With the recognition of the right to the internet as a fundamental right by the judiciary in the case of Faheema Shirin R.K. vs State of Kerala, technology has advanced to the point where people now have a variety of platforms to view content on, including Smart TVs, Roku, computers, tablets, mobile phones, and gaming consoles. Over-the-Top (hereafter referred to as OTT) is a method of delivering television, film, and entertainment content over the internet at the request of and in accordance with the needs of individual consumers. It suggests that a content provider is providing more services on top of those already available on the internet.
In response to calls for independent censorship laws on over-the-top (OTT) services that filter material, the government announced new guidelines under section 87 of the Information Technology Act that will protect the fundamental right to freedom of expression and impose appropriate limits. The constitutional provisions on freedom of speech and expression that constitute the foundation for OTT rights in India are examined in this article.
CONSTITUTIONAL PROVISIONS OF FREEDOM OF SPEECH AND EXPRESSION
The Preamble to India’s Constitution declares that its inhabitants have the right to freedom of thought, expression, and belief. The right to free speech and expression is critical in shaping public opinion on social, political, and economic issues. It is a fundamental and inherent right.
The freedom of speech and expression has been described as the mother of all liberties.
Article 19 (1)(a)
The concept of this basic right under Article 19(1)(a) is dynamic, as the content of speech and expression, as well as the means through which it is communicated, has evolved over time and with technological advancements. It encompasses the freedom of expression and the right to propagate or publish one’s opinions through any medium, including newspapers, magazines, and films, as well as electronic and audio-visual media.
RIGHT OF OTT PLATFORMS
- To broadcast
With the advancement of technology, the right to free speech and expression has expanded to cover all broadcast media, including over-the-top (OTT). The right of citizens to watch films on OTTs is protected by Article 19(1) of the Constitution (a). The Supreme Court concluded in Odyssey Communications v. Lokvidayan Sanghatana that this freedom was comparable to a citizen’s right to broadcast his views in any other medium, including as newspapers, magazines, advertisements, hoardings, and so on.
- To dissent
A healthy democracy requires the right to criticise the government through movies and web series on OTT, and Article 19(1)(a) protects this right. The Supreme Court ruled in Directorate General of Doordarshan v Anand Patwardhan that the government cannot suppress open debate, no matter how divisive its policies are.
The Delhi High Court dismissed the petition in Nikhil Bhalla v. Union of India, in which the petitioner sought a grievance redressal mechanism to handle complaints about certain online content, OTT services, and the censorship of certain dialogue in the Netflix series Sacred Games, which portrayed the former Prime Minister in a negative light. While quashing a judgement of forfeiture under Section 95(1) of the Criminal Procedure Code, 1973 in relation to a play called Me Nathuram Godse Boltoy, the Bombay High Court affirmed the right of critique. The Bombay High Court remarked that dissent is the quintessence of democracy in the context of cinema regulation.
- To portray social evils
Rape, violence, dowry, prostitution, human trafficking, slavery, immorality, caste system, child labour, child marriage, poverty, corruption, gender inequality, untouchability, substance addiction, sati, drug usage, and other social evils are all depicted with freedom of speech.
The petitioner in Bobby Art International v. Om Pal Singh Hoon sought the censorship of scenes of frontal nudity depicting Phoolan Devi, a rape victim who ultimately became India’s most feared dacoit. The Supreme Court dismissed the petition, ruling that the rape scenario explains why Phoolan Devi became the way she did. The Supreme Court affirmed the filmmaker’s right to have his film televised in Anand Patwardhan v. Union of India, in which Doordarshan declined to telecast an award-winning film due to communal violence.
RIGHT OF VIEWERS
- To receive information
The right to receive information is included in the freedom of speech and expression. The Supreme Court ruled in Ministry of Information and Broadcasting v. Cricket Association of Bengal that the freedom to receive and impart information is included in the right to free speech and expression. On all public matters, citizens must have access to a diversity of viewpoints and a range of beliefs… Diverse perspectives, ideas, and ideologies are necessary for citizens to make educated decisions on all topics that affect them. This is the implied command of Article 19(1). (a).
