In Tandav case, SC says new media guidelines lack teeth

The Supreme Court on Friday said the Centre's guidelines on regulating social media “lacks teeth” and do not have any provision for taking appropriate action for prosecution or punishment against digital platforms which show inappropriate content or violate the norms.  

The top court also granted interim protection from arrest to Amazon Prime Video's India head Aparna Purohit in FIRs lodged over web series Tandav.

It asked her to co-operate with the investigation and appear before the investigating officer as and when required.

A bench comprising justices Ashok Bhushan and R S Reddy also issued notice to the Uttar Pradesh government on Purohit's plea for anticipatory bail in FIRs on Tandav web series.

The top court said that there is nothing in the rules to control the inappropriate content on these platforms and without legislation it may not be possible to control it.

“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 violate the guidelines,” the bench said in its order.

Solicitor General Tushar Mehta, appearing for the Centre, told the bench that the government shall consider and take appropriate steps for regulation or legislation as may be found fit and it shall be placed before the court.

“Considering the submissions of counsel, issue notice. In the meanwhile, we direct that the petitioner shall not be arrested in FIR No. 14/2021 subject to her co-operation with the investigation. She shall appear before the investigating officer as and when required,” the bench said.

The top court said that one of the issues, which have been cropped up in the facts of the present case, is regarding control and regulation of platforms on which web series are released.

During the hearing, the bench perused the recently notified rules, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, placed before it by Mehta.

Senior advocate Mukul Rohatgi, appearing for Purohit said that the government has notified the rules on February 25.

“These rules lack teeth, these are mere guidelines. They don't have any provision for prosecution or punishment. It is mostly a guideline thing,” the bench told Mehta.

The solicitor general then urged the court to give some time and the government will come up with some draft regulation and legislation and place it before the court.

Rohatgi said that rules are different as his client has approached the court for anticipatory bail as cases are lodged against her.

He said that the Allahabad high court had asked her to cooperate with the investigation in a case lodged in Lucknow and provided her protection from arrest.

Rohatgi said she has been cooperating and ready to cooperate in future with the investigating agencies with regard to another FIR lodged in Greater Noida.

He submitted that the petitioner was not involved with the production, writing, direction of the web series and is merely an officer of the Company which owns the platform on which the web series was released.

“The petitioner is head of India Originals of Amazon Prime Video, ie, the OTT streaming service of Amazon Seller Services Pvt Ltd,” he said.

Mehta at the fag end of the hearing said the Centre needs to be made party in the plea after which the bench asked Purohit to file amended memo of parties making Union of India as a party to her plea and allowed the impleadment.

Rohatgi said that the court's remark on pornographic content shown by OTT platforms has been widely reported but be it Amazon Prime Videos or Netflix, no pornographic content is being shown.

“I see them every evening but there is no such thing like pornography,” Rohatgi said.         

Mehta told Rohatgi, “Pornographic content is not as we understand today. It is something different.”

Rohatgi then told the bench to ask the solicitor general to come over to his place to see the content of movies and shows and reiterated, “There are hundreds and hundreds of movies but there is no pornographic content.”

The top court had on Thursday observed that some over-the-top (OTT) platforms at times show pornographic contents and there should be a mechanism to screen such programmes.

It had asked the Centre to place its guidelines on regulating social media.

Tandav is a nine-episode political thriller starring Bollywood A-listers Saif Ali Khan, Dimple Kapadia and Mohammed Zeeshan Ayyub.

Purohit has been accused of inappropriate depiction of Uttar Pradesh police personnel, Hindu deities and an adverse portrayal of a character playing the prime minister in the web series.

Earlier, the apex court, on January 27, had declined to grant interim protection from any coercive action to Ali Abbas Zafar, director of the web series, Purohit, producer Himanshu Mehra, the show's writer Gaurav Solanki and actor Mohammed Zeeshan Ayyub.

It had said that they may seek bail from courts concerned in the FIRs lodged in connection with the web series.

Purohit has appealed to the top court against the high court's February 25 order declining anticipatory bail to her saying she had not been “vigilant and has acted irresponsibly making her open to criminal prosecution in permitting streaming of a movie which is against the fundamental rights of the majority of citizens of this country".

On January 19, an FIR was lodged on the complaint Balbir Azad of Raunija village under Rabupura police station of Greater Noida.