Legal Regulation of OTT Platforms In India: A Cross Juridisctional Comparative Analysis

By- Mahwesh Buland.

Abstract:

Over-the-top (OTT) refers to the services carried over networks that deliver value to customers without the involvement of a carrier service provider in the planning, selling, provisioning and servicing aspects. Essentially, the term refers to providing content over the internet unlike traditional media such as radio and cable TV. In the month of September 2020around 15 major OTT platforms in India have signed a self-regulation code which was pending. The OTT services created a parallel medium to disseminate such content. That has led to a situation where the same content might be censored in cinemas and on television, but not on streaming platforms as regulation of content on paid OTT services does not exist. In this paper we will keep our study limited to especially the entertainment based OTT platforms like Netflix, AmazonPrime, Zee5 etc . As especially in India there are many complaints and even litigations are on a rise and also there is huge demand especially from a conservative strata that this platforms are not censored hence the use of violence, adult materials which are not appropriate for children are on an rise and can easily be accessed by anyone. In the past also few public interest litigations were filed to regulate the OTT platforms but were rejected stating that there are enough regulatory provisions to deal with the issues. Thus , in this paper an attempt will be made to analyse whether there is a need to regulate the OTT platforms , whether the existing regulations under various laws are enough or do we need to modify it considering the nature of OTT platforms and what steps have been taken globally by other countries for the regulations of entertainment based OTT platforms.

Keywords: Over The Top(OTT) Platforms, Censorship, Regulations, TRAI, IT Act 2005.

Introduction:

  1. A Brief Overview of OTT Platforms

 The first Indian OTT platform was Bigflix which was launched in 2008 by Reliance entertainment. As of July 2020 with around 300 million active users and over 350 million downloads. The Indian OTT space is populated by many players. In 2018, the OTT was valued at ₹21.5Billion. The video OTT revenue in India was ₹2,019 Cr. in 2017. It is expected to reach ₹5,955 Cr. by 2022.It is also reported that the Indian OTT market will soon outperform the global OTT market and will probably be ranked among the top 10 by 2022.

1.2 What is OTT Platforms & Types of OTT platforms:

Basically OTT services mean those applications and services which are accessible over the internet and ride on operators’ networks offering internet access services.  Based on the kind of service they provide, there are three types of OTT apps:

1.Messaging and voice services, Example: Whatsaap, Telegram, Signal etc

2.Application ecosystems, linked to social networks, e-commerce; Example: Facebook, Instagram, Linkedin etc.

3.Video/audio content , Example: Netflix, AmazonPrime, Hotstar etc.

OTT Platforms & Need For Regulations :

The OTT operators are increasingly adopting voluntary codes of self-regulation in relation to content shown on their platforms. In January 2019, OTT players such as Netflix, Hotstar, Alt Balaji, along with others signed a code of best practices. The objective of this code is to empower consumers to make informed choices on age-appropriate content and protect the interests of consumers in choosing and accessing the content they want to watch, at their own time and convenience. But at the same time question arises, is there a need of regulating the same , does government start formulating exclusive codes for regulation ?It is expected that such a regulatory framework will cautiously evolve over time to match the rapid changes in internet services and in the telecom and OTT industry however a start is required and expected from the Authority.

1.Issues With Respect to Regulating OTT:

Considering the Pandemic situation we are going through, with cinemas theatres unlikely to open anytime soon in the country, OTT platforms have surely given a way out for film makers and artists to release their content without being worried about getting clearance certificates for their films and series from the censor board, considering the need of censorship which also recognized under proper legislation and dedicated boards are in place for the same. Now OTT platforms are providing a parallel bypass to such movies which may be censored by the Boards.  Considering the fact that, movies and series are now days turning into inspirations for youth and anything which is anti-social or inappropriate like drugs, violence, explicit contents might affect the psychology of teenagers especially and further considering the cultural scenario of India even censor Board follows the pattern of age based and content based ratings and there are strict regulations in place for the same. But when it comes to OTT platforms everything is at stake. Further, due to lack of legislation governing OTTs it is becoming evident with each passing day and every new case that is filed on these grounds.  

