INTRODUCTION

Robert Zemeckis' 1985 science fiction film BacktotheFuture is a cult classic. The film follows the life of a teenager who, is accidentally sent back in time, inadvertently prevents his future parents from falling in love, and is forced to reconcile them in order to secure his own existence. The film was a mass favourite and the world's highest grossing film that year. The idea that past decisions compound gradually and impact the future in myriad ways resonated with many.

Thematically, India's media and entertainment industry is going through a similar phase. Whether it's the imposition of 'retrospective' GST on online skill gaming companies, the regulation of OTT communication platforms, or the Humans of Bombay-People of India case, we are witnessing laws, policies, and judicial precedents being revisited and attuned to modern requirements, with the hope that it secures the future of media and entertainment businesses in the country. Time will test whether the regulatory and policy developments result in a positive outcome for the industry, and we better be prepared if they do not, because unlike Marty we have no time machine.

Join us as we dwell into such relevant legal and policy updates that impacted the Media and Entertainment industry last month in this 17th edition of 'The Recap'.

MEDIA AND ENTERTAINMENT

Centre releases Draft Guidelines for the Prevention and Regulation of 'Dark Patterns'

After consulting several industry stakeholders and a specially created task force, the Department of Consumer Affairs released the Draft Guidelines for Prevention and Regulation of Dark Patterns ("DP Guidelines") for public consultation. Among the earliest legislations across the world to regulate dark patterns, the DP Guidelines define them as "any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users to do something they originally did not intend or want to do; by subverting or impairing the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights".

In essence, the DP Guidelines ban platforms from engaging in dark patterns. To strictly ensure compliance with the ban, several specified dark pattern practices have been enunciated through illustrations. Some key takeaways from the identified practices are as follows:

  • False urgency means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or take an immediate action which may lead to a purchase.
  • Subscription trap means the process of making cancellation of a paid subscription impossible or a complex and lengthy process including similar other
  • Bait and switch means the practice of advertising a particular outcome based on the user's action but deceptively serving an alternate outcome.

Public comments and suggestions on the DP Guidelines will be accepted till October 5, 2023.

You can access the DP Guidelines here and can read more on them as reported by the Press Information Bureau of India here.

A Three-Way Deadlock: DoT, MIB & MeitY ponder over OTT regulation

Regulation of Over-the-Top ("OTT") platforms and services has been a contentious issue for the last three years, with the Department of Telecommunications ("DoT"), the Ministry of Information & Broadcasting ("MIB") and the Ministry of Electronics and Information Technology ("MeitY"), all claiming a piece of the pie. In September 2022, DoT released the Draft Telecommunications Bill ("Telecom Bill") which brought OTT communication services under "telecommunication services". OTT communication service players like WhatsApp, Telegram, Google Meet, Messenger etc. were impacted by this and were propped to be regulated similarly as other legacy telecom service providers such as Airtel and Jio. This inclusion received objections from MeitY and other stakeholders on the ground that DoT could only legislate on matters pertaining to "carriage layer, that is telephony, wireless communications, private sector licences etc." and not voice, video and data services offered by OTT players.

Although no clear response was provided by DoT at the time, the Telecom Regulatory Authority of India ("TRAI") released a Consultation Paper on the Regulatory Mechanism for OTT Communication Services, and Selective Banning of OTT Services in July 2023, which took the same stand vis- à-vis OTT communication service providers and received similar pushback and critique from industry stakeholders. After all these developments, in September 2023, a DoT official reportedly highlighted that OTT services have been removed from the Telecom Bill and clarified that MeitY would be the nodal ministry to regulate OTT communication players like WhatsApp, Google Meet etc., and MIB would the nodal ministry to regulate OTT content providers such as Netflix, Amazon Prime and Disney+ Hotstar.

