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A comprehensive overview of media and entertainment law in india, covering key legislation, regulations, and recent developments. It explores topics such as free speech, intellectual property, competition, digital content, and foreign investment. The document also examines the legal framework governing online media, including due diligence requirements for intermediaries and regulations for online gaming. It further discusses the legal implications of advertising, defamation, and copyright in the media and entertainment sector.
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In-Depth: Media and Entertainment Law (formerly The Media and Entertainment Law Review) is a practical overview of the legal and regulatory frameworks governing the media and entertainment industry – including print, broadcast and online – in major jurisdictions worldwide. With a focus on prominent recent trends and developments, it examines issues including free speech and media freedom; IP rights; competition and consumer rights; common contractual disputes; and much more.
The information provided in this publication is general and may not apply in a speci’c situation, nor does it necessarily represent the views of authorsA ’rms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. 2lthough the information provided was accurate as at November 0q00, be advised that this is a developing area. En@uiries concerning reproduction should be sent to customersuccessBlexology.com. En@uiries concerning editorial content should be directed to the Content Director, Clare 9olton – clare.boltonBlbresearch.com. Explore on Lexology
Introduction India is one of many of the epicentres of media and entertainment activities in the world. Content is created and made available to people in diverse forms, languages and media. On an aggregate basis, the Indian media and entertainment industry is projected to grow at a rate of 11.5 per cent in 2023 to reach US$29.2 billion. [ 2 ] Several factors such as low pricing for mobile internet services, [ 3 ] a large internet user base [ 4 ] and a government-led push towards adoption of technology by the masses have enabled India to become a large market for consumption of digital content and entertainment services. With the recent infusion of artificial intelligence (AI)-based technology in the global market, the global media and entertainment landscape is expected to undergo a shift in content creation and consumption. Changes in government policy towards regulation of technology have tracked these recent technological advances. Over the past year, the government of India (GOI) has brought significant changes in laws including:
In the music industry, a key dispute arose between Recorded Music Performance Limited (RMPL) and Phonographic Performance Limited (PPL). While PPL's application to renew its status as a registered copyright society was pending, RMPL was granted registration. Given that the Copyright Act does not ordinarily permit more than one society to be registered for administering the same category of works – in this case, sound recordings
Foreign direct investment in the print sector Under the Foreign Exchange Management (Non-Debt Instruments) Rules 2019 notified under the Foreign Exchange Management Act 2000 (Exchange Control Laws), foreign investment in the print media sector has been capped at 26 per cent through the GOI-approval route where investment is made in an entity publishing newspapers, magazines, or any other periodicals (collectively, periodicals) which (1) deal with news and current affairs content; and (2) are Indian editions of foreign magazines dealing with news and current affairs content. However, 100 per cent foreign investment is permitted through the GOI approval route for any periodicals which are in the nature of: (1) scientific and technical magazines, journals or periodicals (technical periodicals); or (2) facsimile editions of foreign newspapers. Exchange Control Laws also stipulate that foreign investment in publication of Technical periodicals requires compliance with guidelines issued by the Ministry of Information and Broadcasting (MIB) for technical periodicals. [ 9 ]
Self-regulation In addition to statutory regulation, industry stakeholders have also formed self-regulatory bodies for industry representation. For example, the Association of Indian Magazines is an industry body of magazine publishers and represents the interests of its stakeholders on various forums.
