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“These OTT Rules don’t have any teeth; they’re only just guidelines”, says Supreme Court

Dated: March 07, 2021

                                                                                                                                                           - By Megha Bhatia

The Supreme Court voiced its displeasure on March 05, 2021 with the Central Governments new rules enacted under the Information Technology Act to control Over The Top (OTT) websites such as Netflix, Prime Video, and other social media platforms, as well as digital news portals.

“These OTT Rules don’t have any teeth; they’re only just guidelines”, the Supreme Court said orally on Friday during a hearing in which Amazon Prime’s Commercial Head, Aparna Purohit, challenged an Allahabad High Court decision denying her pre-arrest bail in criminal cases related to the web series “Tandav”.

The Court was referring to the Centre’s announcement last week of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021.

The Bench, headed by Justice Ashok Bhushan, said, “We have received the Rules you have filed. These Rules don’t have any teeth. There’s no provision for prosecution or fine. They’re only just guidelines.” There can be no meaningful control without proper regulations, Justice Bhushan said.

The new regulations, according to the Solicitor General, strike a balance between “no censorship internal self-regulation”. The SG promised to draft a better version of the rules for the court’s review.

“We can come up with a draft within two weeks. We are trying to strike a balance. We can come up with something for the Court’s consideration. This needs examination, I agree”, submitted the SG. 

The bench added the Union of India as a party, indicating that the question of OTT control would be considered in the current case. The bench made the following remarks regarding the latest rules in the order:

“One of the issues, which have been cropped up in the facts of the present case is regarding control and regulation of platform on which web-series are released. 

Mr. Mukul Rohatgi, learned senior counsel informed us that the Government of India has issued notification dated 25.02.2021 and introduced Rules namely The Information Technology (Intermediary Guidelines and Digital Media Ethic Code) Rules, 2021. 

A perusal of the Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines. Mr. Tushar Mehta, the learned Solicitor General submits that the Government shall consider and take appropriate steps for regulation or legislation as may be found fit by the Government and the same shall be placed before the Court.”

It went on to say that the SG had stated that suitable action must be taken and that any law or legislation deemed appropriate must be presented to the Court. 

The Bench also gave Amazon Prime Video’s Commercial Head, Aparna Purohit, interim immunity from arrest and given notice in her plea.

The Supreme Court had previously stated that screening of OTT content was much needed, with certain sites also displaying obscene material, during the previous hearing. The Court had ordered the SG to circulate the new Information Technology Rules, 2021, after being informed of them.

Another Supreme Court bench is considering a group of PILs which is seeking guidelines for regulating OTT platforms. The Central Government has asked the Supreme Court to hear and get the cases transferred pending in the High Courts on this issue.