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Regulation Code For OTT Content

This article talks about the regulatory code to be made for the OTT Platforms. This is a recent and most trending topic nowadays.

In today's time Over The Top (OTT) platforms had became the paradise for all those creators who makes content for OTT. This is clearly visible as during the time of pandemic when the whole globe is battling against the Covid-19 crisis, famous movie directors opted to release their movies and content on these OTT platforms and also, they got a very overwhelming response as people are unable to go to cinema halls or movie theatres. There has been a rise by 30% in subscribers of OTT platforms like the Amazon Prime, Netflix, Disney+ Hot star, MX Player etc.

Currently, there are 40 OTT Platforms operating in India.
These OTT platforms earlier used to stream those contents which were already out of the movie theatres when they get rights from the distributors of those contents but in today's time the OTT platforms have started the content which is made by themselves in form of movies, documentaries, web series on various trending issues.

In our country, Amazon Prime Video, Netflix dominate the OTT market as they gained many subscribers and they have competitors like Alt Balaji, MX Player, Voot, Sony Liv etc. Legal trouble might be there earlier for these platforms as they were self- regulatory but now all these platforms will be governed by the Ministry of Information and Broadcasting as there is an amendment been made in the Government of India (Allocation of Business) Rules, 1961 as we can see that all these platforms are full of sex, violence, abuse, vulgarity, obscenity and also showing disrespect to the sentiments of various religions.

Controversy over the OTT Platforms:

There are always criticisms and the criticisms will always find a way towards ideas which are great. There have always been controversies regarding to the release on OTT platforms as people had always criticized that the content on these platforms is full of obscenity, vulgarity etc and which is having a bad impact on children and other sections of the society and because of getting influenced by these contents, people are committing crime and the rate of criminal cases are increasing day by day.

Here, such cases which deals with the releases in theatres are dealt by a body named as the Central Board of Film Certification (CBFC ) and also the Cinematographic Act, 1952[1] accompanying with various rules and guidelines to be followed by each movie director and on the other hand, in the case of broadcasting media, i.e. television broadcasting is regulated by Broadcasting Content Complaints Council (BCCC).

Further, it can be seen that these OTT platforms , have no such legislation or body, regulating them, for they are only governed by the Ministry of Electronics and Information Technology (Meity) and the other is the Information Technology (IT) Act , 2000[2] . But these OTT platforms have certain self-regulation/censorship standards of their own like the Netflix has self-imposed maturity ratings.

As per Information and Broadcasting ministry the several grievances and complaints regarding content on OTT Platforms were received and which is increasing violence, anger, rage etc among the youngsters. Also, these OTT platforms have had their share of controversies, the latest being on Netlix's The Suitable Boy, Amazon Prime's Taandav which had Saif Ali Khan in leading role and in which some of the scenes Hindu Gods were shown as derogatory, as the ALT Balaji's named XXX are some of the recent examples. Now, as we can see that all this controversy has led to the debate on whether censorship and regulation of OTT platforms has become a necessity or not?

The laws which regulated the online contents before:

As we can see that there are no specific laws and regulations that are enacted to regulate the content available online on OTT platforms, but there are different articles in the Constitution of India and also various sections from different acts that regulate the content available online on OTT Platforms.

