The LexGaze Weekly - COVER STORY

OTT Platforms under the Government’s Radar

Hemant K Batra

Nov 29, 2020

Issue 23

The expressions or acronyms- Over-The-Top (OTT) platforms and/or players (OTTPs) or in simple words, Streaming Service Providers have become an integral part of our day to day lives. These OTTPs offer a bouquet of content directly to their viewers through the Internet. They have proved beyond doubt that there can be no limits to growth, especially when it comes to digital evolution. But what is really astounding is the fact that the OTT sector grew so rapidly in the last five years in India that it took the Indian Government by complete surprise and unpreparedness. OTTPs entered India or crossed into the Indian borders without hindrance, checks, or regulations. Why so? This is because of their digital and intangible nature and also because of them not being dependent on any local electronic or digital operators. Apparently, they took advantage of their nomenclature of being an internet or web-based service, which could be accessed either freely or through a simple online subscription model by anyone in India. Possibly, the Indian Government was in two minds regarding the OTT regulatory regime. Initially, it was considered to be an exclusive subject matter of the Ministry of Electronics and Information Technology. This fact was patently acknowledged by the Ministry of Information and Broadcasting, as it had once confirmed that neither did it have the authority to regulate or control online content and nor was it seeking to provide a regulatory framework for OTT platforms. However, now it transpires that it is more of a concern of the Ministry of Information and Broadcasting than of anybody else.

The issue of the regulation of OTTPs was definitely sitting on the Indian Government's head for the last two to three years, but it gained momentum in 2019, with its eventual climax on November 9, 2020, when the Union Government issued a notification, taking within its purview the digital and online media platforms via the Ministry of Information and Broadcasting. Evidently, this notification got triggered and accelerated in response to a notice issued by the Supreme Court of India to the Centre. The Ministry of Information and Broadcasting and the Internet and Mobile Association of India had filed a Public Interest Litigation before the court, seeking "to constitute an autonomous body/board, namely the Central Board for Regulation and Monitoring of Online Video Contents………………………….to monitor and filter the contents and regulate the videos on various platforms for viewers in India". Basically, a prayer requesting for the regulation of OTT platforms such as Netflix, Amazon Prime Video, ZEE5, and Hotstar by an autonomous body.

What does the notification dated November 09, 2020, provide? The said gazette notification pulls in the online films and audio-visual programmes as well as the online news and current affairs content under the command and clutches of the Ministry of Information and Broadcasting. Interestingly or should I say ironically, OTTPs were (until now) under the ambit of the Ministry of Electronics and Information Technology, but after the notification, they have come under the stringent control of the Ministry of Information and Broadcasting.

The said new notification goes on to amend the Government of India (Allocation of Business) Rules, 1961, by inserting two new entries -22A and 22B- to the Second Schedule of the Rules. The two new entries being as follows:

(a) Films and audio-visual programmes made available by online content providers; and

(b) News and current affairs on online platforms.

However, I still feel that there is a need for more clarity regarding the identification and role of the nodal ministry for the OTT sector. There is bound to be an overlap, considering the applicability of the Information Technology Act, 2000 (IT Act), to the OTT sector. The relevant statutory authority under the IT Act does stand empowered to take any action contemplated under Section 69 of the IT Act which includes direction for intervention, monitoring, or decryption of information and blocking of content of OTTPs. Even Sections 66A and 67B of the IT Act stipulate punishment for offences such as sending offensive messages through communication service, publishing or transmitting obscene material in any electronic form, publishing or transmitting material containing sexually explicit material, publishing or transmitting material depicting children in bad taste, etc. Even the courts of law have felt that if the internet platform is used for transmitting any information or material which is unlawful, then the provisions of the IT Act can be invoked. Apart from the IT Act, OTTPs are also subject to the penal provisions under the Indian criminal laws, dealing with the distribution of defamatory content, premeditated and hateful intent of infuriating religious sentiments, and so on.

Curiously, the Telecom Regulatory Authority of India (TRAI) issued a set of `Recommendations on Regulatory Framework for Over-The-Top (OTT) Communication Services' on September 14, 2020, wherein, it proposed a very soft regulatory mechanism for OTTPs. The TRAI recommended that the:

i. Market forces may be allowed to respond to the situation without prescribing any regulatory intervention. However, developments shall be monitored and intervention, as felt necessary, shall be done at appropriate time.

ii. No regulatory interventions are required in respect of issues related with Privacy and security of OTT services at the moment.

iii. It is not an opportune moment to recommend a comprehensive regulatory framework for various aspects of services referred to as OTT services, beyond the extant laws and regulations prescribed presently. The matter may be looked into afresh when more clarity emerges in international jurisdictions, particularly the study undertaken by the ITU.

