This article has been written by Shivika Gupta, pursuing a Certificate Course in Media and Entertainment Law from LawSikho.

Introduction

Over the top (OTT) media services are online streaming platforms that have gained a lot of popularity in the last half-decade. With theatres being shut due to Covid 19 led Lockdown, OTT platforms like Amazon Prime, Netflix, Hotstar and many others saw a rise of 30% in the number of paid subscribers. These platforms are known for providing a vast library of fresh, novel and diverse content, with out of the box stories, for an affordable subscription.

Criticism will always find a way towards great ideas. Theatrical releases have always been attracting controversies regarding their content, where they are criticized that the content is obscene, inappropriate or hurting religious sentiments or sentiments of a certain section of society, etc. But such cases with respect to theatrical releases are dealt by the Central Board of Film Certification (CBFC )and the  Cinematographic Act, 1952 along with supplementing rules and guidelines; and in the case of  broadcast media, i.e. television are regulated by Broadcasting Content Complaints Council (BCCC).

OTT platforms on the other hand, have no such legislation or body, regulating them, except they are governed by the Ministry of Electronics and Information Technology (Meity) and Information Technology Act, 2000, like any other online content . These platforms have certain self-regulation/censorship standards of their own like Netflix has self-imposed maturity ratings.

OTT platforms have had their share of controversies, Netlix’s The Suitable Boy, Amazon Prime’s Taandav, ALT Balaji’s XXX are some of the recent examples and all this has led to the debate on whether censorship and regulation of OTT platforms has become a necessity now. This article will be analyzing the same.

Regulation of OTT platforms 

After, Cabinet Minister, Piyush Goyal asked the entertainment industry to self regulate their OTT platforms claiming that they may portray Indian society poorly, 15 platforms signed a self regulation code,framed under the aegis of the Internet and Mobile Association of India  , to  govern their streaming content.

This would be done by content descriptions and specifying maturity ratings. The platforms did so to keep censorship at bay. There have been three versions of this code, the latest one being in September 2020. 

But, the Ministry of Information and Broadcasting (MIB) decided to set aside the code as it did have an exhaustive list of content that was prohibited and there were no satisfactory redressal mechanisms.

In November 2020, after hearing a petition to regulate OTT platforms, the Supreme Court issued a Notice to IAMAI and the Centre, after which the a notification was released stating that all online curated content providers (OCCPs) including OTT platforms come under the ambit of the Ministry of Information and Broadcast instead of Meity.

OTT coming under MIB would be a change in administrative authority  and a shift to a more ministering MIB would be a prelude to the government to frame out regulations and bring out a list of prohibited content. 

The most recent update as of February, 2021 is that the Government issued guidelines called Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which talk about a 3 tier regulatory mechanism for digital news media and OTT platforms.

These guidelines with respect to OTT platforms state that they should comply with the laws of India and not stream content against integrity and sovereignty of India, ensuring security of the country and friendly relations with foreign countries and not stream content which may disturb public order. The platforms also have been cautious of various racial and religious beliefs and practices.

They need to set up a 3 tier redressal mechanism. First-tier will be a grievance redressal mechanism set by the platforms themselves. The second tier, being a self-regulatory body, headed by a retired Supreme Court or High Court Judge or other eminent person. The third tier will be an inter-ministerial committee (IMC) set up by the government as an ‘oversight mechanism’. This committee will be formed on the same lines as followed by the TV industries such as the BCCC.

The platforms also have to provide age ratings such as’ U’ or universal rating and others as per age groups.

Can OTT content be regulated like theatrical releases or television broadcast?

TV broadcasts and cinemas are very different from OTT platforms. In the latter the audience has a choice on what kind of content they want to watch, unlike in the former.

Content streamed on OTT Platforms is not broadcast, that is, it is not meant for public exhibition, rather it is meant for private viewing and hence cannot be regulated under the Cinematographic Act, 1952 (Padmanabh Shankar vs Union Of India)   and hence cannot be treated the same as tv or cinema. Therefore the formation of an IMC as per the above-discussed guidelines is not the best decision.

CBFC is a statutory body under the MIB Ministry and now that OTT platforms are too under the ministry’s ambit, CBFC  may get engaged in censoring and filtering OTT  content. If CBFC is given the power to regulate and censor OTT content, it’ll fall the same fate as cinema and TV Broadcast, and would be censored under grounds of “obscenity”, “immoral”, “religious sentiments”, which are vague and open-ended terms, and thus curbing creative freedom. CBFC is notorious for misusing and overreaching the power vested unto it as was evident in the unnecessary censorships of movies like Udta Punjab and NH10, among others..

Do OTT platforms need regulation or censorship?

OTT platforms may sure need regulation, but censorship would seem to be an extreme measure. If the platforms get regulated by an external body formed under MIB Ministry, it may lead to self-censorship and curb creative freedom. Freedom of expression can’t be suppressed on account of threat of demonstration and processions or threats of violence. “It is the duty of the state to guard the liberty of expression since it’s a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem.”

On one hand where regulation, either self or by a another body, could mean ,ensuring that the no content is unlawful, disrespects the national emblem and flag, promoted terrorism, or promotes and encourages disrespect to the sovereignty and integrity of India and  shows children in sexual acts .

Censorship on the other hand means a lot different, where politically sensitive content, abuse, nudity is blurred or removed, either voluntarily or under some external pressure. If the platforms get regulated by an external body formed under MIB Ministry, it may lead to self-censorship and curb creative freedom. Freedom of expression can’t be suppressed on account of threat of demonstration and processions or threats of violence. It is the duty of the state to guard the liberty of expression since it’s a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem.

Hence the only acceptable form of regulation is self-regulation, which would include providing age rating and informing the viewer if the content has any nudity, strong language, violence or any other feature; it should be upto the viewer to decide whether they want to watch it or not. Parental controls should also be added, to protect children from consuming age-inappropriate content.

Conclusion

Where after the Government issued the current guidelines for regulating the OTT platforms, the honorable Supreme Court  has ordered stay on all petitions with respect to OTT regulations, we still await how these guidelines will be implemented. They will certainly affect the type of content streamed on the platforms. The redressal mechanism formulated will surely help address grievances of the public, without the involvement of the courts. 

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