IMPORTANT CASES AND JUDGEMENTS

1. Non-disclosure of reasons for denial of security clearance by GoI is in violation of leading to infringement of fair hearing is violative of Articles 14 and 19 of Constitution of India.

Case Title: Madhyamam Broadcasting Limited v. Union of India[1]

Madhyamam Broadcasting Limited (“MBL”) filed a writ petition before the Hon’ble Kerala High Court challenging MIB’s revocation of permission granted to MBL for uplinking and downlinking a news and current affairs television channel ‘Media One’, and prayed for grant of an opportunity to be heard before revoking the permission.  The writ petition was dismissed by a Single Judge and the Division Bench, subsequently relying on material disclosed solely to the Hon’ble Court in a sealed cover by the Union Ministry of Home Affairs (“MHA”). MBL filed a Special Leave Petition before the Hon’ble Supreme Court against the order of the division bench of the Hon’ble Kerala High Court.

MIB granted MBL permission to uplink 'Media One' for a period of ten years under the Policy Guidelines for Uplinking of Television Channels from India (“Uplinking Guidelines”). MIB also issued a registration certificate for downlinking of the ‘Media One’ channel for a period of five years in accordance with the provisions of the Policy Guidelines for Downlinking of Television Channels (“Downlinking Guidelines”). However, later, MIB issued a notice to show cause to MBL proposing to revoke the permission for uplinking and downlinking granted to ‘Media One’ and ‘Media One Life’ in view of the denial of security clearance by Ministry of Home Affairs (“MHA”).

MBL contended that security clearance is a pre-condition only for the grant of permission to operate the channel and not for the renewal of the existing permission. Moreover, security clearance cannot be denied on grounds that exceed the reasonable restrictions on the freedom of the press prescribed under Article 19(2) of the Constitution of India. Furthermore, refusal of security clearance must be subject to the limitations prescribed in Article 19(2) of the Constitution read with Section 4(6) of the Cable TV Act. The denial and revocation are also against the principles of natural justice, when the State supplied the reasons for denial to the Hon’ble High Court in a sealed envelope.

The State, on the other hand, submitted that the Uplinking Guidelines demonstrate that security clearance is a pre-condition for renewal of license, and MIB was justified in revoking the permission granted to Media One because MHA denied security clearance. Further, the principles of natural justice stand excluded when issues of national security are involved.

To begin with, the Hon’ble Supreme Court analysed the power of judicial review on procedural ground, and held that it is a settled position of law that an administrative action can be challenged on the ground of a violation of fundamental rights. Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety.

In this context, the Hon’ble Supreme Court also considered the issues of non-disclosure of reasons for denial of security clearance leading to infringement of right to fair hearing, protected under Articles 14 and 21; and if infringement of the right to a fair hearing would render the decision void. The Hon’ble Supreme Court also considered the issue if considerations of national security are an established exception to principles of natural justice, then how should the court resolve the competing interests represented by the principles of natural justice and national security.

The Hon’ble Supreme Court, in this regard, held that the notice to show cause states that MHA denied security clearance to MBL, however, it does not mention the reasons for the denial of security clearance. Further, MHA also declined to disclose any material that was relevant to its decision, which was not limited to a few 'top secret' documents but all relevant documents were undisclosed. Furthermore, MIB denied to disclose MBL even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy.

Upon a comprehensive reading of the Uplinking and Downlinking Guidelines, the Hon’ble Supreme Court observed that a few conditions need to be fulfilled for renewal of the uplinking and downlinking permissions. These are:

1. The channel should not have violated the programme and advertisement code on five or more occasions;
2. The channel should not have been found guilty of violating the terms and conditions of permission; and
3. The channel must fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission.

With regards to the first condition, the Hon’ble Supreme Court held that ‘Media One’ was not in violation of programme and advertisement code on five or more occasions. However, only one instance of alleged violation of the programme and advertisement code by ‘Media One’ had been put forth by MIB, which related to the telecasting reports on the violence which took place in North-East Delhi during the protests organised against the Citizenship (Amendment) Act, 2019. Consequently, the Hon’ble Supreme Court held that the solitary incident of alleged violation does not fulfill the first condition.

