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Regulation of OTT platforms: An analysis

While films in India require undergoing the strict scrutiny of Central Board of Film Certification, OTT video platforms are free to stream content of all sorts, even the content that did not get a pass from CBFC with no form of legal regulation. It is important to have a regulatory mechanism in place to ensure that things the courts and law has are not displayed and promoted; it is also a sine qua non to preserve the creative expression of these mediums free from any government censorship. The government in March 2020 had given 100 days to OTT platforms to come up with a self-regulatory code, yet the effectiveness of self-regulation is a point of debate. Therefore, the purpose of the article is to discuss the need of having a regulation of OTT platforms in the first place, for instance, under statutory provisions given in IPC and IT Act 2000. Further to analyse the effectiveness of self-regulation code as prescribed by the Government. Lastly, to come up with a suitable recommendation by observing the practices followed by other countries that balance regulation and expression, both.


INTRODUCTION

In India, more and more people are depending on OTT video platforms like amazon prime, Netflix etc for their daily dose of entertainment. However, the question remains if these platforms are a safe space for their viewers, especially for the adolescent minds. The content, which is displayed on television and theatres, undergo the stringent eye of authority like the Central Board of Film Certification (CBFC). However, when it comes to video streaming platforms, there is even an absence of self-regulatory code, giving the unbound freedom to capitalise by displaying content like nudity, violence, etc. It is also observed that it is discriminatory against the content producers who have to mandatorily meet the regulations prescribed under Cinematograph Act 1952 and Cable television network regulation Act 1995 even after being involved in the similar work.

LAWS THAT GOVERN THE CONTENT ONLINE

In February 2019, a public interest litigation was filed by an organization called Justice for Rights Foundation before the honorable Delhi High court. In which the organisation demanded for separate guidelines that will regulate the content streamed by OTT video platforms, which is involved in displaying sexually explicit content hampering the cultural and social fabric of the society for instance nudity displayed in sacred games and game of thrones. The court while dismissing the petition observed that there is no requirement for specific guidelines since the said content already comes under the ambit of IT act 2000, the Court reiterated its stand in the case of Nikhil Bhalla vs. Union of India & Ors, Delhi High Court in the year 2019[i][ii]


Provisions of IT ACT 2000

As per the section 67 and 67 A, 67 B of the IT act, circulation of obscene content, or material containing sexually explicit act, or material depicting children in sexually explicit act is a punishable offence. Additionally, the government can restrict any such objectionable content’s public dissemination under section 69 of the IT act.[iii]


There have been claims by Right-wing political groups in India that a web series streamed by Netflix ‘Leila’ showed the Hindu culture in a bad light and has outraged the religious sentiments of the community. Such similar content can be restricted and punished under Indian penal code provisions- section 295A, it criminalizes purposeful and malicious acts intended at outraging religious feelings.[iv]

SELF-REGULATION: A MYTH?

The Telecom Regulatory Authority of India (TRAI) in 2018 circulated a consultation paper on the regulatory framework for video streaming platforms. Thereafter, there has been the constitution of two committees for giving recommendations on regulatory options for the content.[v] Fearing the government restriction and censorship on the creative expression, the eight major platforms went on to adopt a self-regulatory framework to lessen the dissemination of objectionable content. The terms of the self-regulation code majorly revolved around restricting content which disrespects the national emblem and national flag, content that displays or promotes child pornography of any kind, or content that maliciously and deliberately tries to hurt the religious sentiment or sentiment of any class or group or section of society. Further, any kind of content which deliberately and maliciously promotes terrorism, lastly displaying of content banned by court and law.[vi]


The code was also inclusive of creation of a consumer grievances redressal body which will be responsible for addressing any query of the consumer about the display of content within 30 days. But later on four of the platforms vis. JIO, Eros, Hotstar, Sony LIV went on sign up for an independent adjuratory body called Digital Content Complaint Council (DCCC), which will comprise retired judges and government officers. Fearing government intervention remaining four stalwarts of the video streaming industry has refrained itself from participating in the same given the fact that the code was originally drafted to maintain the interest of the consumer as well as the creative freedom and expression without any form of government intervention[vii]


