Online Curated Content Providers - Censorship Conundrum

One business to benefit from the unprecedented lockdown amid the ongoing struggle of the corporate world to keep alive has been the Online Curated Content Providers (“OCCPs”). Providing succour not only to customers but also to content creators, according to various reports and market studies, OCCPs have recorded a jump of 80-100% in subscribers since the outbreak of the crippling COVID-19 pandemic.

As the business of OCCPs escalates, the debate on the censorship issues has also started gathering steam. While the traditional platforms for a content exhibition such as theatres and television have pre-certification requirements under the Cinematograph Act, 1952 and Cable Television Networks (Regulation) Act, 1995, and their respective rules, the legislations do not extend to online platforms. The Karnataka High Court expressly ruled out the application of the Cinematograph Act to Online Streaming Platforms.

It is in this context that certain sections of society have clamoured for censorship and even pre-certification of the content of OCCPs. The uproar is evident from the public interest litigation (“PIL”) before the Delhi High Court, the subsequent special leave petition (“SLP”) against the judgment of the Delhi High Court in the PIL filed by the NGO Justice for Rights Foundation which is pending before the Supreme Court, and several other applications before various judicial fora.

It would be interesting to understand the Government’s view on this controversial issue. The Ministry of Electronics and Information Technology (“MEIT”) in the PIL informed that there is no provision for regulating or licensing an organization or establishment that puts up content on the internet. Further, it referred to the Information Technology Act, 2000 (“IT Act”) as the primary legislation under which it can take deterrent action in case an internet platform is misused for carrying information or material not permissible under law. While the IT Act, along with generic legislation such as the Indian Penal Code, 1860 and the Unlawful Activities (Prevention) Act, 1967, includes certain content-related requirements for OCCPs pertaining to the blocking of obscene content, penalties for the transmission of obscene and seditious content, and liability and guidelines to be followed by intermediaries, it has they have no provisions for pre-certification requirements for content.

To further allay the concerns in respect of censorship, the Government and the OCCPs had also promoted the concept of self-regulation akin to the code prescribed by the Advertising Standards Council of India for advertisers. The Internet and Mobile Association of India (“IAMAI”) introduced the Code for Best Practices for Online Curated Content Providers (“Code”) for the same purpose, namely, to regulate the content provided by OCCPs. However, the Code in itself has not inspired much confidence due to its non-adoption by key players such as Amazon Prime and Google (YouTube Premium).

Therefore, the issue boils down to clarification on whether or not the IT Act and other generic laws contain adequate provisions for regulating the content of OCCPs. For a holistic grasp of reality, it would be pertinent to observe the difference between the business model of OCCPs and that of theatres and television. s The content that theatres and television present to the public requires pre-certification and strict censorship to

prevent access of minors to inappropriate material and to maintain general law and order. OCCPs, on the other hand, follow a subscription-based model wherein a subscriber’s access to its services is regulated by the service provider’s terms and conditions, including the specification that only a major can become a subscriber. Further, the accounts provided by OCCPs are accessible only via a password and are also protected by parental control mechanisms in devices like Fire Sticks.

It stands to reason that the basic difference between the business models necessitates a difference in approach for censorship too. The OCCP models have in-built censorship provisions that, when read along with the IT Act and other generic legislations, generally address the censorship concerns and obviate the need for any pre-certification requirements.

While the stand taken by MEIT is indeed refreshing and has withstood the scrutiny of the Delhi High Court, it still needs to satisfy the Supreme Court. A balanced appraisal of the current business climate would suggest that the introduction of specific guidelines, which maintain the rights and freedom of the general public while mandating the continuation of the in-built censorship safeguards against obscenity and sedition in India, without subjecting OCCPs to pre-certification requirements would help them reach the goals of Digital India and thereby contribute to the country’s socio-economic growth.