The Telecom Disputes Settlement and Appellate Tribunal's ("TDSAT") recent order in the petition filed by All India Digital Cable Federation ("AIDCF") against Disney+ Hotstar also offered some clarity on the delineation of regulatory powers between the Ministries. For, the TDSAT held that OTT platforms were outside the regulatory gamut of TRAI. While the dilemma of regulating OTT communication players has largely been a tussle between DoT and MeitY, regulation of OTT content providers was demarcated as MIB's territory vide an amendment to the Government of India (Allocation of Business) Rules 1961, in 2020. Accordingly, MIB seeks to introduce a new bill to regulate broadcasting services which could include any broadcasting conducted by OTT content providers.

The Broadcasting Services Regulation Bill 2023 ("BSR Bill"), which is reportedly going to be floated by the MIB would supersede the current Cable Television Networks (Regulation) Act 1995 ("CTN Act") once the former comes into force. Although the CTN Act currently regulates only cable TV networks, it is reported that the BSR Bill would include OTTs within its purview by treating them as on- demand broadcasting services. However, it is notable that social media intermediaries as defined under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 ("IT Rules 2021") would remain excluded from the scope of the BSR Bill.

You can read more on the development as reported by The Economic Times here.

You can read more on MIB's proposed BSR Bill as reported by LiveMint here.

You can access the TRAI Consultation Paper here. You can access the Telecom Bill here.

Humans of Bombay filed a copyright infringement suit to restrain People of India from appropriating the former's content

Humans of Bombay ("HoB"), a Mumbai-based photoblog website that features gripping stories about people from the city, filed a suit in the Delhi High Court ("Delhi HC") against People of India ("PoI") alleging copyright infringement, passing off and unfair competition. PoI is a storytelling platform, which operates on a business model that is similar to the one employed by HoB.

HoB sought damages and an injunction against PoI to refrain it from misappropriating the former's content, including photographs, literary works, and other creative expressions incorporated by HoB on its website and other platforms. It was iterated that HoB's interviews, stories, and other write-ups, were converted into audio-visual works by PoI and that PoI had been routinely posting content on their Instagram handle which was identical to the images, videos, and stories put out by HoB. It was argued that by approaching the same subjects who were interviewed by HoB, PoI was attempting to establish an imitative platform by unjustifiably banking on the reputation of HoB.

Justice Prathiba Singh of the Delhi HC opined that a prima facie case of "substantial imitation" was made out in favour of HoB, and summons were issued to PoI vide order dated September 18, 2023. The application for interim relief is going to be heard in the next hearing, scheduled for October 11, 2023.

In an interesting move, Brandon Stanton, the founder of Humans of New York ("HoNY"), which is in a similar line of business since 2010, expressed his views via a post on X (formerly Twitter) calling out HoB for misappropriating the work of HoNY, and for pursuing legal action against PoI for something that Brandon had already "forgiven" HoB for years ago. In response, HoB labelled Brandon's concerns as a "cryptic assault" on their right to safeguard their intellectual property in the stories put out by them. In a follow-up clarification posted on X, HoB stated that their suit was not concerned with the storytelling model employed by PoI, and thereby potentially distancing themselves from any arguments from PoI regarding idea v. expression.

You can access the Delhi HC's order dated September 18, 2023 here.

You can read more on this development as reported by Business Standard here.

A new precedent in personality rights: Delhi HC comes to Anil Kapoor's rescue, protects personality rights from the world at large

On September 20, 2023, Justice Prathiba Singh of the Delhi HC passed an omnibus ad-interim order in favour of famous Bollywood actor Anil Kapoor. The order prevented the unauthorised commercial use of the actor's name, image, voice, acronym 'AK', nicknames such as 'Lakhan', 'Mr. India', 'Majnu Bhai', and catchphrase 'Jhakaas.' Anil Kapoor rested his case on the fact that the defendants had appropriated the aforementioned elements of his persona, all of which had acquired distinctiveness through his appearances in over 100 (hundred) films, TV shows, and advertisements. Over 20 (twenty) defendants were impleaded in the case and the Delhi HC restrained 17 (seventeen) of them from violating Anil Kapoor's right to endorsement as a celebrity. The remaining 3 (three) were ordered to immediately block and suspend all the impugned domain names. Protecting his personality rights against the world at large, the Delhi HC restrained "other unknown persons" from sharing any violative links and directed all Internet Service Providers to block and takedown such links immediately.

