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Constitutional Provisions For OTT Platforms On Freedom Of Speech And Expression

With the right to the internet recognized by the Judiciary as a fundamental right in the case of Faheema Shirin R.K. vs State of Kerala 1, technology has advanced to where people now have a multitude of options to view content on a variety of platforms such as Smart TVs, Roku, computers, tablets, mobile phones, or gaming consoles. Over-The-Top (hereinafter referred as OTT) is a means of providing television, film, entertainment content over the internet at the request and to suit the requirements of the individual consumer. It implies that a content provider is going over the top of existing internet services.

The first Indian OTT platform was BigFlix, launched by Reliance Entertainment in 2008. In 2010, Digivive launched India's first OTT mobile app called nexGTv. Live Streaming of Indian Premier League started in 2013-14. There are over 857 channels as of 2016, of which 184 were paid channels. In India OTT got popularity post entry of Netflix, Amazon Prime, Disney+, Hotstar, Zee5, Eros Now and Sony. Post covid, adoption of digital OTT players has increased manifold.

India's video OTT market is expected to touch $12.5 billion by 2030 from about $1.5 billion in 2021 on the pillar of access to better networks, digital connectivity and smartphones, according to a report by RBSA Advisors.2 The Indian OTT audience universe is currently at 353.2 million, translating into a penetration of 25.3%, according to a report released by media consulting firm Ormax Media. Titled 'The Ormax OTT Audience Report 2021'. The report also reveals that there are currently 96 million active paid OTT subscriptions in India, across 40.07 million paying (SVOD) audiences, i.e., an average of 2.4 subscriptions per paying audience member.3

As big is the OTT universe so are the regulatory issues with its content. It all started with case Justice for Rights Foundation v. Union of India, seeking formulation of guidelines for content created by OTTs from Ministry of Information and Broadcasting (hereinafter referred as MIB) through petition in Delhi High court. MIB in the reply stated that there are no regulations regarding viewers content on OTT. Further Delhi HC observed that Information Technology Act, 2000 provided enough procedural safeguard for taking action in the event of prohibited content by the broadcasters.4

In an outcry for independent censorship regulations on OTTs that will filter content, The government notified under section 87 of Information Technology new rules that will guarantee the fundamental right of freedom and speech and impose reasonable restrictions. This article examines the constitutional provisions on freedom of speech and expression which form the basis for the rights of the OTTs in India.

Constitutional Provisions on Freedom of Speech and Expression
The Preamble to the Constitution of India resolves to protect for its citizens, liberty of thought, expression and belief.5 Freedom of speech and expression plays a crucial role in formation of public opinion on social, political and economic matters. It is a basic and a natural right.

The freedom of speech and expression has been described as the mother of all liberties.6

Article 19(1)(a)
The concept of this fundamental right under Article 19(1)(a) is dynamic as the content of speech & expression and its means to communicate has been evolving with time and advances in technology. It includes the freedom of communication and right to propagate or publish one's views through any medium, newspaper, magazine or movie, including the electronic and audio-visual media.7

Rights of OTT Platforms
To broadcast
The right to speech an expression has evolved with the progress of technology and includes all broadcast media such as OTT. The right of citizens to exhibit films on OTTs is a part of fundamental right guaranteed under article 19(1)(a). In Odyssey Communications v. Lokvidayan Sanghatana, the SC held that this right was similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements, hoardings and so on.8

To dissent
Right to criticise the government exhibited through movies and web series on OTT is a pre-requisite to a healthy democracy and Article 19(1)(a) covers this right. In Directorate General of Doordarshan v Anand Patwardhan, the SC held that the State cannot prevent open discussion, no matter how hateful to its policies.9

The Delhi High Court dismissed the petition in Nikhil Bhalla v. Union of India where the petitioner prayed for a grievance redressal mechanism to process complaints against certain online content, regarding OTT services and censor certain dialogue in the Netflix series 'Sacred Games' which pictured the former Prime Minister in bad light.10

The Bombay High Court, while quashing an order of forfeiture under Section 95(1) of Criminal Procedure Code, 1973 in respect of a play Me Nathuram Godse Boltoy� upheld the right to criticism.11 In context of film censorship, the Bombay High Court observed that dissent is the quintessence of democracy.12

To portray social evils
The freedom of expression extends to the portrayal of social evils like rape, violence, dowry, prostitution, human trafficking, slavery, immorality, caste system, child labour, child marriage, poverty, corruption, gender inequality, untouchability, substance addiction, sati, drug abuse etc.