For the conditions (ii) and (iii), the Hon’ble Supreme Court observed that as per the Uplinking Guidelines, at the time of renewal of permission, the channel is required to fulfill all the conditions that apply to the grant of permission, as modified by the letter of permission. Upon receipt of application of renewal by the MIB, it determines whether the prescribed conditions are fulfilled, and upon satisfaction, the application for renewal is sent to MHA for security clearance.

The Hon’ble Supreme Court further observed that as per the Uplinking Guidelines, conditions prescribed in permission letter, which includes the condition of security clearance, need to be fulfilled for the renewal of the permission. Moreover, a bare perusal of the permission letter would show that there is no condition in the permission letter modifying or eliminating the condition for security clearance. Moreover, the permission letter provides that the license shall be revoked on grounds of 'public order and national security'.

Furthermore, the Hon’ble Supreme Court observed that as per the Uplinking and Downlinking Guidelines, security clearance from MHA is one of the conditions that is required to be fulfilled for renewal of permission for Uplinking and Downlinking of news channels. Therefore, it was held that security clearance is one of the conditions precedent for renewal of uplinking and downlinking permissions.

Hence, the Hon’ble Supreme Court partly allowed the challenge to the order of MIB and the decision of the Hon’ble Kerala High Court, by holding that MBL's right to a fair hearing has been infringed by the unreasoned order of the MIB, and the non-disclosure of relevant material to MBL, and its disclosure solely to the court. Moreover, though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the State has been unable to prove that these considerations arise in the MBL’s. A blanket immunity from disclosure of all investigative reports cannot be granted.

1. Online games of rummy and poker are ‘game of skill’, hence do not fall under the definition of “online gambling”; Madras High Court lifts ban on online games of Skill.

Case Title: All India Gaming Federation v. State of Tamil Nadu & ORS[2]

All India Gaming Federation challenged the Tamil Nadu Prohibition of Online Gaming and Regulation of Online Games Act, 2022 (“TN Gaming Act”), before the Hon’ble Madras High Court. The TN Gaming Act, among other things, classified rummy and poker as a prohibited online game under Entry 34 of List II (State List), Seventh Schedule to the Constitution of India.

All India Gaming Federation argued that since the Intermediary Guidelines cover the online gaming sphere, the state is not competent to legislate on the said subject. They also challenged the report submitted by a Committee under the Chairmanship of Justice K. Chandru (Retd.) which had arbitrarily categorised online rummy and online poker to be games of chance. Further, they contended that report summarised findings of High Court judgments, “Skill gaming cannot be banned but may be regulated. Any such ban can be challenged on the grounds of violation of Constitutional Rights”, but bifurcated playing online rummy into two activities, “playing” and “betting”, without any logical reasoning and completely contrary to the rulings in many judgements of the Hon’ble Supreme Court and the High Courts.

The State of Tamil Nadu, on the other hand, contended that no repugnancy has resulted due to the amendment of the Intermediary Guidelines. Moreover, the judgments relied on by All India Gaming Federation to contend that the game of rummy is a game of skill date to an era where there was no internet or it was in its infancy. Further, online rummy cannot be described as a game of skill due to various reasons, as its dealer (software) knows all the unopened cards. Furthermore, for the game of poker, even when poker is played physically, the game has been held to be a game of chance.

The State of Tamil Nadu also emphasizes on the fact that online rummy and online poker are substantially different from rummy and poker played in physical space, and therefore, judgments, which ostensibly state that physical rummy or physical poker are games of skill and cannot be relied upon for online rummy and online poker to state that they are a games of skill.

The Hon’ble Madras High Court partly struck down the TN Gaming Act, limiting to holding that the definition of “online gambling” under Section 2(i) of the TN Gaming Act shall be read as restricted to “games of chance” and not games involving skill. Further, the Hon’ble High Court held that the games of rummy and poker are games of card, but are games of skill, and therefore, Section 2 (l)(iv) of the TN Gaming Act dealing with the definition of “online gaming of chance” to be read down, to mean, it excludes games of skill viz., rummy and poker.

Observing that in a number of judgements of the Hon’ble Supreme Court and numerous high courts holding that rummy is a game of skill, the Hon’ble Madras High Court held that it is well-established that rummy, when played physically, is a game of skill. The Hon’ble Madras High Court also held that the online game of rummy with physical game, and held that in online game of rummy, the same brain activity would be involved as required for offline games of rummy and poker.

Further, the court held that while state government has ample power to enact a legislation to prohibit online gambling and to regulate online games of skill, instead of resorting to regulating rummy and poker, the state of Tamil Nadu has simply prohibited the said games. Therefore, the same was in excess of its legislative competence.