2.Existing Legal Framework Applicable To OTTs:

2.1. Content Based Regulation Under Information Technology Act:

If we refer to Sections 67A, 67B and 67C of the IT Act , it provides for “penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts, in electronic form”.  Apart from that under Section 69A of the IT Act, the Central Government has been empowered to issue directions to block public access of any information if they are found to be in violation of the provisions.

2.2. Intermediary Guidelines Rules 2011:

The biggest  challenge with respect to IT Act is whether the OTT players can hide behind the safe harbor protection and avoid any kind of liability. In the case of Amazon vs. Amway, it was held that OTT platforms are intermediaries According to The Information Technology (Intermediary Guidelines) Rules, 2011 which provide a due diligence framework to be observed by intermediaries in respect of the information being hosted or published on any computer resource of the intermediary. Thus, the framework and provisions under the Intermediary Guidelines may also be applicable to OTT platforms, which qualify as intermediaries under the IT Act.

2.3.Provisions of Indian Penal Code:

If we refer to Indian Penal Code, 1860 (“IPC“) online platforms are subject to section 295A of IPC that criminalizes deliberate and malicious acts intended to outrage religious feelings, and Section 499 and 500 of the IPC which criminalize dissemination of defamatory content. Also it penalizes anybody who insults or exhibits any object which insults the modesty of any woman or intrudes her privacy and considering the fact that OTT platforms there are many content which are obscene & sexually explicit in nature, for example recently controversy surrounded over ALTBalaji for showcasing sexually explicit contents. 

3. Challenges With Respect To Regulatory Framework & Applicable Laws:

As the biggest challenge with respect to OTT is censorship even though few provisions under different laws such as IT Act & IPC seems to cover the same but the same seems to be futile. For example if we consider the release of movies during the pandemic time over OTT platforms are escaping the censorship regulations considering the fact that they are being released on OTT Platforms. In India, The censorship of films is governed by the Cinematograph Act of 1952, which lays down certain categories in order to certify the films which are to be exhibited. Cable Broadcast is governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994. The Cable TV rules explicitly lays down the program and advertising codes that need to be followed in every broadcast.

Even though it can be said that that online streaming of content can be treated like cable broadcast, but this would fail to comply with the legal test when it comes to application of the statute to streaming platforms. Certification for cable television does not require a separate mechanism but rather is done by the Central Board of Film Certification itself, and the cable TV rules restrict any program from being carried over cable if it is in contravention of the provisions – specifically Rule 6(n) of the Cable TV Rules of the Cinematograph Act.

3.1. Cable TV Rules (The Cinematograph Act):

Under the Cable TV Act, cable service means “the transmission by cables of programs including re-transmission by cables of any broadcast television signals.” Cable television network is defined as “any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers”.Whereas, the mode of transmission for OTT platforms is very different as the content is provided through internet & is difficult to regulate given their expanding nature. Thus, it makes the existing laws inapplicable to OTT services.

3.2.Whether Censorship Rules under Information Technology Act Applicable to OTT Platforms ?

As we know films are required to follow certain certification rules and television programs’ broadcasters must adhere to the Program and Advertising code, but when it comes to OTT it is a free from the struggle of censorship or any code as the same was confirmed by the Ministry of Information and Broadcasting when a query was filed under RTI Act, 2005 where it was confirmed that the Central Board of Film Certification has no control over online content but solely certifies movies for theatrical release.

