OTT The way forward

On November 09, 2020, the Central Government 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 of the Information and Technology Act, 2000 (“IT Act”) 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 over the top (“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 medium and mode of viewership of content have undergone a radical change in the past decade. With the advent of Video on Demand services and the ease of access and varied unique options associated with it, the demand for Over the Top (“OTT”) platforms have begun to challenge traditional cable operators and broadcasters. OTT refers to the dissemination of content through internet surpassing usual modes like cable and broadcasting television platforms wherein the end user has significant control over the method of viewing the content. Indian audience are spoilt for choice with OTT platforms such as Netflix, Hotstar, Alt Balaji, Voot, Amazon Prime Video and Zee5 etc.

OTT platforms were meant to create different content which was not possible to show on TV or in movies. And it started well in the means of entertainment and content, but to attract more audience unnecessary lust, extreme violence, and strong/abusive language was added, even when they were not needed. Children are most affected due to the content that’s available to all without any filter.

The OTT platform is amazing for showing the creativity, detailing and capability of makers which cannot be pressed down in a 2 to 3 hours movie. It can be agreed upon that some platforms  are giving stories based on true events, but instead showing inappropriate things like cruelty, nudity, revenge, racism, etc in the name of creativity. No Web series is watchable with family or kids. It’s giving the distorted image of people from a particular place or community.

Ekta Mahatma, a blogger sums up the problems related with OTT platforms in her own way. She says “Entertainment is not wrong but how much entertainment is normal. People spend hours and sometimes days to binge-watch on web or TV series. That has some dreading effects on individuals and families. Wasting an ample amount of time in the name of entertaining self. Also affecting students’ studies, priorities, and morality.

Binge-watching for hours day and night, munching on healthy/ unhealthy snacks is increasing health concerns. We all know the health effects of being a couch potato.

Family members watch their preferred shows on different devices. Predominantly because they can’t be watched together with everyone, due to their content excess in nature of lust, violence, and cuss language. Instead of spending time with each other, everyone tends to go to a different corner of the house to watch their shows. Communication with each other has affected negatively.”

It is quite evident that the notification by government has stirred the debate over whether the regulation is actually needed or just an act of arbitration by the authority. Over the several years, the legislative body deterred to put online content under Cinematography Act, 1952.

On the other hand, since last year, various OTT platform operators were increasingly adopting the practice of self-regulation, in order to function in a responsible manner. Google Play was one of the earliest platforms to initiate self-censorship and uploads only films duly censored by the CBFC and Apple’s iTunes followed suit.

The content which is not supposed for release in theatres is also required to be approved by the CBFC before it is made available for upload by iTunes for India. For example, the award-winning documentary Inside Job and Indian documentary Placebo (which was never intended for theatrical release) both had to undergo the censorship process before they were made available for the subscribers of iTunes.

Hotstar, the OTT platform of Star India, has not laid down any guidelines with respect to self-censorship and does not seem very stringent with respect to censorship. While the movie Masaan was re-censored for Hotstar, Game of Thrones, with its explicit content, was not censored. In 2016, a petition was filed in the Delhi High Court alleging that the Hotstar displays “soft pornographic” content and as an IPTV, it contravened downlinking guidelines. Hotstar vehemently contended that it was not an IPTV service but an OTT platform.

Earlier laws regarding OTT

Recently, there has been an upheaval about the quality of content being displayed on various OTT platforms and petitions are being filed in the form of PILs seeking the regulation and censorship of such content. Since the author of this write up is not well versed with legal aspects, a report from theapprentice.in is being quoted here:-

   “IPC and obscenity

India and its thin skin for all things that are allegedly obscene is well known. ‘Obscenity’ as defined in Section 292 of the Indian Penal Code, 1860 (IPC) are applicable to content irrespective of their mode of exhibition, and OTT platforms cannot contravene such existing laws. For instance, a number of petitions have been filed in the past alleging presence of obscenity in films and the same have been addressed by the courts.

The threshold, concept and measuring yardstick of obscenity has undergone a significant change and if a particular scene/ title/ character qualifies as obscene under Section 292 often has been a moot point. The Supreme Court initially followed the test laid down in the old English judgment of Hicklin case (Regina v. Hicklin, LR 3 QB 360) which was whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort (obscene) may fall. Gradually, Supreme Court moved on to applying contemporary community standards test in the matter of Aveek Sarkar v. State of W.B., (2014) 4 SCC 257.

