This article has been written by Chaitanya Suri pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Aditi Deshmukh (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
Being a democratic country built on the fundamental principles of freedom of speech and expression, amongst other valued principles, the debate on the application of reasonable censorship has and will always attract strong views. The streaming platform, commonly referred to as Over The Top Platform (“OTT platforms”), has been under the governmental lens for a while now. The government is vocal about their intention to regulate this industry which until now had been operating freely without many statutory laws governing these. The article explores if regulation on OTT and if self-regulation is still a viable method while evaluating censorship on fair principles.
Overview of censorship in India
Media has always been a source of information for the general public. They have a wide range of materials and attract attention to information that is otherwise concealed. These films and television series have always been a wonderful way to get a message or an ideology through to the general public. From street drama to motion pictures, colour films, television channels, cassettes, and DVDs, we now have OTT platforms to keep us informed and amused. However, the Centre Board of Film Certification (Censor Board), which was formed under the Cinematographic Act of 1952, regulates the public exhibition of films. In accordance with this Act, a picture must not be certified for public screening if the film or any portion of it, in the opinion of the board, is against the interests of the public. Enforcing a ‘decency and morality’ clause restricts freedom of speech and expression.
Our constitution guarantees the basic right to freedom of speech and expression, and the Supreme Court has ensured that there is a balance between freedom of speech and societal interests. It is a well-established concept that some constraints (under Art 19(2)) must be followed, such as public order, decency, or morality. For censorship purposes, regular men’s common sense should be the yardstick for making a decision on the picture. The constitutionality of censorship was challenged before the SC in the case, K.A. Abbas vs. Union of India (1971 AIR 481, 1971 SCR (2) 446) wherein, the constitutionality within the scope of Art 19(2) was upheld. It was clarified that films should be treated differently from other forms of speech and expression in the interest of society.
The Bandit Queen case, also known as the Foolan Devi case, involved a woman who was repeatedly raped and tormented before she took revenge from her abusers. The scenes depicting this were deemed indecent and obscene in PIL filed to have the film’s screenings halted. The Supreme Court ruled that the screenings could not be halted on mere ground that the film contains obscene imagery. The issue of obscenity had to be considered in the context of the entire picture, and it was decided that the offensive moments should not be seen in isolation. And the stuff that is indecent and obscene to us may not be indecent and filthy to others. That said, not everything can be left under an ordinary man’s prudence, therefore certain restrictions are imposed under Art 19(2) of our Constitution. As a result, the censor board censors movies to eliminate inappropriate content. It is mostly for the purpose of making the film acceptable for the intended audience. Despite being a well-established concept, the problem of OTT censorship emerged since the cinematography act was considered to be inapplicable to OTT platforms. The Karnataka High Court has ruled that films, serials, and other multimedia products transmitted, aired, or displayed via internet platforms, such as online streaming platforms, are not subject to the Cinematograph Act of 1952. According to the bench, the act of display of films, serials, and other content amounts to the transfer of files based on requests by users, and thus, it is not feasible to accept that the transfer of files or films, serials over the internet falls under the purview of the Act.
Rise of OTT and its phases regulation
The popularity of OTT in India has rapidly increased, with the COVID-19 epidemic fueling demand even further. Content is now available to all demographics of society at a relatively low cost thanks to the streaming business. This, along with the ability to watch the content from anywhere at any time, has piqued the interest of the general public. However, this widespread appeal has been accompanied by strong calls for regulation. OTT regulation has been attempted in a number of ways, the most current and notable of which being the IT Intermediaries Rules 2021 (“IT Rules 2021”). The route to OTT industry regulation has been intriguing, and it may be divided into three phases.
It is crucial to briefly divulge in Phase 1 and Phase 2 for better understanding of the current scenario i.e. Phase 3.
- PHASE I : During this time, the OTT sector was still striving to get into the Indian market. There was relatively little content experimentation, and the majority of the content was non-controversial. Although the sector saw exponential development during this period, it was at a considerably later stage when the actual development happened.
