Supreme Court: New OTT rules lack teeth, no mechanism to screen content

New Delhi: The Supreme Court said on Friday that the government's new rules for OTT platforms have "no teeth, as there is no provision for the prosecution of those who do not abide by these rules".

A bench headed by Justice Ashok Bhushan said: "These rules are only guidelines... no mechanism to control (the content on OTT platforms). Without legislation, one cannot control it."

The observation was made by the top court during the anticipatory bail plea hearing of Amazon Prime Video India head Aparna Purohit against an Allahabad High Court order, which declined to entertain her anticipatory bail plea in connection with the FIRs lodged against her over the web series 'Tandav'.

The top court observed that "uncontrolled and unscreened" viewing of films on OTT platforms is an issue. "One of the issues, which has cropped up in the facts of the present case, is regarding control and regulation of the platforms on which web series are released," noted the bench also comprising Justice R. Subhash Reddy.

Senior advocate Mukul Rohatgi, appearing for Purohit, submitted that the government had issued a notification on February 25, 2021, introducing the rules, namely The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

"A perusal of the rules indicate that they are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action against those who violate the guidelines," the top court said after examining the new rules.

Solicitor General Tushar Mehta, appearing for the Centre, submitted that the government shall consider and take appropriate steps for regulation or legislation as may be found fit by it and the same shall be placed before the top court. Mehta asked for two weeks' time to submit a response in the matter.

Rohatgi submitted that with regard to the FIR lodged in Lucknow, Purohit is cooperating with the investigation and the high court has already granted protection to the petitioner.

He added that his client is ready to cooperate with the investigation into another FIR. He clarified that his client is not involved with the production, writing or direction of the web series and is merely an officer of the company which owns the platform on which the web series was released.

In the backdrop of the top court's observation on Thursday on pornographic content on OTT platforms, Rohatgi said the observation has been widely reported by the media.

"There is no such thing on Amazon Prime and Netflix. I see them every evening. There is no such content," submitted Rohatgi.

Mehta replied that the bench meant pornographic content. To which, Rohatgi said: "I see so many shows. There is no pornographic content."

The bench also granted protection from arrest to Purohit, who had moved the top court apprehending arrest.

"We direct that the petitioner shall not be arrested subject to her cooperation with the investigation. She shall appear before the investigating officer as and when required," the top court said in its order.