[This post is authored by SpicyIP Fellow Yogesh Byadwal with inputs by Balaji Subramaniam. Yogesh is a 3rd year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru. He is interested in IP Law, Constitutional Law and Criminal Law. His previous posts can be accessed here. Views expressed here are those of the author’s alone.]
The Ministry of I&B, on Nov. 3, released a notification notifying nodal officers under Sec. 7(1B)(ii) Cinematograph Act, 1953, for issuing notifications to intermediaries to disable access to infringing content found in contravention of Sec. 6AB (view notification here). I have previously dealt with this this notice and issues arising from it here. In this post, I wish to explore the constitutionality of the institutional mechanism which the notification seeks to establish. I will first discuss the background of Cinematograph Act, considering the recent amendments. I will argue that the institutional mechanism of nodal officers imposes unreasonable restrictions on Art. 19(1)(a), falls foul of ‘due process’ requirements under Art. 21 and fails the test of proportionality in restricting free speech.
Background Of The Cinematograph Act
The Cinematograph Act (here) was enacted in the year 1952. In its own words, it was enacted ‘to make provision for the certification of cinematograph films, for exhibition and for regulating exhibitions by means of cinematographs.’ That is to say, the Act was only supposed to regulate the certification of cinematograph films for public exhibition. Arguably, regulating exhibitions by means of cinematographs could also include measures against film piracy. However, historically, the Act had no provisions to put in place any mechanism of sorts to deal with infringing copies of film being exhibited or distributed. It was only in 2023 that the Parliament enacted the Cinematograph (Amendment) Act, 2023 (here) which inserted Sec. 6AA and 6AB to the original Act. Simply put, these sections read with Sec. 7(1B)(ii) empowered the ‘appropriate government’ to take ‘suitable action against any intermediary’ found exhibiting or distributing an infringing copy or abetting the said activity. Apart from the newly inserted sections, the whole scheme of the Act does not talk about copyright infringement or film piracy. The questions which then arise: why was the amendment made? What is the redressal mechanism envisaged? How different is it from the mechanism under Copyright Act? Does the institutional mechanism, in its present form, meet minimal connotational safeguards?
In the next section, we will answer these questions while discussing the constitutionality of the newly introduced ‘institutional mechanism of nodal officers’.
Constitutionality Of The Notification
Goonda Act state legislations, originally, were enacted with the objective of curtailing the criminal activities of ‘goondas’ with provisions for removal as well as preventive detention(see here). However, later, through state amendments, the ambit of the Act was widened to include copyright infringement, film piracy and digital offenders. Nehaa has previously argued on the blog here (also look here for a paper by Prashant and Sai Vinod) that such amendments were unconstitutional due to legislative incompetence since the subject of “video or audio pirates” or “digital offenders” fell under the Central List. In the present case, the issue of legislative incompetence does not arise since the amendment was been made in a Central legislation by the Parliament under Entry 39 and 49 of List I.
However, the amendment Act falls afoul of the substantive provisions of the Constitution.
First, the notification violates the ‘freedom of speech and expression’ enshrined under Article 19(1)(a). Any restriction of rights under 19(1)(a) must be a ‘reasonable restriction’ for Article 19(2).
The notification appoints twelve nodal officers, who, upon “receiving complaint from original copyright holder regarding exhibition of pirated/infringing copies of films on the internet, will notify intermediaries to disable access to such link.” If the intermediary does not comply with the request, it will risk losing ‘safe harbour protection’ under Sec. 79(3)(b) of IT Act, 2000. “Safe harbour” is a legal immunity that is designed to presumptively protect intermediaries from being subjected to legal proceedings in respect of content hosted upon their platforms (argued by Petitioners in IT rules 2021 Challenge case (see here for the writ petition sourced from Indian Constitutional Law and Philosophy) The provision insulates intermediaries from legal proceedings against content uploaded online, which, in turn, ensures that such intermediaries do not pre-censor online content thus protecting free speech rights. It is safe to assume that “nodal officers” are included within “actual knowledge” under Sec. 79(3)(b)(here). I have argued here that such officers are not legally competent to judicially determine whether infringement of copyright has occurred. I’ve also pointed out that they are not required to hold any hearing in reaching a decision and not required to ask for proof of ownership of copyright. The intermediary must comply with the notification of such nodal officer or else risk legal proceedings and opening itself to legal liability. The trigger-point of coercion – and the chilling effect – takes place at the point at which safe harbour is lost and the Intermediary is opened up to legal liability( see here for the writ petition). The prospect of losing ‘safe harbour’ as a result of a process which is non-judicial, does not require application of mind to individual case and violates the tenet of natural law (audi alteram partem) does not constitute ‘reasonable restriction’ under Art. 19(2). Rather, it confers such officers with wide, arbitrary, and overbroad powers in restricting free speech.
