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This article is written by Yashwardhan Singh, from Symbiosis Law School, Pune. 

Introduction

On June 15, 2020, the Punjab and Haryana High Court issued a notice in a case for censoring Amazon Prime Video’s show, Paatal Lok.[i] What the petition pleads, however, is not just the censorship of the said web series but the regulation of content on Over the Top (OTT) platforms. It is interesting to note that all major OTT platforms have also been implemented in the case, including Netflix, Sony Liv, Voot, Alt Balaji, Zee5, Hotstar and MX Player.

OTT platforms, however, are not limited to just streaming services. The term refers to all those communication services which use the internet, such as voice calling, instant messaging and applications which allow for streaming of video using the internet. OTT services are not under the direct control of the government or the telecommunications companies and hence run “over the top” of the traditional networks which are regulated by a specific law such as cable network, telephone network and satellite network.[ii]

Platforms such as Netflix, Amazon Prime, Zee5, Hotstar, etc… are a market of growing content. Netflix and Amazon Prime together make up for more than 300 million consumers of OTT platforms.[iii] Due to the onset of the coronavirus pandemic and the imposition of the nation-wide lockdown, the consumer base of these platforms has only grown. In fact, Netflix and Amazon Prime witnessed a 65% and 67% growth respectively over the period of the lockdown.[iv]

Yet, as these platforms are recent news in a developing nation such as India, there aren’t proper laws in place for their regulation. Lack of regulation on these platforms means that there exists no form of censorship or any law prescribing what sort of contents can be allowed and what cannot.

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Need for Regulating OTT Platforms

While the need for regulation of OTT platforms arises from the basic fact that there exists no specific Act governing such bodies, the problem becomes more intense when we see that many of these platforms also air content which contain sexually explicit scenes, programmes promoting drug and alcohol abuse and other content which should only appropriately be viewed by an adult. They may also contain imagery which may depict hate against one particular class of people or a group, incite violence or influence people to resort to acts against the State. Further, when movies which contain sexually explicit scenes are shown in theatres, they are certified by the Central Board of Film Certification (CBFC) to only be shown to audiences above the age of 18 (i.e., adults). No such control, however, exists over the OTT platforms and even children with access to login IDs and passwords can easily access such content.

A similar argument has been taken up in the petition against Amazon Prime Video’s Paatal Lok. Firstly, it has been argued that Section 67 of the Information Technology Act, 2000 has been violated for displaying anti-social, vulgar and violent content. Secondly, the web-series was challenged under the Indecent Representation of Women (Prohibition) Act, 1986 for explicitly showing a gang rape scene. Thirdly, the petition states that the show violates Section 153A and 298 of the Indian Penal Code, which deal punishments for promoting enmity on the basis of religion, race and language between different groups and for uttering words with an intent to hurt the religious sentiments of a person, respectively. Perhaps the most striking point of contention by the petitioner was that the argument of a person having the choice not to watch such a content is flawed and impractical and drew the likeness of this choice to be available to a person who visits a cinema hall to watch a movie, yet, that particular movie has to obtain certification from the CBFC while the same movie broadcasted on an OTT platform is devoid of such a requirement.

These issues also came up in the case of Justice for Rights Foundation v. Union of India,[v] wherein Justice for Rights Foundation, an NGO, filed a petition in the Delhi High Court arguing that OTT platforms like Hotstar, Netflix, etc… are unregulated and work without any form of censorship. The point was also placed before the Court that when cable and DTH operators air the same film or show, they have to censor and regulate what is shown but this is not the case with OTT platforms.

The matter went to the Supreme Court of India wherein the Court sent a notice to the government of India demanding an explanation on the reason for why there was no regulation on these platforms. The Ministry of Information and Broadcasting replied that there are enough provisions in the Information Technology Act, 2000 for dealing with content that transmit material in an obscene form (under Section 67 of the Act) or for dealing with content transmitting sexually explicit acts (under Section 67A of the Act). The Supreme Court agreed with this and held that there was no need of any regulatory law on the OTT platforms as there are enough safeguards in the IT Act, 2000 if any person is aggrieved with the form of content shown on such platforms (emphasis applied).

