Infringement of Freedom of Speech and Expression through OTT Content: A Legal Perspective, Summaries of Law

Download Infringement of Freedom of Speech and Expression through OTT Content: A Legal Perspective and more Summaries Law in PDF only on Docsity! BEFORE THE HONOURABLE SUPREME COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF NALANDA IN THE MATTER OF MR. SIDDARTH&Ors…………………………….(PETITIONER) Vs UNION OF NALANDA…………….…….(RESPONDENT) UPON THE SUBMISSION TO THE HON’BLE JUSTICE AND HIS/HER COMPANION JUSTICES OF THE SUPREME COURT OF NALANDA MEMORANDUM ON BEHALF OF THE PETITIONER TABLE OF CONTENTS TABLE OF ABBREVIATIONS………………………………………………..2 LIST OF AUTHORITIES………………………………………………….…..3 STATEMENT OF JURISDICTION…………………………………………...4 STATEMENTS OF FACTS………………………………………………….…5 STATEMENT OF ISSUES……………………………………………………..6 SUMMARY OF ARGUMENTS…………………………………………….....7 ARGUMENTS ADVANCED………………………………………………….8 II. ………….……………………………………………………………………10 PRAYER……………………………………….……………………………….12 LIST OF ABBREVIATIONS Abbreviation Full Form AIR All India Reporter Art. Article SC SUPREME COURT Cri. LJ Criminal Law Journal Cr.P.C. Criminal Procedure Code FIR First Information Report 7.K.A. Abbas V. Union Of India, STATEMENT OF JURISDICTION The petitioner has filed the present Special Leave Petition before this Hon’ble Supreme Court Of NALANDA for setting aside the impugned order of High Court of Vittala. The Hon’ble court has the jurisdiction to hear the matter under Article 136 of the Constitution of NALANDA. ARTICLE 32 - REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART IN THE SUPREME COURT 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution STATEMENT OF FACTS 1. The Republic of Nalanda is the second most densely populated country in the world. The constitution of Nalanda makes it a social, secular, democratic and republic nation governed by constitutional supremacy following rule of law. Article 19 of the Constitution guarantees the fundamental right to freedom of speech and expression subjected to certain restrictions. The Media enjoys a great deal of freedom as a fundamental right. 2. A web-series released on the OTT platform Cineflix named “TERROR & THE CITY?” was released on 12th March 2021. The screenplay of this series revolved around terrorist activities in the National Capital City and how it's being tackled by the Nation's defence, Army and Air force. The series became a subject of huge speculation for negatively portraying the "Nalanda Air Force" and the members of the Nalanda Army. The series was alleged to be misleading, pervasive and to have portrayed a work culture which is highly inappropriate in the Army. It also contained several sexually explicit content including violence against women. 3. The outrage was caused by the particular episode No. 6 of Season 1 of the series wherein an Army man was shown to be engaging in sexual activities while wearing his official uniform which carries the Nation's Emblem on his shoulder flap which was clearly visible in the scene. The same episode also contained a few scenes where one of the minority community was portrayed as terrorists and to be having links with international terrorist organisations. It received huge backlash from several patriots and was criticized hugely for its disregard towards the patriotism of the citizen's of Nalanda and that the series is deliberately promoting violence among the youth and is against public order, decency and morality. 4. Mr. Siddarth, a leading advocate, filed a writ petition in the High Court of Vittala. The high Court granted a temporary injunction from airing the series and dismissed the other prayers of the petitioner stating that the content streamed on OTT platforms is not “broadcast” within the ambit of Cinematographic Act,1952. 5. Aggrieved by the dismissal from the High Court, Mr. Siddarth approached the Hon'ble Supreme court by way of a writ petition under Art 32 seeking permanent injunction on the series "TERROR & THE CITY" as it violates the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, along with the prayer to constitute an autonomous body for Regulating and Monitoring OTT content to monitor and filter the contents on OTT platforms for Indian viewership. 6. The Hon'ble Bench of the Supreme Court, before hearing the Writ petition by Mr. Siddarth considered the fact that several other related petitions are also filed in the various High Courts, transferred all the similar petitions from the High Courts and clubbed the whole matter together and posted for a joint hearing on 30th October 2021 in which the question of maintainability is also an issue. STATEMENT OF ISSUES 1.Whether the writ petition is maintainable or not? 2.Whether the Web-series released n OTT Platform is violated Information Technology Rules Act, 2021 ? 