For the very first time in the context of personality rights in India, the Delhi HC emphasized upon the wrongful utilization of modern technological tools like artificial intelligence, face morphing and GIFs, leading to unauthorized commercial gain derived from a celebrity's persona. The Delhi HC also stressed on the detrimental effects of such violations on third parties such as his family, friends and actresses who were subject to morphing alongside the actor.

In an earlier case in April 2023, Justice Amit Bansal of the Delhi HC held that the right to publicity was not absolute and was subject to the free speech defence guaranteed under Article 19(1)(a) of the Indian Constitution. The free speech defence was also deliberated by the Delhi HC in the present case, and it was held that the defence would only be applicable in case of satire or genuine criticism and could not be availed as a mere justification to tarnish and jeopardise a celebrity's status.

A similar omnibus order was passed in November 2022 in favour of Amitabh Bachchan that protected his publicity rights against fake Kaun Banega Crorepati (KBC) scams.

You can access the Delhi HC's order dated September 20, 2023 here.

You can read more about the development as reported by Bar & Bench here.

You can read more about the Amitabh Bachchan case as reported by IndusLaw's The Recap here.

AIDCF strikes again, moves TDSAT against Star India and DD Free Dish on two separate occasions

AIDCF filed two petitions before the TDSAT, against Star India and DD Free Dish respectively. In the first, AIDCF asked TDSAT to put a halt to Star India's free streaming of cricket matches on its OTT platform, Disney+ Hotstar. AIDCF1 argued that customers of cable TV operators have demanded free live streaming of cricket matches owing to Star India's decision to offer free live steaming of the Asia Cup 2023, and the ICC Men's Cricket World Cup 2023. AIDCF also contended that the broadcaster's actions are discriminatory since cable TV subscribers are required to pay for the same content. Further, it was contended that Star India had violated the Guidelines for Uplinking and Downlinking of Satellite Television Channels in India 2022, as they clearly prohibit direct reception of TV channels/ programmes to the public.

After hearing the aforementioned claims, TDSAT issued notice to Star India and sought a response from them by October 3, 2023. In a seminal interim order of the TDSAT dated October 4, 2023, it was held that OTT platforms such as Disney+ Hotstar fall outside TRAI's regulatory purview, since they are not included within the ambit of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulation 2017. It was also noted that OTT platforms are regulated by MeitY basis the framework prescribed under the IT Rules 2021.

In the second, AIDCF claimed that DD Free Dish failed to abide by the Telecommunication (Broadcasting and Cable) Services Standards of Quality of Service and Consumer Protection (Addressable Systems) Regulations 2017 ("QoS Regulations"). As per the QoS Regulations, channel decoders are required to be shared in an encrypted manner, but broadcasters had been providing them to DD Free Dish in complete contradiction. Additionally, the QoS Regulations classify channels as either pay channels or free-to-air channels and all broadcasters are mandated to declare channels as one of the two. AIDCF argued that broadcasters declared some channels as pay channels but offered them as free-to-air on the DD Free Dish platform, which created an unfair playing field. No official reports have been published yet on the status of the case before the TDSAT.

You can read the TDSAT's order dated October 4,2023 here.

You can read more on the AIDCF-Star India petition as reported by the Times of India here.

You can read more on the AIDCF-DD Free Dish petition as reported by Exchange 4 Media here.

GAMING

Codification of the framework for increased GST levy on online gaming, casinos, and racecourses

Amendments have been notified to the central as well as some state-specific Goods & Services Tax ("GST") enactments to reflect the decision of the 50th & 51st GST Council Meeting. Accordingly, the Central GST ("CGST") (Amendment) Act, 2023, and the Integrated GST (Amendment) Amendment Act, 2023, (collectively, "Amendment Acts") have been brought into effect from October 1, 2023, vide a notification issued by the Ministry of Finance ("MoF") on September 29, 2023.

