Misplaced concern: On Supreme Court and OTT regulation

It is a matter of concern that the Supreme Court chose to convert a routine hearing on a petition for anticipatory bail from an executive of the Amazon Prime Video into an occasion to call for tightening the regulatory norms for over-the-top streaming services in the country. Aparna Purohit, India Commercial Head of the content streaming platform, sought advance bail after the Allahabad High Court denied her the relief with a sweeping declaration that some offending scenes on a new series, now deleted, constituted punishable offences. Accused of hurting religious sentiments by allowing the streaming of Tandav, Ms. Purohit did get protection from arrest, but what is disconcerting is that the Court went through the recently notified rules for digital media and intermediaries and observed that these lacked teeth. It is quite unusual and, in fact, gratuitous, that a constitutional court should push for more stringent rules after finding that the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, did not provide for punishment and fine. The Court’s very approach is way out of line. The new rules are essentially restrictions on free speech and expression through digital media. Courts generally examine the validity of such curbs on free speech and decide whether they are reasonable or too restrictive. It is unusual that the apex court should seek to go beyond what the executive describes as ‘soft-touch monitoring’, and press for inclusion of punishment clauses.

The Court seems to be concerned about obscenity and uncensored content on streaming services, the ostensible reason for its incursion into regulatory territory, when there was no challenge to the new rules before it. When the matter is taken up again, the Court should bestow attention on the High Court order that gave rise to the proceedings, an order that shows extraordinary zeal to protect religious sentiment. While refusing pre-arrest bail, the High Court has made an unusual claim that the title ‘Tandav’ itself could hurt the sentiments of a majority of Indians because it is associated with Lord Shiva. It has observed that alluding to Lord Ram gaining popularity on social media is a reference to the Ayodhya dispute, and, therefore, offensive. It has a sweeping claim that the Hindi film industry, in contrast to its southern counterparts, was generally disrespectful to the Hindu religion. It would be unfortunate if the judiciary lets itself be seen as departing from its record of protecting individuals harassed by those claiming that their religious or cultural sentiments have been hurt by some work of art, or even remarks or gestures by celebrities. The new norms for regulation of online content have their origin in the Supreme Court voicing concern about child pornography and content that could provoke sectarian violence. While that was a justified concern, the tendency to allow anyone professing a sense of hurt to prosecute anyone anywhere in the country should not be encouraged. The higher judiciary is expected to clamp down on the ‘marketplace of outrage’, not join it.