Self-Regulatory Model for OTT: An Escape Clause
The author in this blog has discussed the regulatory laws related to online telecasting platforms like Netflix, Prime Video, etc. The author has analysed the applicability of the IT Act and the Cinematograph Act to the OTT platforms in lieu of the various decisions of the High Courts of India.
In the time of this quarantine, OTT platforms like Netflix and Amazon Prime Video are substantiating to be a life savior by providing an extensive range of contents round the clock. These services are grounded to be the videos-on-demand which lets people watch any kind of shows, movies at any time and place of their choice. However, VOD’s are unlike from Cable-TV and Multiplex Cinema, as they allow the audience to choose the content of their choice and broadcast it without any single commercial.
These OTT platforms are primarily subscription-based and a viewer can avail of these services by purchasing a monthly/yearly subscription. It had gained immense popularity amongst the millennial however, time and forth these VOD’s have also faced legal rows due to lack of censorship and restrictions on the type of contents streamed.
In 2018, a Delhi based NGO; Justice for Rights Foundation has approached the Delhi High Court claiming that the OTT platforms are streaming adult and explicit content which includes objectifying women, usage of obscene language, and showing pornographic content without any certification and regulations. They had also contended that the online content is not regulated by any specific act or regulations but only by the Information Technology Act, 2002 which is proving to be inadequate for governing the OTT content. The Petitioners sought guidelines from the Hon’ble Court to regulate OTT Platforms and prayed for the removal of any objectionable content from OTT platforms.
While dismissing the Petition through an order dated 08.02.2019, the Hon’ble Court observed that the IT Act and the Information Technology (Intermediaries Guidelines) Rules, 2017 are sufficient enough to tackle any disputable or objectionable content on any OTT platforms. The Court relied on the affidavit of the Ministry of Information and Broadcasting which stated that the online platforms are not required to procure any license from the Ministry to telecast their content. Furthermore, the IT Act has already provided with the punishments for publishing or transmitting obscene content and the concerned authority can take actions under Section 69 of the Act for the non-compliance of the same. The Petitioner challenged the said order in the Apex Court which is still sub judice.
However, it was not the first instance where a lawsuit has been initiated against online content, in the same year after the premiere of ‘Sacred Games’, one of the most popular shows broadcasted on Netflix, a similar petition was filed by advocate Nikhil Bhalla concerning a particular dialogue demeaning the former Prime Minister of India, Rajiv Gandhi. The Petition got summarily rejected by upholding the right to freedom and speech and relying on the judgment of Justice for Rights Foundation.
Despite the above precedents, the Karnataka High Court issued a notice in February 2019 in the PIL which seeks to bring online platforms under the ambit of Cinematograph Act, 1952. A petition in the Bombay High Court is similarly pending which prayed for the censorship in online content.
It is a matter of fact that there are no rules and regulations available in India restricting the online content since the OTT platforms are a mix of many domains and single legislation cannot cover it in toto. However, an indecent depiction of women on screen is punishable under the law and it is noteworthy here that Bombay High Court recently directed the concerned ministries to set up a pre-screening committee for monitoring the online content. In April 2018, a ten-member committee was set up by the Ministry of Information and Broadcasting, and its report is still awaited.
Self-Regulation in OTT Platforms
In an attempt to confer the accountability for the online content, few OTT platforms have come together to formulate a voluntary code for self-regulation. As already stated by the government before the Apex Court that it does not have powers to regulate online content, the Internet and Mobile Association of India (IAMAI) has released a code of self-regulation in January 2019. Few guidelines of the self-regulatory code are reproduced below:
1. Disrespecting the national flag and national emblem is not allowed.
2. Any content deliberately representing a child engaged in sexual activities is prohibited.
3. Content intending to outrage religious sentiments of any religion or section is barred.
4. Any promotion of terrorism and violence against the state cannot be tolerated.
5. Proper classification of online content into distinct categories is advised. If there are any complaints and concerns regarding a particular content, a person/team should be appointed to address those grievances.
Furthermore, online platforms like Hotstar, Voot, Jio, and SonyLiv recently suggested forming a Digital Content Complaint Council (DCCC) however, the OTT giants including Netflix, Amazon Prime, Zee5 has opposed to joining the same. The Information & Broadcasting Ministry is also in favor of the self-regulation of OTT platforms as the content market is growing continuously and there is a dire need to regulate online content.
The OTT platforms often argue that placing restrictions will infringe their right to freedom of speech and expression. However, they fail to recall Article 19(2) that has a restrictive clause that corresponds to public health and morals, as sometimes these platforms are misused to promulgate particular propaganda to bring disharmony in the society.
Overly demands of stringent self-regulation have compelled Netflix to add strict parental control and pin locking for restricting kid’s profile which disallows the access to shows and movies that parents don’t want their kids to watch. The government should be ready with a draft that makes stern guidelines to regulate the online content on OTT platforms, as every now and then a particular content does not seem morally appropriate for the larger audience and the state must nurture the innocuous environment.
 Justice For Rights Foundation v. Union of India, (WP(C) 11164/2018).  Available at: https://www.wipo.int/edocs/lexdocs/laws/en/in/in099en.pdf.  Section 67A, Information Technology Act, 2002.  Nikhil Bhalla v. Union of India W.P.(C) No. 7123/2018.  Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019)  Divya Ganeshprasad Gontia v. Union of India (Public Interest Litigation No. 127/2018).  Indecent Representation of Women (Prohibition) Act (IRWA), 1986. Available at: https://www.firstpost.com/entertainment/bombay-high-court-issues-notice-to-set-up-pre screening-committee-for-content-released-on-online-platforms-5334301.html  Available at: https://indianexpress.com/article/india/ib-ministry-forms-committee-to-regulate-online-media-smriti-irani-5125324/.  Available at: https://www.medianama.com/wp-content/uploads/Consolidated-Draft-14012019.pdf.  Available at: https://tech.economictimes.indiatimes.com/news/internet/a-self-regulatory-model-similar-to-old-media-may-work-for-ott-firms-govt-tells-sc/74409136.  Article 19(2), The Constitution of India, 1950.  Available at: https://www.androidheadlines.com/2020/04/netflix-parental-control-netflix-show-title-content-restrictions-pin-profile-locking.html
Symbiosis Law School, Pune
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