In the above case, the reasoning of the SC was that when there are already stringent provisions to deal with any objectionable content which a person thinks should not be broadcasted on an OTT platform, there is no special need for the court to formulate general laws to regulate such platforms. The IT Act, 2000 has sufficient provisions, covered under Sections 67, 67A, 67B and 67C of the Act. In a subsequent case filed by Congress lawyer Nikhil Bhalla, the Delhi High Court agreed with the view of the Apex Court expressed in the Justice for Rights Foundation case and dismissed the petition originally filed to censor certain dialogues allegedly depicting former Prime Minister, Rajeev Gandhi, in a negative manner and later amended to direct the court to frame guidelines for the regulation of OTT platforms.[vi]

In yet another recent case, the Delhi High Court refused to grant an interim injunction against the censorship of the Netflix show, Hasmukh. While it was alleged in the petition that a monologue in the show defames lawyers, the court noted it not to be true and in refusing to censor the Netflix show, held that the creative liberty of an artist is the essence of a democracy.[vii]

It is pertinent to be noted that apart from the IT Act, 2000, OTT platforms can be regulated under the Indian Penal Code (IPC), 1860. Section 295A of the IPC criminalizes acts intended to outrage religious feelings while Sections 499 and 500 of the IPC make dissemination of defamatory content a criminal offence. Further, as pleaded by the petitioner in the case for censoring Paatal Lok, OTT platforms can also be regulated under the Indecent Representation of Women (Prohibition) Act, 1986.

Self-Regulation – A Stepping Stone to Better Regulation?

Netflix, Hotstar, Sony LIV and other OTT platforms are conscious of the effect they would have if they continue to work unregulated. It is for this reason that these platforms have signed a self-censorship code – called the Code of Best Practices for online curated content providers, and released by the Internet and Mobile Association of India (IAMAI) – disallowing them from hosting such content to be shown which are banned by Indian courts, which outrage religious sentiments, which disrespect the national flag, which promote child pornography and those shows which incite terrorism or acts of violence against the State.[viii]

These are welcome measures and they do the job of both satisfying the demands of those who advocate for stricter control over OTT platforms as well as allowing for the freedom of speech and expression under Article 19(1) to be expressed in a free manner with only reasonable restrictions imposed on this right. However, not all OTT platforms openly welcome regulation. Amazon Prime, for example, has refused to become a signatory to the code and is against the introduction of any model law for regulation. According to Amazon, the existing laws in India are sufficient for dealing with any objectionable content.[ix]

On the 5th of February, 2020, IAMAI pushed another self-regulatory code, called the Tier 2 Code. However, the Code only had 5 signatories out of the 30 members of the Digital Entertainment Committee. Platforms such as Netflix, Hotstar, AltBalaji and Zee5 called for the code’s recall.[x] On March 3rd, 2020, the Central Government on the lead of Mr. Prakash Javadekar (Minister of Information and Broadcasting), gave the OTT platforms 100 days to change their policies such that they abide by the rules issued by the Digital Content Complaint Council (DCCC), set-up in February.[xi] Although the 100-day period is over and has passed without any comment from the government, these rules prescribe a form of censorship on the content aired by such platforms. There is thus, no doubt, why some platforms such as Amazon Prime have outrightly refused this sort of censorship and rejected the rules altogether.

Recently, on June 22nd, 2020, the Chief Minister of Bihar, Mr. Nitish Kumar, wrote to the Prime Minister of India demanding for the censorship of OTT platforms on the allegations that such platforms incite violence, promote crimes against children and women and exhibit inappropriate content. What is also requested by the Chief Minister is to bring these platforms under the purview of the Cinematograph Act, 1962.[xii] However, in light of the Minister of Electronics and Information Technology’s official statement that the government does not plan on censoring content on digital streaming platforms[xiii], the demand of the Bihar Chief Minister seems most likely to be rejected.

Conclusion

Thus, the question that arises is whether it is really necessary to regulate OTT platforms. The answer is that it does become necessary in some cases. However, such regulation shouldn’t be mechanical in nature but a careful and thoughtful understanding that there do exist economical and technical differences between an OTT platform and the traditional telecommunications services.

