This article is authored by Sakshee Saxena, a fourth year law student at JECRC University, Jaipur.
Traditionally, televisions, films and other audio visuals platforms have been primary means of entertainment. However, with rapid technological advancement, the world has evolved from theatres and films to online streaming and video on demand(vod) services. The media landscape in India has always been dynamic and complex because of a population that is diverse in terms of faith, socioeconomic status, caste, and language. Increased content consumption by the Indian audience led to a huge increase in the number of OTT Platforms tossed in India, serving to the diverse sensibilities of the Indian audience. Unlike conventional media, streaming platforms have a diverse range of stories that are not constrained by censorship.
Background and Emergence of OTT Platforms :
OTT refers to Over-The-Top platforms. An over-the-top (OTT) media service is something that is delivered to audiences directly over the internet. OTT services are comparatively easy to access through personal computers, apps and mobile devices. Based on current trends, it is estimated that India will increase the number of internet users by about 40 percent to between 750 million and 800 million and double the number of smartphones to between 650 million and 700 million by 2023[i].
In India, there is an gradually increasing number of consumers adapting to it. Though local streaming services such as Hotstar and Jio Cinema have emerged in popularity, global players such as Netflix and Amazon Prime have steadily increased their market share in India. Digital India is a key player in encouraging the use of over-the-top (OTT) platforms to stream a wide range of content from around the world.
It is apparent that OTT platforms have grown tremendously since their launch, but due to the pandemic, there has been an exponential increase in their popularity due to a shift in people's entertainment consumption habits across different media platforms. The pandemic has adversely affected the entertainment industry. Theatres and multiplexes were forced to shut down amid covid crisis. As a result, the production houses moved towards OTT platforms to release their content directly over the internet. People started preferring OTT platforms rather than traditional windowing because of the diversity of content available on these channels, the accessibility of global content, and the nearly endless number of programmes.
Need for Regulations:
OTT services have become the most popular telecom service that created a large network of audience across the world. However there are several aspects related to OTT services including economic aspects, competitive effect and regulatory framework.
There is a link between changes in content delivered by such platform and changes in society and to disseminate such content OTT platforms have provided a parallel medium. However, it has led to a situation where the creators have been releasing harmful and illegal contents without any pre-censorship. OTT networks, unlike traditional media and telecommunication companies, have been lightly monitored in terms of public interest obligations and anti-monopolistic conduct, resulting enormous market dominance for digital media platforms.
In one of the cases regarding the release of censored content online, the court ordered the Ministry of Information and Broadcasting (MIB) to draft policies to regulate content that is censored on other media, but not online (precisely because of the lack of a regulatory framework)[ii]. In 2015, the Telecom Regulatory Authority of India (TRAI) released a consultation paper on regulation of OTT services, but no consensus on a regulatory framework had been reached.[iii]
The Supreme Court has also emphasised that categorization and censorship of films based on age and content is a valid classification based on public decency, morality and interest. Although the court stated that it was the responsibility of parliament to adopt policies and introduce standards for filmmakers, it decided that a list of rules on what may not be shown on cinema, had to be followed[iv]
Prior Laws Regulating OTT Services:
There were no such specific laws for regulating the content which is streaming online, however there are multiple provisions that regulate such content.
· The Indian Penal Code is formulated to prosecute anybody who has been involved in the sale or distribution of obscene literature (Section 293). Anyone who publishes defamatory remarks(Section499) Has the purpose of intentionally and maliciously fomenting religious feelings (Section 295 A).
· Selling and distributing child pornography is illegal under the POCSO (Protection of Children from Sexual Offenses) Act.
· Art of the Indian Constitution guarantees the right to free speech, but under Article19(2) of the Indian Constitution, the right can be revoked by enforcing fair restrictions if the content is harmful to the state's well-being, disrupts public order or foreign relations, or incites criminal conduct.
· The framework and provisions of the Department of Electronics and Information Technology's Intermediary Guidelines[v] can also apply to OTT platforms that qualify as intermediaries under the IT Act.
