Bans And Censorship: Cautious And Reflective Regulation of OTT Platforms

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It is worth noting that almost all major OTT platforms are generally. They were introduced in the recent cases. These include Netflix, Sony Liv, Voot, Alt Balaji, Zee5, Hotstar, MX Player etc. OTT channels are not confined to streaming services only. The term applies to all those services that use the internet. Services such as voice calls, text messaging and internet-based services that enable video streaming. OTT services are not governed by state or telecommunications firms.

They often operate “over the top” of conventional networks regulated by strict laws. Platforms like Netflix, Amazon Prime, Zee5, Hotstar, etc. are a content-growing sector. Netflix and Amazon Prime account for even more than 300 million OTT app users. The user base of these channels has only increased. This is due to the advent of the coronavirus outbreak. And also due to the enforcement of the national shutdown. In reality, during the lockdown time, Netflix and Amazon Prime experienced a 65 per cent and 67 per cent rise, overall.

Nevertheless, in a country like India, as these sites are new, there are no clear laws for their control. Lack of accountability and regulation has always been there on these platforms. This shows that there is no form of censorship on what kind of subject matter can and cannot be further allowed.

The case of Paatal Lok

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On June 15, 2020, in a lawsuit to block Amazon Prime Video’s show, Paatal Lok, the Punjab and Haryana High Court released a notice. What the petitioner pleaded, yet, is not only the restriction of the said web series. However, it is also on the control of material on Over the Top(OTT) site.

The petition against Paatal Lok has taken up a reasonable argument. It was further claimed that Section 67 of the Information Technology Act, 2000 was then breached as it showed anti-social, obscene and offensive material. Second, under the Indecent Representation of Women (Prohibition) Act, 1986, the web-series is sued for depicting a gang rape scene. Third, the series violates Sections 153A and 298 of the Indian Penal Code. This deals with punishments for spreading hatred between various groups. Especially hatred is on the grounds of faith, ethnicity and language.

Moreover, for blurting words intended to damage a person’s religious feelings. The petitioner’s most compelling point of contention was the logic. The logic of not choosing to view such material is inaccurate and unrealistic. This also identified the analogy of this option to be accessible to an individual. If he visits a movie centre to watch a movie, the specific film must be then approved by the CBFC. Nevertheless, the same film is shown on an OTT platform without any regulation. 

Laws that deal with restrictions

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It is relevant to mention that OTT platforms maybe then monitored under the Indian Penal Code( IPC), 1860. This can be beside the IT Act, 2000. Section 295A of the IPC prohibits acts designed to outrage religious sentiments. At the same time, Sections 499 and 500 of the IPC criminalizes the propagation of defamatory content. Moreover, as the petitioner had pleaded in the case of censoring Paatal Lok, OTT platforms are further monitored under the Women’s Indecent Representation (Prohibition) Act, 1986.

Understanding the ‘Code’ 

Netflix, Hotstar, Sony LIV and other OTT platforms are mindful of the impact. The impact they will have if uncontrolled work proceeded. It is for this purpose that such platforms have approved a code of self-censorship – known as the Code of Best Practices for online curated content providers, and published by the Internet and Mobile Association of India (IAMAI) – that prevents them from uploading content that is prohibited by Indian courts. These include content that offends religious feelings and also that belittles the national flag. It also includes content which promotes child pornography—moreover, those which incite terrorism or violence.

These initiatives fulfil the needs of all those who endorse tighter regulation over OTT platforms. Furthermore, permitting freedom of speech and expression to be further presented in a free and fair manner under Article 19(1).With only rational constraints placed on that right. Not all OTT outlets still support the legislation. For example, Amazon Prime has declined to be a signatory to the Code. Moreover, it is against the implementation of any regulatory model law. The current laws in India are able to deal with any questionable content, according to Amazon.

IAMAI launched another self-regulatory application, called the Tier 2 Standard, on February 5 2020. However, out of the 30 members of the Digital Entertainment Committee, the Code had only five signatories. Platforms like Netflix, Hotstar, AltBalaji and Zee5 have called for a recall of the Code. 

