There have been many complains and protests against the Over The Top (OTP) contents broadcasted by the various OTT service providers like Netflix, Amazon prime, Hotstar etc. In the recent past the complains are increasing, it looks like govt has waken up and are very serious on framing the laws for OTT platforms.
In India, content on OTT platforms was largely regulated by provisions of the Information Technology Act, 2000 (‘IT Act’), Indian Penal Code, 1860, and special legislations like the Indecent Representation of Women (Prohibition) Act, 1986, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Emblems and Names (Prevention of Improper Use) Act, 1950, etc. For example, OTT service providers must ensure that the content on their platform is in compliance with Sections 67A, 67B and 67C of the IT Act These sections provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts in electronic form.
Till recently there has been a tug-of-war between the govt and the Internet and Mobile Association of India (‘IAMAI’). Initially, the govt signalled favouring self-regulation of the OTT industry. In fact, it gave OTT platforms a period of 100 days to formulate a self-regulatory code in March 2020. However, despite several attempts at drafting codes by the IAMAI none seem to have found with the govt.
On November 09, 2020, the Central Govt issued a notification bringing digital/online media platforms under the ambit of the Ministry of Information and Broadcasting (MIB). While there exists a legal framework and judicial pronouncements in respect of electronic and print media, there was no equivalent in respect of digital media. Digital platforms have been unregulated, having no specific regulatory framework barring the provisions IT Act 2000 that they are subject to. Through several case laws and consultation papers and self-regulation codes formulated in the recent past, several attempts have been made to understand the need for and method of regulating digital content. Attempts were made by OTT players towards developing a more transparent system of self-regulation as the MIB maintained its position of having no control over online content while the courts established the capacity of the IT Act to regulate. The notification issued by the Centre means that online content providers such as Netflix, Hotstar etc. have now been brought under the jurisdiction of the MIB who shall regulate the policies in this aspect.
The Ministry of Information and Broadcasting (MIB) has found a vast unregulated content, namely news online, an and OTT platforms which had escaped the earlier regulations. Few months back even Supreme Court (SC) had issued notice to Central govt and IAMAI, on a petition to regulate OTT platforms.
Till date no concrete guidelines have been issued by MIB. News is that the Programmed Code that governs content on TV and which found an outlet in the Cable Television Network Regulation Act, 1995, may serve as a template to frame rules for online content. The Programme Code lists several don’ts that channels are required to observe and follow. Currently, the Electronic Media Monitoring Centre, which was set up in 2008, is entrusted with the work of monitoring content on TV. It puts out reports on violations of the Programme Code. The findings go to an inter-ministerial committee. There is a possibility that the brief of the monitoring service could be extended to include online content. However monitoring contents on 24×7 basis will have its own challenges.
Now let us see the laws regarding OTT platforms in some other countries:
Countries across the world are grappling with how content on OTT platforms can be effectively regulated. In Australia, the OTT sector is governed by the Broadcasting Service Act (BSA) and is regulated through a complaints-based mechanism. Content on OTT platforms is certified according to existing categories. Australian residents can register complaints about offensive or illegal online content. Valid complaints are then investigated by the Australian Communications and Media Authority (‘ACMA’) and action is taken on content determined to be ‘prohibited content’ or ‘potential prohibited’ content. It is a similar picture in the case of Singapore, where the categories are enumerated in its content code for OTT services. Singapore goes one step further by allowing OTT platforms to offer certain categories of content only if they provide for a built-in parental lock/age verification system.
While the Australian Classification Board had been responsible for classifying both online as well as offline content so far, Netflix on its own can generate the rating on its own following a two-year trial period. Even in the United Kingdom, Netflix has been allowed by the British Board of Film Classification (‘BBFC’) to classify its own material and then use the official British age rating symbols on all of its content. It reached 100% coverage recently which means all of its content displays the BBFC ratings.
In the end, that OTT streaming operates on a PULL basis (where consumers can themselves search for a show), the mode of regulation must be different than in the case of the traditional PUSH system (where consumers watch a show because that’s when it’s shown). Such a change calls for respecting the consumer’s choice in the kind of content they wish to consume, which necessarily should be different from how traditional media is regulated. While the role of the State has been paternalistic.
The nature of OTT streaming is very different from traditional broadcasting indicating what should and should not be allowed for consumption by the masses, there needs to be more reflection on whether the State should continue to adopt such an attitude in today’s day and age. In this regard, it is to be hoped that the State takes into account the changing nature of the industry as it prepares a code for OTT platforms. As our is multi religious society and anyone can access any platform, the govt should take care that the religious sentiments of any community are not hurt. Secondly there should be a mechanism for controlling fake news. Lastly laws should be very stringent with heavy punishment which should include both monetary fines and imprisonment.
Awaiting your comments and views.
Anil Malik
Mumbai, India
25th January 202
R. N. Mungale.
It is high time contents from OTT platforms are regulated. It is already late.