This post has been authored by Gaurav Kumar, a 3rd year student at Dr. Ram Manhar Lohiya National Law University (RMLNLU), Lucknow. He is also a Contributing Editor at the RMLNLU Arbitration Law Blog.
The media industry in recent times is witnessing a revolution when it comes to censorship of streaming content. As compared to theatres it has become comparatively much easier for the web industry to dodge any moral scrutiny when releasing its work. While the release of the Narendra Modi biopic during the 2019 Lok Sabha Elections caused significant controversy, a web series on the same subject was allowed to air without any issues, though it was later removed by the Election Commission for having violated the Model Code of Conduct.
There have been many instances where the content of a web series has been objected to for promoting vulgarity, violence and attacking political and religious sentiments. The Delhi HC recently witnessed a PIL filed by an NGO called Justice for Rights Foundation seeking framing of guidelines to regulate the functioning of online media streaming platforms such as Netflix, Amazon and others alleging that they show unregulated, uncertified, and inappropriate content. However, the current situation indicates that content produced by such platforms continues to be outside the purview of censorship laws, thereby requiring a regulatory mechanism to balance out the conflicting views of the government, attempting to play a watchkeeping role and the advocates of creative and artistic freedom.
What are OTT platforms?
“Over-the-top (OTT)” is the buzz-word for services carried over networks that deliver value to customers without the involvement of a carrier service provider in the planning, selling, provisioning and servicing aspects. Essentially, the term refers to providing content over the internet unlike traditional media such as radio and cable TV.
The entertainment industry in recent times has gradually moved towards releasing content on streaming platforms such as Netflix and Amazon Prime. This is due to consumer preferences as expressed in a survey report by Mint and YouGov, which reveals millennials’ preference for online streaming as against cable TV. Another finding by Velocity MR expects the audience movement to reach 80% following the implementation of the new tariff regime for pay-television by TRAI, and the positive responses to series like Sacred Games and Mirzapur from critics and audience shows that quality of content is the key factor influencing the move to streaming services.
Considering its increasing popularity it becomes important to understand OTT with an Indian perspective. In 2015, amid the burning debates of net neutrality, TRAI floated a Consultation Paper On Regulatory Framework for Over-the-top (OTT) services to “analyze the implications of the growth of OTTs”. In this paper it defined the term “OTT provider” as a “service provider which offers Information and Communication Technology (ICT) services but does not operate a network or lease capacity from a network operator.”. Instead, such providers rely on global internet and access network speeds ( to reach the user, thereby going “over-the-top” of a service provider’s network. Based on the kind of service they provide, there are three types of OTT apps:
- Messaging and voice services;
- Application ecosystems, linked to social networks, e-commerce; and
- Video/audio content.
In November, 2018, TRAI came out with another consultation paper considering a “significant increase in adoption and usage” since its last paper. In order to bring clarity with regard to the understanding of OTT, chapter 2 of this Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services discussed the definitions adopted for OTT in various jurisdictions. However, it failed to formulate a definition due to the lack of consensus at the global level. Moreover, the earlier definition of the 2015-Consultation paper, which has been reiterated in 2018, also appears to lose context because it was more oriented towards the telecom service providers.
TRAI’s approach while discussing OTT services has been to restrict itself to the telecom industry so as to address their complaints regarding interference by OTT services in the domain traditionally reserved for telecom service providers. Even though it includes “video content” as its third category, a lack of clarity for defining web series within the ambit of OTT in India is evident which explains the absence of a regulatory mechanism for the same.
Differences between OTT platforms and conventional media
Conventional media vests the broadcaster with the discretion to air particular content. The viewer in this case involves all age groups and classes who have no control over the content being broadcasted, as a result of which governmental authorities are in charge of determining whether particular content is suitable for being shown to the public. However, the emergence of streaming has enabled a switch to a more personalized platform that caters to individual consumers enabling them to decide for themselves own what they wish to watch, which completely removes the role of government discretion and intervention.
Although there exist rules and restrictions to regulate pay-television operators, they fail to put any checks and balances on the newly emerged online streaming platforms for the significant differences in their structure and technology. The individualized viewing experience that has come up with the OTT media channels has clearly reduced the amount of surveillance, any existing regulatory bodies could have, over these platforms.
Can OTT platforms be regulated using existing laws?
The censorship of films in India is governed by the Cinematograph Act of 1952, which lays down certain categories in order to certify the films which are to be exhibited. Cable Broadcast is governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994. The Cable TV rules explicitly lays down the program and advertising codes that need to be followed in every broadcast.
Although it can be argued that that online streaming of content can be treated like cable broadcast, this would fail to comply with the legal test when it comes to application of the statute to streaming platforms. Certification for cable television does not require a separate mechanism but rather is done by the Central Board of Film Certification itself, and the cable TV rules restrict any program from being carried over cable if it is in contravention of the provisions – specifically Rule 6(n) of the Cable TV Rules – of the Cinematograph Act.
The problem here arises when defining the category within which web series will fall under the existing laws. Under the Cable TV Act, cable service means “the transmission by cables of programs including re-transmission by cables of any broadcast television signals.” Cable television network is defined as “any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers.” However, the mode of transmission for OTT platforms is substantially different insofar as the content travels through Internet service providers which are difficult to regulate given their expanding nature. This makes the existing broadcasting laws inapplicable to OTT services.
The future of the OTT market
Censorship has always prevailed in the Indian television and cinema industry. Despite accusation of moral policing the CBFC has continued to censor moves to bring them in line with its understanding of public morality. This involves issues of free speech and expression which has seen the courts get involved in these matters, adjudicating upon directions issued by the CBFC in various instances.
TRAI is presently assessing a consultation process to construct a framework to regulate online video streaming platforms like Netflix, Amazon Prime and Hotstar, etc. on requests made by some of the stakeholders of the film industry. Some major tycoons of the industry such as Netflix, Hotstar, Jio, Voot, Zee5, Arre, SonyLIV, ALT Balaji and Eros Now signed a self-censorship code that prohibits the over-the top (OTT) online video platforms from showing certain kinds of content and sets up a redressal mechanism for customer complaints. However, Amazon declined to sign this code, along with Facebook and Google, stating that the current rules are adequate.
Considering the fact that the OTT media industry is increasing rapidly, sooner or later it will require a regulatory body. Portals like Netflix are not even India-run, which furthers the socio-political pressure to scrutinize western content on the government. Moreover, the spread of this industry to the vulnerable group will always remain a concern. Another problem that might come up with time could be of regulating the prices of the services as seen recently with the Cable TV. This may, in fact, lead to conflicts between this emerging online streaming industry and the pre-existing cable TV industry. The courts are already being approached, against the violent and obscene content of some of the series, indicating the need of immediate attention of the legislature to take appropriate steps. The OTT-boom in the Indian entertainment market has certainly revolutionized the viewing experience but it has posed many questions and loopholes that need to be addressed in the near future.
 Section 2(b), Cable Television Networks (Regulation) Act, 1995.
 Section 2(c), Cable Television Networks (Regulation) Act, 1995.