[This Explainer has been authored by Harsh Jain and Sankalp Jain of the NALSAR Tech Law Forum Blog.]
The over-the-top (‘OTT’) industry in India has been growing exponentially–faster than anywhere else in the world–and pegged to reach a size of $5 billion by the year 2023. With an increase in internet penetration, coverage and speed, the consumption of content available on OTT streaming services is at an all-time high. This has not only increased the accessibility to titles old and new, but has also created a new avenue for content-creation on diverse themes. As the pandemic led to the closure of movie theatres and other forms of public entertainment, OTT platforms have been growing in India along with the rest of the world.
While the OTT industry in India till has been largely unregulated till now, content hosted and created by OTT platforms has lately come under fire from political/cultural groups as well the government itself. Due to this vacuum, some providers adopted self-censorship practices while some did not.
In this piece, we explain how traditional forms of media are regulated in India and discuss the shifting stances of the government when it comes to regulating content on OTT platforms and the responses to the same by the OTT industry. Crucially, we also shed light on the position that various courts have taken while dealing with petitions to regulate content on OTT platforms. Lastly, we highlight how other countries all over the world have attempted to regulate content on OTT platforms and whether India can learn from their experiences.
Current Regulatory Framework for Media in India
Currently in India, content on OTT platforms is largely regulated by provisions of the Information Technology Act, 2000 (‘IT Act’), Indian Penal Code, 1860, and special legislations like the Indecent Representation of Women (Prohibition) Act, 1986, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Emblems and Names (Prevention of Improper Use) Act, 1950, etc. For example, OTT service providers must ensure that the content on their platform is in compliance with Sections 67A, 67B and 67C of the IT Act. These sections provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts in electronic form. The same was affirmed by the Delhi High Court in Justice for Rights Foundation v. Union of India.
There exists no legislation specific to the OTT industry unlike the television and the cinema industry. Television broadcasting in India is regulated by the Cable Networks Television (Regulation) Act, 1995 and the rules laid down under it. The 1994 Rules lay down a Programme Code (‘Code’) which regulates the content on TV. According to the Code, no programme can be transmitted through a cable service which offends against good taste or decency; contains anything obscene, defamatory, deliberate false and suggestive innuendos and half-truths; encourages superstition or blind belief; is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti-national attitudes; etc. If any authorised officer (which includes the District Magistrate, the Commissioner of Police, etc.) discovers that the provisions of the Code have been violated, the officer has the power to seize the equipment of the offending cable operator.
The public exhibition of films in India is regulated by the Cinematograph Act, 1952 and the rules under it. Under the Act, any person who wishes to exhibit their film must get it certified by the Central Board for Film Certification (‘Board’). The Board can either certify the films under 4 categories, withhold certification until modifications to the film are undertaken or deny certification altogether. The Board is supposed to be guided by principles such as friendly relations with other states, public order, decency and morality, etc. while making its decision.
The OTT Industry and Shifting Government Stances
Lately, there has been a tug-of-war between the government and OTT platforms in India, who have been negotiating with the government under the aegis of the Internet and Mobile Association of India (‘IAMAI’). Initially, the government signaled favouring self-regulation of the OTT industry. In fact, it gave OTT platforms a period of 100 days to formulate a self-regulatory code in March 2020. However, despite several attempts at drafting codes by the IAMAI (find the January 2019 code here, the February 2020 code here, and the September 2020 code here), none seem to have found much favour with the government. While declining to support the latest code, the Ministry of Information and Broadcasting (‘MIB’) said that it does not classify prohibited content, does not specify a clearly defined code of ethics and has no third party monitoring. Nevertheless, after its latest code failed to impress the government, the IAMAI resolved to come out with another “implementation code” for OTT platforms.
In November 2020, the Cabinet Secretariat issued a notification bringing the OTT industry (along with the digital news industry), which was under MeitY’s jurisdiction earlier, within the purview of the MIB. This marked a significant shift in MIB’s jurisdiction which earlier only included traditional forms of media such as cinema, radio, etc. and not digital media. While the MIB cannot regulate OTT platforms without bringing a specific law in place for the same, the move has sparked censorship concerns. However, some have said that the OTT industry coming under the purview of the MIB is not a cause for worry in itself. At worst, it is a precursor for arbitrary restrictions being placed on the kind of content that can be available on OTT platforms in the future. Interestingly, the government said in the Parliament that there was ‘no plan’ to bring a law to regulate the OTT industry just a couple of months prior to the move.
Role of the Judiciary
In the absence of any specific framework for content regulation on OTT platforms, courts have by and large resisted attempts by different individuals and groups to bring about regulation of the OTT industry through the judicial route. One of the earliest cases asking for interference by the courts with respect to OTT platforms was Nikhil Bhalla v. Union of India, which was heard by Delhi High Court in 2018. It concerned censoring certain scenes/dialogues in the Netflix series ‘Sacred Games’. The Court took a liberal and expansive view and dismissed the petition saying it doesn’t want to curtail anybody’s rights. In fact, this was one of a few notable instances where the government itself argued against censorship (Justice for Rights Foundation v. Union of India being another such instance). Another case calling for the censorship of a web-series for calling lawyers ‘thieves’ was also dismissed by the Delhi High Court.
Other High Courts such as the Calcutta High Court and the Allahabad High Court have also dismissed petitions that demand regulation/censorship of content on OTT platforms. Given the lack of a specific law governing content on OTT platforms, a division bench of the Karnataka High Court ruled out the applicability of the Cinematograph Act, 1952 to media available on OTT platforms. In all these cases, the courts have deferred to the authority of the government to bring about any changes to the status quo.
Countries across the world are grappling with how content on OTT platforms can be effectively regulated. In Australia, the OTT sector is governed by the Broadcasting Services Act, 1992 (‘BSA’) and is regulated through a complaints-based mechanism. Content on OTT platforms is certified according to existing categories. Australian residents can register complaints about offensive or illegal online content. Valid complaints are then investigated by the Australian Communications and Media Authority (‘ACMA’) and action is taken on content determined to be ‘prohibited content’ or ‘potential prohibited’ content. It is a similar picture in the case of Singapore, where the categories are enumerated in its content code for OTT services. Singapore goes one step further by allowing OTT platforms to offer certain categories of content only if they provide for a built-in parental lock/age verification system.
While the Australian Classification Board had been responsible for classifying both online as well as offline content so far, Netflix can now assess content and generate a rating on its own following a two-year trial period. Even in the United Kingdom, Netflix has been allowed by the British Board of Film Classification (‘BBFC’) to classify its own material and then use the official British age rating symbols on all of its content. It reached a 100% coverage recently which means all of its content displays the BBFC ratings.
The nature of OTT streaming is significantly different from traditional broadcasting. Given that OTT streaming operates on a “pull” basis (where consumers can themselves search for a show), the mode of regulation must be different than in the case of the traditional “push” system (where consumers watch a show because that’s when it’s shown). Such a change calls for respecting the consumer’s choice in the kind of content they wish to consume, which necessarily entails divergence from how traditional media is regulated. While the role of the State has been paternalistic in dictating what should and should not be allowed for consumption by the masses, there needs to be more reflection on whether the State should continue to adopt such an attitude in today’s day and age. In this regard, it is to be hoped that the State takes into account the changing nature of the industry as it prepares a code for OTT platforms.