4. Steps Taken Globally To Regulate OTT:

Countries like Singapore, UK have regulatory bodies to keep a check on the OTT platforms. In Singapore, the service providers have to display the elements such as nudity, drugs, sex, violence, etc. in the content. However, in UK, the OTT platforms face the same scrutiny as any public service broadcaster. Australia has a principal legislation BSA, 1992 that governs the OTT sector. Some of the provisions & steps taken by Singapore & Australia are as follows:

4.1.Singapore:

The Infocomm Media Development Authority (IMDA), the media regulatory body of Singapore issued a code of practices for OTT and video-on-demand services to follow from 1 March,2018.Service providers are required to classify their content on the same basis as offline films. Service providers are allowed to offer content rated NC16 and above only if provide for a parental lock function on their platform. Further, they are allowed to offer adult content only if it is locked by default and the provider implements a reliable age verification mechanism. The code further requires service providers to display the ratings and the elements in the content, including theme, violence, nudity, sex, language, drug use and horror which led to the rating, to be displayed visually and prominently to the viewer before such viewer chooses to consume the content.

4.2.Australia:

The BSA covers both content which has been classified and also content which has not been classified. Content which has not been classified is treated at par with the rating it is most likely to get if classified. The scheme specifically deals with content which has been classified as:

 1) RC (or refused classification) which is given to content which cannot be sold, advertised or imported in Australia, 

2) X 18+ which is given to content that is restricted to adults due to its sexually explicit nature, 

3) R 18+ which is given to content that is restricted to adults as it is considered high in impact for the audience and may be offensive to some sections of the adult community, or

 4) MA 15+ which is given to content that is restricted to the people over the age of 15 as it is considered high in impact for the audience below that age.

Apart from content classification, the scheme also appears to restrict access to certain kinds of content. The scheme prohibits hosting of and access to RC content. Further, it restricts access to content which has been classified as X 18+, R 18+ or MA 15+.

Conclusion:

Considering the fact that the OTT media industry is increasing rapidly, sooner or later it will require a regulatory body. TRAI had also released a consultation paper for regulation of OTT in 2018 .The IAMAI, in February 2020, introduced a new code titled ‘Self-Regulation for Online Curated Content Providers (“2020 Code”) which is yet to be signed by all OTT platforms in India. In the same time many PILs are being filed in the Supreme Court even recently based on a PIL , SC has directed Centre to file its reply. Government need to carefully study the exact need for the laws before it actually drafts or notifies them. Among other things, it may have to look into whether its objective is to protect its audience or to bridge any regulatory gaps and create a regulatory regime for online players the same way it has for offline players. Here, it is important to note that they two modes of content consumption are seemingly less similar than they appear to be. Thus,  even though there is a need for regulation and a separate Board can be formed to monitor it but excessive censorship and freedom to the OTT platforms need to be given otherwise it will defeat the objective of OTTs . 

EndNotes:

1. MohiniParghi,Emergence of OTT Market in India: Regulatory and Censorship Issues, NALSAR Techlaw Forum, 27th September 2019(Available at:https://techlawforum.nalsar.ac.in/emergence-of-ott-market-in-india-regulatory-and-censorship-issues/)

2.OTT platforms sign self regulation code in India: Here’s what the platforms and experts have to say about it, The Hindustan Times, 7th September 2020 (Available at:https://www.hindustantimes.com/bollywood/ott-platforms-sign-self-regulation-code-in-india-here-s-what-the-platforms-and-experts-have-to-say-about-it/story)

3. AshimaObhan&AkanshaDua,  India: Regulating The Unregulated: Stories Of OTT Platforms In India, Mondaq Blog (Available at:https://www.mondaq.com/india/broadcasting-film-tv-radio/848724/regulating-the-unregulated-stories-of-ott-platforms-in-india)
4.Online content regulation: how is it done in other parts of the world?,Ikigai Law Blog (Available at:https://www.ikigailaw.com/online-content-regulation-how-is-it-done-in-other-parts-of-the-world/)

5. SubhangiHeda, How To Regulate OTT platforms in India,  CMD Central European University Report.(Available at:https://cmds.ceu.edu/sites/cmcs.ceu.hu/files/attachment/article/1722/indiaottpaper.pdf)

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