In K. A. Abbas v/s Union of Indian, the apex court held that the portrayal of a social vice as severe as rape, prostitution and the like, could not by itself attract the censor's scissors. Rather what has to be seen is how the theme is handled by the film-maker.13

In Bobby Art International v. Om Pal Singh Hoon, the petitioner sought the censor of scenes of frontal nudity showing the rape victim who later became India's most feared dacoits- Phoolan Devi. The Supreme Court rejected the petition and held that the rape scene also helps to explain why Phoolan Devi became what she did.14

In Anand Patwardhan v. Union of India, Doordarshan has refused to telecast an award-winning film on the grounds of communal violence, the Supreme Court upheld the right of the film-maker to have his film telecasted.15

In Mahesh Bhatt v. Union of India, the Delhi High Court struck down the rules which sought to impose blanket ban on the depiction of smoking in films and upheld the rights of the film-maker.16

To portray historical events
The OTTs have the right to present a historical event in their movies, shows or web series. The argument that recalling of that event may resurrect tensions is not a ground for censorship.
The Madras high court lifted ban on the film which was based on the assassination of Rajiv Gandhi and held that a fictional incorporation showing an attempt on the life of the former Chief Minister J. Jayalalithaa did not warrant censorship in CBFC v. Yadavalaya Films.17

In the film showing Gujarat riots in Chand Buj Gaya, The Bombay High Court held that the protection of the Constitution does not extend only to fictional depictions of artistic themes. Artists, film makers and playrights are affirmatively entitled to allude to incidents which 'have taken place and to present a version of those incidents which according to them represents a balanced portrayal of social reality.18

To circulate
Right to circulate does not limit to the print media circulation of newspapers, but also extends to circulation of media on internet through OTTs. The Supreme court in LIC v Manubhai D. Shah broadly interpreted the freedom of speech and expression� the freedom to circulate one's views by word of mouth, or in writing, or through audio-visual media. This includes the right to propagate one's views through the print or any other media. 19

To advertise
Companies that advertise for commercial gains on OTTs are no different from newspapers and other media that are run as a commercial enterprise.
In Tata Press Ltd. V. MTNL the SC interpreted that the fundamental right to freedom of speech and expression under Article 19(1)(a) includes right to advertise or the right to commercial speech.20

Right of Viewers
To receive Information
The freedom of speech and expression also comprises the right to receive information. In Ministry of Information and Broadcasting v. Cricket Association of Bengal, the SC held that the right of free speech and expression includes the right to receive and impart information. it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues... Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them� This is the command implicit in Article 19(1)(a).21

To entertain and to be entertained
Right of an individual to entertain on OTTs, also as a viewer include right of the audience to be entertained. In Ajay Goswami v. Union of India, the Supreme Court upheld the right of adult citizens to entertainment and held that adults could not be deprived of entertainment within acceptable norms of decency on the ground that it was deemed inappropriate for children.22

To privacy
In Puttaswamy v. Union of India a nine-judge bench of the SC ruled that right to privacy is a fundamental right and it is intrinsic to life and liberty under Article 21 of the Indian constitution. Viewers have fundamental right that their personal data, interest and viewed history of content is protected by the OTTs.23

Article 19(2) Restrictions on Freedom of Speech and Expression
Freedom of speech and expression is not an absolute right, article 19(2) of the Constitution of India provides for restrictions on OTTs and to make laws imposing reasonable restriction for the interest of the sovereignty and integrity of India; security of the state; friendly relations with foreign state; public order; decency or morality; contempt of court; defamation or incitement of an offence.