As a consequence of the above amendments, GST is now leviable at the rate of 28% (twenty-eight percent), on deposits made with online gaming companies. Notably, the newly introduced Rule 31B prohibits the deduction of any amount refunded to the player (for any reason) from the value of supply. Further, the implementation of this revised framework necessitated the states to amend their respective GST laws in line with the changes introduced in the central enactments. By corollary, states such as Arunachal Pradesh, Haryana, Karnataka, Goa, and Gujarat have introduced necessary changes to their respective laws, with some awaiting the final date of enforcement. Parallely, the GST authorities are on a spree of sending pre-show- cause notices for alleged GST-evasion to online gaming companies with demands ranging in thousands of crores. Some of these companies have challenged these notices while others are expected to follow suit.

In addition, the 52nd GST Council Meeting held on October 7, 2023, witnessed concerns raised by Maharashtra and Chhattisgarh pertaining to the retrospective application of the 28% (twenty-eight percent) GST levy on online gaming companies. Responding on this issue, the Revenue Secretary clarified in a press conference that the pre-show- cause notices being sent to online gaming companies were not retrospective in nature, since they have always been subject to GST levy at the rate of 28% (twenty-eight percent).

The Supreme Court's decision in Directorate General of GST Intelligence v. Gameskraft,2 which was last listed on October 11, 2023, is likely to clarify and settle the issue of retrospective application of GST on online gaming companies. However, given the statements made by the Revenue Secretary on the subject matter, it cannot be completely ruled out that the recent amendments would be applied retrospectively in the future as well, despite the judgment of the Supreme Court.

You can access the CGST amendment here, the IGST amendment here, and the CGST (Third Amendment) Rules 2023 here.

The notification of SRBs by MeitY likely to be deferred; Google plans to allow permissible real- money games to be listed on Play Store

Google has reportedly expressed its intention to allow all 'permissible' online real-money games to be listed on the Play Store. The development comes in the backdrop of the amendments notified to the IT Rules 2021, which sought to implement a co-regulatory model for regulating online real- money games, effected by their verification by independent (although government-recognized) self-regulatory bodies ("SRBs").

While this framework was to become effective three months after the recognition of three SRBs by the central government, no SRB has been recognized yet, despite the submission of four applications to the government. The applications have been submitted by (i) the Esports Players Welfare Association (EPWA), (ii) a consortium supported by two gaming industry associations, i.e., the E-Gaming Federation (EGF) and the Federation of Indian Fantasy Sports (FIFS); (iii) the All India Gaming Federation (AIGF), and (iv) the All-India Gaming Regulator (AIGR) Foundation. While the government was expected to notify SRBs by the end of September basis a statement issued by MeitY, it is likely that the notification may be deferred further owing to the transparency concerns vis-à-vis the applications pending before the government.

It was reported that MeitY was even planning to quash SRBs and certify permissible online real-money games itself if dominant online gaming companies continued to exercise an influential presence in the SRBs. For, although the federations that have submitted applications for recognition as SRBs have several online gaming platforms as their members, the influential role played by a few dominant platforms was raised as a concern by the government, from the standpoint of transparency and independent decision- making. In any case, most recent developments point to the government's intention to defer the notification of SRBs as it awaits consensus among all the concerned stakeholders in that regard.

As uncertainty looms over the notification of SRBs, Google reportedly plans to allow all online real- money games deemed permissible by SRBs to be listed on Play Store. This is expected to help online gaming platforms in improving their unit economics by attracting Play Store's large consumer-base. Google had initiated a year-long pilot- program in September 2022, whereby all online rummy and fantasy sports platforms were offered to users in India through the Play Store. Prior to this pilot, real- money games were precluded from being listed on Play Store, which compelled users to sideload the games' Android Package (APK) files from alternate distribution sources.

You can read more on the development as reported by Moneycontrol here, and on the statement issued by the government on the notification of SRBs here.

You can read more on the deferment of the notification of SRBs as reported by Business Standard here and here.

You may read more on the issue of GST-evasion notices to online real-money gaming platforms as reported by Outlook here; and on the 52nd GST Council Meeting as reported by Moneycontrol here.