Second, the institutional mechanism envisaged does not guarantee ‘due process of law’ under Art. 21.
As highlighted, the question of whether copyright is infringed is entrusted with nodal officers who are non-judicial officers, bureaucrats, and regional officers. An officer has wide discretion whether to conduct a hearing before issuing notification, which raises concerns of blocking/ taking down websites based on externally or politically motivated complaints without having to prove either copyright or basis of complaint (here). There is no requirement for making public, such notification of blocking, which raise further accountability and transparency concerns, tying into the existing violation of natural justice principles. This will reverse the gains made in John Doe legal regime. Under the Copyright Act, a copyright owner alleging infringement u/s. 51 can approach the court seeking John Doe blocking orders (see here for Kashish’s post on this) against unknown defendants streaming pirated content. An implicit safeguard against sweeping blocking order in such cases however, is explicit checking and verification of affidavit for each claimed illegality. Moreover, further observations by Justice Gautam Patel such as requirement of giving reasons for blocking, 3-step verification process, etc. (previously discussed here and here) provided key structural safeguards in the existing regime. In the present mechanism, the studios have been given a simpler alternative wherein it has to only inform the nodal officers, who, in turn, will require the take down the content without any hearing or publication of order. Therefore, the present mechanism eviscerates the existing safeguards. In addition, imposing penalties is left to a non-judicial officer, who, in turn, has no guideline to determine the quantum of fine or period of sentence (here). Therefore, the procedure established by the notification is unreasonable, arbitrary and unjust and violates ‘dure process’ guarantee under Art. 21
Third, the notification fails the test of proportionality. Per the Puttaswamy (copy taken from SC Observer), test of proportionality ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law (see here for Prof. Aparna Chandra’s take on this). As highlighted in Prof. Chandra’s paper above, the proportionality test has four prongs: a) Legitimate aim; b) suitability; c) necessity; and d) balancing. Let’s examine how it fares on these prongs:
The aim of notification was to ‘curb the menace of film piracy’ which is laudable (and legitimate).
On Suitability, the notification entrusts non-judicial officers to determine which content is infringing copyright without any requirement to conduct a hearing on the matter. In this manner, the notification does not advance the aim of the law in any substantial manner.
On necessity, the current law does not mandate hearing and risks sentencing up to three years for the offence of copyright infringement. Moreover, no guidelines are provided to determine the quantum of fine or period of sentence. On the other hand, the Copyright Act already provides strict due process protection to intermediaries and content uploader with ‘notice and takedown’ procedure and ‘safe harbour’ provisions (here). Additionally, only judicial officers are tasked with determining copyright infringement and imposing penalties. So, what is the need for a separate procedure?
On Balancing, the law fails to achieve the aims in a substantial manner and makes deep inroads into the right to free speech and expression.
The notification, in a bid to deter film piracy, seeks to circumvent copyright Act, due process protections and impose ‘blunt and disproportionate’ penalties. The institutional mechanism, as shown above, does not stand against a constitutional scrutiny. Certainly, there are questions remaining as to how the piracy can be curbed. But such an endeavour ideally should require further nuanced thought be put into policy solutions and parameters within which issues of piracy can be effectively tackled while ensuring constitutional guarantees and ‘safe harbour’ provisions remain untouched.