This blog is authored by Shivani Pattnaik a second-year student at National Law University, Odisha.
The public health emergency of COVID-19 that eclipsed 2020 has organically swayed matters in favour of Over-the-Top (OTT) platforms. These platforms provide streaming of audio or video services that deliver content over the internet by producing and releasing short films, feature films, documentaries, and web series.
According to the PwC Media Outlook Report 2020-2024, the collective revenues of subscription video on demand have managed to surpass box office revenues, for the first time. Streaming services such as Netflix, Hotstar, Amazon Prime etc. have recorded a surge in viewership, clocking in a 30% rise in paid subscriptions in the absence of conventional cinema theatres. This unprecedented influx of viewers has intensified the ongoing clamour about the need to regulate the content disseminated on these platforms.
To this end, a notification was issued by the President of India on November 9th, 2020 that brought OTT platforms under the ambit of Ministry of Information and Broadcasting (MIB). Amending the Government of India (Allocation of Business) Rules, 1961, the President exercised his power through Article 77(3) of the Constitution. Whilst the notification merely allocated the responsibility of regulation to the MIB, it also managed to grab headlines on the growing apprehension that digital media might no longer escape the snip of censorship.
This article aims to analyse the notification in juxtaposition with freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution while considering the applicability of reasonable restrictions enshrined in Article 19(2). Furthermore, it seeks to delineate the incumbent laws pertinent to the content available on streaming services and questions whether there is an increasing necessity for regulation. By considering similar OTT regulations from various jurisdictions, this piece also seeks to scrutinize where the line can be drawn between freedom of speech and its reasonable curtailment.
Tussle for Regulation
While India has many regulatory bodies for print media, television news channels, advertisements and movies, the digital landscape has no such regulatory authority nor legislation to moderate the platforms hosting such varying content. Several attempts were made to pre-empt any action to impose censorship by the government. In January 2019, 8 video streaming services signed into existence a ‘self-regulatory’ code that laid down guidelines on the types of content which were permissible and prohibited on the OTT platforms. The code expressly prohibits content which “attempts to invoke any deliberate disrespect towards the national emblem or national flag, any visuals promoting child pornography, any content maliciously directed towards outraging religious sentiment, content encouraging terrorism and showcasing content that is banned for distribution by law or court.”
However, the government continued to express doubt over the implications of a ‘self-regulatory’ code. In a letter to the Internet and Mobile Association of India (IAMAI), the Ministry of Information and Broadcasting put forth that “the proposed self-regulatory mechanism lacks independent third-party monitoring, does not have a well-defined Code of Ethics, does not clearly enunciate prohibited content, and at the second and third-tier level there is an issue of conflict of interest.”
Despite speculation, the government has not come up with the incumbent notification out of the blue. Intent to bring unregulated content on OTT platforms under the government’s purview was showcased, primarily, in two instances. Firstly, the Telecom Regulatory Authority of India (TRAI) in November 2018, published a Consultation Paper for OTT platforms. This advisory document was considered necessary as it was introduced at a time when the regulatory imbalance between telecommunication service providers (TSPs) and OTT service providers was increasing exponentially.
Secondly, the PIL notice issued by the Supreme Court of India to the government wherein the petitioners contended that the purpose of the PIL was to regulate the abuse of freedom of speech and expression by the OTT platforms under the garb of creative freedom. Unrefined language, nudity, drug abuse, violence and so on have been commonplace on these platforms. This point of contention begs the question of whether these platforms need regulation.
Censorship, Civil Liberties and Constitution
In order to do a comprehensive analysis of censorship, the purpose of free speech must be put under scrutiny. It is imperative to assess why free speech is being protected. Therefore, drawing from John S. Mill’s deliberations, it is presented that free speech is pertinent in the truth-seeking endeavour. The idea of lending the freedom of speech and expression to every citizen is to strive for knowledge and empowerment.
Every statement, opinion or fact expressed on a social platform is considered as speech. Continuing this analogy, it can be said that creativity and freedom of expression include opinions on various aspects of life, culture and society. Artistic expression in this form is generally considered a protected expression and enjoys the protection stipulated in the Constitution.
However, all constitutions recognize that the right to freedom of opinion and expression is self-limiting and subject to reasonable restrictions such as dignity, morality, public order, national security and friendly relations with other countries. Censorship, therefore, acts as a tool of prohibition or suppression of speech which is potentially so harmful that it is declared illegal.
