossible To Empirically Quantify
Obscenity And Sedition. [online] cnbctv18.com. [Accessed 4 June 2020].
The Protection of Children from Sexual Offences Act, 2012, under S.15, punishes any person who
stores for commercial purposes any pornographic material in any form.
SELF-REGULATION
The benefits of self-regulation have been discussed in the case of Indraprastha People & Anr. v.
Union of India & Ors.7 in the following paragraph-
“65. Some of the Advantages of self- regulations could be:
i. Self- regulation preserves independence of the media and protects it from partisan government
interference;
ii. It leads to more efficiency since the media understand their own environment better than an
external agency;
iii. As the media environment becomes global (through the development of the internet and digital
platforms) questions of jurisdiction become complex in an external adjudicatory system. The self-
regulatory system can fill the resulting gap;
iv. It is beneficial to the society in terms
of money because the tax payer is not burdened and the industry bears the cost;
v. Peer pressure is believed to be the best self- regulatory form of discipline.
vi. Self- regulation can also drive up professional standards by requiring organisations to think
about and even develop their own standards of behaviour.”
- The Online Curated Content Providers (OCCP) had voluntarily signed a self-regulated code of
best practices under the Internet and Mobile Association of India (IAMAI) with platforms
likeNetflix and Hotter et cetera as signatories. The primary objective is to ensure that the
consumer interests are protected, and at the same time, the creativity of content providers stays
intact. It also aims to empower consumers to make informed choices on age-appropriate content.
The code advocates a complaint and redressal mechanism as well, in relation to the content made
available by respective OCCPs, according to the report released by the IAMAI. With regards to
this, Ashok Nambissan, General Counsel, Sony Pictures Network India Private Ltd, said in a
press statement: “Self-regulation encourages creativity and makes content creators more
responsive to their viewers. It worked for broadcast media and there is no reason for it not to do
so for curated video content.”8
- On February 5, 2020, at its annual India Digital Summit, the Internet and Mobile Association of
India (IAMAI) launched the ‘Code for Self-Regulation of Online Curated Content Providers’. It
follows up an earlier ‘Code of Best Practices for Online Curated Content Providers’ the industry
7 Indraprastha People v. Union of India [2015(1)RCR(Civil)24]
8 @businessline. 2019. Online Content Providers Sign A Voluntary Code Of Best Practices For Self-Censorship.
[online] [Accessed 4 June 2020].
body had put out in January 2019. Unlike the previous code which had nine signatories, the latest
iteration has just four signatories: Hotstar, Voot, Jio and SonyLiv. Prior signatories including
Netflix, Zee5, AltBalaji, Arre and ErosNow were conspicuously absent at the new code’s
launch.9
It seeks to establish an independent enforcement authority called the Digital Content Complaint
Council (DCCC) to oversee a signatory’s content related practices.The proposed DCCC is meant to
be chaired by a retired high court or Supreme Court judge. Also, the DCCC is designed to include
three members from national level statutory commissions like the National Commission for Women
(NCW), the National Commission for Protection of Child Rights (NCPCR) or the National Human
Rights Commission (NHRC). Its composition would also facilitate incumbent business capture as
the DCCC is meant to include three industry representatives and two online curated content
providers.
Such codified structures essentially provide the government a parallel avenue with little to no legal
accountability to apply pressure on businesses to censor people’s views and beliefs. It erodes
channels for dissent and satire. Moreover, the DCCC does not envision membership of stakeholders
from research, academia or free speech backgrounds, to act as a safeguard for people’s right to
receive and impart information.10
9 Deb, S., 2020. Latest Self-Regulation Code For Streaming Services In India Raises Troubling Questions. [online] The
Wire. [Accessed 4 June 2020].
10 Id.
