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Censorship of Netflix, Hotstar - Will This Ship Sail

What are OTTs
OTT stands for ‘Over-the-top’ which is a term used to describe content (films, videos) providers via internet and without having to subscribe to a traditional cable network. These services are called over-the-top because it goes ‘over’ a cable box to provide a user access to content which otherwise is transmitted through conventional medium. Netflix, Hotstar, Amazon Prime Video, Voot etc. are the trending OTTs these days.

With lives getting busier, everyone needs something handy to go to rather than restricting themselves to a particular time in front of the TV sets. We all have been using OTTs since long without even realising it. The most attractive feature for an OTT is that it can be used and accessed anytime and anywhere with an internet connection. The download button provided on Netflix, Hotstar, etc. are the cherry on top as it provides a quick-fix to the no network or internet connection areas. The wide variety of content provided by these OTTs is another attractive trait which persuades more and more people to adopt to this new technology. Moreover, this content diversity is provided with access to information from user data, meaning a user will get suggestions of the content based on his liking or previous watch which is an another tremendous feature.

OTT videos gives audience the liberty to chose whatever they want to pick and play just by subscribing to a monthly or yearly plan. The users need not absorb the cost for unwanted channels as in cable TVs. For example, Netflix offers 3 monthly subscriptions based on the video quality and number of screens. Whereas, Hotstar offers a monthly as well as a yearly plan.

How can OTTs be accessed
OTTs being internet based delivery system, they can be accessed anywhere and at anytime.

The only thing a user needs is an internet connection and a hardware device. The traditional way of watching your favourite show or movie at a fixed time when it is being broadcasted worldwide is no more prevalent. People prefer to watch whatever they like as and when it is convenient for them.

OTTs can be accessed on -
Mobile phones- smartphones and tablets can download OTT apps from their suitable digital storefront.

Personal computers/ Laptops - Most computers/laptops support OTT content viewing through desktop-based apps or web browsers.

Smart TVs- The latest TV models often include pre-installed OTT apps, or provide users with an option to download them.

Types of OTTs
SVOD (Subscription Video on Demand) - It is a type of service that allows a user to access an entire library of videos for a fixed recurring fee. This fee may be charged daily, weekly, monthly or annually. As long as a user’s subscription is valid, he can watch as many videos as he wants to that particularly subscribed channel. Netflix, Hotstar, Amazon Prime Video are examples of SVOD OTT services.

TVOD (Transactional Video on Demand) - TVOD is the opposite of SVOD. Users buy content on a pay-per-view basis. Here, no subscription of any kind is required. The users pay an amount for the specific content they want to watch. iTunes and Google Play can be the examples of TVOD.

AVOD (Ad-supported Video on Demand)- Ad-Supported Video on Demand (AVOD) is an ad-based digital video service that is free to its users. In this model, ad revenue is used to offset production and hosting costs and monetise the content.

Working of OTTs
Over-the-top services function by using an internet connection. OTT services are typically accessed by visiting a web page on your browser or opening an app. Accessing OTT via a mobile application is becoming more popular, mostly because it allows for convenient streaming anywhere at anytime that is why often people are seen staring at their phone screens in an underground metro watching their favourite movies or TV shows. You can easily access your Youtube or Netflix app from your phone whenever you want, and that is the power of OTT. Anything that can connect to the internet is able to stream content, like TV shows and movies.

CONTENT REGULATION
With the advent of entertainment industry and technology, there are emerging new ways of getting oneself amused. A thirty minute metro ride while going to the office or a lunch break, people are seen stuck to their phones or screens on Netflix, Hotstar etc. Paying for these OTT’s subscriptions has become a part of people’s monthly expenditures.

But, every coin has two sides. The emergence of OTTs has both pros and cons. The history of what content is shown in Indian entertainment industries has always been the talk of the town. Often, film-makers includes controversial content or uncensored clips in their films to gain popularity or more profits. To prevent this from happening, the Centre has to come up with laws to refine the content which is displayed to the masses. From censorships in movies to what is printed in the newspapers, these content providers are never free to release or publish whatever they wish to. On the same footing, these OTT content providers are now facing the problem of censorship, which is known as Content Regulation. Content Regulation is the process of filtration of the content provided on these online platforms.