Cinematograph Act and CBFC

According to Section 4 of the Cinematograph Act, 1952, an applicant who is desirous of exhibiting a film to the public is mandatorily required to obtain a certificate from the Central Board of Film Certification (CBFC). This is done through the Examination Committee which is created under Rule 22 of Cinematograph (Certification) Rules, 1983. The Examining Committee examines the content and accordingly rates the content as “U” (unrestricted public exhibition), “A” ( public exhibition restricted to adults only), “U/A”( exhibition subject to parental guidance for children below the age of 12 years), “ S” ( restricted to special class of persons).  The Cinematograph Act, 1952, mandates censorship of content only meant for public exhibition of content, however,  the Act does not define nor lays down the perimeters of the term ‘exhibition’.  The Cable Television Network (Regulation) Act, 1995 also mandates that cable network operators are to display/ exhibit movies which have been duly censored by the CBFC.

The Delhi High Court had addressed this issue in the matter of M/s Super Cassettes Industries v. Board of Film Certification & Ors., 2010 Del HC Unreported, and held that even if there are individuals or families watching a film in the confines of their home, it would still amount to ‘exhibition’ of film. In Garware Plastics and Polyesters Ltd. v. M/s Telelink, AIR 1989 Bom 331, it was held by the Bombay High Court that exhibition is no longer confined to a place where the public is admitted like a cinema hall but it would include residential rooms of any hotel or hostel. These cases, however, do not provide any clarity if private viewing within four walls of a room by an individual would qualify as ‘exhibition’ and whether viewing of such content on OTT platforms requires any kind of censorship.

It has also been debated time and again whether issuance of a censor certificate by the CBFC bars the criminal court’s jurisdiction to try offences under Sections 292 and 293 of the IPC relating to obscenity. A notable case in this regard is a case disposed by a Division Bench of the Supreme Court comprising of Justice V.R. Krishna Iyer and Justice R.S. Pathak in the matter of Raj Kapoor & Ors. v. State and Ors., AIR 1980 SC 258, centered around certain scenes in the movie Satyam Shivam Sundaram stating unequivocally that while a certificate is issued by the Censor Board is of relevance, it does not preclude the court from deciding if a film is obscene or not. This provides a legal footing to applicants to challenge the scenes/ titles/ characters in films and contest their claims of obscenity under Section 292 of the IPC. Apart from all these there are general laws like Information Technology Act, 2008 (IT Act) and the Intermediary guidelines under the IT Act also apply to OTT platforms most of which produce or curate the data that is available on their platforms.”

As the notification of the government has been put firmly in place, there bound to be both negative and positive aspects of the notification being discussed. The critics of this decision make the foremost argument that this notification will undermine the freedom of speech and expression guaranteed by article 19(1)(a).  To counter the issue of defamatory content, it is argued that ex-post remedies in civil courts are already available in case of infringement or insults/damage to the honour.

With the advent of OTT technology, ‘private viewing’ has replaced the public exhibition of content. This makes the question of pre-censorship of OTT content irrelevant. The government believes that above notification is in the interest of the public. However, the critics argue that who is to decide what constitutes public interest. The critics view this step as an attempt by government to restrict the content that put it in bad light. It will discourage and finally, put end to citizen journalism.

Also, many believe that government cannot define the idea of entertainment for each individual. With this notification, government shall end up depreciating the content diversity. As a result, the citizens of largest democracy in the world will be left with minimal to choose from.

While the supporters argue that it is an attempt to level the playing field for digital and non-digital players. The non- digital media operators are subjected to various regulations; the news channels and print media as a source of current affairs have to register themselves with the government; theatrical release of a movie is not possible without clearance from Central Board of Film Certification whereas the OTT platforms continue to grow manifold and have no such requirements to follow.

Many believe that if news channels and newspapers are regulated, why doing the same to digital news sources will prove detrimental. If the same content is made available on TV sets and internet, what could be the possible reasons for leaving an entire sector unregulated? Many deem it to be a positive step due to the idea that regulation will help curb the obscenity and inflammatory content that OTT platforms make available unobstructed.

India is currently the world’s fastest growing OTT (over-the-top streaming) market, and is all set to emerge as the world’s sixth-largest by 2024. At present, the OTT platform’s valuation stands at 35 billion INR, with nearly 500 million internet users, expected to grow at 8 per cent per year. Unlike television, print or radio which follow guidelines released by governments, OTT platforms classified as digital media or social media, had little to no regulation on the choice of content they offered, the subscription rates, certification for adult movies and others. While courts in India have established the capacity of the IT Act to regulate online content with no need for external regulations, the apparent shift from cable television to OTT platforms has been amplified in the post COVID – 19 era, forcing regulators towards establishing a more concrete framework for digital broadcasting. The regulatory framework concerning OTT platforms has been a work in progress and what remains to be seen is the manner in and extent to which the Government proposes to regulate online content as broadcasters and consumers fear extreme regulation or censorship.