In the case of K.A. Abbas v. Union of India, the constitutionality of censorship was put to the test. The Supreme Court, within the ambit of Article 19(2), upheld the validity of censorship, adding that film “should be treated separately from other forms of art and expression, as film can evoke deeper emotions than any other.” In a cautionary note, the apex court also mentioned that such limitation must be in pursuant to the interest of the society.
The issue of freedom of expression in India calls for a reformed approach, rather than a simple “in favour or against” narrative. Where there are civil liberties, the citizens have every right to exercise it even when the government has to come across content that is sensitive and pertains to the political situation along with our country's history of religious oppression and division. The Bombay High Court, in the case of Gajanan P. Lasure & Anr v. The Central Board of Film, has gone as far as criticising the State in overreaching its powers vis a vis censorship.
In addition to this, an FIR was lodged against Netflix over some scenes in the show ‘A Suitable Boy’ which was reported to hurt Hindu sentiments. This is among one of the many instances where a growing intolerance among the viewers with regards to the content that is put upon these platforms is witnessed. With this in mind, a regulatory framework to be such that it does not put unreasonable restrictions on the content creators whilst considering the sentiments of the viewers is the need of the hour.
In a bid to strive for a fine balance, the Court also stated that “it is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience. That is its obligatory duty to preserve and protect the freedom of expression.”
OTT Regulations in Other Jurisdictions
Several countries such as the UK, Singapore and Australia have regulatory guidelines for OTT Platforms.
In 2019, the British Board of Film Classification (BBFC) changed its OTT regulations by allowing the streaming service giant Netflix to start setting its own age ratings on films and television series. This was seen as the beginning of the end of traditional censorship in Britain and translated into a self-regulatory reform.
At the other side of the spectrum, Singapore has a direct regulatory code called Content Code For Over-The-Top, Video-On-Demand And Niche Services. This Code is a very detailed guide that the relevant authorities follow when developing content for OTT platforms in order to harmonize diverse content. The code also prescribes do’s and don’ts for the service providers. They must ensure that the programs hosted by them comply with the prevailing laws of Singapore, do not undermine national or public interest and national or public security and do not undermine racial or religious harmony among others.
In a similar vein, in Australia ‘The Broadcast Services Act of 1992 (BSA)’ is the most important law governing the OTT sector. It is managed through a complaint handling mechanism known as the online content co-regulatory system introduced on January 1, 2000. BSA strictly prohibits content which is divided into four types: refused classification, X18+, R18+ and MA18. These prohibitions are backed by strict sanctions for non-compliance, including criminal penalties for serious offences.
These aforementioned states have not expressly applied censorship but the authoritative bodies which dispense and regulate laws pertaining to film, print media and advertising have established a collaborative relationship with the OTT platforms, keeping in mind the interests of the people.
The notification brought out by the government is surrounded by apprehensions of censorship overreach akin to mainstream television media. There is a need which is felt to keep a check on the type of content consumed by the masses, however, that does not call for stepping over legislative boundaries to eliminate controversial media. The government doesn’t need to decide what crosses the line; it needs to prescribe where the line is. Now is the time for responsible regulation which seeks out a fine balance.
For India, a country harbouring diverse religions, cultures and belief systems, a flexible code regulating content on OTT platforms is desirable. The ambits of immorality, indecency and political criticism must not override the creative freedom of content producers. The government can indulge in collaborative ventures with streaming services to draw suggestions for a regulatory code which benefits all stakeholders of digital media and this code should be backed by strict sanctions to avoid flouting of regulations.
In the end, consuming media critically is inharmonious with a habit of labelling any media as pure and unproblematic. Trying to sort out which media has no problems and is, therefore ‘ethical’ to consume is naturally the opposite of taking a critical approach to media consumption. Consuming media critically, therefore, means thinking about what you watch, read, listen to, etc., and identifying its strengths and weaknesses. It requires the government and the consumers to understand and accept that there’s no such thing as media without problems.
We, as consumers, will never find the perfect media. In a society structured to benefit some groups at the expense of others, there will be messaging in every single piece of media that intentionally endorses, justifies or promotes harmful things. Being critical consumers of media means identifying those problems, acknowledging them and making a deliberate effort not to absorb them as we consume the media we enjoy.