3.Whether the series released on OTT platform infringed Article 19 of Constitution of Nalanda SUMMARY OF ARGUMENT for the enforcement of such rights.The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). Hussainara Khatoon vs. State of Bihar, This causes many people to have the first PIL in India as well. In this case, the attention of the Court was on the inhuman condition of under-trials prisoners in the state of Bihar, who had been in detention pending trial for periods far in superfluity of the maximum sentence for their offences. The Court not only ordered the right to a speedy trial regarding the main issue of the case but also passed the order of general release of about 40,000 under-trials who had undergone detention beyond such a time Period. Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the public interest litigation (PIL) at the instance of public-spirited citizens. In another matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt notice to the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice. The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”. 2.Whether the Web-series released n OTT Platform is violated Information Technology Rules Act, 2021 ? Yes, the Series which released in OTT violates the IT law because the Act or statute state that it should not have any sexual content against women and children is restricted and highly punishable under the IT Rules Act,2021Rules for News Publishers and OTT Platforms and Digital Media:For OTT:Self-Classification of Content:The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). The Supreme Court (SC) had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applicationsAn Ad-hoc committee of the Rajya Sabha laid its report after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents.The government brought video streaming over-the-top (OTT) platforms under the ambit of the Ministry of Information and Broadcasting. Rules for News Publishers and OTT Platforms and Digital Media: For OTT: Self-Classification of Content: The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Parental Lock: Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”. The OTT platforms, online news and digital media entities, on the other hand, would need to follow a Code of Ethics. OTT platforms would be called as ‘publishers of online curated content’ under the new rules. They would have to self-classify the content into five categories based on age and use parental locks for age above 13 or higher. They also need to include age verification mechanisms for content classified as ‘Adult’. 3.Whether the series released on OTT platform infringed Article 19 of Constitution of Nalanda Yes,There is a infringement of Article 19( freedom of speech and expression) under the constitution of Nalanda .Article 19(1) of the constitution of India, provides everybody the freedom of speech but right under article 19 (2) of the Indian constitution, there are some reasonable restriction in case such a content is in contrast to the well-being of the state leads to hamper in the public order, international relations or aims towards inciting any crime. In K.A. Abbas V. Union Of India, the oft-cited case for standards of obscenity and censorship,the Supreme Court held that the “test that would be applied to determine obscenity must be judged by the standards of reasonable, strong and firm-minded men who possess ordinary common sense and prudence and not by an out of the ordinary or hyper-sensitive mind.” In Ramji Lal Modi and Virendra, the Court had rejected the argument that the State can only impose restrictions on the freedom of speech and expression if it demonstrates a proximate link between speech and public order. The Supreme Court had focused closely on the breadth of the phrase “in the interests of”, but had not subjected the reasonable requirement to any analysis. In earlier cases such as State of Madras vs V.G. Row, the Court had stressed that in order to be “reasonable”, a restriction would have to take into account the nature and scope of the right, the extent of infringement, and proportionality. This analysis failed to figure in Ramji Lal Modi and Virendra. However, in Superintendent, Central Prison vs Ram Manohar Lohia, the Supreme Court changed its position, and held that there must be a “proximate” relationship between speech and public disorder, and that it must not be remote, fanciful or far fetched. Thus, for the first time, the breath of the phrase “in the interests of” was qualified, presumably from the perspective of reasonableness. In Lohia, the Court also stressed again that “public order” was of narrower ambit than mere “law and order”, and would require the State to discharge a high burden of proof, along with evidence.