Nikhil Bhalla, the advocate petitioning for the creation of a regulatory body for online streaming platforms has reasserted his demand in the rejoinder he filed in the Delhi High Court. Bhalla has demanded for a grievance redressal mechanism and regulation to deal with ‘Over-the-top’ (OTT) media services providers. (The rejoinder can be read here.)

Bhalla said that “reasonable restrictions can be imposed on freedom of speech and expression on the account of public order.” This ‘public order’ is “synonymous with public peace, safety and tranquility.” And “anything that disturbs public tranquility or public peace disturbs public order.”

He was responding to a counter affidavit filed by the Ministry of Electronics and Information Technology (MeitY). The Centre, in the affidavit, favored freedom of speech and expression, thereby, putting the onus of content regulation on the Over-the-top (OTT) platforms as per the IT Act, 2000. The Centre has also informed the Delhi High Court about the consultation paper that the TRAI released in November to regulate and define Internet services in India. Delhi HC has listed the matter of hearing on January 30th, 2019. 

What Bhalla’s rejoinder says

On December 18, petitioner Nikhil Bhalla submitted the rejoinder in response to the counter affidavit filed by the Centre. His key arguments were:

  • The Ministry of Communication and Information Technology is empowered under the IT Act to block websites and URLs. The petition, thus, denied the Centre’s response that puts the onus on disabling access to a link on the intermediary.
  • The Centre has “in fact supported” the petitioner’s stand by saying “that there is no regulation or mechanism” to deal with OTT content.
  • Freedom of thoughts and expression does not give “anybody a license to violate the fundamental rights of others” provided under Article 14 and 21 of the Indian Constitution. Article 14 refers to the right to equality and Article 21 protects right to life and personal liberty.
  • Centre “not taking a pro-active step to control and regulate” OTT media services providers has led to violation of Article 19 of the Indian Constitution. Article 19 deals with free speech and “reasonable restrictions” on it.
  • The petitioner rejected the Centre’s argument where it underlined the “importance of freedom of speech and expression from the point of liberty of the individual” and that of a democratic form of government.
  • Bhalla argued that “there is an inseparable interconnection between freedom of speech and stability of society i.e. stability of nation-state.” He said that ours is a “nascent republic” which is yet to achieve the goal of a stable society and therefore, we cannot afford to “allow anything to be beamed in every home without regard to its impact on the society.”

The Centre in its counter affidavit had filed that the petitioner should not be granted any relief “as any order directing” the Centre to regulate the service providers by setting up a grievance redressal mechanism to deal with grievances against OTT “shall be in violation of the mandate of the constitution as well as the law” as declared the Supreme Court.  Bhalla called this submission wrong and said that this stand by the Centre makes “it evident that there is no regulation or mechanism to deal with ‘Over-the-top’ (OTT) media services providers” as asserted by him, in his amended petition.

Reaction from the industry

“There is no necessity to single out OTT platforms,” Manav Sethi, ex-Chief Marketing Officer, Alt-Balaji told MediaNama. He further added, “time and again, the internet has proven that self-regulation is the best regulation.” Sethi noted that the key difference is in the medium.

“TV is a household medium (and) mobile is an individual medium. If you don’t want to watch a particular piece of content, don’t watch it. Nobody is forcing you to watch it. And because the device is personal in nature, when you are watching it, only you are consuming it,” he said.

“Unlike TV which is a household device and is in the drawing room, apart from you, the entire family watches it which is why content needs to be sensitised,” added Sethi. “But if you don’t want to watch House of Cards, Sacred Games or Mirzapur, nobody is going to force you to watch it. It is my own volition to watch it,” he said. “If there is a market that pre-exists and which is why the content makers have possibly made that particular show; there is no need for any regulatory framework because it is not hurting anyone else’s sentiments when you are consuming it,” he said.

A timeline of the case

  • December 3, the Centre filed an affidavit submitting in favor of freedom of speech and expression. It said that OTT platforms were regulated under IT Act, 2000 and were also bound by article 19(2) of the Indian Constitution that puts a “reasonable restriction” on free speech granted under Article 19 (1) of the Indian Constitution.
  • On October 23, the Centre sought time from the court to file an affidavit explaining its position and stand.
  • September 20, Nikhil Bhalla, the advocate petitioning to remove certain dialogues from Netflix’s Sacred Games, amended his petition to ask government to create a regulatory body for online streaming companies.
  • On August 8, Chander Lal, the senior advocate representing Netflix, told the Delhi HC, “My instructions are that we don’t want to change the word.” The judges hearing the case were quoted as saying during arguments, “Nobody is pressing or forcing you. You take your own decision, whether you want to change the word or not. We are not going to compel you.”
  • In the July 16 hearing, Netflix told the court that it had replaced the English subtitle for the Hindi word ‘fattu’, now translated as ‘wimp’, used to describe the former Prime Minister. That change had been made before the petition was filed in the Court.

On July 11, advocate and petitioner Nikhil Bhalla filed a PIL in the Delhi HC asking for certain scenes to be deleted from the Netflix Sacred Games series. Bhalla said that these scenes were “derogatory to former PM Rajiv Gandhi.” In one line, for instance, the character Ganesh Gaitonde calls former Indian PM Rajiv Gandhi a wimp in Hindi, which a previous version of the subtitles translated as ‘pussy’. Bhalla petitioned for the scenes with such dialogue to be removed. The petitioners had to justify that the PIL was in public interest.