The Hon’ble Madras High Court, finally held that the definition of “online gambling” under Section 2(i) of the Act to be read as restricted to “games of chance” and not games involving skill. Section 2(l)(iv) of the TN Gaming Act to be read down, to mean, it excludes games of skill viz., rummy and poker. The court reached this conclusion through an analysis that online games of rummy and poker are different and distinct from offline games of rummy and poker. The Schedule of the TN Gaming Act, including the games of rummy and poker, were also set aside.

1. Delhi High Court safeguards personality rights

Case Title: Anil Kapoor v. Simply Life India & Ors.[3]

Actor Anil Kapoor approached the Hon’ble Delhi High Court seeking protection for personality rights, publicity rights and other elements associated with his persona, which were used by Simply Life India and other 18 rogue websites.

The Hon’ble Delhi High Court, while underscoring the extent of freedom of expression, held that even though the right to expression is a fundamental right, the same cannot be used to jeopardise a person’s personality or infringe their privacy, which is an actionable offence. The Hon’ble Delhi High Court further held that the right to privacy takes within its ambit the right to be left alone, which extends to public figures as well.

Furthermore, it was held that the aspects of a public figure’s personality are a big source of income for them, and therefore the same cannot be used by someone else without prior authorisation. The Hon’ble Court, therefore, prohibited Simply Life India from unauthorisedly using the public aspects of the personality of Anil Kapoor. Additionally, Proxy LLC, GoDaddy LLC and Dynadot LLC, the internet service providers, were directed to lock and suspend the domain names which had any bearing with the name of the actor Anil Kapoor.

1. Measures to prevent “Review Bombing” by social media influencers from posting malicious reviews for extortion

Case Title: Mubeen Rauf v. Union Of India[4]

Mubeen Rauf, a Malayalam movie director, filed a writ petition before the Hon’ble Kerala High Court praying for a gag order directing GoI, MeitY, CBFC, Department of Electronics and Information Technology, Kerala Film Exhibitors Federation, and State Police to ensure that the social media influencers and film reviewing vloggers do not publish any reviews of flim “Aromalinte Adyathe Pranayam” on social media for at least 7 days from the date of release of the film.

Mubeen Rauf contended that there is an organized racket, particularly in the online spectrum, of deliberately denigrating and tarnishing a movie with intention of unjust enrichment, coupled with blackmail and extortion. Further, persons who claim to be reviewers are neither accredited as journalists, nor are they operating under any guidelines or parameters in law, but that many of them put out contents in denigration deliberately, in order to obtain certain confutative benefits.

The Hon’ble Kerala High Court appointed an amicus curie to verify the claims of Mubeen Rauf. The amicus curie submitted before the Hon’ble Court that there is sufficient materials to establish that there exists a group/ racket who think that they can ‘make or break movies’.

The Hon’ble Kerala High Court also dealt with the issue of lack of measures wherein directors, producers or other persons associated with movies can make complaints, to trigger a proper investigation and the consequences flowing therefrom - both under the Penal Law and under the laws relating to Cyber Crimes.

GoI contended that the functionaries of the Central Government are also aware of this problem - not only in Kerala but in many other parts of India; and therefore, that they will also deliberate upon this and offer suggestions.

The Hon’ble Kerala High Court directed the State Police to keep a watch over the posts,  particularly against anonymous posts, which contain vituperative or virulent content. The reputation of individuals behind a film cannot be sacrificed by the unbridled freedom of expression asserted by individuals, who act under the mistaken impression that they are not governed by any parameters/regulations, particularly when there is nothing on record to show that any of them are registered, akin to journalists or such other service providers.

The matter is still pending before the Hon’ble Kerala High Court.

1. High Courts direct MeitY and DOT to ban rogue websites to broadcast copyrighted content

Case Title: Viacom18 Media (P) Ltd. v. Live.smartcric.com[5]

Universal City Studios LLC v. Fzmovies.net & Ors.[6]

Star India Pvt. Ltd. v. JioLive TV & Ors.[7]

Viacom18 Media Pvt. Ltd. v. BigBos.live & Ors.[8]

The Hon’ble High Court of Delhi, in the judgements cited above, has directed MeitY and Department of Telecommunications (“DOT”) to block rogue websites that were broadcasting the contents protected under the intellectual property rights. The Hon’ble High Court held that the rogue websites streams and broadcasts the events over which copyright is held by others without any license or authorisation.

