Netflix India’s Bad Boy Billionaires series triggers controversy
This is the second time within a month when Netflix is embroiled in a legal tussle after a movie on the life of Indian Air Force (IAF) female pilot Gunjan Saxena, which the Centre has challenged saying it shows Indian armed forces in bad light.Updated: Sep 04, 2020 03:52 IST
Even as Sahara India Parivar chief Subrata Roy and Satyam Computers founder Byrraju Ramalinga Raju have managed to get an injunction on the release of Netflix’s latest documentary series, Bad Boy Billionaires, former liquor baron Vijay Mallya and diamond merchant Nirav Modi , two others who feature in the four-part series, will not be able to challenge the broadcast of series, according to the Fugitive Economic Offenders (FEO) Act, 2018.
Section 14 of the FEO Act says that any person or company, who has been declared fugitive economic offender, may be disallowed from putting forward or defending any civil claim by any court or tribunal in India.
Both Mallya and Modi were declared Fugitive Economic Offenders (FEOs) in January and December 2019 respectively for fraud and money laundering.
While a local court in Bihar’s Araria last week gave relief to Subrata Roy by ordering Netflix not to use his name in the series, a Hyderabad civil court on Tuesday restrained Netflix from releasing it on a plea filed by Raju. The Supreme Court has refused to give any relief to the company when it was approached concerning the Araria court’s order.
Even though Netflix series doesn’t have a special episode on fugitive diamantaire Mehul Choksi, accused in the Punjab National Bank fraud case, he approached the Delhi High Court last week seeking a preview of the series for himself before it is released arguing that it could prejudice the trial against him. The ministry of electronics and information technology (MeiTY) opposed Choksi’s plea saying it does not regulate the content on over-the-top platforms unless that interferes with national security.
Choksi’s lawyer Vijay Aggarwal said: “Article 21 is available even to non citizens and if legal proceedings are pending then media cannot give their own versions and can only report facts. Netflix is calling its documentary to be investigative so this parallel investigation and conclusion is bound to breach right to fair trial under Article 21 of Constitution of India.”
“My client (Mehul Choksi) has a presumption of innocence in his favour,” Aggarwal added.
The high court junked Choksi’s plea but allowed him to go to a civil court.
Sherbir Panag, a legal expert on white collar crimes said: “The Fugitive Economic Offenders Act, provides that on declaration as a fugitive economic offender, any civil claim put forward or defended by such person may be disallowed by the concerned court. While this doesn’t take away the right to file a civil claim, it does leave ample discretion with the court on whether or not to allow such claim being put forward. This position is contentious from a procedural fairness perspective, but shall hopefully be balanced by conscientious judicial interpretation.”
Zulfiquar Memon, international extradition expert, said: “On account of Modi and Mallya being declared as FEO, they may have limited rights to approach the Courts, but their purpose seems to have been solved by the fact that the airing of the docu-series on Netflix has currently been stayed by different Courts. According to me, this matter is likely to go to the Supreme Court and until such time, the stay may remain in force”.
This is the second time within a month when Netflix is embroiled in a legal tussle after a movie on the life of Indian Air Force (IAF) female pilot Gunjan Saxena, which the Centre has challenged saying it shows Indian armed forces in bad light.
Netflix is tightlipped about the developments even as it plans to move the Bihar high court against the Araria court order and the appropriate court against the Hyderabad court order. The docu-series was supposed to be released on Wednesday. Company representatives declined comment on the matter.
Senior Advocate Neeraj Kishan Kaul, who represents Netflix, said: “We have not tried to defame anyone. It’s an investigative docu-series based on interviews as well as the facts which are available in public domain.”
Experts say government has powers to regulate OTT content:
Irrespective of particular show or OTT platform, experts feel that the government should take a proactive approach in regulating the content over the digital platforms.
Pavan Duggal, top cyber expert said : “OTT is a unique platform which has not been effectively regulated globally as well as India. However, as OTTs are available on communication devices and mobiles, they are already covered under the Indian cyberlaw. OTTs are intermediaries under section 2 (1) (w) of the Information Technology Act, 2000. Under section 79 (2) (c) of the act, these OTT players are mandated to exercise due diligence while they discharge their obligations as intermediaries. Some generic provisions of due diligence have been given under the IT Rules 2011 but these are not specifically designed for OTT platforms.”
“The government of India has not yet come up with specific rules, guidelines, and parameters concerning OTTs but it doesn’t mean it cannot regulate such platforms. Under Section 87 of the IT Act, government has the powers to come up with rules and regulations for OTT players.”
Duggal added that “India needs to revise its legal position and come up with a framework to govern OTTs because these platforms cannot exist in a legal and policy vacuum. If they are allowed to so exist, it will start prejudicially impacting the cyber sovereignty of India as well Indian security and integrity”.