- PHASE II : If a moment had to be pinpointed, it would be the release of Sacred Games on Netflix that brought the spotlight on the issue of regulation of OTT platforms. Numerous FIRs were filled as content became more controversial with increased calls for regulation. The government initially encouraged self regulation while washing its hands of any involvement in the process.
It was in this phase that citizens approached various courts against OTT players with prayers to block or remove certain contents and shows. The courts have largely recognised the grievances of petitioners, but in the absence of any direct legal remedy, their hands were tied.
Video-on-demand providers also broke into two groupings and announced the creation of two different bodies by the end of May 2021. One was established by broadcaster-led OTT streaming companies that was formed under the Indian Broadcasting Foundation (IBF), which will soon be renamed the Indian Broadcasting and Digital Foundation (IBDF) to reflect the addition of digital platforms. The Digital Media Content Regulatory Council (DMCRC) for digital OTT platforms is a self-regulatory body, which is a second-tier mechanism at the appellate level, similar to the Broadcast Content Complaint Council (BCCC) established by the IBF for the linear broadcasting industry in 2011.
The Internet and Mobile Association of India (IAMAI), which was where the first few content code draughts for OTT were produced and trashed—first by the members themselves, then by the government—remained the other self-regulatory entity. At least ten streaming firms have joined the IAMAI to create the Digital Publishers Content Grievances Council (DPCGC), including Netflix, Amazon Prime Video, ALTBalaji, and MX Player.
- PHASE III : The Ministry of Information and Broadcasting (“MIB”) brought all OTT platforms, as well as digital news websites, under its purview in November 2020, resulting in IT Rules 2021. In Part III of the regulations, which we will limit ourselves to, there is a Code of Ethics, process, and protection for digital media with MIB being in charge. The MIB is responsible for enforcing this Code of Ethics. OTT platforms, online news, and digital media companies must all adhere to these guidelines. Under the new rules, OTT platforms are referred to as “publishers of online curated content.”
The rules pertaining only to OTT platforms are:
- Self-classification of content
The OTT platforms referred to in the guidelines as “publishers of online curated material,” would self-classify the content into five age groups: U (universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would also be obliged to install parental controls for content rated U/A 13+ or above, as well as trustworthy age verification procedures for content rated “A.”At the beginning of each programme, the publisher of online curated content must prominently display the categorization rating specific to each content or programme, as well as a content descriptor notifying the user about the nature of the content and advising on viewer description (if applicable), allowing the user to make an informed choice before watching the programme.
- Compliance officer
The OTT platforms must select a total of three compliance officers, all of whom must be Indian citizens. The following are the titles of the compliance officers:
- (1) Chief Compliance Officer,
- (2) Nodal Contact Person and
- (3) The Resident Grievance Officer.
- Compliance report
These platforms must also publish a monthly report detailing the complaints they have received and the actions they have taken. A three-tier grievance redressal system must be developed in addition to the Code of Ethics to deal with and address any customer concerns.
- 1st level: Self-regulation by the publishers
A Grievance Officer will be designated to deal with complaints from the complainant, i.e., the user and such intermediaries must provide the officers’ names and contact information. He must recognise the complaint within twenty-four hours of receipt, and he must resolve it within fifteen days of the submission.
- 2nd level: Self-regulatory body
Publishers’ self-regulation is carried out through one or more self-regulating organisations to handle concerns that have not been settled by the publisher within 15 days. This body shall be led by a retired judge of the High Court, Supreme Court, or an autonomous distinguished person, and will have a maximum of six members.
- 3rd level: Oversight mechanism
The MIB is responsible for drafting the oversight mechanism. In addition, an Interdepartmental Committee for hearing and resolving concerns will be established.