· The Indian Cinematograph Act of 1952 introduced censorship as a means of protecting audiences from immorality.
Despite the lack of legislation, many OTT platforms signed the self-regulatory Code “Code of Best Practices for Online Curated Content Providers” prepared by Internet and Mobile Association of India(IAMAI). This code aims to build an open-source platform. The code contains a standardized grievance procedure, the removal of "prohibited content" list, and the imposition of penalties for code violations. But with increase in number of complaints and FIRs filed against explicit contents related to religion, violence and political sensitivity, the government considered it necessary to move from self regulation to state censorship.
There is a need for OTT video platforms to be regulated strictly to maintain the public order and morality in the society. Moreover the need for new laws also arises because pre-existing laws are not sufficient to deal with issues related to OTT regulation.
New Rules for Regulation of OTT Platforms:
On 25th February,2021 The Ministry of information and broadcasting (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 . The Government has released an official statement in response to the Rules, stating that “Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011”.
Highlights of the New Rules -
· The new rules mandate that OTT platforms establish a comprehensive three-tier grievance redress system. The first level of control will be provided by the OTT Platform itself, through a grievance officer. The second level will be a self-regulatory institution comprised of content publishers and their associations. An inter-department committee set up by the MIB at the third level will provide oversight and hear appeals for decisions made at level two or even if the MIB refers a complaint to the inter-department committee.
· The Rules establishes a criteria for content classification based on the viewer's age, themes, content, character and effect, it also requires OTT platforms to take into account India's sovereignty, stability, and friendly ties, among other things.
· The content rating categories are “U” (suitable for all ages), U/A 7+ (suitable for persons aged 7 and higher), U/A 13+ (suitable for persons aged 13 and higher), U/A 16+ (suitable for persons aged 16 and higher), and ‘A' (suitable for persons aged 16 and higher) (restricted to adults). For content rated U/A 13+ or higher, OTT platforms must implement access control mechanisms.
· Intermediaries must delete or disable access to material that reveals individuals' private parts, shows such individuals in complete or partial nudity or in a sexual act, or is in the nature of impersonation, including morphed images, within 24 hours of receiving complaints. A complaint may be registered by the party or by someone acting on his or her behalf.
· The proposed Rules also provides for 'Voluntary User Verification'. Users who voluntarily choose to validate their accounts will be given an appropriate method to do so, as well as a demonstrable and recognisable mark of verification.
Over the years, The increasing use of social media for obscene material, disharmony, frauds, inciting violence, public order, anti-competitive conduct and other purposes has raised new challenges for law enforcement agencies.
There has been a lot of debate in the last year about whether there is a need for content control on OTT platforms, and the Indian government has finally released guidelines for OTT players and social media platforms which is indeed a great step towards regulating the conduct of online streaming platforms.The government is taking essential measures to create regulatory mechanisms that will hold social media accountable to the law and protect individuals and intermediaries from misusing it.
The state regulation has been justified in one way or another because films and media have been considered a powerful medium that can impact society in India. According to India Brand Equity Foundation, 66% (170 million) of households reportedly owned a TV set in 2019, while by July 2020 paid subscriptions on OTT platforms grew to 29 million. Such a growth in OTT video streaming is therefore raising a question of content regulation.
The need for calling of regulation and censorship is not new to the industry, taking into account the increase in number of complaints and FIRs against explicit content available on OTT platforms which is uncensored. It is imperative to take the necessary steps to regulate content while still ensuring that the right to freedom of speech and expression is protected.
[i] Research by McKinsey global institute [ii] Raksha Jyoti Foundation vs Union of India and others, High Court of Punjab and Haryana, 2016 [iii] ‘Consultation paper on regulatory framework for OTT communication services’ [iv] K. A. Abbas vs The Union Of India & Anr 1971 AIR 481, 1971 SCR (2) 446 [v] The Information Technology (Intermediary Guidelines) Rules, 2011