This article is written by Ayush Sahay who is pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Over The Top (OTT) platforms in today’s age and especially during this pandemic had become the paradise for content creators, which was clearly visible in this pandemic when several content creators opted to push their content to run on these OTT’s and still got an overwhelming response. OTT’s are the streaming services which stream audio and visual content on their platform through the internet. These services  in the past only streamed content that was already out of theaters after obtaining the rights from the distributor of such content, but in recent times they have begun the production of their own content, which includes feature films, documentaries, web series, etc. The OTT viewership in India has experienced a massive 30% growth in the number of paid subscribers, from 22.2 million to 29.0 million between March and July 2020. The market for OTT’s was earlier said to be a monopoly of Netflix, which started getting its competition from Amazon Prime Video, the OTT wing of Amazon services. 

In India, Amazon Prime Video, Disney+ Hotstar and Netflix dominate the OTT market, which have their own set of local competitors namely, Alt Balaji, Voot, Sony Liv, etc. It can be said that these platforms often fall in legal trouble because they self-regulate the content that they make available on their platform. 

According to a new amendment in the Government of India (Allocation of Business) Rules, 1961 these OTT platforms along with content on current affairs and digital news will all be regulated by the Ministry of Information and Broadcasting. 

Indian Laws which regulated these online contents before this amendment

While there are no specific laws that are enacted to regulate the content available online, there are a collective of multiple different articles and sections from different acts that regulate the content available online.

• Article 19(1) of the Indian Constitution, gives everybody the Freedom of Speech but right under Article 19(2) of the Indian Constitution, such freedom can be taken away by imposing reasonable restrictions in case such a content is against the wellbeing of the State, leads to hamper in the public order, international relations or aims towards inciting any crime.
• The Indian Penal Code, serves to punish anybody who has been indulged in the selling or distribution of work of literature which is obscene (Section 293). Has the intention of outraging religious sentiments which is intentional and done maliciously (Section 295 A). Any act of publishing defamatory content (Section 499) and of anyone who insults any woman’s modesty (Section 354).
• The Indecent Representation of Women (Prevention) Act, 1986 acts towards making sure that there is complete prohibition of indecent representation of women in advertisements, books, movies, painting etc. 
• The POCSO (Protection of Children from Sexual Offences) Act makes it an offence to sell and distribute child pornography 
• Sections 67A, 67B and 67C if the Information Technology Act, 2000 provide for penalty as well imprisonment to be imposed on anybody who has transmitted or published any kind of obscene material, any sexually explicit material including those where children are depicted in sexual acts. The Central Government is also provided with the powers to issue directives to block certain information to be in public access, under Section 69A of this Act.

Though not an Act, many of the OTT platforms signed a self-regulatory Code, the ‘Code of Best Practices for Online Curated Content Providers’ which was released by the Internet and Mobile Association of India (IAMAI). This code works towards a framework of open disclosure. The 3 major features of this code are:

• Categorization of content into separate categories, also where disclaimers would be provided for content that is inappropriate for certain age groups. 
• Providing a definition for age sensitive and the prohibited content.
• Working towards providing its consumers with a proper grievance redressal mechanism to address any concern or complaint that has been raised by the consumer against any content available on these platforms

In a particular case of Padmanabh Shankar, the petitioner prayed to the court to consider 4 matters. 

• The petitioner prayed that the court should set up a suitable regulatory authority to regulate these OTT platforms 
• He prayed that until the time such an authority is set up, the court should make these platforms come under the purview of the Central Board of Film Certification (CBFC) and also the Cinematograph Act of 1952.  
• The 3rd prayer of the petitioner was to make these OTT platforms liable and not get to use the safety cloak available to them under Section 79 of the IT Act. 
• The petitioner in his last prayer requested that the viewing of content that is available over the internet inside the four walls of an office or a house should also  come under the meaning of “public exhibition”.

The court in this case observed that it was not possible to give remedy to the first prayer, since it “is not possible to accept submission that transmission of films, cinemas, serials, etc. through the internet, will come under purview of Section 2 (C) of the Cinematograph Act.”  Therefore since the 2nd prayer was dependent on the decision of the first one, the same cannot be dealt with. The court also mentioned that even though they cannot provide relief for what the petitioner has prayed for, the concern expressed by him was of serious consideration, and wished the state to look into this matter.

What is the meaning of this new amendment in the Government of India (Allocation of Business) Rules, 1961? 

No official statements regarding any guidelines have been made public, but it can be assumed that the Programme and Advertising Codes under the Cable and Television Rules of 1994 will be providing for the regulatory framework for content available on these platforms. There also exists the Electronic Media Monitoring Center which monitors the content available on televisions.  

How is the online content being regulated in countries outside India?

United Kingdom

The BBC called out the UK Government for not regulating the OTT platforms, in September 2018. Soon after which even though there weren’t any direct regulations over these platforms, the British Board of Film Certification made an announcement that they will be partnering up with Netflix. In this partnership, the board will help to allow Netflix to set their own ratings for all the content available on their platform.

In 2020, the UK Government has issued legislation enforcing the EU Electronic Communications Code (EECC) standards in the UK. Under the Brexit transitional framework, the UK is required to adopt the EECC. The approach of the Government was foreshadowed by its statement published in July on the UK implementation and the draught Legislative Implementation (SI).

Though even now there aren’t any strict regulations that regulate these OTT platforms, the UK Government is said to be working on them.

Singapore

In Singapore the content regulation on OTT platforms are quite direct as the regulatory body for media, Infocomm Media Development Authority (IMDA), in 2018 issued a code which regulated the OTT platforms. According to these guidelines, the OTT platform will have to rate the content available on their platform the same way offline movies are rated. This code has specific instructions for content that are available for viewers above 16 and 21. In cases of content to be made available for viewers above 16 years, the platform has to make sure parental lock function has been provided for by them and in cases of content made available only for viewers above 21 should have a proper procedure in place to unlock such content after age verification, which is otherwise at all other times locked. The regulatory body has also made sure to inform these OTT platforms that excluding this code prescribed for them, they also have to adhere to the already prevailing laws of the country.

A few other countries that have put up regulations on the OTT platforms directly or have other laws to regulate them are: (i) Australia (ii) Turkey (iii) Indonesia (iv) Kenya and (v) Saudi Arabia. 

Conclusion 

What some think are going to be regulations, others feel that this way moral policing will take a step in the virtual world. Censorship wars of movies on big screen is not something new to content makers in India, movies like Udta Punjab, Bandit Queen, Lipstick under my Burkha were major tussles between the content creators and Censor Boards. The OTT platforms in the Indian sub-continent according to various industry experts have given a rise in the creative freedom of content creators, one such rise is the recent win of a Netflix Original ‘Delhi Crime’ at the international awards function, the Emmy Awards, 2020. The question of whether these platforms should be regulated or not can always be deliberated upon, but the State requires to deliberate and take inspiration from other countries along with a few country centered regulations on these platforms, such that they aren’t being scrutinized for every other content available on their platform and still enjoy their freedom to express. 

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