Recent Updates

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On March 3, 2020, the Central Government, led by Mr Prakash Javadekar (Minister of Information and Broadcasting), gave the OTT platforms 100 days to change their policies to follow the rules. The rules issued in February by the Digital Content Complaint Council (DCCC), established. However, this 100-day duration is now over. And with no statement from the government, no wonder, why specific platforms such as. Amazon Prime have dismissed this kind of censorship openly and rejected the rules. On June 22, 2020, Bihar’s Chief Minister, Mr Nitish Kumar, wrote to India’s Prime Minister requesting censorship of OTT platforms. Accusations were that these platforms incite violent acts. Furthermore, encourage offences against children and women, and display inappropriate material.

Important Case Laws

Such concerns also emerged in the case of Justice for Rights Foundation v. Union of India in which Justice for Rights Foundation, an NGO, filed a petition in the Delhi High Court. They alleged that OTT platforms such as Hotstar, Netflix, etc. are further unrestricted. Moreover, they operate without any type of censorship. The argument was also placed before the Court. The cable and DTH operators filter and control the content. What is to be shown while broadcasting the very same movie or series. Nevertheless, the same is not the situation in OTT platforms.

The matter went to India’s Supreme Court. In which the Court sent a notice to India’s government. SC requested clarification about why there is no oversight on those platforms. The Ministry of Information and Broadcasting responded that the Information Technology Act, 2000 contains adequate provisions for coping with content that obscenely transmits material (under Section 67 of the Act) or for dealing with content that transmits sexually stimulating activities (under Section 67A of the Act).

 The Court’s Take

The Supreme Court agreed with all this SC stated that there was no need for any regulatory legislation on OTT platforms as there are ample protections in the IT Act, 2000 if any individual is further aggrieved with the type of content displayed on these platforms. According to the case, the SC’s rationale was that where there are already strict laws to cope with any objectionable content.

The IT Act, 2000 includes ample provisions, protected by Sections 67,67A,67B, and 67C of the Act. In a later case lodged by, Congress lawyer Nikhil Bhalla, the Delhi High Court complied with the stance taken by the Apex Court in the case of the Justice for Rights Foundation. It rejected the petition initially lodged to censor those dialogues supposedly portraying former Prime Minister Rajeev Gandhi in a demeaning way and subsequently revised to lead the Court to frame the regulatory guidelines.

The Delhi High Court in the recent case refused to issue an interim injunction. This was against the Netflix show’s censorship, Hasmukh.

Censorship on web series  

Although the need to control OTT channels arises because there is no clear legislation regulating them, the issue becomes more severe as many of these channels often include air content. The content that includes sexually explicit images. The programs encourage drug and alcohol addiction and other material that can only be viewed by an adult. These may also include images portraying hatred against a specific class of people or community. Alternatively, encouraging violence or motivating individuals to resort to actions against the state. 

So, when films featuring sexually provocative scenes are then screened in theatres, they are further approved by the Central Film Certification Board (CBFC) to be shown only to viewers over the age of 18 (i.e., adults). Nonetheless, there is no such regulation over the OTT sites. Moreover, even kids who have access to login IDs and passwords can access these stuff.

Conclusion 

The question that arises, then, is whether OTT platforms need to be further regulated. The response is in some cases; it is becoming essential. This regulation should not, but be bureaucratic. It should be a cautious and reflective recognition. There are economic and technological gaps between OTT and conventional telecommunications networks. Self-regulation appears to be the only way for these platforms. This can preserve the right to air content without excessive censorship and otherwise. 

Hotstar banned an episode with John Oliver on Last Week Tonight in which the show’s host criticized the Indian Prime Minister and the stance of his government on introducing the Citizenship Amendment Act. Another example is the removal of Hasan Minhaj’s episode from Saudi Arabia’s show. ‘Patriot Act,’ in which he sharply criticized Crown Prince Mohammed Bin Salman from Saudi Arabia.

Moreover, though controlling oneself is one of the most challenging tasks to do. If one can not control one’s conduct, then there will be no choice. Nevertheless, the government and the courts to step in and frame strict regulations. Moreover, enforce limits on the broad freedom of these platforms.


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