The broadcasting sector is regulated by the (a) MIB; and (b) Telecom Regulatory Authority of India (TRAI). The MIB regulates broadcasters and cable service providers, content, uplinking and downlinking of television channels, and provides compliance requirements for entities with foreign investment in the broadcasting sector. The TRAI makes regulations on quality of service, revenue sharing among service providers, and inter-connect agreements by broadcasters and distributors. The key Regulations for broadcasting on television are the Cable Television Networks Act 1995 (Cable TV Act), the Policy Guidelines for Uplinking and Downlinking of Satellite Television Channels in India 2022 (Uplinking and Downlinking Guidelines 2022) [^13 ]^ and medium-agnostic laws as set out in Section II.iv. Foreign direct investment in the broadcasting sector The maximum foreign investment permitted in the terrestrial broadcasting and radio broadcasting sector is 49 per cent under the GOI-approval route and requires compliance with terms and conditions specified by the MIB for the setting up of radio stations in India. Foreign investment in entities engaged in: (1) the uplinking of news and current affairs television channels has been capped at 49 per cent through the GOI-approval route; and (2) the uplinking of non-news and current affairs television channels and downlinking of television channels is allowed up to 100 per cent through the automatic route. Additionally, foreign investment in the broadcasting sector requires compliance with the additional conditions, which, inter alia, include:
Television broadcasting The Cable TV Act provides rules pertaining to registration of cable television network operators, mandatory transmission of certain programmes and programme and advertising content under the Cable Television Network Rules 1994 (Programme Code, Advertising Code). [ 15 ] Under the Programme Code, no programme is allowed to be transmitted through cable services which:
Foreign investment in the digital media sector As per the Exchange Control Laws read with Press Note No. 4 (2019 series) (PN 4) issued by the Department for Promotion of Industry and Internal Trade (DPIIT), foreign investment in uploading and streaming of news and current affairs through digital media is limited to 26 per cent under the GOI-approval route. Per a clarification issued by the DPIIT on 16 October 2020, the restriction under PN 4 applies to the following entities:
Other Indian legislation also applies to the media and entertainment sector regardless of the medium of distribution of content. For example, the Consumer Protection Act 2019 (CPA 2019), the Indian Penal Code 1870 (IPC), the Indecent Representation of Women Act 1986 (Representation of Women Act), the Protection of Children from Sexual Offences Act (POCSO Act) and legislation governing advertisements or depiction of specific products and themes in any content. [ 22 ] In respect of advertising content, the ASCI Code along with various guidelines are applicable to members of the Advertising Standards Council of India (ASCI). However, the ASCI Code and guidelines reflect broad industry practice. The ASCI is a self-regulatory organisation comprising stakeholders from the advertising sector such as advertisers, agencies and publishers. The ASCI Code is applicable to all members and comprises basic principles which relate to truthful and honest representation in advertisements, non-offensiveness of advertising content, prohibition against depiction of harmful products and situations, and competitive fairness in advertising. Apart from this, the ASCI Code comprises guidelines for advertisements relating to specific categories such as brand extensions, foods and beverages, endorsements by celebrities and influencers, advertising of real money games and virtual digital assets. ASCI operates the Consumer Complaints Council (CCC), a grievance redressal mechanism which handles complaints from the public, suo motu, and intra-industry disputes. Where the CCC finds a violation of the ASCI Code, the CCC has the power to issue recommendations for modifications or withdrawal of claims made in the advertisement. [ 23 ] Under the CPA 2019, any unfair trade practice comprising making false or misleading representations as to the quality, standard, condition, sponsorship or usefulness of goods or services, or any misleading advertisement or endorsement is prohibited and punishable.
Under the IPC, obscenity, acts in relation to racial, religious or gender discrimination, violence, abetment of suicide, and defamation are punishable. Under the Representation of Women Act, depiction of women in an indecent or derogatory manner is punishable. [ 24 ] Under the POCSO Act, anybody who uses a child (anybody below the age of 18 years) in any form of media for purposes of sexual gratification by representation of sexual organs of a child, usage of a child engaged in real or simulated sexual acts or indecent or obscene representation of a child, or both, is punishable. [ 25 ] Free speech and media freedom
The right to freedom of speech and expression is guaranteed to all Indian citizens as a fundamental right under Article 19(1)(a) of the Constitution of India. However, freedom of speech and expression is subject to reasonable restrictions set out in Article 19(2), which are:
While Indian laws do not specifically define hate speech, certain provisions of the IPC can be invoked when dealing with cases of hate speech. The IPC prescribes punishment for:
deliberate and malicious acts, intended to outrage religious feelings of any class;
compromises commercial or intellectual property;
exists within a fiduciary relationship;
is received confidentially from a foreign government;
endangers someone's life or law enforcement sources;
impedes criminal investigations;
involves cabinet deliberations; or
relates to personal information as defined under the Indian Data Protection Law.