As there are no laws to regulate the content provided by these over the top service providers in India, they are feeling free to deliver the audience whatever they want to. Ranging from usage of vulgar language to sexually explicit content, shows like Sacred Games and Game of Thrones are not the shows generally accepted by majority of Indian audiences. Netflix and other platforms have also started to produce their own content. The content that they are making is a lot different from what is traditionally shown in the Indian cinemas.

EXISTING CONTENT REGULATION PROVISIONS IN INDIA
On 11 October, 2018 a PIL was filed in the Hon’ble High Court of Delhi by an NGO named Justice for Rights Foundation under Article 226 of the Constitution of India for guidelines on regulating certain kinds of content available on these OTT platforms. According to the petition, the content being provided by these online platforms is unregulated, uncertified, sexually explicit, vulgar, pornographic, profane and legally restricted. They also contended in the petition that shows like Sacred Games, Game of Thrones etc. are depicting women in an objectifying manner. Also, the petitioner prays to frame guidelines in order to regulate the said online platforms and the content broadcasted therein.

The Delhi High Court dismissed the petition stating that it cannot issue a mandamus for framing general guidelines or provisions when there are stringent provisions already in place under the Information and Technology Act, 2000.

The petitioner being aggrieved from High Court’s judgement, appealed to the Supreme Court. To this, the Apex Court issued Notice to the Centre to regulate the content featured on OTT platforms like Netflix, Amazon Prime Video, etc. vide and order dated 5 May, 2019.

Hence, it is clear that currently, there are no laws or body governing the content under the OTTs. In India, there are two bodies regulate pay TV namely, the Ministry of Information and Broadcasting (MIB) and, the Telecom Regulatory of India (TRAI). There is currently no regulatory framework for OTT but internet content in general is regulated under the Information Technology Act of 2000. OTT services, along with SVOD providers, are broadly unregulated in India. OTT platforms are free to distribute content, subject to content regulation laws under the IT Act which focus around depravity and obscenity.

Provisions under the Information and Technology Act, 2000 which can be used for regulating the content can be:
Section 69 - Power to issue directions for interception or monitoring or decryption of any information through any computer resource. Here, the Central or State Government or any officer authorised by the Central or State Government, for the sovereignty and integrity, defence of India, security of state etc. may issue directions for interception, monitoring or decryption of any information through any computer source.
Section 69A - Empowers the Central Government to issue directions to any intermediary for blocking for public access of any information in any computer resource. It says that if the Central or State government if satisfied, in the sovereignty and integrity of India, defence or security of State, may order for blocking for public access of any information in any computer source.
Section 66 - It provides that if any person dishonestly or fraudulently does any act referred to in Section 43 of the IT Act, 2000 shall be punishable with imprisonment for unto 3 years or fine.
Section 67 - It provides punishment for publishing or transmitting obscene material in electronic form.
Section 67A - This provision specifically provides punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.
Section 67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.
Section 79 - Intermediaries are exempted from liability for third party information or communication links made available or hosted by them subject to certain conditions. This includes the condition that the intermediary must observe due diligence while discharging its functions.


EXISTING CONTENT REGULATION PROVISIONS IN UNITED STATES
The US generally enjoys a light-touch regulatory environment for all television services, though some local authorities impose restraints on local cable services. Pay TV services are regulated by the Federal Communications Commission (FCC). OTT TV services remain unregulated at both the national and state level but are expected to generally ensure compliance with advertising standards and closed-captioning requirements.