- 1st level: Self-regulation by the publishers
Factors that led to regulation of OTT platforms
There are three-four metrics that have intensified the debate for regulation of OTT platforms:
- The material itself: Because OTT platforms were essentially self-regulatory, with no legislative restrictions on the content they supplied, most of the content shared was stuff that was divisive to various segments of society. Various shows have been charged with defaming India’s political past, misrepresenting the city and injuring social, religious, and regional sentiments, or encouraging discrimination, untouchability, and injuring the feelings of saints and SCs and STs.
- Differential treatment for other content providers: the Broadcasting Rules, Cinematography Act, and Cable Television Act all apply to similar industry participants such as TV, DTH, and cinema (“OTT alternatives”). Due to the restrictions imposed, artistic freedom was severely limited. As the Indian public rushed to OTT, OTT alternatives complained that the lack of OTT platform regulation was harming their company.
- Self-regulation code and lack of independent authority for redressal mechanism: The absence of impartial power to check for grievances was the main worry in the self-regulation code suggested by IAMAI. OTT companies were accused of wanting to define our fundamental freedoms of speech and expression rather than allowing the elected representatives ( i.e. government) to do so.
- Judiciary: Several High Courts, as well as the Supreme Court, have recognised the necessity for some screening of web programmes, films, and other content broadcast on OTT platforms. For instance, very recently while hearing a plea of Amazon Prime’s commercial head Aparna Purohit against Allahabad High court’s decision to deny her pre arrest bail in connection with a controversial scene in the web series ‘Tandav’, the Supreme court stated that it was in favour of screening the content on these platforms. The idea was that since the audience has now shifted from theatres to OTT’s, some sort of screening was required. It should however be done with reference to the The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021.
Censorship, the good and the bad
Censorship has a significant influence. Censorship aids in the prevention of anti-social, hostile, and explicit content reaching the public, therefore preserving societal order. It also protects people’s feelings by prohibiting information that is offensive to certain cultures or tribes. However, in an era of censorship, creators are sometimes obliged to battle to obtain a certificate and approval, particularly when the content criticizes the government and its policies Resulting in the suppression of diverse viewpoints, innovation, and creativity. As a corollary, freedom of speech will be threatened indirectly. Power and money may be able to manipulate the content in order to achieve their objectives and spread political propaganda. Some individuals may find the film insulting, while others may find it progressive. As a result, dictating what to watch and what not to watch is unjust. On OTT services, unlike television, users may pick what they want to view. Furthermore, OTT platforms specify the acceptable age for viewing that content. Because of this, there is no need to restrict their words or their ideas. Self-regulatory agencies that are truly autonomous are preferable to government censorship since the public can see a variety of information rather than restricted viewpoints.
OTT platforms have gradually evolved from exclusive middlemen to content creators and intermediaries. To level the playing field, the IT Rules 2021 has imposed limitations. The three-tier redressal system gives the government unrestricted authority to censor every piece of news or information that is broadcasted to the citizens of India. Because youngsters are impressionable, it is desirable to introduce the previously adopted self-regulation combined with some small improvements such as parental locks. However, the government faces a perplexing issue as to whether or not this will dissuade adults in any manner.
OTT players should be aware of the larger reality of the socio-political environment in which they operate and create material that blurs the line between edgy and “safe”. It is suggested that self-regulation should come at the expense of quality material. The industry should take a balanced approach to content production and seek out new methods to tell stories, providing consumers with a diverse range of material across genres. In my opinion, nuanced self-regulation is far preferable to severe restrictions, as the latter will limit OTT video providers’ creative flexibility. If OTT platforms self-regulate and take appropriate precautions to guarantee that forbidden content is not viewed by children and that content descriptors are shown, among other protections, they will emerge as the content platform of choice for India’s masses—not just specialized urban viewers.
Given the popularity of family viewing material in India, OTT video streaming services should take a realistic, comprehensive approach to content production. This takes me back to the argument that OTT platforms were established to provide a fair playing field for content creators, filmmakers, actors, and other media and entertainment stakeholders. It provided opportunities for creative experimentation and pushed the boundaries of content development. What remains to be seen is whether OTT video streaming platforms will be able to withstand the planned regulatory measures and continue their unfettered expansion.
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