Some of them are as follows:
  1. Firstly, being the Article 19(1)[3] of the Indian Constitution, which mentions everyone the " Freedom of Speech and expression" while on the other hand, the right under Article 19(2)[4] of the Indian Constitution, which clearly mentions that by imposing the various reasonable restrictions the freedom can be taken away. This is the case for content when it is for against the well-being of the state or when public order is hampered or any crime against international relations is caused.
  2. Further, there is also The Indian Penal Code (IPC) which serves to punish anybody who has been indulged or found in the selling or distribution of work of literature which is obscene as mentioned in (Section 293)[5]. Also, next being, the intention of outraging religious sentiments which is intentional and done maliciously as given under Section 295 A[6]. Any act of publishing defamatory content or we can say defamation as per Section 499[7] of IPC and also to anyone who insults any modesty of women as per Section 354[8]) of the IPC.
  3. Thirdly, if we talk about the various acts which deals with this issue are : The Indecent Representation of Women (Prohibition) Act, 1986[9] . This act emphasis on acting towards making sure that there is complete prohibition of indecent representation of women in advertisements, books, movies, painting etc.
  4. Next, being the POCSO (Protection of Children from Sexual Offences) Act 2012[10], which makes it an offence to sell the child pornography and also to distribute the child pornography.
  5. Also, there are provisions mentioned as the Sections 67A, 67B and 67C of the Information Technology Act (IT), 2000 which clearly mentions and provides for penalty as well as the imprisonment to be imposed on anybody transmitted or published any kind of obscene material, along with any sexually explicit material including those where children are depicted in sexual acts.
  6. Also, on the other hand the Central Government is also provided with the powers to issue directives to block certain information to be in public access, under Section 69A of the IT Act, 2000.

The recent Regulatory Code:

It can be seen that a self regulatory code is signed by many of these platforms. A code named ' The Code of Best Practices for Online Curated Content Providers' was released by IAMAI or the Internet and Mobile Association of India. The main and sole purpose of this code is to work towards a framework of open disclosure.

It is also said by maintaining elucidation or illustration of the content along with mention of maturity ratings the open disclosure is to be done. The code is divided into three versions and in September, 2020 latest code is brought.

In November, 2020 a notice to IAMAI was sent or issued by the Supreme Court of India and the central government after hearing a petition which mentions about for the regulation of OTT platforms. Also, after this a notification came out which wrote that including the OTT platforms, all the online curated content providers or the OCCPs will now be controlled under the Ministry of Information and Broadcasting and not under Meity which was earlier one.

Recently, there has been an update announced on 25th February, 2021 that the Government issued guidelines called Information Technology (Intermediary Guidelines and Digital Media Ethics Code)[11] Rules 2021 and which mentions about a 3 tier regulatory mechanism for digital news media and OTT platforms.

The three major features of this code are:
  1. Firstly, categorisation of content into separate categories is provided and along with its disclaimers to be provided for the inappropriate content for some age groups.
  2. Secondly, a definition to be given for age sensitive and the content which is prohibited must be provided.
  3. Last, but not the least, and the third one being that for consumers a proper grievance redressal mechanism to be provided to talk any complaints or concern brought by the consumers against any content which is made available on these platforms.

Also, age ratings such as 'U' or we can say ' Universal Ratings' along with other ratings as per age groups must be provided by these platforms for the security purposes of the children.

What is Central Board of Film Certification (CBFC)?:

Also, if given the power to regulate and to censor OTT content the CBFC will also face the same fate as the broadcasters of TV and cinema had faced and also under grounds of ' obscenity', ' immorality', ' vulgarity' which are termed as vague terms by media and they would also be censored.

Also, it is said that the CBFC is infamous for its misusing and overreaching power and nature and also it can be seen that the unnecessary censorships have been provided to movies like Udta Punjab and NH- 10 and along with it many others too.

The new amendment in the Government of India (Allocation of Business) Rules, 1961:

We can see that no statement was made officially in public regarding any guidelines but all that we can assume is that under the Cable & Television Rules (1994) the Programme & Advertising codes will be providing for the regulatory and Aldo the regulations for all those contents available on OTT platforms. The centre named " The Electronic Media Monitoring Centre" is also there and it monitors the content available on the televisions.

What are the Regulations for online content in foreign countries?
  1. United Kingdom:
    It can be seen that in September 2018, we can see that in the United Kingdom one of the most famous media that is the BBC which had called out the Government of UK for not regulating these OTT platforms. Also, further The British Board of Film Certification also had made an announcement which had clearly mentioned that they will be partnering up with Netflix. As there were not any direct regulations over these OTT platforms. As per this partnership made the board will help to allow Netflix to set their own ratings for all the content available on their platform.

