‘No teeth’: SC wants stricter OTT rules

NEW DELHI: A day after it sought “screening” of content on over the top (OTT) platforms, commenting that some even air pornography, the Supreme Court on Friday said that the central government’s recently notified redressal and regulatory mechanism for such companies “do not have teeth” and asked them to consider a legislation that could also provide for “prosecution”.

The court, while hearing a pre-arrest bail plea by Amazon Prime’s content chief Aparna Purohit (which it eventually granted) in connection with the ongoing investigation in Uttar Pradesh against the web series Tandav, used the words “screening”, “regulation” and “legislation” with reference to the content, leading to fears that it could mean not just the certification and grievance redressal envisaged in the government regulations, but even censorship.

“These rules do not have any teeth. They do not have any provision for prosecution, etc. These are just some guidelines. This is no satisfactory mechanism,” commented a bench of justices Ashok Bhushan and R Subhash Reddy after going through the new rules that were notified by the government on February 25.

The bench was emphatic in telling solicitor general Tushar Mehta, who was appearing for the government: “Without legislation, you cannot control it (content on OTT platforms). Your rules are only in the nature of guidelines. There are no effective guidelines on screening or

taking action against those who do not comply with the guidelines.” Mehta agreed with the court, saying: “No censorship, and self-regulation seem to be the idea behind the new regulations. But we can come up with a draft within two weeks on the suggestions that have come from the court. We are trying to balance everything. We can come up with something for the court’s consideration. This certainly needs examination.”

Giving two weeks to the government to come back with its response, the bench then formally recorded in its order that one of the issues that has caught its attention is “uncontrolled and unscreened viewing of films” on Amazon Prime Video and other OTT platforms.

“The rules do not list anything about the appropriate action to be taken against those who do not abide by the guidelines. Solicitor general says the government shall give further and appropriate consideration for any regulations or legislation to be brought and that shall be placed before the court,” stated the order.

Meanwhile, the bench also granted protection from arrest to Purohit in connection with the first information report lodged in Greater Noida on the condition that she would continue cooperating with the investigators in this case as well as in another one lodged at Lucknow.

Both FIRs were against the top Amazon Prime executive (and others associated with the show) for alleged derogatory depiction of Hindu deities and promoting religious enmity through the series. The scenes that caused offence have since been deleted, and the makers as well as the OTT company have apologised. Purohit had to approach the SC after the Allahabad high court on February 25 declined to give her protection from arrest while noting that “such people make the revered figures of the religion of majority community source of earning money in a most brazen manner taking benefit of the liberal and tolerant tradition of the country”. Representing Purohit in the apex court, senior counsel Mukul Rohatgi and Sidharth Luthra, succeeded in convincing the bench that she has been assisting with the investigations and already been given pre-arrest bail by the Allahabad high court related to the FIR at Lucknow. Rohatgi, on his part, also urged the S-G to watch the web series and suggest deletions, if any. “Let the solicitor watch it and we will remove whatever he says. This court or the S-G, let anybody watch and tell us and we are willing to remove any other objectionable part. We have already removed two scenes,” he said.

At this, the bench retorted: “We will see if the Union of India comes up with some other regulations or legislation.”

Rohatgi then referred to the comments made by the bench a day ago. “This court observed that there is porn on these platforms. Let me tell you that (Amazon) Prime or Netflix don’t show pornography at all.”

Mehta told Rohatgi that the court meant “pornographic” and not “porn”. The banter continued as Rohatgi kept up: “I can show 1,000 movies and there is no pornographic material at all. There are some great movies on these platforms in fact. I watch them every evening.”

To this, justice Bhushan replied: “Mr Rohatgi, we are not saying great movies are not shown. But we are concerned about some other content.”

As Rohatgi requested Mehta to watch movies and shows on the OTT service providers, Luthra quipped that the S-G might not have the time for fun. Rohatgi was quick to respond: “The solicitor sends me jokes in the evening every day. He certainly has time to watch movies too.” On February 25, the Centre notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, that will govern online content. The rules envisage a three-tier regulatory framework, which will apply to social media, digital media, and OTT companies: self-regulation; a body like the Press Council of India headed by a retired judge of the Supreme Court; and, at the apex, an oversight body of the government, with an interministerial committee to ensure adherence to the norms.

Besides, OTT platforms will also have to self-classify the content into five age-based categories: U (Universal), U/A 7 years, U/A 13 years, U/A 16 years, and A (Adult), in addition to providing a mechanism of parental lock in their services.

The rules have also brought OTT platforms and the digital news organisations under the ambit of section 69A of the Information Technology Act, authorising the information and technology secretary to block public access to a specific content without giving the platform an opportunity of hearing, in case of an emergency.

Nikhil Pahwa, a digital rights activist and founder of mobile and digital news portal Medianama, said: “Why should there be a separate law to regulate streaming services when what is illegal is already illegal under the existing laws. Such a license raj will destroy the flexibility for streaming services, e-commerce providers, etc, to innovate, shape-shift.”