This article has been authored by Manshi Sinha, a second year student at VIPS, GGSIPU.
OTT, or over-the-top platforms, are audio and video hosting and streaming services that started out as content hosting platforms, but soon branched out into the production, and release of short movies, feature films, documentaries, and web-series themselves. These platforms have gained tremendous popularity in the past few years and currently, there are more than 17 Crore OTT platforms users alone in India. They offer a wide range of content for people of all age groups. The artificial intelligence has further aided such users by suggesting and providing them the type of content they prefer based on their past viewership. There are a large number of OTT Platforms available in India such as Netflix, Amazon Prime video, Hotstar, Voot, Disney+, etc. and all of them have witnessed a huge surge in viewership since the past few years. Though the services provided by such platforms have been well appreciated by the people, but the content that they provide is many a time offensive and unlawful that has very often caused protests across the country. Due to the lack of laws and rules regulating OTT platform, unwanted content cannot be filtered out. In order to remove such content, regulation of content on OTT platform has often been called into question.
Laws Governing OTT Platforms in India
OTT Platforms, unlike other media providers such as television, print, or radio, are comparatively new, and hence so far in India there are no such laws or rules governing and regulating the content on these platforms. Due to the pressure to regulate the content on these platforms, the Internet and Mobile Association of India (“IAMI”), which is the representative body of the OTT platform, came up with the idea of a self regulatory model (a code of regulation to govern the curated streaming content of the OTT platform). On a similar footing, the Online Curated Content Providers (“OCCPs”) also proposed an idea of a two-tier structure for regulating OTT Platforms, which would have comprised of a self regulatory mechanism and a Digital Curated Content Complaints Council. But, this idea could not be implemented as the Government of India in November 2020 amended the Government of India (Allocation of Business) Rules, 1961 and brought the OTT Platforms under the purview of, Ministry of Information and Broadcasting.
The government recently formulated the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“IT Rules, 2021”) which replaced the Information Technology (Intermediaries Guidelines) Rules, 2011. Though the rules have been framed under the Information Technology Act, 2000, Part III of these Intermediary Rules, which is mainly concerned with the regulation of Digital news media and OTT Platforms, would be administered by the Ministry of Information and Broadcasting.
The IT Rules, 2021 have been criticized on many grounds; one of them concerning the OTT Platforms is the excessive delegation of power by the government. The rules prescribe the establishment of a non-judicial adjudicatory process in order to resolve the grievances arising out of the contents published by the digital news media and OTT platforms and also mandate creation of an adjudicatory body “oversight committee” to keep a check on the actions of such intermediaries. The Information Technology Act, 2000 does not empower the government to do so. Thus, such measures of the government suffer from excessive delegation of power.
Apart from this, the IT Rules, 2021 has also laid down a certain code of ethics which other intermediaries including OTT Platforms have to strictly adhere. It is now mandatory for the OTTs to classify their content based on its type as ‘U’, ‘U/A 7+’, ‘U/A 13+’, ‘U/A 16+’ and ‘A’. It is the responsibility of OTTs to ensure that the content classified as ‘U/A 13+’ has an access control measure and any content that is classified as ‘A’ has a reliable age verification mechanism for viewership apart from the access control mechanism for restricting the minors from accessing such content.
Besides all these, the OTT Platforms now need to exercise due caution and precaution while streaming any show concerning beliefs, practices or views of any racial or religious groups (Paragraph II (A) (c) of Appendix of the IT Rules, 2021). OTT platforms and certain digital news media also need to provide the details of their entity and their accounts on intermediaries to the Ministry of Information and Broadcasting.
Need of Regulating Content on OTT Platforms
OTT platforms encompass a broad range of content, including that of entertainment, and depiction of factual content, socio-economic condition of countries, different lifestyles, and various other shows. Unfortunately, many times they do stream shows that are offensive, violent, and obscene that not only has an effect on the growth of society but also result in various crimes against women, children, and even the country. There are incidents when such shows have hurt the moral sentiments of the public and have caused threat to the nation. The shows dealing with sensitive issues like nationalism must be first approved by a regulatory body so as to protect the national sentiments and security of the country. Apart from this, such media streamers broadcast content that are legally restricted, indecent, and unverified which results in various crimes against women like rape, abduction, and many more. Therefore, it’s the need of an hour that the Government comes up with measures to regulate the content on such platforms in order to protect the life and dignity of the public.
Impact of Regulating Content on OTT Platforms
Regulation of content on OTT Platforms would certainly bring positive change in the society and might be helpful in decreasing the crime rate in the country to some extent. But at the same time, it may also lead to infringement of the rights of the people. It is the responsibility of the government to come up with an unbiased system of regulation that strikes balance in the society and does not curtail the basic rights of people. The present IT Rules, 2021 though meant for regulations seems more as a controlling measure and have certain loopholes that take away the basic rights of people such as the right to privacy and fundamental right of freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India. Though the government under Article 19(2) of the Constitution of India is empowered to impose reasonable restrictions on freedom of speech and expression if it is in the interests of sovereignty and integrity of India, security of State, public order, decency or morality, etc, it cannot go out of its scope and make arbitrary restrictions. Further, Section 69A of IT Act, 2000 grants power to the government to remove any content that is objectionable or harms India’s sovereign interests but does not give the power to restrict it arbitrarily.
Considering the present situation, the need for an unbiased regulatory body to regulate the contents on OTT platform is necessary. The public today is looking for content that brings out the truth and realities of the society, provides regional varieties, and most importantly that does not hurt the sentiments of people. The government must take care that the regulatory measures do not override the rights of people and provide an effective regulatory process.