Supreme Court to examine new OTT regulations

A division bench of Supreme Court on Thursday directed the solicitor general of India Tushar Mehta to put on record the new guidelines and code of ethics for the video streaming services, while voicing concerns regarding the content being streamed on these services.

The apex court bench of Justices Ashok Bhushan and R Subhash Reddy was hearing a special leave petition filed against the Allahabad high court order denying the anticipatory bail to Amazon Prime Video head of original content Aparna Purohit in the ‘Tandav’ matter.

The court orally expressed that there is a need to pre-screen content on video streaming services, similar to films.

However, when the bench was informed that the government has come out with OTT guidelines for the sector, the court asked Mehta to place the regulation on record for the court’s examination.

The government had notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, last Thursday, putting in place a three-tier grievance redressal system with the ministry of information & broadcasting exercising complete oversight over the process.

Legal experts said that it will be the first time when the regulations will be subjected to judicial scrutiny.

“It is pertinent to note that the regulations which have recently been notified have neither been judicially examined nor challenged,” said Kaushik Moitra, partner at Bharucha & Partners. “This is the first instance of the regulations being placed on record before the Supreme Court of India and thus subjected to a judicial scrutiny.”

The court has listed the matter for Friday.

Earlier, on February 25th, the Allahabad high court had refused to grant Purohit an anticipatory bail, while stating that while western filmmakers have “refrained” from ridiculing Lord Jesus or the Prophet, Hindi filmmakers have done this repeatedly and are “still doing this most unabashedly with Hindu gods and goddesses”.

In a 20-page order, the high court had stated that if such a tendency is not stopped in the Hindi film industry, it may have “disastrous consequences” for the Indian social, religious and communal order.

Pritha Jha, partner at Pioneer Legal, said, “On the one hand the government claims it wants to take the ‘soft touch’ approach by letting OTTs regulate themselves. On the other hand the courts are refusing to grant bail to an individual who actually had nothing to do with the production of the series. Her only fault being it aired on a platform she works for."

She added that the jailing of the individual really serves no purpose other than perhaps making an example out of her.

"Which digital media company will want to do business in India under such circumstances? Whatever happened to jail being the exception,” Jha asked.

While appearing for Purohit, senior advocate Mukul Rohtagi submitted that it was a “shocking” case wherein the petitioner was only an employee of a company. “These cases are filed by publicity seekers,” Rohatgi argued.