India: The Recap A Round-Up Of Media, Entertainment & Gaming Industries' Legal Updates

INTRODUCTION

Emerson was a 19th century American philosopher, essayist, and abolitionist. In the 1830s, through his writings and speeches which criticised society for its unthinking conformity, he laid down the foundation of 'transcendentalism' – a literary, philosophical, and religious school of thought. Transcendentalism believes in the essential unity of all creation, the innate goodness of humanity, and urges each person to find, in Emerson's words, "an original relation to the universe" rather than one dictated by society's retrospectives.

However, despite his uncompromising emphasis on new experiences for the revelation of the deepest truths, Emerson in a lecture in 1859 accepted the impact of the past, on the present and the future.

We cannot agree more as we bring to you the ninth volume of The Recap, and the first one of 2023. The new year has commenced but it is only by looking back, recapping, and contemplating its occurrences, can we prepare ourselves to unravel what lies ahead in 2023 for gaming and media & entertainment laws in India.

TRAI has issued consultation paper on convergence of broadcasting and telecommunication services

Recently, the Telecom Regulatory Authority of India ("TRAI") has released its consultation paper on "Regulating Converged Digital Technologies and Services – Enabling Convergence of Carriage of Broadcasting and Telecommunication services" ("Consultation Paper"). The TRAI seeks stakeholder views on convergence of technologies and the consequent changes that may be required in present legal, administrative and licensing frameworks to address the challenges posed by convergence.

The Consultation Paper has been released pursuant to the communications by the DoT to TRAI, in October 2021 and August 2022, wherein the Department of Telecommunications ("DoT") had sought recommendations on amending the licensing regime to enable convergence of telecom and broadcasting services and the consequent legal and policy changes that may be required. The TRAI has noted that recent technological developments have allowed for convergence of services and technologies, specifically for broadcasting and telecommunications, which had earlier been distinct from each other. Additionally, such convergence may also result in the development of new technologies that may not have any regulatory framework governing it.

Accordingly, TRAI has sought industry views on the legal and policy changes required to address and regulate such convergence of broadcasting and telecommunication services. TRAI has also highlighted the need to have a unified policy framework and spectrum management regime for the carriage of broadcasting services and telecommunication services. Importantly, it has raised the issue of regulatory burden and inconsistencies, that have resulted from the distribution of similar functions across ministries and departments of the government, and has raised the need to review and propose changes to the existing regulatory framework to accommodate the same.

The last date for submission of comments on the Consultation Paper is February 27, 2023, and the counter comments must be submitted by March 13, 2023.

You may access the notification by TRAI here.

You may access the Consultation Paper here.

Actors Amitabh Bachchan and Rajinikanth take steps for legal enforcement of their 'personality rights'

The Delhi High Court recently granted an omnibus adinterim ex-parte injunction in favour of Amitabh Bachchan, in a lawsuit filed by him to safeguard his publicity rights from a fake Kaun Banega Crorepati ("KBC") lottery scam.²

Amitabh Bachchan approached the Delhi High Court after scams forwarded on WhatsApp were found to be using his name and photographs. Drawing the Delhi High Court's attention towards the lottery scams which have been wrongly using the actor's picture, Amitabh Bachchan petitioned the court for an omnibus injunction against the 'world at large', to safeguard his name, image, voice, or any of his qualities that were used without his authorization.

The Delhi High Court remarked that it was an undisputed fact that Amitabh Bachchan is a popular personality, represented in many advertisements. It observed that the use of Amitabh Bachchan's celebrity status without his authorization or permission, would cause irreparable harm and injury to his reputation, some of which may also bring disrepute to him. It, therefore, granted an ad-interim exparte injunction and ordered the telecom service providers to block access to all phone numbers used by the defendants to circulate messages on messaging applications like WhatsApp, which amounted to an infringement of Amitabh Bachchan's rights. The court also directed the DoT and the Ministry of Electronics and Information Technology ("MeitY") to order the respective ISPs to pull down all links or websites provided by the plaintiff in the plaint. The next date of hearing of the case has been listed as March 20, 2023.

Similarly, a recently issued public notice by actor Rajinikanth through his legal counsel also cautions that unauthorized usage of his name, image, voice or likeness and "other characteristics" that are uniquely identifiable and associated with him, shall invite civil and criminal legal action. This notice comes as a consequence of misappropriation and misuse of Rajinikanth's publicity and / or personality rights by unauthorized persons on digital and physical media, that the actor has taken cognizance of and warned against.