Self-regulation seems to be the only way for the time being to these platforms to be able to sustain the freedom to air content without unreasonable censorship and without giving in to government demands to ban content which the particular government only may find offensive. For example, Hotstar banned an episode on Last Week Tonight with John Oliver wherein the host of the show criticised the Indian Prime Minister and his government’s stance on the introduction of the Citizenship Amendment Act. Another example is that of Saudi Arabia’s removal of Hasan Minhaj’s episode of his show ‘Patriot Act’, in which he heavily criticised Saudi Arabia’s Crown Prince Mohammed Bin Salman.[xiv]

Yet, while restraining oneself is one of the most difficult tasks to do, if one is not able to regulate one’s own actions, then there would be no choice but for the government and the courts to step in and frame strict regulations and impose restrictions on the wide freedom of such platforms.

References

Case Laws:

  1. Gurdeepinder Singh Dhillon v. Union of India, CWP-8089-2020.
  2. Justice for Rights Foundation v. Union of India, WP(C) 11164/2018.
  3. Nikhil Bhalla v. Union of India, W.P. (C) No. 7123/2018.

Online Resources:

  1. Javier Pallero, Watch out: bad regulation of OTT services can risk your rights, AccessNow (May 11, 2017), https://www.accessnow.org/watch-bad-regulation-ott-services-can-risk-rights/.
  2. Sergei Klebnikov, Streaming Wars Continue: Here’s How Much Netflix, Amazon, Disney+ And Their Rivals Are Spending On New Content, Forbes (May 22, 2020), https://www.forbes.com/sites/sergeiklebnikov/2020/05/22/streaming-wars-continue-heres-how-much-netflix-amazon-disney-and-their-rivals-are-spending-on-new-content/#26c94cd7623b.
  3. BrandWagon Online, Amazon and Netflix witnessed more than 60% growth in subscriber base during lockdown: Velocity MR Study, Financial Express (May 20, 2020), https://www.financialexpress.com/brandwagon/amazon-and-netflix-witnessed-more-than-60-growth-in-subscriber-base-during-lockdown-velocity-mr-study/1965362/#:~:text=As%20per%20the%20study%2C%20Amazon,sample%20size%20of%203%2C000%20respondents.
  4. Meera Emmanuel, Legal notice sent to makers of Netflix show Hasmukh over “false, inauthentic, defamatory” content against the legal profession, Bar and Bench (Apr. 20, 2020), https://www.barandbench.com/news/legal-notice-sent-to-makers-of-netflix-show-hasmukh-over-false-inauthentic-defamatory-content-against-the-legal-profession.
  5. Divya Nayak, Netflix, Hotstar Join But Amazon Rejects: The Curious Case Of Self-Regulation in India, DazeInfo (Jan. 18, 2019), https://dazeinfo.com/2019/01/18/netflix-hotstar-amazon-self-regulation-india/.
  6. Nikhil Pahwa, IAMAI to seek a consensus position on Content Regulation from its Digital Entertainment committee, following a Governing Council meeting, Medianama (Mar. 31, 2020), https://www.medianama.com/2020/03/223-iamai-content-regulation-governing-council/.
  7. Aroon Deep, I&B Ministry gives OTT industry 100 days to create adjudicatory authority, Medianama (March 3, 2020), https://www.medianama.com/2020/03/223-ib-ministry-gives-ott-industry-100-days-to-create-adjudicatory-authority/.
  8. Meghna Mandavia, Netflix, Hotstar and others sign a self-censorship code, IndiaTimes (Jan. 18, 2019), https://tech.economictimes.indiatimes.com/news/internet/netflix-hotstar-and-others-sign-a-self-regulatory-code-of-best-practices/67570918.
  9. Devyani Madaik, ‘Vulgar Content Displayed’: Nitish Kumar Demands Censorship Of Streaming Services Like Netflix, Amazon Prime, The Logical Indian (Jun. 22, 2020), https://thelogicalindian.com/news/nitish-kumar-writes-to-pm-for-censorship-of-streaming-services-21838.
  10. Mohul Ghosh, Confirmed! Govt. Will Never Censor Netflix, Amazon Prime, Hotstar; But ‘Objectionable’ Content Will Be Removed, Trak (Nov. 30, 2019), https://trak.in/tags/business/2019/11/30/confirmed-govt-will-never-censor-netflix-amazon-prime-hotstar-but-objectionable-content-will-be-removed/.
  11. Prateek Waghre, Hotstar blocked John Oliver show even before Modi govt could ask. It’s a dangerous new trend, The Print (Feb. 27, 2020), https://theprint.in/opinion/hotstar-blocking-john-oliver-modi-is-self-censorship-india-cutting-out-middleman/372250/.

