Regulation of Over the Top (OTT) Platforms – A Critical Analysis

Introduction

Movies, web-series, podcasts, music, other curated online content through “Over the Top platforms” (“OTT”)  have emerged as a source of entertainment especially in these dire times of the COVID-19 pandemic. OTT platform streams media service, i.e., films, television, news, or music content offered, directly to viewers via a high-speed internet connection which to date has been offered via traditional modes such as cable or satellite provider.

In India, any traditional content which is made available to the public at large in form of news, entertainment, etc. is well regulated and monitored by appropriate agencies such as print media is regulated by the Press Council of India and the news channels are represented by the News Broadcasters Association. Further, the Advertising Standards Council of India regulates the advertising content, and the Central Board of Film Certification monitors the films. However, presently no legislation or autonomous body is governing the digital content and the same is being offered in an uncensored manner by these OTT platforms to all age groups across India.

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The OTT platforms so far were under the purview of the Ministry of Electronics and Information Technology (“MEITY”), though there were no overt entries for the same in the Allocation of Business Rules for MEITY. The logic was that OTT platforms came under the purview of the Information Technology Act, 2000 (“I.T. Act”) but now the government has brought them under the ambit of the Ministry of Information and Broadcasting (“MIB”).

Universal Self-Regulation Code for Online Curated Content Providers (“OCCP”)

The Central Government had indicated issuance of a “negative” list of don’ts for the video streaming services like Netflix and Hotstar suggesting to come up with a self-regulatory body on the lines of the News Broadcasting Standards Authority.

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Anticipating government’s intervention on 04 September 2020, (effective from 15 August 2020) the Internet and Mobile Association of India (“IAMAI”), a representative body of the OTT platforms proposed a self-regulatory code known as “Universal Self-Regulation Code for the  OCCPs” (“Code”). The said Code has been adopted by 15 leading OCCPs in India including Zee5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus, and Flickstree.

The said Code aims to empower consumers with information and tools to assist them in making an informed choice with regard to viewing decisions for themselves and their families, enable creative excellence will the help of OCCPs. Further, said Code sets up a structured grievance redressal and escalation mechanism for users for any non-compliance of Code guidelines along with a framework for age classification, content description for titles as well as access control tools. The Code majorly prohibits the following types of content on OTT platforms:

(1) Content that deliberately and maliciously disrespects the national emblem or national flag;

(2) Any visual or storyline that promotes child pornography;

(3) Any content that “maliciously” intends to outrage religious sentiments;

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(4) Content that “deliberately and maliciously” promotes or encourages terrorism; and

(5) Any content that has been banned for exhibition or distribution by any law or court.

The OCCPs also proposed a Digital Curated Content Complaints Council along with the self-regulatory mechanism as a part of its proposed two-tier structure and appointment of an external advisor by each signatory. However, the said Code was rejected by the MIB on the ground that it lacks independent third-party monitoring, does not have a well-defined Code of Ethics, does not clearly enunciate prohibited content and at the second and third-tier level, there is an issue of conflict of interest.

Public Interest Litigation

The Hon`ble Supreme Court of India recently issued a notice on 15 October 2020 to the Central Government and IAMAI in the matter of Shashank Shekhar Jha and Another v. Union of India and Others. The said Petition has been filed praying that a mechanism to monitor, manage and regulate content on video streaming platforms be set up, as unlike in several countries, streaming platforms in India remain unregulated. Further, to protect the constitutional right to life, by preventing these platforms from abusing their freedom of expression, a board headed by a secretary-level IAS officer, with members from varied fields including movie, cinematographic, media, defence forces, legal and education be formed.

Notification dated 09 November 2020, issued by the Central Government (“Notification”)

In view of the aforementioned rapid changing circumstances, a Notification dated 09 November 2020, was issued by the President of India under Article 77(3) of the Constitution of India amending the Government of India (Allocation of Business) Rules, 1961 (“said Rules”). Article 77(3) of the Constitution of India empowers the President of India to make rules for allocation of business of the government to various ministries and departments, in furtherance to which said Rules have been framed. The said Notification brings films and audio-visual programs made available by online content providers as well as news and current affairs content on online platforms by such OTT`s under the control and regulation of the MIB. Thus, MIB will now have the authority to regulate and formulate policies, issue guidelines, press notes, circulars, notifications, etc., concerning the content on the OTT platforms and the online news portals and these OTT platforms will now have to apply to MIB for certification and approval of the content they wish to stream to the public at large.

The said Notification acts as a wake-up call for the Central Government wherein digital platforms have been unregulated, having no specific regulatory framework barring the provisions of the I.T. Act. All efforts are being made to develop a more transparent system of regulation of online content in a regulated and censored manner under the guidelines of MIB.

Future of OTT Platforms

Now that these OTT platforms and digital news media aggregators have been brought under the control of MIB and will be policed by the same nodal ministry that regulates print media, broadcasting, and FM radio players in the country, it may give rise to several conflicts as the content of such OTT platforms will now be censored by the certification boards in India.

While these, now regulated, OTT platforms continue to increase their stronghold in the Indian market, the traditional platforms such as cable, satellite providers, and theatre industry will have to level up to match the competition owing to several lucrative offers such as free trials and free viewing days.

Further, monitoring their content 24×7 will have its challenges as the same may result in OTT platforms resisting certain guidelines by OTT platforms who have enjoyed unlimited freedom to date. MIB will also have to overcome practical implementation impediments including and not limited to classifying objectional content, clarification about the inclusion of OTT`s under the definition of “Intermediaries” to fasten responsibilities under the I.T. Act, designate state-wise authorities for expeditious redressal of grievances or violations of the specified guidelines. Hence, it remains to be seen how effectively the said Notification will be implemented and accordingly received by the OTT platforms.

Conclusion

India is battling with the current unprecedented pandemic and OTT platforms provide easy access and 24×7 entertainment thereby keeping the perturbed public engaged and satiated. However, the same platforms can be misused and may result in a threat to national security owing to its unregulated content streaming which is available to all age groups of Indian Society.

Thus, regulation of OTT platforms is the need of the hour in the wake of unbridled content creation and exponentially growing subscribers of these platforms.



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