Metadata by TLF: Issue 19

Dec 21, 2020

Welcome to our fortnightly newsletter, where our reporters Harsh Jain and Harshita Lilani put together handpicked stories from the world of tech law! You can find other issues here, and you can subscribe to Metadata by TLF here.

Additionally, with the Ministry of Information and Broadcasting taking over regulation of the OTT industry, our reporter Harsh and Editor-in-Chief Sankalp bring you an Explainer which traces the debate on regulating content on such platforms.

We hope you enjoy this latest edition of Metadata by TLF, and as always, please let us know what you think!

Facebook Oversight Board picks the first batch of cases for review, adds additional matter from India

Facebook’s Oversight Board (OSB), an independent body set up to review moderation decisions by the company, chose 6 cases to review in the first week of December, 2020 from over 20,000 cases that were referred to it following the opening of user appeals in October 20, 2018. Five of the cases being considered by the OSB were referred via user appeals while the sixth arose from a reference by Facebook. A couple of days after announcing the first batch of cases, the OSB added an additional case for consideration from India. It involves a photo posted on a Facebook group with Hindi text describing the drawing a sword from its scabbard in response to "infidels" criticizing the prophet. The photo also included a logo with the words "Indian Muslims" in English. The accompanying text, also in English, includes hashtags calling President Emmanuel Macron of France "the devil" and calling for the boycott of French products.

Kerala withdraws ordinance criminalizing online defamation amid free speech concerns

The Governor of Kerala passed an ordinance on November 21, 2020, to criminalize online defamation with jail time and or/fines for offenders who publish such content. The ordinance incorporated Section 118A of the Kerala Police Act which makes intimidation, defamation or insulting of any person through social media an offence punishable with imprisonment of term up to three years and/or rupees 10,000 fine. The intent of the ordinance, according to the Kerala government, was to fight online crimes such as cyberstalking. However, amid criticism from opposition political parties and civil society groups regarding the provision’s potential to curb online freedom of speech, the Kerala government announced its decision to issue a fresh ordinance withdrawing the amendment to the Kerala Police Act. It also submitted to the Kerala High Court that no coercive action including registration of FIRs would be taken on the basis of the new amendment.

Govt. issues new guidelines for Ola, Uber and institutes cap on surge pricing

The Ministry of Road Transport and Highways issued the Motor Vehicle Aggregate Guidelines, 2020 on November 26 under Section 93 of the Motor Vehicles Act (MV Act). The guidelines place significant restrictions on the amount of money aggregators can make through commissions and the imposition of surge pricing. As per the guidelines, drivers will receive at least 80% of the total fare of each ride, with the commission of cab aggregators such as Ola and Uber restricted to a maximum of 20%. The cancellation fee is capped at 10% of the total fare, not exceeding 100 rupees for both drivers and users. Most importantly, aggregators will be allowed to charge a fare 50% lower than the base fare and a maximum surge pricing of 1.5 times the base fare. Various provisions for the welfare of the drivers are also incorporated in the guidelines. The government had amended the MV Act last year, identifying aggregators like Ola and Uber as “digital intermediaries” and giving itself the power to regulate their conduct.

U.S. govt, states hit Facebook with antitrust lawsuit, propose hiving off Instagram, WhatsApp

The Federal Trade Commission sued to break up Facebook, asking a federal court to force the sell-off of assets such as Instagram and WhatsApp as independent businesses. In a lawsuit filed in the Federal Court in Washington, D.C., the Commission alleged that Facebook’s monopoly position arose from its purchase of companies that presented competitive threats and by imposing restrictive policies that unjustifiably hinder actual or potential rivals that Facebook does not or cannot acquire. The lawsuit asks the court to order the “divestiture of assets, divestiture or reconstruction of businesses (including, but not limited to, Instagram and/or WhatsApp),” as well as other possible relief the court might want to add. The announcement is a major step that has been years in the making, with Facebook and several other major U.S. technology companies having grown quickly in the past 10 years with little government oversight.