    Moreover, still now till present day there aren't any strict regulations that regulate these OTT platforms. Also, the UK Government is said to be working on these regulations.
  2. Singapore:
    Next we talk of Singapore. In Singapore it was in the year 2018 that the regulatory body named IMDA or we can say in full the Infocomm Media Development Authority had issued a code to regulate these OTT Platform. The content regulation is quite direct.

Further, in Singapore, as per the guidelines issued by the government, now the OTT platform will have to rate the content which is available on their platform and also they have to rate the movies as it is done for the offline movies. Specific instructions has been mentioned in this code for content that are available for viewers above 16 + or we can say like for 21 years which is the suitable age.

Also, it mentions the platform has to make sure parental lock function has been provided for by them in cases for the content available for 16+ and also should have a proper procedure in place to open such content after age verification for the content available for 21 years and above. Also, the regulatory body has also made sure to inform these OTT platforms and also excluding this code prescribed for them. Also, as per new guidelines they have to must follow to the already prevailing laws of Singapore.

Australia, Turkey , Indonesia , Kenya and Saudi Arabia are the other few countries that have put up regulations on the OTT platforms directly or have other laws to regulate the OTT platforms and it's content.

Role played by the judiciary:

In absence of any specific rules, regulations and codes made, the Courts have by and large resisted attempts by mode of different individuals and groups to bring about regulation and a regulatory code for the OTT industry through the route of judiciary.

Further we can see that one of the earliest cases asking for interference by the courts with respect to OTT platforms was Nikhil Bhalla v. Union of India & Ors[12], which was heard by Delhi High Court in the year 2018. This case had concerned censoring certain scenes/dialogues in the series of Netflix named 'Sacred Games'. In this case, the Court took a liberal and expansive view and dismissed the petition by saying that it doesn't want to curtail anybody's rights.

This was one of a few notable instances where the government itself argued against censorship (Justice for Rights Foundation v. Union of India[13] being another such case). The other case further calling for the censorship of a web-series for calling lawyers 'thieves' was also dismissed by the Delhi High Court.

Further, We can see that the various other high courts like the Calcutta High Court and also the Allahabad High Court have also rejected various petitions that demand regulation/censorship of content on OTT platforms.

Not only this but it was a division bench of the Karnataka High Court that had also ruled out the applicability of the Cinematograph Act, 1952 to media available on OTT platforms.

Last but not the least it can be concluded that still government has made regulatory code to regulate the OTT Platforms but still there is increase of violence, anger, obscenity etc. which is affecting the youngsters. It can be seen in recent and past years that the censorship wars of movies on theatres is not new to content makers in India as many films in theatres got famous as they created a scene of war between the content creators and the censor boards.

Due to this different regulations and redressal mechanism are formulated by the government of India. All these initiatives took by the government will surely help to deal with the complaints and grievances of the public related to OTT Platforms and there will be no involvement of courts anymore.

  1. Cinematographic Act 1952, Act no. 37 of 1952, Acts of Parliament, 1952 (India)
  2. Information Technology Act 2000, Act no. 21 of 2000, Acts of Parliament, 2000 (India)
  3. India Const. Art 19 , cl 1
  4. India Const. Art 19, cl 2
  5. Pen. Code 293
  6. Pen. Code � 295 (A) �
  7. Pen. Code � 499
  8. Pen. Code � 354
  9. The Indecent Representation of Women (Prohibition) Act 1986, Act no. 60 of 1986, Acts of Parliament, 1986 (India)
  10. POCSO Act 2012, Act no. 32 of 2012, Acts of Parliament, 2012 (India
  11. Shivika Gupta, Regulation of the OTT platforms, IP Leaders, (April 6, 2021),
  12. Nikhil Bhalla vs Union of India & Ors., Delhi High Court, W.P(C) 7123/2018. (India)
  13. Justice for Rights Foundation vs Union of India, Delhi High Court, W.P(C) 111164/2018. (India)
Written By: Aradhaya Singh, A Third Year Law Student Persuing BA LLB At The Indraprastha Law College, Greater Noida.

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