Madras HC's hearing against Tamil Nadu's Gaming Law reaches its last leg

In the matter concerning the challenge to the 'Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act 2022' and the 'Tamil Nadu Online Gaming Authority and Regulation of Online Games Rules 2023' (collectively, "TN Gaming Laws") before the Madras High Court ("Madras HC"), the parties have finalized their arguments on the validity of the TN Gaming Laws. With this, the Madras HC is expected to rule out its final judgment soon.

The TN Gaming Laws proscribe online gambling and the playing of any online game of chance for stakes. Accordingly, several online gaming companies led by All India Gaming Federation ("AIGF") had approached the Madras HC for an interim stay on the TN Gaming Laws, which was subsequently denied. The Madras HC has been hearing the matter since August 13, 2023, and in the course of the hearings, it was argued on behalf of the gaming companies that differentiating between skill-based games such as rummy, primarily on their mode of playing (i.e., online or offline), was violative of Article 14 of the Indian Constitution. Further, since rummy had already been adjudged as a game of skill by the Supreme Court, the state's categorization of the same as a game of chance under the TN Gaming Laws was in direct contravention of binding jurisprudence.

Finally, it was also highlighted that the Chandru-committee that was formed by the Tamil Nadu government to assess the nature of online rummy had failed to consult all stakeholders when it suggested a blanket ban on the online formats of the game. In response, it was contended on behalf of the state that online gaming companies should be precluded from making profits from addictive games such as online rummy, which were also argued to be responsible for the increasing incidents of suicide. Reliance was also placed on Entry 34 (List II) of the Seventh Schedule of the Indian Constitution, to argue that the state was competent to legislate on all matters pertaining to betting and gambling, irrespective of the distinction between games of chance and skill. With the arguments being concluded, we await the final verdict of the Madras HC. Although the matter was tentatively listed for final hearing on September 22, 2023, no official copy of the judgment or order has been uploaded yet by the Madras HC.

You can access the TN Gaming Laws here and here respectively.

You can access the Madras HC's order dated September13, 2023 here.

Krafton receives government's approval to offer Battlegrounds Mobile India; Free Fire re- launches in India

Krafton has received the Indian government's support to offer its most popular battle royale game Battlegrounds Mobile India ("BGMI"). This approval was granted pursuant to the successful implementation of a three-month audit, and the government has reportedly also outlined a strict monitoring plan under which BGMI is going to be subject to quarterly assessments to ensure its compliance with the relevant regulations. BGMI secured MeitY's approval to resume operating on a three-month trial basis in May 2023, nearly ten months after its suspension from Play Store and Apple's App Store pursuant to a governmental order issued in July 2022. The interim approval was reportedly granted to the game in May 2023 only after it complied with the government's directions on the aspects of data privacy and server locations.

The approval also comes in light of the return of BGMI's rival battle royale 'Free Fire India' (developed by Singapore- based Garena), which was made available for download exclusively for users in India from September 5, 2023. While Free Fire was banned by the Indian government in February 2022 owing to data security concerns, the game has now reportedly partnered with 'Yotta' – which is also empaneled as a cloud service provider by MeitY, to manage the Indian counterpart's local cloud hosting and enable the storage of users' data on domestic servers. Further, additional features targeted towards ensuring user safety such as gameplay limitations and 'take a break' reminders have also been incorporated in the game. Similar measures have also been adopted by Krafton such as the restriction of playtime to three hours daily for minors and six hours for everyone else. Parental controls and spending limits for minors have also been introduced; and on the operational front, Krafton has severed its ties with Tencent as the publisher for BGMI and has now reportedly partnered with Microsoft's Azure to manage BGMI's servers in India.

You can read more on the developments concerning the return of BGMI and Free Fire here and here, respectively.

Footnotes

1. It represents DEN Networks, Siti Networks, GTPL Hathway and Hathway Digital.

2. Directorate General of GST Intelligence Gameskraft, SLP(C) No. 019366 - 019369/2023.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.