French Data Protection Body fines Google and Amazon over cookie policy

France’s data protection agency, the National Commission on Informatics and Liberties (CNIL),has slapped Google and Amazon with fines for dropping tracking cookies without consent. Google has been hit with a total of €100 million ($120 million) for dropping cookies on Google.fr and Amazon €35 million ($42 million) for doing so on the Amazon.fr domain under the penalty notices issued. The regulator carried out investigations of the websites over the past year and found tracking cookies were automatically dropped when a user visited the domains, which breaches the country’s Data Protection Act. In Google’s case, the CNIL has found three consent violations related to dropping non-essential cookies, whereas Amazon was found to have committed two violations. CNIL also found that the information about the cookies provided to site visitors was inadequate, as under French (and European) law, information should have been provided to the site users regarding the cookies along with their consent.

Regulation of Content on OTT Platforms: An Explainer

The over-the-top (‘OTT’) industry in India has been growing exponentially--faster than anywhere else in the world--and pegged to reach a size of $5 billion by the year 2023. With an increase in internet penetration, coverage and speed, the consumption of content available on OTT streaming services is at an all-time high. This has not only increased the accessibility to titles old and new, but has also created a new avenue for content-creation on diverse themes. As the pandemic led to the closure of movie theatres and other forms of public entertainment, OTT platforms have been growing in India along with the rest of the world.

While the OTT industry in India till has been largely unregulated till now, content hosted and created by OTT platforms has lately come under fire from political/cultural groups as well the government itself. Due to this vacuum, some providers adopted self-censorship practices while some did not.

In this piece, we explain how traditional forms of media are regulated in India and discuss the shifting stances of the government when it comes to regulating content on OTT platforms and the responses to the same by the OTT industry. Crucially, we also shed light on the position that various courts have taken while dealing with petitions to regulate content on OTT platforms. Lastly, we highlight how other countries all over the world have attempted to regulate content on OTT platforms and whether India can learn from their experiences.

Current Regulatory Framework for Media in India

Currently in India, content on OTT platforms is largely regulated by provisions of the Information Technology Act, 2000 (‘IT Act’), Indian Penal Code, 1860, and special legislations like the Indecent Representation of Women (Prohibition) Act, 1986, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Emblems and Names (Prevention of Improper Use) Act, 1950, etc. For example, OTT service providers must ensure that the content on their platform is in compliance with Sections 67A, 67B and 67C of the IT Act. These sections provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts in electronic form. The same was affirmed by the Delhi High Court in Justice for Rights Foundation v. Union of India.

There exists no legislation specific to the OTT industry unlike the television and the cinema industry. Television broadcasting in India is regulated by the Cable Networks Television (Regulation) Act, 1995 and the rules laid down under it. The 1994 Rules lay down a Programme Code (‘Code’) which regulates the content on TV. According to the Code, no programme can be transmitted through a cable service which offends against good taste or decency; contains anything obscene, defamatory, deliberate false and suggestive innuendos and half-truths; encourages superstition or blind belief; is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti-national attitudes; etc. If any authorised officer (which includes the District Magistrate, the Commissioner of Police, etc.) discovers that the provisions of the Code have been violated, the officer has the power to seize the equipment of the offending cable operator.

The public exhibition of films in India is regulated by the Cinematograph Act, 1952 and the rules under it. Under the Act, any person who wishes to exhibit their film must get it certified by the Central Board for Film Certification (‘Board’). The Board can either certify the films under 4 categories, withhold certification until modifications to the film are undertaken or deny certification altogether. The Board is supposed to be guided by principles such as friendly relations with other states, public order, decency and morality, etc. while making its decision.

The OTT Industry and Shifting Government Stances

Lately, there has been a tug-of-war between the government and OTT platforms in India, who have been negotiating with the government under the aegis of the Internet and Mobile Association of India (‘IAMAI’). Initially, the government signaled favouring self-regulation of the OTT industry. In fact, it gave OTT platforms a period of 100 days to formulate a self-regulatory code in March 2020. However, despite several attempts at drafting codes by the IAMAI (find the January 2019 code here, the February 2020 code here, and the September 2020 code here), none seem to have found much favour with the government. While declining to support the latest code, the Ministry of Information and Broadcasting (‘MIB’) said that it does not classify prohibited content, does not specify a clearly defined code of ethics and has no third party monitoring. Nevertheless, after its latest code failed to impress the government, the IAMAI resolved to come out with another “implementation code” for OTT platforms.

