It is often quite difficult to grasp developments from the field of law in the absence of a linear narrative. Just like one cannot comprehend the storyline and characters of a show without having some kind of background information on them, similarly it is nigh impossible to understand India's complex media & entertainment (M&E) space without keeping constantly abreast of the latest developments. With Gaming industry sitting suitably as a part of our M&E practice, we combine the roll out of our updates for both these industries to present a more wholistic picture. To this end, we bring to you The Recap, a bi-monthly newsletter of the latest developments in M&E & Gaming laws from India.
Multiple significant developments kept M&E & Gaming lawyers busy during the months of July & August 2021. Just as some laws failed the test of constitutionality in courts, the respective governments renewed their resolve to begin afresh and plan new laws. There was some positive news from the central government as regards gaming laws but not-so-good news from them for the media and entertainment sector.
We list below some of the most vital developments from the past two months with a brief discussion of each and also a link to further reading, where available/required.
MEDIA & ENTERTAINMENT
Draft Amendments to the Cinematograph Act, 1952
While the edition covers updates between July and August, as our inaugural edition, this update was too important to miss!
In mid-June, the central government (through its Ministry of Information & Broadcasting) made public a draft of proposed amendments to the Cinematograph Act, 1952 and sought comments from the general public on them.1 The amendments proposed had broadly three ingredients: new age-specific certification categories, restoration & enhancement of central government's revisional powers as regards film certification and measures to combat film piracy. The draft caused quite a furore amongst the industry stakeholders primarily due to the fact that if enacted, these amendments could mean that even after a film has received a certification from the Central Board of Film Certification (CBFC), the central government could send it for reexamination if it were to receive any complaint as regards it on any of the grounds mentioned in Section 5B (1) of the Cinematograph Act, 1952. 2
You may access the official document of the draft amendments here.
For a closer look at the probable repercussions of these draft amendments for the industry, you may read our Partner Ms. Ranjana Adhikari's views on them, here.
Bombay High Court grants interim stay on 'Code of Ethics' under IT Rules 2021
In one of the more significant interim orders in recent times, the Bombay High Court, on the eve of India's 75th Independence Day, granted an interim stay on Rule 9(1) & 9(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which mandated adherence by publishers of online news & current affairs and publishers of online curated content (referred to as OTT in common parlance) to an external and prescribed 'Code of Ethics'. The HC found these two subrules to be prima facie violative of the fundamental right to speech and expression and beyond the rule-making powers available to the central government under the parent law viz. the Information Technology Act, 2000, under which these Rules were framed. Notified and enforced in February 2021, these Rules have since then been a subject of constant controversy (including the one involving Twitter
India which was recently in the news) and multiple legal challenges in different High Courts of the country. Though the Bombay HC has just stayed two sub-rules and this is just an interim order, the reasoning of the interim order and the prima facie view taken by the court on the grounds urged by the petitioners is expected to have a substantial impact on the legality and constitutionality of these Rules. The final hearing is scheduled for September 27, 2021.
In a bunch of similar challenges to these Rules filed in the Delhi High Court by The Wire, Quint & Press Trust of India, the central government in the last week of August filed a reply asserting that that the Rules will help tackle fake news, that they do not have a chilling effect on free speech and that they are based on "co-regulation"
A transfer petition has also been preferred by the central government before the Supreme Court to transfer all pending petitions against these Rules to the Supreme Court to avoid contradictory findings by different High Courts in the country. It is quite possible that the Supreme Court accept the petition and transfer to itself all the challenges pending in different courts across the country and hear and adjudicate them together.
In an interesting development, soon after the aforesaid Bombay High Court interim stay, the Union Ministry of Information & Broadcasting which is the nodal ministry for digital media under the new Rules, wrote to industry bodies such as the Federation of Indian Chambers of Commerce & Industry (FICCI) and Chambers of Indian Industry (CII) to nominate expert members to be a part of the new 'Inter Departmental Committee' (IDC) as required by the new Rules. It is pertinent to note that the Bombay High Court had not ruled on this aspect of the petitioners' prayers saying that the petitioners may move the court for relief as and when the IDC is formed.
For a detailed analysis of the provisions of these new Rules, please read IndusLaw's Infolex NewsAlert here.
1 Draft Cinematograph (Amendment) Bill, 2021
2 Namely, "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
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