SHOULD OTT PLATFORMS BE REGULATED?
We are living in the era of entertainment, especially having gone through a lockdown and theatres being shut, the internet has revolutionized entertainment, and there has been a final surge in Indians taking a new subscription of various content streaming services and has experienced a massive 30% growth in the number of paid subscribers, from 22.2 million to 29.0 million between March and July 2020 and the statistics are increasing. Moreover, we now have access to a wide variety of content at our fingertips with the rise of platforms like Netflix, Amazon Prime, Disney+ Hotstar, Voot, Zee Prime etc.
OTT platforms are streaming media services given directly to the viewers through the internet and have taken over the work done by television through cable, satellite etc. Unlike the contents provided by cinema or television where CBFC regulates them, BCCC etc., these OTT platforms have no regulatory body over them to control the contents that are being streamed except they are governed by the Ministry of Electronics and Information Technology (Meity) and Information Technology Act, 2000, like any other online content. These platforms only have specific self-regulation/censorship standards of their own, like Netflix has self-imposed maturity ratings, thereby enjoying their freedom to publish the contents per their whims and fancies.
As much as OTT platforms enjoy their freedom to produce and stream content per their whips and fancies, these OTT platforms have had their fair share of controversies in Netflix’s The Suitable Boy, Amazon Prime’s Taandav, ALT Balaji’s XXX. All this has led to the debate on whether censorship and regulation of OTT platforms have become a necessity now, and how far is the curtailment of entertainment forms be justified?
IS CENSORSHIP REQUIRED?
As against TV channels contents and cinemas, OTT platforms have for now greater creative freedom as there is zero regulation over it. However, after the Cabinet Minister, Piyush Goyal, asked to self-regulate their OTT platforms claiming that they may portray Indian society poorly, 15 platforms signed a self-regulation code, framed under the aegis of the Internet and Mobile Association of India (IAMAI), to govern their streaming contents. This would be done by detailed content descriptions and specifying maturity ratings. The platforms did so to keep censorship at bay. Later on, the IAMAI committee came out with the 'implementation code.' However, since it did have an exhaustive list of prohibited content and there were no satisfactory redressal mechanisms, the code was decided to be set aside by the Ministry of Information and Broadcasting (MIB).
In November 2020, after hearing a petition (Shashank Shekhar Jha v. Union of India) to regulate OTT platforms, the Supreme Court issued a Notice to IAMAI and the Centre, after which a notification was released stating that all Online Curated Content Providers including OTT platforms come under the ambit of the Ministry of Information and Broadcast (MIB) instead of Meity and in that way, there would be a change the administrative authority. A shift to a more ministering MIB would be a prelude to the Government to frame out regulations and bring out a list of prohibited content. The Government has also issued guidelines called Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which specifies a three-tier regulatory mechanism for Digital News Media prevalent in social media and YouTube and OTT platforms. These guidelines issued by the Government concerning OTT platforms makes it mandatory to comply with the laws of India and not stream content that goes against the integrity and sovereignty of India and also ensuring the security of the country and friendly relations with foreign countries and not streams content which tends to disturb public order. These OTT platforms also have been cautious of various racial and religious beliefs and practices.
According to the guidelines, they need to set up a three-tier redressal mechanism whereby,
The first tier will be a grievance redressal mechanism set by the platforms themselves.
Being a self-regulatory body, the second tier should be headed by a retired Supreme Court or High Court Judge or any other eminent person.
The third tier will be an inter-ministerial committee (IMC) set up by the Government as an 'oversight mechanism.'
The platforms also have to provide age ratings such as’ U’ or universal rating and others as per age groups.
There has been a spiking growth of these platforms at a breakneck speed with the entry of new players in the OTT arena, backed by substantial content investments which run into millions and millions by the likes of Amazon Prime, Hotstar, Voot, Netflix, Alt Balaji among others.
According to the PwC report, India is currently the fastest-growing market for OTT content, growing at a Compound Annual Growth Rate (CAGR) of 28.6%, and is projected to become the sixth-largest OTT market revenue touching $2.9 billion by 2024. While censorship came into question recently due to a few controversial web series and movies streamed on the OTT platform, filmmakers have raised a further question on the freedom of creativity.
HOW IS ONLINE CONTENT BEING REGULATED OUTSIDE INDIA
The British Broadcasting Corporation in September 2018 called out the UK Government for not regulating the OTT platforms, after which even though there were not any direct regulations over these platforms, the British Board of Film Certification announced that they would be partnering with Netflix and in this partnership, the board will help to allow Netflix to set their ratings for all the contents that are available on their platform.
The UK Government has also issued legislation enforcing the EU Electronic Communications Code (EECC) standards in the UK in 2020, where under the Brexit transitional framework, the UK is required to adopt the EECC.
Even though there are no strict regulations that regulate these OTT platforms, the UK Government is said to be working on them.
In Singapore, the content regulation on OTT platforms is quite direct as the regulatory body for media. In 2018, Infocomm Media Development Authority (IMDA) issued guidelines that regulated the OTT platforms, and according to these guidelines, the OTT platform will have to rate the content available on these platforms the same way offline movies are rated. This guideline has specific instructions for content that are available for viewers above 16 and 21.
In cases of content to be made available for the viewers above 16 years, the platform has to make sure parental lock function has been provided for by them, and in cases of content made available only for viewers above the age 21, it should have a proper procedure in place to unlock such content after age verification, which is otherwise at all other times locked. The regulatory body has also made sure to inform these OTT platforms that excluding this guideline prescribed for them also has to adhere to the already prevailing laws of the country.
A few other countries that have put up regulations on the OTT platforms directly or have other local laws to regulate them and include:
OTT: REGULATION OR CENSORSHIP?
OTT platforms surely need regulations, if the platforms get regulated by an external body formed under MIB Ministry, it may lead to self-censorship, but censorship otherwise would seem to be an extreme measure. Either self-regulation or regulation by another body could mean ensuring that no content is made unlawful, disrespecting the national flag and emblem, promoting and encouraging disrespect to the nation's sovereignty and integrity of the nation or promotes terrorism and shows children in sexual acts. On the other hand, censorship means where politically sensitive content, abuse, and nudity are blurred or removed, either voluntarily or under external pressure.
If the platforms get regulated by an external body formed under MIB Ministry, it may lead to self-censorship and curb creative freedom. Freedom of expression cannot be suppressed because of the threat of demonstration and processions or threats of violence. The state must guard the liberty of expression since it is a liberty guaranteed against the state, and the state cannot plead its inability to handle the hostile audience problem.
Therefore, we can say that the only acceptable form of regulation is self-regulation, which would include providing age rating and informing the viewer if the content has any nudity, strong language, violence or any other feature; it should be left to the viewer to decide whether they want to watch it or not. Parental controls should also be added to protect children from consuming age-inappropriate content.
Even after the Government issuing the current guidelines for the regulation of the OTT platforms, the Honourable Supreme Court has ordered a stay on all petitions concerning OTT regulations. Therefore, we still have to wait to see how these guidelines will be implemented. They will undoubtedly affect the type of content streamed on the platforms, and the redressal mechanism formulated should surely help address the grievances of the public without the involvement of the courts.
4th year, BA LL. B
Government Law College,