Constitutional Conundrums in It Rules and How to Amend Them

21st August, 2024 - 10:51 am Categories: IT Act 0 Comments

INTRODUCTION

From time-to-time, it is alleged that the sensitive information of citizens is breached by the government-backed data storing mechanisms. For instance, Adhaar data breach,[i] CoWIN Vaccination data breach,[ii] Aarogya Setu App data breach,[iii] etc. However, there is no concrete evidence to bolster such claims. In similar way, it can be said that privacy data breach while tracking and tracing of first user is not likely to happen but the courts have to play a proactive role by keeping a check on the functioning of the Executive and ensuring that such if something like this happen, then there should be a mechanism to deal with the same.

Moreover, a concrete procedure needs to be adopted in order to prevent innocent people from being targeted and harassed, in the name of an investigation by any law enforcement agency. Concerning news media portals, the government should not try to impose such regulations that are likely to tarnish the professional ethics and freedoms that the media enjoys. Thus, it should either modify the rules to have a minimal say regarding content regulation or augment the self-regulation mechanism in such a manner that the news media portals have a greater say than the government.

[Image Sources: Shutterstock]

Furthermore, Theatres, TV shows, and OTT – All three are primary sources of entertainment for the masses. However, owing to the technological changes, they all are being regulated through different frameworks and governed by respective bodies. As Winston Churchill once said, “If you make 10,000 regulations, you destroy all respect to the law.”[iv] Broadcast media i.e., television, is regulated by Broadcasting Content Complaints Council (BCCC). Theatrical releases are regulated by Cinematographic Act, 1952 and certified by the Central Board of Film Certification (CBFC). But there is no specific law in India regulating OTT platforms except these recently notified guidelines. Thus, the Indian legislators must ponder over the issue and formulate one wholesome legislation backed with Parliamentary debate to regulate cinemas, TV shows, and also OTT platforms.

IT RULES: MAJOR CONCERNS & HOW TO REMEDY THEM

The Centre decided to bring all OTT platforms under the ambit of the Ministry of Information and Broadcast (MIB). Subsequently, MIB took the charge over the jurisdiction of online curated content from the Ministry of Electronics and Information Technology (MeitY).[v] Earlier, the jurisdiction of MIB was limited only to cinemas and radios and not to digital media. However, backed with recent IT rules 2021, the MIB would now enjoy enormous powers over OTT platforms without any specific law in place. This change of jurisdiction and informal backing of the powers raises censorship concerns.

It is quite evident that neither censorship nor notified guidelines provide a permanent solution as the censorship would unleash havoc on artistic freedom, and it is also argued that the content on OTT platforms is available through subscription, which is completely upon the viewer to select to watch. Moreover, even after the censorship of the movies such as Padmavat,[vi] PK,[vii] etc., various disputes arose, thereby substantiating the claim that censorship would not be a conclusive solution in the regulation of OTT platforms. Further, the so-called guidelines neither provide for punishment and fines nor the mechanism to be followed by the person after being aggrieved by the Level III Oversight Mechanism.

Moreover, another concern is that most filmmakers do not have enough financial stability to portray their thoughts through cinema or television, and OTT platforms have come to their rescue. They are fearless to show any socio-political issue that is not generally streamed on cinemas. Thus, wherever required government control should be included but such governmental control should not curtail the freedom of speech and expression provided under Article 19 of the Constitution[viii] subject to reasonable restrictions imposed under Article 19(4).[ix]

Another concern is the determination of criminal liability of OTT platforms. For instance, Section 292(2) of the IPC provides punishment for dissemination of obscene content ‘put into circulation in any manner’[x] and Section 67A, 67B and 67C of the IT Act also provide imprisonment or fine or both ‘for publishing or transmitting or causing to be published or transmitted in electronic form.’[xi] It makes cumbersome for not only the law enforcement agencies but also layman to understand what Sections to be applied while examining the legality of the content streaming. Thus, the government should also come up with clear definitions to prevent any form of confusion.

Further, the government also has to clearly determine the criminal liability of the sites providing pirated content or the social media intermediaries providing premium content to the public at large. It not only infringes the copyright of the makers but also feeds inappropriate content to the inappropriate audience.

Under Article 77(3) of the Constitution of India,[xii] the President has authority to implement rules for convenient business transactions and for allocation of the same among Ministers. It was exercised by the President on November 9th, 2020, to bring OTT platforms under the ambit of MIB. Further, it can also be exercised to make good the existing lacunae in rules by the President.

CONCLUSION

This appears to be a problem considering the mistakes made in the 2021 IT guidelines before focusing on the modification of governmental regulation and re-establishment of citizens’ constitutional right on the freedom of expression and privacy. Supervision by the judiciary and legislative measures must be made. An exhaustive bill, which has gone through discussions, is required to prevent the regional inequality of cinemas, TV shows, and OTT platforms by making all the platforms equal before the law and equally protected thereby. Such an approach would eliminate over-extension, safeguard creative liberties, and codify legal meanings and mechanisms for classification, all of which would contribute to strengthening the future rules’ demonstrable structure and responsibilities.

So, the lacunas in the 2021 guidelines should be remedied, or in the opinion of the author, one comprehensive legislation catering to the needs of consumers and such platforms by addressing all issues and covering all forms of expressions should be made so as to have equality before law along with equal protection of the law.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[i] Adhaar data breach report incorrect: HC told (February 14, 2019, 05:41 PM), Live Mint, https://www.livemint.com/news/india/aadhaar-data-breach-report-incorrect-hc-told-1550145892105.html.

[ii] Claims of CoWIN system hacking, data breach ‘baseless’: Health Ministry (June 12, 2021, 02:56 PM), Live Mint, https://www.livemint.com/news/india/claims-of-cowin-system-hacking-data-breach-baseless-health-ministry-11623489372000.html.

[iii] Raghu Krishnan, Aarogya Setu app has no vulnerability; no data, security breach has happened: Govt (May 06, 2020, 08:14 AM), The Economic Times, https://economictimes.indiatimes.com/tech/software/aarogya-setu-app-has-no-vulnerability-no-data-security-breach-has-happened/articleshow/75566481.cms.

[iv] Thoughts on Business of Life, Forbes Quotes, https://www.forbes.com/quotes/10331/ (last visited on July 29, 2021).

[v] Javed Farooqui, Govt brings online news platforms, content providers under MIB (November 11, 2020, 03:01 PM), Exchange 4 Media, https://www.exchange4media.com/digital-news/govt-brings-online-news-platforms-content-providers-under-mib-108983.html.

[vi] Padmaavat and the long trail of controversies: A timeline of obstacles the film has faced (January 24, 2018, 11:49 AM), Hindustan Times, https://www.hindustantimes.com/bollywood/padmavati-to-padmaavat-and-a-long-trail-of-controversies-a-timeline-of-obstacles-the-film-faced/story-MjHzviRwxD6sAiaPyEMSSK.html.

[vii] ‘PK’ controversy: Aamir Khan film sparks outrage in several Indian cities (December 29, 2014, 05:28 PM), DNA India, https://www.dnaindia.com/india/report-pk-controversy-aamir-khan-film-sparks-outrage-in-several-indian-cities-2047859.

[viii] Constitution of India, 1950, art. 19.

[ix] Constitution of India, 1950, art. 19(4).

[x] Indian Penal Code, 1860, § 292(2).

[xi] Information Technology Act, 2000, §§ 67A, 67B, 67C.

[xii] Constitution of India, 1950, art. 77(3).