In November 2020, the Cabinet Secretariat issued a notification bringing the OTT industry (along with the digital news industry), which was under MeitY’s jurisdiction earlier, within the purview of the MIB. This marked a significant shift in MIB’s jurisdiction which earlier only included traditional forms of media such as cinema, radio, etc. and not digital media. While the MIB cannot regulate OTT platforms without bringing a specific law in place for the same, the move has sparked censorship concerns. However, some have said that the OTT industry coming under the purview of the MIB is not a cause for worry in itself. At worst, it is a precursor for arbitrary restrictions being placed on the kind of content that can be available on OTT platforms in the future. Interestingly, the government said in the Parliament that there was ‘no plan’ to bring a law to regulate the OTT industry just a couple of months prior to the move.

Role of the Judiciary

In the absence of any specific framework for content regulation on OTT platforms, courts have by and large resisted attempts by different individuals and groups to bring about regulation of the OTT industry through the judicial route. One of the earliest cases asking for interference by the courts with respect to OTT platforms was Nikhil Bhalla v. Union of India, which was heard by Delhi High Court in 2018. It concerned censoring certain scenes/dialogues in the Netflix series ‘Sacred Games’. The Court took a liberal and expansive view and dismissed the petition saying it doesn’t want to curtail anybody’s rights. In fact, this was one of a few notable instances where the government itself argued against censorship (Justice for Rights Foundation v. Union of India being another such instance). Another case calling for the censorship of a web-series for calling lawyers ‘thieves’ was also dismissed by the Delhi High Court.

Other High Courts such as the Calcutta High Court and the Allahabad High Court have also dismissed petitions that demand regulation/censorship of content on OTT platforms. Given the lack of a specific law governing content on OTT platforms, a division bench of the Karnataka High Court ruled out the applicability of the Cinematograph Act, 1952 to media available on OTT platforms. In all these cases, the courts have deferred to the authority of the government to bring about any changes to the status quo.

International Perspectives

Countries across the world are grappling with how content on OTT platforms can be effectively regulated. In Australia, the OTT sector is governed by the Broadcasting Services Act, 1992 (‘BSA’) and is regulated through a complaints-based mechanism. Content on OTT platforms is certified according to existing categories. Australian residents can register complaints about offensive or illegal online content. Valid complaints are then investigated by the Australian Communications and Media Authority (‘ACMA’) and action is taken on content determined to be ‘prohibited content’ or ‘potential prohibited’ content. It is a similar picture in the case of Singapore, where the categories are enumerated in its content code for OTT services. Singapore goes one step further by allowing OTT platforms to offer certain categories of content only if they provide for a built-in parental lock/age verification system.

While the Australian Classification Board had been responsible for classifying both online as well as offline content so far, Netflix can now assess content and generate a rating on its own following a two-year trial period. Even in the United Kingdom, Netflix has been allowed by the British Board of Film Classification (‘BBFC’) to classify its own material and then use the official British age rating symbols on all of its content. It reached a 100% coverage recently which means all of its content displays the BBFC ratings.

Conclusion

The nature of OTT streaming is significantly different from traditional broadcasting. Given that OTT streaming operates on a “pull” basis (where consumers can themselves search for a show), the mode of regulation must be different than in the case of the traditional “push” system (where consumers watch a show because that’s when it’s shown). Such a change calls for respecting the consumer’s choice in the kind of content they wish to consume, which necessarily entails divergence from how traditional media is regulated. While the role of the State has been paternalistic in dictating what should and should not be allowed for consumption by the masses, there needs to be more reflection on whether the State should continue to adopt such an attitude in today’s day and age. In this regard, it is to be hoped that the State takes into account the changing nature of the industry as it prepares a code for OTT platforms.

Addendum

Since the previous newsletter, the Blog has hosted some engaging posts on an array of subjects. Continuing with this edition’s theme of OTT platforms, Abhilash Roy and Hrishikesh Bhise published a two-part essay on the Blog outlining how OTT platforms present a regulatory quandary. Vaibhav Parikh authored an engaging post on the topic of open banking, with specific emphasis on on the need for setting uniform standards in the usage of Application Programming Interfaces (“APIs”). Further, the Forum sent its recommendations to the Registrar of Copyrights regarding the ‘private consultations’ taking place with respect to the Copyright Act, a summary of which can be found here. Lastly, the entries forming part of the TLF Editorial Board Test for 2020-2021 were published as a series; and the winning entry of the Ab Initio Essay Writing Competition - hosted by the NALSAR Student Law Review - was published this week.