EXISTING CONTENT REGULATION PROVISIONS IN UK
The UK maintains a strong and healthy pay TV market for both traditional and OTT TV services. It is considered a world leader in copyright protection and anti-piracy enforcement. All domestic pay TV services are regulated by Ofcom, an independent and transparent regulator. There is no distinction between how traditional pay TV services and domestic OTT TV services are regulated, however, linear and non-linear (ie on-demand) pay TV services are subject to different regulations. General rights of judicial review of decisions by a public body, and certain specific rights of appeal, are available in relation to Ofcom’s decisions.

Ofcom is the sole regulator of “on-demand programme services” (ODPS), as well as linear channel services. All UK linear online channels need to be licensed, whilst non-linear services do not. Offshore services are not currently regulated in the UK.

EXISTING CONTENT REGULATION PROVISIONS IN AUSTRALIA
In general, Australia enjoys a light-touch regulatory environment. Broadcasting, online content and telecommunications are all regulated by a single authority — the Australian Communications and Media Authority (ACMA).

Whilst there are no specific regulation codes for OTT services, the ACMA still regulates content matters and ad content is governed by the industry Codes of Practice. However, there are currently no laws regulating the entry of OTT services into the market, and no licenses or approvals are required

NEED FOR CONTENT REGULATION
Technological changes in the world are happening every minute and people are seen to be keeping pace with it. People no longer need to wait for their favourite programme to be aired on the television, they can now connect to a friend anywhere across the globe, there is no need to stand in long queues for getting a work done, everything is online. In this fast growing world and lives getting busier, changes are blooming so that life can be easier for people.

But it is not as simple as it seems. With the dawn of OTTs, there is also a set of drawbacks attached to it. These platforms provide a lot of content which is not suitable for the audiences. Here, the content is unrefined and thats what makes it popular. Whatever shows or movies these platforms are creating have a lot of vulgarity, nudity, sexually explicit, abusive language etc which is not at all suitable for a certain age group of viewers. These shows and movies are being watched by all kinds of audience. Since there is no regulatory framework for these platforms, they are free to create and upload whatever they want. This poses a major problem for the under-age group of audience. They are exposed to the kind of content which might not be fit for them.

Another drawback being that the content provided is portraying women in a wrong sense. Women are degraded and are sexually objectified. Women since long have been fighting for their dignity. Instead of showing women as strong characters they are further degraded by the creators. Patriarchy is being promoted and women are being shown as weak characters.

India maintains a hybrid legal system, with laws ranging from criminal to animal protection laws. The constitution of India provides seven prominent Fundamental Rights to the citizens of India. However, these fundamental rights are not absolute. Any right or power given absolutely has a tendency to be exploited. The Constitution makers provided for certain restrictions as well, in the Constitution of India barring any person from misusing these freedoms. Article 19, for example, provides Freedom of Speech and Expression.

One is free to speak, write and publish whatever they want to. But this freedom is subject to certain restrictions, like, security of the country, morality, defamation etc. One cannot take the shelter of Article 19 while defaming a person publicly. Similarly, the film makers, publishers etc are not free to produce or print whatever they like. They have to undergo a filtration process in lieu of these restrictions. Just like the conventional cinema content has to be gone through a screening process, the content offered by these OTTs should also be regulated. The content makers cannot in the name of freedom of speech and expression make anything they like.

CURRENT SCENARIO
SELF REGULATION
The online curated content providers voluntarily signed and adopted a self-regulated “Code of Best Practices”, simply known as ‘self-regulation’ under the Internet and Mobile Association of India (IAMAI). Major OTTs like, such as Netflix, Hotstar, Voot, Zee5, Arre, SonyLIV, ALTBalaji and Eros Now, signed the code.

The objectives of the Code are-
Empower consumers to make informed choices on age-appropriate content;
Protect the interests of consumers in choosing and accessing the content they want to watch,
at their own time and convenience;

Safeguard and respect creative freedom of content creators and artists;
Nurture creativity, create an ecosystem fostering innovation and abide by an individual’s
freedom of speech and expression; and

Provide a mechanism for complaints redressal in relation to content made available by
respective OCC Providers.