Footnotes:

[i] Gurdeepinder Singh Dhillon v. Union of India, CWP-8089-2020, https://www.medianama.com/wp-content/uploads/CWP_8089_2020_15_06_2020_INTERIM_ORDER.pdf.

[ii] Javier Pallero, Watch out: bad regulation of OTT services can risk your rights, AccessNow (May 11, 2017), https://www.accessnow.org/watch-bad-regulation-ott-services-can-risk-rights/.

[iii] Sergei Klebnikov, Streaming Wars Continue: Here’s How Much Netflix, Amazon, Disney+ And Their Rivals Are Spending On New Content, Forbes (May 22, 2020), https://www.forbes.com/sites/sergeiklebnikov/2020/05/22/streaming-wars-continue-heres-how-much-netflix-amazon-disney-and-their-rivals-are-spending-on-new-content/#26c94cd7623b.

[iv] BrandWagon Online, Amazon and Netflix witnessed more than 60% growth in subscriber base during lockdown: Velocity MR Study, Financial Express (May 20, 2020), https://www.financialexpress.com/brandwagon/amazon-and-netflix-witnessed-more-than-60-growth-in-subscriber-base-during-lockdown-velocity-mr-study/1965362/#:~:text=As%20per%20the%20study%2C%20Amazon,sample%20size%20of%203%2C000%20respondents.

[v] Justice for Rights Foundation v. Union of India, WP(C) 11164/2018.

[vi] Nikhil Bhalla v. Union of India, W.P. (C) No. 7123/2018.

[vii] Meera Emmanuel, Legal notice sent to makers of Netflix show Hasmukh over “false, inauthentic, defamatory” content against the legal profession, Bar and Bench (Apr. 20, 2020), https://www.barandbench.com/news/legal-notice-sent-to-makers-of-netflix-show-hasmukh-over-false-inauthentic-defamatory-content-against-the-legal-profession.

[viii] Meghna Mandavia, Netflix, Hotstar and others sign a self-censorship code, IndiaTimes (Jan. 18, 2019), https://tech.economictimes.indiatimes.com/news/internet/netflix-hotstar-and-others-sign-a-self-regulatory-code-of-best-practices/67570918.

[ix] Divya Nayak, Netflix, Hotstar Join But Amazon Rejects: The Curious Case Of Self-Regulation in India, DazeInfo (Jan. 18, 2019), https://dazeinfo.com/2019/01/18/netflix-hotstar-amazon-self-regulation-india/.

[x] Nikhil Pahwa, IAMAI to seek a consensus position on Content Regulation from its Digital Entertainment committee, following a Governing Council meeting, Medianama (Mar. 31, 2020), https://www.medianama.com/2020/03/223-iamai-content-regulation-governing-council/.

[xi] Aroon Deep, I&B Ministry gives OTT industry 100 days to create adjudicatory authority, Medianama (March 3, 2020), https://www.medianama.com/2020/03/223-ib-ministry-gives-ott-industry-100-days-to-create-adjudicatory-authority/.

[xii] Devyani Madaik, ‘Vulgar Content Displayed’: Nitish Kumar Demands Censorship Of Streaming Services Like Netflix, Amazon Prime, The Logical Indian (Jun. 22, 2020), https://thelogicalindian.com/news/nitish-kumar-writes-to-pm-for-censorship-of-streaming-services-21838.

[xiii] Mohul Ghosh, Confirmed! Govt. Will Never Censor Netflix, Amazon Prime, Hotstar; But ‘Objectionable’ Content Will Be Removed, Trak (Nov. 30, 2019), https://trak.in/tags/business/2019/11/30/confirmed-govt-will-never-censor-netflix-amazon-prime-hotstar-but-objectionable-content-will-be-removed/.

[xiv] Prateek Waghre, Hotstar blocked John Oliver show even before Modi govt could ask. It’s a dangerous new trend, The Print (Feb. 27, 2020), https://theprint.in/opinion/hotstar-blocking-john-oliver-modi-is-self-censorship-india-cutting-out-middleman/372250/.


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