By Author: Parishi Jain, 2nd year student at SVKM’s Pravin Gandhi College of Law.
Looking back at the year when the ministry-initiated changes like bringing Over-the-top under its ambit!
As OTT platforms formalise Self-Regulation code, India brings censorship one step closer
Laws for self-regulation of news, Over-the-top platforms on anvil
For the past few days articles under such headlines have been stocking up on our feeds. As Gen. Z members you may not have given much thought to it but in reality, this problem is much bigger than what meets our eyes and well, I mean it literally.
On November 9, 2020, Notification S.O. 4040(E) was issued by Government of India which can potentially modify the content that we watch on our beloved Netflix, Prime, Hotstar etc. The President exercising his powers conferred under Article 77(3) of the Constitution amended the Government of India (Allocation of Business) Rules, 1961 and brought –
‘Films and Audio-Visual programmes made available by online content providers’
‘News and current affairs content on online platform’,
under the purview of Ministry of Information and Broadcasting (MI&B). In simpler terms this means that the immunity from regulations that the OTT platforms were enjoying till now ‘could be’ snatched away.
Firstly, to understand what Over-the-top or OTT services mean, they are nothing but a means of providing television and film content via the internet at the request of individual consumers. The Canadian Radio-Television and Telecommunications Commission (CRTC) has noted that –
‘An internet access to programming independent of a facility or network dedicated to its delivery (via, for example, cable or satellite) is the defining feature of what have been termed ‘over-the-top’ services.’
Based on the kind of services that they provide, there are basic three types of OTT platforms/applications –
Messaging and Voice service – Communication services
Application eco-systems – mainly non-real time linked to social networking apps/websites, e-commerce etc.
Video/Audio Content
India alone boasts an OTT market worth over Rs. 3000 crores with around 40 million active customers. Such popularity of OTT platforms in India poses a great threat to the Telcom Service Providers such that in November, 2018 the Telecom Regulatory Authority of India (TRAI) published a ‘Consultation Paper.’ This Paper talked about the implications and growth of OTT services and any reforms that may be needed in order to regulate it, in the future.
Till date we had the Cinematograph Act, 1952 regulating the Cinema and the Cable TV Networks (Regulation) Act, 1995 looking after television programs; but we did not have any explicit set of rules for the OTT platforms. Though in August, 2019 a PIL was filed in the Karnataka High Court challenging ‘transmission or broadcast of any films, cinema, serials and other multimedia content through the internet’ shall come within the purview of the Cinematograph Act; The Court was clear in its position and ruled against it. Then in the Delhi High Court, another PIL was filed by Justice for Rights Foundation praying for an order to the Central government to frame guidelines in order to regulate OTT platforms and the content broadcasted on them. Alternatively, the Hon’ble Court ruled against it while establishing the capacity of the IT Act in regulating these platforms.
In contrast to this however, there has been a change in this trend. Over the past two years, there has been a spike in the number of FIRs, lawsuits etc. being filed against the content released on online streaming platforms such as Netflix, Prime, Hotstar, Altbalaji, Zee5 and more. This includes the cases against Tandav, Mirzapur, Patal Lok, Bombay Begums, Sacred Games, Bad Boy Billionaires etc. Furthermore, it is pertinent to note that the opinion of the Courts especially the Supreme Court has changed drastically. While hearing a plea filed by advocates Shashank Shekhar Jha and Apurva Arhatia, the Supreme Court bench headed by Chief Justice S A Bobde, Justice A S Bopanna and Justice V Ramasumbramanian issued notices to the Central government, Ministry of Information and Broadcasting and Internet and Mobile Association of India (IAMAI) seeking response on regulation of OTT platforms.
In another case of Allahbad High Court, while hearing on Amazon Prime Video’s India Head Aparna Purohit over the ‘Tandav’ case, observed that –
‘A balance has to be struck as some Over-the-top platforms are also showing pornographic materials on their platforms.’
However, now since the technological side is brought under the Ministry of Electronics and Information Technology (MeitY) and the content portion under the Ministry of Information and Broadcast, the government is empowered to make legislation for regulation of OTT.The ‘Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’ has already been announced by the MeitY and according to Mr. Prakash Javadekar, Minister for Information and Broadcasting, the regulation code for the content portion of OTT is underway.
This statement by Mr. Javedkar comes after the 17 major OTT platforms along with IAMAI released a Toolkit on February 11, 2021 for effectively implementing the 2020 Self-Regulation Code. The code includes a grievance redresser system, classification of content for age appropriate audience and on the basis of the theme of the show as well as parental control. But, this isn’t the first instance where OTT platforms have released such self-regulation codes. At least two other sets of such guidelines have been released but at every instance it faced criticism by the MI&B.
At present there are about 40 providers of OTT services in India, and if the MI&B releases any stringent regulation or anything like the Cinematograph Act of 1952 then the business prospect of all of these 40 providers would be severely affected. More so it would curb the creative and artistic liberty of the artists who use this platform.