The above cases are being dealt in detail in AnantLaw Briefings - Intellectual Property Rights, Year in Review 2023.

1. Delhi High Court directs online content curator to ensure that the content does not cross limits of vulgarity and obscenity

Case Title: TVF Media Labs Pvt. Ltd. v. State (Govt. of NCT of Delhi) and Anr.[9]

TVF Media Labs Pvt. Ltd. filed a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order to register FIR against it after conducting investigation into the allegations of vulgarity and obscenity in TVF’s content.

TVF Media Labs Pvt. Ltd. is the owner of the web series ‘College Romance’ broadcasted on various internet platforms such as YouTube, TVF Web Portal and Mobile Applications. A complainant filed a complaint contending that the web series contains vulgar and obscene material which depicts women in indecent form, which is in violation of the provisions of Sections 292 and 294 of Indian Penal Code, 1860 (“IPC”), Section 67 and 67-A of Information Technology Act, 2000 (“IT Act”) and Section 2(c), 3 and 4 of Indecent Representation of Women Prohibition Act, 1986.

It was also contended that though vulgar words had been used throughout the entire web series ‘College Romance’, Episode 05 of Season 01 of the said web series had crossed all the limits of vulgarity and internet obscenity, in the name of entertainment and with the motive of financial gains which was available to be viewed by everyone in India on YouTube without give any legal disclaimer or warning against age appropriate content.

The Hon’ble Delhi High Court navigated through Section 67 and 67-A of the IT Act and stated that the object behind the enactment was to punish the acts of publishing or transmitting obscene material in electronic form.

The Hon’ble Delhi High Court stated that to decide whether the content was obscene or not, the test as per judicial precedents had to be that of an ordinary common person and not a hypersensitive person. Therefore, The Hon’ble Delhi High Court watched a few episodes of the web series to decide the case more effectively and fairly, acting itself as a common prudent person and accordingly stated that the actors or protagonists in the web series were not using the language used in our country i.e. civil language.

The Hon’ble Delhi High Court observed that the people who were likely to be affected or corrupted, were of the impressionable minds, since there was no warning or disclaimer that this series was to be viewed by persons who were 18 years or above. The Hon’ble Delhi High Court noted that the male protagonist uses words describing sexual acts, thus by words, painting pictures of sexually explicit act which brings it under ambit of arousing prurient feelings by so doing. Therefore, the said content would attract the criminality under Section 67 and 67-A of IT Act.

The Hon’ble Delhi High Court pointed towards the legal duty of the online content curator to ensure that the transmitted material aligns with the expectations of the intended audience. Additionally, the content must not cross the fine line between acceptable standards of decency and vulgar language, in order to prevent any legal transgressions.

The Hon’ble Delhi High Court observed that it had to strike a delicate balance between free speech and freedom of expression and transmitting to all, without classification of the content, which maybe obscene, profane, lascivious, sexually explicit in spoken language.

Accordingly, the Hon’ble Delhi High Court upheld that Section 292 (sale of obscene material) and 294 (obscene acts and songs) IPC were not made out; however, it held that direction to register of FIR under sections 67 (publishing or transmitting obscene material in electronic form ) and 67-A (publishing or transmitting of material containing sexually explicit act, etc. in electronic form) of the IT Act is maintainable.

Author: Rahul Goel and Anu Monga

Footnote

[1] Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366.

[2] W.P.Nos.13203 of 2023

[3] Anil Kapoor v. Simply Life India & Ors. (Delhi High Court CS(Comm) 652 of 2023)

[4] Mubeen Rauf v. Union Of India, WP(C) No. 32733 OF 2023.

[5] VIACOM18 Media (P) Ltd. v. Live. Smartcric.Com, 2023 SCC OnLine Del 5978.

[6] Universal City Studios LLC v. Fztvseries. Mobi, 2023 SCC OnLine Del 7313.

[7] Star India (P) Ltd. v. Jiolive TV, 2023 SCC OnLine Del 6095.

[8] Viacom18 Media (P) Ltd. v. Biggbos. Live, 2023 SCC OnLine Del 6692.

[9] TVF Media Labs (P) Ltd. v. State (NCT of Delhi), (2023) 1 HCC (Del) 778.