Updated: May 24
The general definition for Online Curated Content (OCC) platforms or Over-The-Top (OTT) services is those platforms that provide streaming services to viewers directly through the Internet. These are completely different from the usual service providers such as cable, broadcast and satellite television platforms. OTT platforms provide streaming services through Subscription-based Video-on-Demand (SVoD) like movies and series. With the technological revolution, internet has made the life of people conveniently easy with social media applications like WhatsApp, Instagram, YouTube and OTT platforms like Netflix, Amazon Prime, Disney+ Hotstar and so forth. In India, the OTT services lacked jurisprudence or laws and regulations that curbed explicit content especially from underaged children. While the film industry had the certification agency that is, the Central Board of Film Certification that overlook the public exhibition of films, OTT platforms had none. The controversy over OTT services’ regulations began when the Government of India issued a notification in the year 2020, stating that these platforms would now be under the ambit of Ministry of Information and Broadcasting (MIB). OTT platforms were earlier regulated by the Ministry of Electronics and Information Technology, but as per the notification that was issued, and signed by the President, the same was altered because no autonomous body or law governed digital media. The notification even included digital news and current affairs as well. This article, therefore seeks to bring light to the rules given by the government, and the pros and cons surrounding the implementation for the content producers.
Prior to the notification issued by the government, scrutiny regarding whether OTT platforms were to be regulated was brought to light through many disputes before the court, which criticised and complained regarding the obscene and discriminated content published in series and movies. One such case was Justice for Rights Foundation v. Union of India 2018, where the petitioners contended that these platforms without license showing vulgar, unrestricted content must be bound by guidelines and follow reasonable restriction under Article 19(2) of the Constitution of India as it violated Article 21, affecting dignity of women and the provisions of Indian Penal Code. However, the petition was dismissed by the Delhi High court on the basis that OTT platforms did not require licenses from the government and had their own self-regulatory code that was implemented under Internet and Mobile Association of India (IAMAI) earlier in the year 2019 namely, ‘Code of Best Practices for Online Curated Content Providers’. This code laid down that digital content must not include media that is banned by the Indian court, disrespects National Emblem, outrages religious sentiments, promotes violence or supports terrorism and sexual acts of children.
However, this code later was set aside because it lacked an independent third body that governed and supervised these platforms, and did not deliver a clear definition of what constitutes prohibited content. The 2020 notification published, uncomplicated the grey area where now OTT platforms could be governed, because earlier as intermediaries they were not responsible for contents uploaded by a third party as per section 79 of the Information Technology Act, 2000 (IT Act). Under the IT Act, 2000 the OTT service providers are considered as intermediaries according to section 2(w) of the IT Act, 2000, with the duty of observing due diligence framework for publishing content by third parties. It must be noted that imposing unreasonable restrictions without prior permission causes violation of Article 19 of the Constitution which also influences the freedom of creativity of content providers. The court has laid emphasis on how self-regulatory censorships, that do not obstruct the creativity of content providers, must be enjoyed by digital providers, but at the same time, if the content is immoral and indecent for the Indian society considering their nature towards these aspects then reasonable restrictions should be imposed.
Superseding the Information Technology (Intermediaries Guidelines) Rules, 2011, the government notified in February, 2021 that Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 will now regulate social media, digital media and OTT platforms, providing broad powers to the Government to regulate and censor under the IT act. The new guidelines lay strongly emphasis on taming action against content that is derogatory against women. Some of the salient features of the new rules as per the Code of Ethics are;
Classification based on five age-based categories that are: U (Universal), U/A 7+, U/A 13+, U/A 16+ AND A (ADULT), along with parental locks for content above the age of 13 and age verification mechanisms for content classified as A.
Distinction between social media intermediaries and significant social media intermediaries shall be based on the number of users which shall be fifty lakh registered users in India as per the notification. The latter will have to follow additional compliance measures due to the large number of users, which include appointment of a Chief Compliance officer, nodal person of contact, Resident Grievance Officer and publication of a compliance report periodically, every six months.
Concept of First Originator, who publishes contentious information, which threatens integrity and security of the State, incites rape, child sexual abuse and other offenses, should be tracked by significant social media intermediaries to assist law agencies. Notification for removal of this content must be submitted and actions for the same must be ensured after reasonable opportunity.
A strong three-tier redressal mechanism which are; regulation by the OTT platform itself through a grievance officer within 15 days, institutional self-regulatory body of content publishers and their associations comprising of industry experts headed by retired Supreme, High court judge or eminent person in the particular field and lastly, an oversight mechanism of inter-department committee by MIB.
The new rules and regulations have brought about many changes in the OTT platform domain, such as the salient features mentioned above, but what dominantly attracts is the concept of first originator which critics have stated is a breach of privacy though, the government is attempting to curb spread of fake news and illegal activities, this can result in a surveillance state. The bigger fear lies in the obstruction of creative content in the entertainment field that once provided liberty to content publishers, affecting artistic freedom. However, in a recent case filed before the court where ‘Tandav’, the web series in Amazon Prime video received backlash, the Supreme Court held that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 lacked effectiveness to punish violators or offensive content because the rules were merely guidelines and provisions for punishment or fine for those who do not comply to them weren’t given. Therefore, the government has to come with a new set of regulations by imposing fair rules that allow the digital content publishers to freedom of speech and expression.