While there are no legally enumerated rights, privileges or duties to protect sources in India, the Whistleblower Protection Act 2014 (Whistleblower's Act) protects persons disclosing corruption, wilful misuse of power or discretion against any public servant. The disclosure is required to be made before a 'competent authority' and such competent authority would conduct an inquiry as per Section 5 of the Whistleblower's Act. The act also provides for safeguards against victimisation, disclosure of identity of the whistleblower, and witness protection. The Norms of Journalistic Conduct set out an exception to the disclosure of sources in cases of 'serious allegations where matter is related to national interest and security'. [ 31 ] In Jai Parkash Aggarwal v. Vishambhar Dutt Sharma , [^32 ]^ it was held that while 'journalists or the information media have no absolute immunity or obligation to disclose their source of information in court... before the Court directs the disclosure of source it must satisfy itself that it is in the nature of justice and is not against the public interest'. In the same vein, a court in Delhi recently gave an order to the effect that journalists are not exempt from disclosing their sources to investigating agencies of the GOI. [ 33 ]
A wide variety of legal remedies are available to persons to initiate private actions against publication. Under the IPC, defamation is a punishable offence. The essentials for proving a claim for defamation include: (1) publication of the statement; (2) the statement must be defamatory; and (3) the statement must refer to the complainant or plaintiff. The punishment for defamation, publishing and sale of defamatory material of imprisonment up to two years, a fine or both. However, defamation can be pursued as a civil remedy under common law for a claim for damages as well. Under the IPC, exceptions to the crime of defamation as follows:
Under the Blocking Rules, the GOI may, through a designated officer, direct the take down of information which is in contravention of law under the grounds outlined under Article 19(2) of the Constitution of India. Such orders are also made for the protection of children; for example, where child sexual abuse material is shared on the internet. The GOI has directed blocking of accounts on platforms such as YouTube and Twitter which were accused of sharing fake news and misinformation. [ 39 ] In the case where Twitter challenged such orders, the matter was decided by the Karnataka High Court in favour of the GOI.- [ 40 ] Further, the GOI has directed blocking of applications having off-shore links which were operating in sectors requiring approvals from regulators or which were engaged in unauthorised cross-border sharing of personal data of Indians. [ 41 ] Intellectual property
Courts in India have held that the 'hot news' doctrine is not applicable in India given that there can be no monopoly afforded to 'time-sensitive information' or facts. The only circumstance in which the doctrine would find application in India would be to injunct time-sensitive news where both parties are 'direct competitors'. A controversy in this regard arose when exclusive broadcasting rights of all cricket matches were granted to Star TV and other platforms such as 'cricbuzz' started sharing ball-by-ball coverage of live cricket matches. It was held that Star TV could not claim exclusive property over the information itself, even for a short duration and it did not have a right to injunct third parties from publishing information in relation to the match, whether or not such information was disseminated for commercial reasons. False attribution means a person falsely representing themselves as the owner or author of the work. False attribution is recognised under common law and is also recognised as a violation of moral right under the Copyright Act. Courts generally recognise: (1) a person's right to receive credit; and (2) right to prevent any distortion of the work that would be potentially harmful to the reputation and honour of the right holder. Under Section 57 of the Copyright Act, the author has the right to restrain by way of an injunction or claim damages in respect of any distortion, mutilation, modification or other acts that would be prejudicial to the honour or reputation of author. Competition and consumer rights The CCPA enforces the CPA 2019 in India to provide relief to consumers from unfair trade practices and false advertisements. The Competition Commission of India (CCI) is the regulator set up under the Competition Act 2002 (Competition Act) to prevent anticompetitive