Online video streaming platforms have marked a new dawn for the Indian entertainment industry, providing choices beyond soap operas and formulaic storylines characteristic of traditional mediums like cinema and television that were designed for more family oriented forms of consumption. With evolving times and the evolution of depth of communication there arose a rising level of comfort that defined the contours of modern/ contemporary entertainment that came to be kept under chains of administrative discretion that has led to the following discussion.
The imposition of any kind fo crminal liability under the IT rules 2021 would far exceed the central government’s rule making power under Section 69A of the IT Act, and the existing three-tier regulatory mechanism and content classification system prescribed under the rules are also unconcstitutional for the same reason. To understand why this is so, let us compare the provisions of the IT Act. Some of the objections presented below have been raised in petitions in the Delhi High COurt and the Kerala High COurt but online video streaming platforms, which are also subject to Part III of the IT Rules 2021, have not challenged tge Rules yet.
First, the powers under Section 69A can be exercised only in the interest of sovereignty and integrity of India, defence of India, security of state, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above. “While decency or morality” is a ground available under Article 19(2) of the Constitution to impose reasonable restrictions upon free speech, it has been deliberately omitted from the text of section 69A. The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit. Despite this, the IT Rules 2021 require classigication of online content based on nudity, sex, expletive language and substance abuse and also mandate access control and age verification mechanisms to prevent viewing of such content.
Second, Section 69A states that the central government may direct “”any agency of the Gorvernment or intermediary” to block access to online content but online video streaming platforms do not fall into either of these two categories. Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms and they are not an “intermediary” under the IT Act because unlike social media platforms such as Facebook and Teitter, they do not allow users to post whatever they wish without any pre-selection. The penal provision under Section 69A(3) also prescribes imprisonment or fine only for an “intermediary” who fails to comply with blocking directions issued by the central government. Therefore, in its present form, Section 69A does not impose any obligations or liability upon publishers of content such as online video streaming platforms.
Third, Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated transmitted received, stored or hosted in any computer resource”. However, the range of powers granted under the IT Ruels 2021 is much broader and includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content. As a result, the IT Rules, the IT Rules 2021 significantly expand the scope of powers available under Section 69 A and facilitate subtler forms of censorship by the CBFC which is notorious for requiring modification to films before certifying them for release.
Many of the changes that the Modi 2.0 seeks to implemet through the IT Rules 2021 may be well intentioned and desirable, yet, the constitutional due process cannot be sacrificed at the altar of expediency.