Bad news for Netflix lovers, or maybe not?

The internet has led to an increasingly converged communications market and has revolutionized how people interact, access news, entertainment and other media.  With this, an intense debate regarding regulating the content to avoid a host of problems affecting people and business is underway. Recently, a committee to battle Fake News was set up by the Ministry of Information and Broadcasting. However, it wound up creating frameworks regulating the entire Internet including entertainment portals such as Netflix, trying to put in place cyber laws that do not exist.

What is the debate about?

At this point in time, online entertainment platforms are allowed to broadcast unrestricted content enshrined under Article 19(2) of the Constitution of India, which states that Freedom of Expression shall not “… affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India…”

However, in 2018, the Justice for Rights Foundation filed a petition in the Delhi High Court, seeking an order to regulate the content in question in order to make it fit for the youth/minors/students/children. They appealed for a cyber law, as well as blurs and beeps that often characterize the television experience of Indian TV on Netflix and Amazon Prime shows as well.

What are the current regulatory developments?

While the content regulation committee was set up by the Ministry of Information and Broadcasting in April 2018, it was soon realized that the I&B have no authority over the content viewed on the internet. The authority lies with the Ministry of Electronics and IT (MEITY).

Post this realization, a few entertainment platforms came forward claiming they would indulge in ‘self-regulation’ of their content. However, Netflix largely denied making such claims.  The I&B minister Rajyavardhan Singh Rathore encouraged self-regulation and disbanded the committee while the control shifted to the committee on ‘national investment in critical national infrastructure and digital broadcasting’ under MeitY.

An uncertain future looming ahead, the lines are fuzzy and undefined. However, a few recent judgements passed do provide a rough idea of what is happening – and what is likely to happen.

What about the Cinematograph Act, 1952?

Section 4 of the Act states that one must get approval from the Central Board for Film Certification in order to exhibit a film. And this often troubles young minds – how can Netflix show uncensored movies? Because this law does not extend to Over The Top platforms that indulge in online broadcasting of content. This means, if you do not get the approval from the CBFC, you cannot put it up for public exhibition in cinema halls – however, you can broadcast it over Netflix, Amazon Prime or any such platform.

Recent legal developments in this area

One of the landmark case laws in India in this direction pertains to the Delhi High Court which recently dismissed the plea to regulate content on Netflix, Amazon Prime, and similar other platforms on Friday, February 8, 2019. This was followed by the revelation of the fact that online broadcasters need not obtain a license from the I&B. The judgment was passed by the bench of Chief Justice Rajendra Menon and Justice V K Rao, and the plea specifically jabbed at ‘Sacred Games’, ‘Game of Thrones’ and ‘Spartacus’ – shows that have excessive ‘vulgar, profane, sexually explicit, pornographic, morally unethical and virulent’ content. The shows were additionally labelled misogynist.

The PIL had also asked for ‘legally restricted content to be removed with immediate effect’. Fortunately for Netflix subscribers, the plea was not passed and no such similar fate awaits Netflix as of now.

The conclusion of the petition

When the petitioner’s lawyer, HS Hora asked for a reason of the plea being dismissed under the Right to Information Act, the government admitted that there were no cyber laws regulating online content and hence, no action is to be taken. At the end of the day, one can see the ripples of the PIL in the censored version of Angry Indian Goddesses – a Netflix original that was censored before its release in India. Though there were no cyber laws passed, the entertainment giants seemed to have unanimously agreed on being cautious and self-regulating their content. A similar trend can be seen on Amazon prime, Hotstar, and other Over The Top platforms.