- To entertain and to be entertained
The right of an individual to be amused on OTTs also includes the right of the audience to be entertained as a watcher. The Supreme Court supported the right of adult citizens to entertainment in Ajay Goswami v. Union of India, ruling that adults could not be denied entertainment within acceptable decency standards because it was deemed improper for children.
- To privacy
A nine-judge bench of the Supreme Court concluded in Puttaswamy v. Union of India that the right to privacy is a fundamental right that is intrinsic to life and liberty under Article 21 of the Indian constitution. Viewers have a fundamental right to have their personal information, interests, and viewing history protected by OTTs.
Article 19(2) Restrictions on Freedom of Speech and Expression
Article 19(2) of the Indian Constitution provides for restrictions on OTTs and the making of laws imposing reasonable restrictions in the interests of India’s sovereignty and integrity; state security; friendly relations with foreign states; public order; decency or morality; contempt of court; defamation or incitement of an offence.
The Supreme Court concluded in State of Bihar v. Shailabala Devi that any speech or expression that incites or supports the commission of violent crimes, such as murder, jeopardises the state’s security and is covered by Art. 19 of the Constitution (2). Prior Restriction: The Cinematograph Act of 1952 allows for prior restraint censorship. The Supreme Court ruled in K. A. Abbas v. Union of India and Ministry of Broadcasting v. Cricket Association of Bengal that pre-censorship is legal in visual media.
The Bombay High Court postponed the exhibition of the film Black Friday, which is based on the 1993 Bombay blast, until the TADA court rendered its judgement, and the Supreme Court maintained the order of interim injunction. In the case of Compare Zee News v. Navjot Sandhu, the Delhi High Court issued an ex parte injunction prohibiting the broadcast of a video on the Parliament terrorist assault.
MISUSE OF ARTICLE 19(1)(A) BY OTT PLATFORMS
Many court rulings have upheld the fundamental right to freedom of speech and expression, but none have provided guidelines for regulating the platforms that allow for the intentional abuse of these rights. The case Divya Ganeshprasad Gontia v. Union of India sought to regulate the content of online series. It mentioned shows such as ALT Balaji’s Gandi Baat and Netflix’s Sacred Games. These shows are said to involve obscene, nudist, and vulgar scenes that are similar to pornography and are punishable under the Cinematograph Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act, and Information Technology Act. In view of this plea demanding regulation of such online series, the Bombay High Court issued notices to the MIB.
The rights of OTTs and their participants, such as broadcasters, producers, directors, actors, writers, and spectators, are derived from the right to freedom of speech and expression, which is available to anybody to create, publish, circulate, or broadcast. The problem is that today’s OTT platforms just show social ills and provide no solutions. And the majority of viewers are unable to comprehend the causes and effects of such crimes, as well as how they might prevent such tragedies in real life.
Author’s Name: Ayushi Singh (NMIMS, Navi Mumbai)
 Faheema Shirin RK vs State of Kerala and Others (WP (C) No 19716 of 2019 (L)
 Constitution of India, Preamble.
 Ramlila Maidan Incident, re, (2012) 5 SCC 1.
 S. Rangarajan v P. Jagjivan Ram (1989) 2 SCC 574.
 Odyssey Communications (P) Ltd. V. Lokvidayan Sanghatana (1988) 3 SCC 410.
 Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433
 Nikhil Bhalla v. Union of India, W.P. (C) No. 7123/2018
 Anand Chintamani Dighe v State of Maharashtra (2002) 2 Mah LJ 14.
 Bobby Art International v. Om Pal Singh Hoon (1996) 4 SCC 1.
 Anand Patwardhan v. Union of India (2006) 8 SCC 433
 Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) 2SCC 161.
 Ajay Goswami v. Union of India (2007) 1 SCC 143.
 Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.