There are several arguments against the censorship of OTT platforms in the manner the films are censored. Firstly, it is a device and subscription platform that makes content available as per the request of the users who pay and select what to watch. Secondly, many filmmakers who fear piracy opt for OTT. Then there’s the part where a large numbers of artists who do not have the means, such as monetary means, to portray their creative potentials through the mainstream methods, find their breakthrough via OTT.
There’s no denying that OTT platforms are fearless in their approach of the theme and factors such as political interference did not bother them until now. Their portrayal of a range of socio-political narratives and plots is bold and this feature due to one reason or another is absent from mainstream cinema. OTT is a worthy pedestal to build gripping plots. Furthermore, OTT platforms are relatively affordable, convenient; provide material produced in native language that deals with regional content and they give the feature of a free-trial period to the users.
Despite all of this, the move for regulation of this platform is supported by Indians. According to a November, 2020 survey by YouGov (a global public opinion and data company) 64% of urban Indians strongly or partially support the government’s decision of bringing digital content, which includes web series, films and online news under the ambit of MI&B.
The OTT viewership in India is growing exponentially and hence, raises the need to regulate the content that is displayed on these over-the-top platforms. However, one must not forget that the foremost importance should be given to protecting the freedom of speech and expression of the artists and not on curbing it. This freedom of speech and expression, which is constitutionally protected and is enumerated under article 19 (1) (a) of the Constitution, is a fundamental right and as Ai Weiwei had said –
‘Without freedom of speech there is no modern world, just a barbaric one.’
REFERENCES
1. Article 19 (1) (a) – All citizens shall have the right to freedom of speech and expression.
2. Article 77 (3) – The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
3. Government of India Notification S.O. 4040(E) released on November 9, 2020 www.egazette.nic.in/WriteReadData/2020/223032.pdf.
4. Padmanabh Shankar v. Union of India Writ Petition No. 6050 of 2019 (C) PIL.
5. What does OTT really mean? www.telestream.net/video/solutions/what-is-ott.htm.
6. Deepa Bhatia, Nearly Two-Thirds of Urban Indians favour the Government’s Decision to Regulate Digital Content, YouGov ( Nov. 25,2020) https://in.yougov.com/en-hi/news/2020/11/25/nearly-two-thirds-urban-indians-favour-governments/.
7. Supreme Court Issues Notice to Centre on PIL to Regulate OTT Platforms, Hindustan Times (Oct. 15, 2020) www.hindustantimes.com/india-news/supreme-court-issues-notice-to-centre-on-pil-to-regulate-ott-platforms/story-iOJ2Xkf8LLcf6tSnPIQWWM.html.
8. Some OTT Platforms Showing Pornographic Content, Observes Supreme Court, Hindustan Times (Mar. 04, 2021) www.hindustantimes.com/india-news/some-ott-platforms-showing-pornographic-content-observes-supreme-court-101614846695726.html.
9. Ashima Obhan and Akaksha Dua, Regulating the Unregulated: Stories of OTT Platforms in India, Mondaq (Sep. 26, 2019), www.mondaq.com/india/broadcasting-film-tv-radio/848724/regulating-the-unregulated-stories-of-ott-platforms-in-india.
10. Results of the Fact-Finding Exercise on the Over-The-Top Programming Services, Convergence Policy, Policy development and Research, Canadian radio-Television and Telecommunications Commission, Government of Canada (Jun. 03, 2017), www.crtc.gc.ca/eng/publications/reports/rp1110.htm#ftn2.
11. Javed Farooqui, 2020: MIB’s Regulatory Interventions & their Impact on Media, Exchange4Media (Jan. 08, 2021), www.exchange4media.com/media-others-news/2020-mibs-regulatory-interventions-their-impact-on-media-110102.html.
12. Lata Jha, Government Sets Out Regulations for Digital media, OTT Platforms, Mint (Feb. 25, 2021), www.livemint.com/news/india/government-sets-out-regulations-for-digital-media-ott-platforms-11614254583608.html.
13. Amit Raja Naik, As OTT Platforms Formalise Self Regulation Code, India Brings Censorship One Step Closer, Buzzfeed (Feb. 11, 2021), www.inc42.com/buzz/india-takes-multiple-ott-cases-to-sc-are-censorship-rules-coming-soon.
14. Shishir Gupta, Laws for Self-Regulation of News, OTT Platforms on Anvil, Hindustan Times (Jan. 17, 2021), www.hindustantimes.com/india-news/laws-for-self-regulation-of-news-ott-platforms-on-anvil-101610835914795.html.
15. 17 Major OTT Players Adopt Toolkit for Regulation, The Hindu (Feb. 11, 2021), www.thehindu.com/business/Industry/netflix-disney-hotstar-amazon-prime-video-and-14-other-ott-players-adopt-toolkit-for-regulation/article33814432.ece.