You may access the Delhi High Court order here.

The legal notice may be accessed here.

Delhi High Court directs YRF to make 'Pathaan' accessible to persons with disabilities

Delhi High Court has directed Yash Raj Films ("YRF") to make the film 'Pathaan' more accessible to persons with disabilities by adding audio description, closed captions and subtitles. The petition, sought directions against YRF (producer of Pathaan) for enforcement of various rights and accessibility requirements, as prescribed under the provisions of the Rights of Persons with Disabilities Act, 2016 ("RPWD Act").

The petitioners in the present case, contended that the government has an obligation to take measures to ensure that all available content is accessible to persons with disabilities under Section 42 of the RPWD Act.³ Even after 5-6 years of enactment of this statute, most films released in India do not cater to disabled persons. They further submitted that in many foreign countries, theatres use technology like headphones and mobile applications for audio description for visually impaired individuals. The Delhi High Court held that a reading of Section 42 of the RPWD Act in context of films shows that the government has an obligation to take measures like adding audio description, closed captions and subtitles to ensure that all available content is accessible to persons with disabilities.

Further, the Delhi High Court discussed the issue of accessibility vis- a-vis visually disabled persons' right to life and observed that accessibility to information, technology and entertainment, is crucial and is incorporated under Article 21. Additionally, it was noted by the Delhi High Court that not only the government but even private parties have to ensure that 'reasonable accommodation' measures are taken in order to enable greater accessibility for the hearing and visually impaired persons.

The Delhi High Court concluded the opinion by directing the producer to prepare the audio description, the subtitles in the Hindi language, and the closed captions in both English and Hindi languages for the film's OTT release and submit the same to the CBFC for re-approval and re-certification. For theatrical release, since Pathaan was scheduled to be released on January 25, 2023, at that time, no directions were passed.

You may access the Delhi High Court's order here.

Delhi High Court issues summons in YRF vs. Triller copyright infringement cases

website and application, without a valid license from YRF. It has also demanded INR 6 crores in damages. According to the petition, YRF has accused that despite sending multiple legal notices to Triller, the majority of links remained active, which is in violation of the takedown obligations. In response, the platform had claimed to rely on the "safe harbour" provisions provided to the intermediaries.

Further, YRF has submitted that Triller has an audio extraction feature that goes beyond the intermediary's restricted role as described in Section 79(2)(a) of the Information Technology Act, 2000 (the "IT Act"). Therefore, it cannot ask for the "safe-harbour" protection that the IT Act provides for intermediaries.

YRF's lawsuit had sought a permanent injunction prohibiting Triller from hosting, reproducing, digitally transmitting, modifying and making available to the public the work for which YRF has copyright, without a licence or authorization. The Delhi High Court has, in its order dated February 02, 2023, noted that the matter can be settled between the parties and may be referred to mediation, and has asked the counsels for both parties to seek further instruction in this regard.

You may access the Delhi High Court's orders here and here.

MIB approves 'Print and Digital Media Association' as a self-regulatory body for publishers of news and current affairs

Through an official order, the Ministry of Information and Broadcasting ("MIB") announced that the Print and Digital Media Association ("PADMA"), has been registered as a self-regulatory body for the publishers of news and current affairs across the country, with forty seven digital news publishers as its members. PADMA will look into grievances related to digital media news content on the member platforms and will be headed by a former High Court judge, Justice Mool Chand Garg, and also have part-time members from Prasar Bharati.

The MIB has approved multiple self-regulatory bodies since May 2021, under Rule 12 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021"). The present order states that PADMA would perform functions laid down in the subrules of Rule 12 of the IT Rules, 2021, for the purpose of redressing grievances related to the Code of Ethics.

You may access the MIB order here.

You may read more about this development as reported by the Indian Express here.

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Footnotes

1. 'Quotation and Originality', a lecture given by Emerson at Freeman Place Chapel, Boston, Massachusetts in March 1859. 'Warp and woof' mean the foundation or base of any structure.

2. Amitabh Bachchan v. Rajat Nagi & Ors,, Civil Suit (Commercial) No. 819/2022.

3. Section 42, Rights of Persons with Disabilities Act, 2016.

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.