Part-B of the Code talks about the Prohibited Content which ensures that the signatories to the code do not maliciously or deliberately make available the following type of content through services to their users-

Content which deliberately and maliciously disrespects the national emblem or national flag;
Content which represents a child engaged in real or simulated sexual activities or any representation of the sexual parts of a child for primarily sexual purposes1;
Content which deliberately and maliciously intends to outrage religious sentiments of any class, section or community;
Content which deliberately and maliciously promotes or encourages terrorism and other forms of violence against the State (of India) or its institutions; and
Content that has been banned for exhibition or distribution by online video service under applicable laws or by any court with competent jurisdiction.

The Code also addresses the issue of Age-Inappropriate and sensitive content.

Categorise content and classify the same into separate and distinct categories such as General / Universal Viewing; Content which requires Parental Guidance and/or; Content which is solely meant for age-appropriate audiences (such age-appropriate audience may be further sub-categorised into different age groups).

Display a content descriptor or guidance message that indicates and informs the viewer about nature of the content, particularly around age-inappropriate content for minors.

Each OCC Provider signatory may institute relevant technological tools and measures to ensure access content and/or enable parental control. The signatories agree to lead the implementation of internal standards and practices / norms based on the present Code.

Lastly, the Code of Best Practices provides for a Complaint Redressal and its process.

TRAI’S CONSULTATION PAPER ON REGULATORY FRAMEWORK FOR OTTs
In November 2018, the Telecom Regulatory Authority of India released a consultation paper on regulatory framework of OTTs. The aim of this consultation paper is to delve into the regulatory issues and economic concerns pertaining to such OTT services as can be regarded the same or similar to the services provided by TSPs. TRAI sought to examine the implications of the growth of OTT providers; the relationship between OTT players and telecom service providers (TSPs); the similarity, if any, between services provided by TSPs and OTT players; changes that may be required in the current regulatory framework to govern these entities; and the manner in which such changes should be affected.

CONCLUSION
Television, movies, etc. influences the minds of people to an extent which is beyond our imagination. Gone are the days where one’s role model were a country’s Prime Minister, a CEO, a businessman. Today, people find their idols in actors and actresses. People try to imitate their favourite celebrities and can cross bridges to become like them. They fail to understand that what they are trying to imitate is not their favourite actor but a fictional character played by them. People fail to understand the difference between reel and real. Because of this, there needs to be stringent laws and regulations as to what all is published or released in the cinemas, newspapers, magazines etc. Without any regulations, the entertainment industry will be flooded with anything and everything.

These OTTs are blooming in the market at a rapid pace. They have partially replaced the traditional cable TVs and there is no denying that they will completely replace the cable regime in the future. The strategy adopted by the developers is to curate controversial and attractive content so that more and more people are drawn towards the sites. Netflix being the most popular platform these days, contributes to a number of controversial shows existing.

One of the example being, ’13 Reasons Why,’ where the the issue of suicide, rape, bullying are shown in an extolled manner. Another example being ‘Atypical’ which was supposed to create awareness about Autism, instead created a stereotype for people suffering from Autism. ‘Sacred Games’ gaining a lot of popularity from Indian audiences, also created a commotion among the people, specially among the Congress party members as, abusive language was used very brazenly against the late former Prime Minister of India, Rajiv Gandhi.

But, there are many series as well as movies which creates awarenesses regarding many prevalent social issues, stand against injustices, creating mental health awareness etc.

Applying the already existing conventional rules and regulations on these OTTs would not be the right call. The content offered by Netflix, Amazon etc is poles apart from the movies that are made in India. Leverage should be kept for these platforms.

The conventional bodies like MIB, TRAI should not be given the absolute authority to govern them. A separate body should be made for making rules and regulations. They cannot be subjected to the laws that are already existing for censorship.

People always have the option to stick to the traditional cable TV and not watch the content offered by the OTTs if it offends them. The parents should make sure that their children are not exposed to such violence and explicit content.

Moreover, Netflix releases a series every other week and it will not be possible for already burdened conventional bodies like TRAI to regulate every content being released on the site.

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