On November 9th, 2020, the Indian Government brought the OTT platforms under the ambit of the Ministry of Information and Broadcasting (MIB). These new regulations are also applicable to the online news platforms, social media platforms and current affairs content. Before this new regulation, no law governed digital content in India; however, on September 17th, 2020, OTT platforms signed a code to manage content on their platform, through self-regulation. This enabled three significant regulations, which were, age classification, content description and parental control. However, this move of the government indicates a precursor to strict filtering of online content with mandatory approval before broadcasting or uploading any content.
In mid-October 2020, a PIL was filed in the Supreme Court questioning the lack of regulation and regulatory body for OTT platforms. For the same, the apex court issued notice to Centre and Internet and Mobile Association of India. Following this, through a Notification, Centre added 22A and 22B in the Government of India (Allocation of Business) Rules, 1961 under MIB. Therefore, these provisions bring online content, both films and current affairs, under the purview of the MIB.
In 2018, a Public Interest Litigation (PIL) was filed by Justice for Rights, against the OTT platforms with regards to the streaming of uncensored content violating cultural beliefs in society. However, this suit was dismissed stating that such platforms did not come under the purview of the MIB. Standards of morality and culture are subjective, and this makes it challenging for the OTT platforms to filter ‘immoral’ or ‘uncultured’ content.
However, the regulation of alleged content was said to be under the purview of Sections 67A, 67B, 67C and 69A of the I.T. Act which makes the publishing of any obscene material punishable by imprisonment and gives the government the power to block any sort of content that may cause public unrest. Therefore, OTT websites were not completely unregulated as they are subject to the I.T. Act.
Article 19(2) of ICCPR similar in substance to Article 19 of UDHR as well as Article 19(2) of the Constitution of India provides for Right to Expression. This right is the essence of democracy and the supreme tool of liberty. The Supreme Court had previously dealt with the clash between the right to expression and need for censorship in K.A. Abbas v. Union of India. The court held that the right to expression should prevail as the common good was more important than the protection of individual rights.
OTT content creators are claiming that their content is a way in which they are exercising their right to expression and therefore, must not be regulated. However, several countries today are restricting OTT services. In Singapore, the country’s media regulatory body controls the OTT platforms by prescribing do’s and don’ts for service providers. Similarly, Australia governs OTT through the Broadcasting Services Act, 1992. Authorities’ plan to scrutinise online content in the United Kingdom and Kenya as well.
The right to expression is inherent to democracy, as it allows for constructive criticism. Evelyn Beatrice Hall, precisely explains the true meaning of the democratic right to the expression, by stating:
“I disapprove of what you say, but I will defend to the death your right to say it”.
The right to expression of OTT platforms; which provides viewers with creative and fresh content that was previously inaccessible through mainstream media, will now be regulated. Content that called for regulation, includes violence, sexual acts (sometimes, soft pornography) and terrorism. However, the counter-argument for the same was that self-regulation provided for a right to choose the content that viewers wish to watch by giving details and age limitations. Moreover, parental control allows parents to block certain content for their children. Regulations are needed to prevent the propagation of dangerous philosophies; however, such regulations may also make an individual question his/her idea and discourage them consequently losing originality in the art.
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