While the recent notification of November 2020 is differing, if not contradicting, from what the TRAI recommended. In my assessment, this notification had to come as a natural consequence. It is not conclusive and definite. It just paves way for further regulations and perhaps legislation to formally govern the OTT platforms and/or players. It was much required purely because OTTPs had a completely unregulated domain for themselves in the past. They have entered everybody's personal space through smartphones, PCs, laptops, and televisions, but there is no specific set of legislation or public policy to deal with their own space. The films and audio-visual content available online today are unimpeded and unchecked. In the name of creative freedom of speech and expression, the viewers are being offered explicit and overt propaganda of bloodshed, violence, brutality, drugs, forbidden substances, graphic nudity, sex, foul language, and more.

Further, there is no level playing field. OTTPs are at an advantageous position with no or lack of regulatory framework. Feature films/movies are regulated by the Central Board of Film Certification (CBFC). Electronic News broadcasters are also formally regulated under a proper mechanism. For example, television including both news and entertainment are monitored and regulated by the Cable Networks Regulation Act. Yet, the regulatory framework for online content was completely missing. The said recent notification has opened the doors for the Indian Government to put an organised regulatory structure in place for the OTT sector. This is just the beginning for the relevant authorities to carry out their control over the OTT platforms and/or players. The Indian Government may have to establish a formal infrastructure for governing the OTT sector and even amend the IT Act along with introducing the newer public policy, bye-laws, rules, and regulations in that respect.

It is significant to note here that OTT platforms and/or players have not eluded or tried to escape from their accountability. This fact is testified by their own acts of self-regulation. On two different occasions in the past, large OTTPs including Netflix, Hotstar, Voot, Eros, and many others have signed detailed self-regulatory codes of best practices under the umbrella of the Internet and Mobile Association of India (IAMAI). By way of these codes, they acknowledged their answerability to the consumers.

To begin with, in early 2019, the IAMAI adopted the 'Code of Best Practices for Online Curated Content Providers, 2019'. The signatories to this Code agreed to uphold the freedom as envisaged in the Constitution of India, more specifically under Article 19(1)(a) and Article 19(1)(g). Furthermore, they recognized to be governed by the principles laid out in statutes like The Information Technology Act, 2000, the Indian Penal Code, 1860, the Emblems and Names (Prevention of Improper Use) Act, 1950, the Indecent Representation of Women (Prohibition) Act, 1986, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Protection of Children from Sexual Offences Act, 2012, Copyright Act, 1957, among others. The main objective of this first code being, to introduce transparency by keeping the consumers well-informed and safe. The IAMAI presented another set of code in 2020, which was an enlargement of the earlier code, maintaining the focus on transparency and accountability towards the consumers. All these codes go to prove that OTTPs are open to a progressive and non-coercive idea of governance, be it from the side of the Indian Government.

And in the interest of creativity, artistic work, freedom of speech, expression, communication, entertainment, digitisation, and free flow of information, the Indian Government may have to keep the following issues in mind while moving forward with the framing of regulations:

a)  Considering overwhelming and huge content quantum in the OTT sector, the guidelines may have to be standardized, as it will be practically impossible to get or grant certification for every offering. There are thousands of films, web series, documentaries, etc., on each OTT platform.

b)  In the latter part of 2019, the Indian Government had expressed its desire for self-formulation of a list by OTTPs of undesirable or in a way, the negative types of content, which ought not to be streamed by the video streaming platforms. There was a thought, at the end, of the Indian Government, intending the OTT sector to bring about a self-regulatory body. However, the codes adopted by the IAMAI in 2019 and 2020 did not evoke any encouragement from the Indian Government. Perhaps, the Indian Government may now have to support OTTPs to work out some model of self-governance and good governance rather than stipulating some unilateral legislation. This support will be looked at by the world at large as a very progressive and constructive measure.

c)  Creative freedom is fundamental to the social fabric and intellectual development of the citizenry. The Indian Government may engage some national and international experts of repute in the creative field to supervise and monitor the governing framework. A model of self-censorship may be implemented with the participation of these experts.

d)  The codes adopted by the IAMAI could become the source of Government regulations. As these streaming services are delivered in the private domain of an individual, it is practically impossible to control the distribution innately and precisely. Today, self-discipline, self-regulation, self-governance, sensitisation, and orientation of the viewers, along with OTTPs, will be more imperative than ever.

e)  Guidelines will have to be framed addressing the issues dealing with objectionable and sensitive content, age-related assessments, and finally, complaint-redressal fora.

Hopefully, a balance will be achieved between the proposed regulations and freedom of creativity, resting on the scale of reasonability.

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