activities, and promote price-competition, information symmetry and innovation. Under the Competition Act, agreements that may have an appreciable adverse effect on competition are considered anticompetitive. The Competition Act restricts the abuse of dominant position by an enterprise or a group, which includes imposing unfair or discriminatory conditions or pricing in purchase or sale of goods or services. Recently, the Competition (Amendment) Act 2023 introduced the following key changes: (1) requirement of CCI approval where the value of any transaction, or acquisition of control, shares, voting rights or assets of an enterprise, merger or amalgamation exceeds 20 billion rupees; and (2) expanded definition of 'control' to include material influence of the activities of an enterprise. In terms of recent enforcement activity, the CCI approved the proposed amalgamation of two leading Indian broadcasters, Zee Entertainment Enterprises Limited and Culver Max Entertainment Limited (previously known as Sony Pictures Networks India Private Limited), which would create the largest broadcaster in India. [ 44 ] The combination was accepted with certain modifications directed by the CCI. Furthermore, the CCI is undertaking a review of a probe report on Apple's App Store commission and billing policies. [ 45 ] The outcome of this probe is expected to affect the revenue models of many entities in the media and entertainment sector which make their services available through the Apple App Store. As regards enforcement of the CPA 2019, The framework of the CPA 2019 and the powers of the CCPA have been set out in Section II.
An advisory issued by the MIB completely prohibited advertising of online betting platforms in India and to Indian consumers on print media, electronic media and online and social media, including intermediaries as well as publishers, on the grounds that betting and gambling are illegal in most parts of the country and because betting and gambling pose significant financial and socio-economic risks for consumers. As regards 'net neutrality', the TRAI had categorically stated that there cannot be any discrimination by internet service providers on the grounds of content being accessed, protocols being used, or the user equipment deployed. However, in response to a recent consultation paper published by the TRAI on the regulation of OTT service providers, [ 46 ] certain telecoms entities have recommended the imposition of carriage service fees on such OTT service providers. [ 47 ] Digital content As noted above in Section II.iii, Section 79 of the IT Act and the IT Rules 2023 provide safe harbour to intermediaries against liability for content stored, published, hosted and transmitted on such intermediaries upon compliance with certain due diligence requirements. In the case of X Corp (formerly Twitter) v. Union of India , the Karnataka High Court dismissed a petition filed by X Corp against orders made by the GOI under the Blocking Rules wherein certain accounts on X were ordered to be blocked. X Corp contended that: (1) the users operating the accounts were not provided with reasons and an opportunity to be heard; and (2) the directions to suspend the entire account were disproportionate as the Blocking Rules provide for blocking of public access to 'information' and not accounts generally. However, the Karnataka High Court ruled against X Corp as (1) identification of the users was not possible before the account-blocking orders were made and the blocking orders were compliant with the Blocking Rules; and (2) the Blocking Rules allow for blocking of entire accounts. The court also took note of X Corp's earlier non-compliance with earlier orders and imposed costs of 5 million rupees. However, the imposition of costs has been stayed by a larger bench on appeal by X Corp. Contractual disputes
As per Sections 19(10) of the Copyright Act, all authors of musical works and literary works such as lyrics (collectively underlying works) are entitled to claim the right to receive royalties and consideration for utilisation of the work in any form where such works are assigned to make a sound recording not a part of a cinematograph film. The owner of the sound recording has the right to sell or commercially rent any copy of the sound recordings and to communicate the sound recording to the public. However, whether a licence granted for the exploitation of a sound recording would obviate licences for the composition and lyrics has been the subject of contradictory decisions. The Intellectual Property Appellate Board (IPAB) had held that licences are required to be