Major success of OTT video platforms of In India was attributed to the diversity of the content portrayed in a very realistic and dynamic manner in which traditional media platforms were unable to pull off. Self-regulation to a large extent meets its purpose; as the consumers are provided with options and discretion to choose from a variety of content as opposed to the linear display of content in the traditional media. Further, OTT video streaming is a booming area which allows consumers to watch content from any geographic and cultural location, moving towards any such policy which allows government intervention can discourage foreign creators and distributors to bring quality content to the Indian viewers. [viii]


Regardless of which there exists the concerns of the effectiveness of the self-regulatory framework, since it is self-regulatory, a platform in absence of any penalties and consumer redressal continue to display content as per their whims and fancies[ix]. Further self-regulation allows different platforms to interpret it in their manner- absence of clarity can hamper the interest of the creators, for instance, a creator can display certain content with fewer cuts on the platform while the maximum number of cuts on the other one. [x]


RECOMMENDATIONS

a) Model of other countries

There have been countries which have introduced a regulatory mechanism to govern the streaming of content by video platforms. The regulatory framework can be divided into three heads- the first being in the lines of self-regulation aimed at bridging the gap between online and offline media players, the second being state censorship and the third being- a convergence of the two.


1) The example of countries that fall into the first category could be Australia and turkey. Australian regulatory framework is based on dividing the content according to age-wise and allowing a consumer redressal system. While, in Turkey OTT platforms are required to take a license wherein they are required to share their programme catalogue as well.

2) The second category includes countries like Saudi Arabia and Kenya which exercises power to regulate and censor the content. Often leading to the removal of any form of critics of government and compromising the creative freedom of the creator

3) The third kind of countries include Singapore and the UK wherein the video streaming platforms can be allowed to rate content as per their wish but to not display a certain kind of content such as to maintain the minimum standards of safety for their citizens. [xi]

b) Ideas for the Indian Model of regulation

The best model in the case of Indian context could be a convergence model wherein a uniform legislation is brought upon for all the media players in the country either online or offline with certain miniums regulations are set with the consensus of all the interest holders to restrict content that promotes child pornography, terrorism, disrespect to national emblems and anthem. Further all the existing restrictions listed under Article 19(2) of the constitution, IT Act 2000 and IPC 1860 with provisions of POCSO shall be applicable, and the violation of the same appropriate penalties shall be listed. In addition to this the video streaming platforms shall be given the opportunity to classify the content according to the viewership of universal, PA or restricted according to age group of the viewers. Any tier two independent bodies with the power to cut and censor content shall be avoided as it can create the situation where arbitrary- government based censorship can take place. [xii]


ENDNOTES

[i] W.P. (C) No. 7123/2018. [ii] https://internetfreedom.in/one-down-two-to-go/

[iii] https://www.mondaq.com/india/broadcasting-film-tv-radio/848724/regulating-the-unregulated-stories-of-ott-platforms-in-india

[iv] https://theprint.in/features/trolls-attacking-netflix-for-being-hindu-phobic-are-conveniently-ignoring-its- pro-hindu-shows/287726/ [v] Ibid [vi] https://www.thehindu.com/entertainment/streaming-services-sign-code/article26017380.ece [vii]https://theprint.in/india/netflix-differs-with-hotstar-sonyliv-as-self-regulation-body-divides-streaming-industry/381717/ [viii] https://www.agencyreporter.com/self-regulation-by-ott-platforms/

[ix] https://www.investindia.gov.in/team-india-blogs/understanding-self-regulation-debate-over-top-platforms-india

[x] https://www.medianama.com/2020/01/223-online-content-regulation-mumbai-self-regulation/

[xi] https://www.ikigailaw.com/online-content-regulation-how-is-it-done-in-other-parts-of-the-world/

[xii] How to regulate OTT streaming services of OTT, ‘Shubhangi Heda’, Center for media, data and society


ABOUT THE AUTHOR

This blog has been authored by Shabnam Sheikh who is a 1st Year B.A., LL.B. (Hons.) student at Maharashtra National Law University, Nagpur.


[PUBLICATION NO. TLG_BLOG_20_2504]

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