We have witnessed much public uproar over the Amazon Prime’s web series “Tandav”, Anil Kapoor apologising to armed forces for his Netflix web series AK vs AK , kissing scene in Hindu temple in A Suitable Boy, Leila, Sacred Games, Mirzapur etc  And now there is a rush among OTT creators to apologise or self-regulate themselves against the rising public distress and to tackle with the filed FIRs.

When the pandemic hit the Box Office hard, the OTT platforms flourished with an exponential increase in their subscriber count. It has also provided an easement for the producers to showcase their content without undergoing many certifications and licensing. In fact, some of the filmmakers have shifted from traditional cinema to the OTT platforms for the liberty to produce a variety of content. Currently, there is no legislation to govern digital content but on February 25, the government brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. This move will not only restrict free speech, expression, and artistic freedom of creators but also curtail the audience’s right to consume a wide variety of digital content. It can further lead to a ‘big brother’ situation which will stifle not just creativity but freedom of expression, while giving overriding powers to the government to step in. 

Moreover, the government has equipped itself with “emergency” powers. The rules state, “in case of emergency nature” the Secretary, Ministry of Information and Broadcasting may, “if he is satisfied that it is necessary or expedient and justifiable” give orders to block public access of any information. Importantly, such orders can be released “without giving an opportunity of hearing” to the publishing platform. Minister has also clarified that no new law has been framed and the government already has power to step in in case of an emergency under the existing law.

 A Glance at Global Trend 

The Radio and Television Supreme Council (RTUK) in Turkey, The Infocomm Media Development Authority (IMDA) in Singapore keeps a close eye on the OTTs functioning in their countries. Under the Broadcasting Services Act 1992, Australia regulates OTT content through a mechanism that is complaint-based. The UK does not have any specific regulations on OTTs while Saudi Arabia’s overarching anti-cybercrime law framework regulates the content. Even in the United States, policy experts have argued that the government can’t maintain its paternalistic role in technology if they want society to benefit from technological development (FCC v. Fox Television Stations, Inc., 567 US 239 (2012)). In Singapore, the regulatory mechanism is such that firstly, the OTT platforms have to get a licence issued by Infocomm Media Development Authority (IMDA) and the content classification is done by the service providers.

Thanks for letting us Netflix and Chill!  

A PILwas filed in Delhi High Court in 2018 by Justice for Rights Foundation under Article 226 of the Constitution of India requesting a separate regulatory code for OTT platforms that showcased obscenity and abusive language. The Judgement delivered by the Hon’ble High Court established that the Information Technology Act, 2000 is enough for regulating OTT platforms and no external regulations are required.  

In Padmanabh Shankar v. Association of India case, Karnataka High Court held that the Cinematograph Act, 1952 applies just to cinematograph films inside the significance of Section 2(dd) of the Cinematograph Act. It was also held that transmission or broadcasting of films, serials, and so forth through the web won’t go under the domain of the Cinematograph Act, 1952. Hence, regulating OTT platforms under the Cinematograph Act, 1952 would be a flawed interpretation of the law.

Enough Support to Support New OTT Platform

At a press conference, Electronics and IT Minister Ravi Shankar Prasad said the basic essence of  2021 Rules is “soft-touch oversight” mechanism to deal with issues such as persistent spread of fake news, abuse of these platforms to share morphed images of women and contents related to revenge porn or to settle corporate rivalries but the author is of view that there are sufficient laws and legislation to tackle the same. 

The freedom to publish or broadcast content often invites criticism. Under the principles of the Self-regulation code 2019, OTT platforms have agreed to ensure that they shall not broadcast any content that breaks the nation’s law, disrespects the national flag and emblem, promotes violence or terrorism against the country, shows child sex, or “encourages and promotes to disrespect to the integrity and sovereignty of India”. Moreover, provisions of the Indian Penal Code such as Section 292 to Section 294 that provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality are applicable to OTT content. 

When the content is obscene and depicts women in an objectionable manner, it attracts the provisions of the Indecent Representation of Women (Prohibition) Act, 1986 and charges under Section 509 of IPC against the producers of such shows. Section 3 and Section 4 of Indecent Representation of Women (Prohibition) Act, 1986 deal with the prohibition on transmitting and publishing indecent representation of women in any form. The only exception made thereto lies in, if it has been done so in the interest of arts, literature, and religious purposes, but does not include the domain for films solely for ‘entertainment’ purposes. Hence, there are sufficient general as well as special legislative provisions to impose reasonable restrictions on OTT platforms, and treating them like films or television programmes would not fulfil the purpose due to the difference in nature of these platforms.  

In addition to this, many OTT platforms have self-regulatory code that works on an open disclosure framework such as content categorization for a separate age group, defining prohibited and age-sensitive content, and providing the audience with a grievance redressal mechanism for consumer complaints arising out of the content. The objective of these codes is to empower consumers to make informed choices in choosing and accessing the content they want to watch at their own time and convenience.

Moreover, OTT platforms also display a disclaimer regarding their content. Some allow for parental control through the creation of different profiles for children and adults, sharing a common account for an OTT platform. This would allow creators to make the content freely, encourage creative growth, improve the revenue of the industry and the stakeholders, address viewer concerns, and yet uphold the necessary restrictions on free speech and expression. It is said that instead of soft-touch monitoring, the government has opted for predatory new rules.

Dikshi Arora is a second-year law student at Rajiv Gandhi National University of Law, CPL 2021-22 Public Policy Fellow and Columnist for CNES, JGU. Shivank Kumar is a student of BA. LL.B. at Symbiosis Law School, NOIDA.