In State of Bihar v. Shailabala Devi, The Supreme Court held the any speech or expression which incites or encourages the commission of violent crimes such as murder, undermines the security of the State and falls within the ambit of Art. 19(2). 24

Prior Restraint: Cinematograph Act, 1952 provides for censorship by prior restraint. In K. A. Abbas v. Union of India and Ministry of Broadcasting v. Cricket Association of Bengal the SC justified that pre-censorship is permissible in visual media.

Post Restraint: In case of film Black Friday based on Bombay blast 1993, the Bombay High Court postponed the screening of the film till the TADA court delivered its verdict and SC upheld the order of temporary injunction.25

Similarly in Compare Zee News v. Navjot Sandhu, the Delhi High court passed an exparte injunction restraining the telecast of a film on the terrorist attack on Parliament.26

Misuse of Article 19(1)(a) by OTT Platforms
Many court decisions have supported the fundamental right of freedom of speech and expression but did not give any guidelines to regulate these platforms that lead deliberate misuse of these rights.

In Divya Ganeshprasad Gontia v. Union of India, the plea was filed seeking regulation of the content of web series. It stated shows like Gandi Baat on the platform of ALT Balaji and Sacred Games on Netflix. It has been debated that these shows contain obscene, nude and vulgar scenes which are similar to pornography and are cognizable offences under the Cinematograph Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act and the Information Technology Act. The Bombay High Court issued notices to the MIB in light of this plea seeking regulation of such web series.

The OTTs and its participants like broadcasters- producers-directors-actors-writers-viewers derive its rights from the right to freedom of speech and expression same as available to any individual to write, publish, circulate or broadcast. The challenge here is that OTT Platforms today only portray social evils and no equivalent solution. And most of the viewers fail to understand the cause-effect of such crimes and how they can avert such incidents in real life.

  1. Faheema Shirin R.K. vs State of Kerala and Others (WP (C) No. 19716 of 2019 (L)
  4. Justice for Rights Foundation v. Union of India, WP (C) 11164/2018.
  5. Constitution of India, Preamble.
  6. Ramlila Maidan Incident, re, (2012) 5 SCC 1.
  7. S. Rangarajan v P. Jagjivan Ram (1989) 2 SCC 574.
  8. Odyssey Communications (P) Ltd. V. Lokvidayan Sanghatana (1988) 3 SCC 410.
  9. Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433
  10. Nikhil Bhalla v. Union of India, W.P. (C) No. 7123/2018
  11. Anand Chintamani Dighe v State of Maharashtra (2002) 2 Mah LJ 14.
  12. F. A. Picture International v. CBFC AIR 2005 Bom 145.
  13. K. A. Abbas b. Union of Indian (1970) 2 SCC 780.
  14. Bobby Art International v. Om Pal Singh Hoon (1996) 4 SCC 1.
  15. Anand Patwardhan v. Union of India (2006) 8 SCC 433
  16. Mahesh Bhatt v. Union of India (2009) 156 DLT 725.
  17. CBFC v. Yadavalaya Films (2007) 1 CTC 1
  18. F. A. Picture International v. CBFC AIR 2005 Bom 145.
  19. LIC v. Manubhai D. Shah (1992) 3 SCC 637: AIR 1991 SC 171.
  20. Tata Press Ltd. V. MTNL (1995) 5 SCC 139.
  21. Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) 2SCC 161.
  22. Ajay Goswami v. Union of India (2007) 1 SCC 143.
  23. Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
  24. State of Bihar v. Shailabala Devi AIR 1952 SC 329.
  25. Mid-Day Multimedia Lt. v. Mushtaq Moosa Tarani. Civil Appeal No. 851 of 2006.
  26. Compare Zee News v. Navjot Sandhu SLP (Cri) No. 5464 of 2002.

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