DELHI HIGH COURT REINFORCES NON-REGULATION OF OTT PLATFORMS

On August 28, 2020 the Delhi High Court in the case of Mehul Choksi vs. Union of India & Ors[1] held that the Petitioner cannot be allowed to preview the Over-The-Top series Bad Billionaires only on suspicion that it might affect his reputation and be prejudicial to his rights of fair investigation as he is an accused in a pending trial.

Background

The Petitioner, accused in a pending case moved to the Delhi High Court against the Over-The-Top (‘OTT’) platform ‘Netflix’ for its series titled Bad Billionaires with the release date of September 2, 2020. The series features ‘Nirav Modi’ as one of the Billionaires who is also the nephew of the Petitioner and co-accused in the Petitioner’s pending case. It was argued that such a representation may prejudice the investigation and trial against him. A request was made to allow a preview of the series for the Petitioner before the mass release. Additionally, the Petitioner sought a direction to restrain Netflix from releasing the episode/portion which would be prejudicial to his rights of fair investigation and trial, and presumption of innocence.

It was the Respondents’ argument that the OTT platforms such as Netflix are not covered or regulated by the government authorities and therefore, the only remedies before the Petitioner were to either make a representation in terms of Section 69A of the Information Technology Act or file a suit. Moreover, it was stated that the Petitioner only features for a bare minimum of two minutes and the information that is projected in such time is that which is already available in the public domain.

Court

The Court while dismissing the application addressed the concerns of the Petitioner as following –

Regulation of OTT

The Court observed in the case of Justice for Rights Foundation vs. Union of India,[2] that no general power for regulation or material in the internet platform is available. But if the internet platform is misused for carrying information or material which are not permissible under law then the provisions of the Information Technology Act provides for deterrent action to be taken and as and when complaints are received, the statutory competent authority takes action in the matter.

It further held that in a public interest litigation, the Court cannot issue a mandamus for framing general guidelines or provisions when there are stringent provisions already in place under the Information Technology Act. Finally, the High Court said that the online streaming platforms did not need to acquire a license to operate.

Pre-Screening

The Petitioner argues that the said documentary would prejudicially affect the trial that is pending against the Petitioner. The Respondents on the other hand stated that the documentary is based on matters which are being widely debated in media and would in no manner prejudice the pending trial. Additionally, it was stated that documentaries are made every so often and if pre-screening is permitted on the basis of writ petitions, then it will qualify as a form of censorship and this cannot be a general rule for OTT platforms.

The Court held that whether the offending documentary proposed to be telecast can cause any prejudice to the Petitioner in the pending trial or not and whether it is based on information already in public domain, etc. are questions that are best left to be determined by a civil court. The remedy of the Petitioner, if any, would be in the form of a civil suit as what is being alleged by the Petitioner is an infringement of his private right by a private body.

Other Incidents of OTT Regulation

The Internet and Mobile Association of India (IAMAI) drafted a Code of self-regulation for video streaming OTT platforms called the ‘Code for Self-Regulation of Online Curated Content Providers’ and disallowed the streaming of content – which are banned by the Indian courts; which disrespect the national emblem; which outrage religious sentiments; which promote violence against the states or terrorism or those which show sexual acts by children.

In 2019, Karnataka High Court held[3] that the films, serials and other multimedia contents transmitted, broadcast or exhibited through internet platforms and online streaming platforms cannot be regulated under the Cinematograph Act, 1952. It further added that such content perhaps amounts to transfer of files based on request by the users of the platform as per the concept of internet and its operation. Hence, the same is not covered under the Cinematograph Act.

Conclusion

This decision by the Delhi High Court reinforces the plea of the OTT platforms to remain un-censored and without restrictions as imposed by the government on other forms of displayed art such as movies for theatres and music. The independence of the platforms remains intact without the judiciary interfering in its content generation for frivolous applications, as in the present matter. The Court’s decision will help platforms to continue showcasing works of art freely and with non-interference.

[1] Mehul Choksi v. Union of India & Ors, W.P.(C) 5677/2020 & CM 20540/2020. Access here. [2] Justice for Rights Foundation v. Union of India, W.P.(C) 11164/2018. [3] Padmanabh Shankar v. Union of India & Ors., W.P. (C) No. 6050 of 2019.