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
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 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 . 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.
of them are as follows:
- Firstly, being the Article 19(1) of the Indian Constitution, which
mentions everyone the " Freedom of Speech and expression" while on the other
hand, the right under Article 19(2) 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.
- 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). Also, next
being, the intention of outraging religious sentiments which is intentional and
done maliciously as given under Section 295 A. Any act of publishing
defamatory content or we can say defamation as per Section 499 of IPC and
also to anyone who insults any modesty of women as per Section 354) of the
- Thirdly, if we talk about the various acts which deals with this issue
are : The Indecent Representation of Women (Prohibition) Act, 1986 . This
act emphasis on acting towards making sure that there is complete
prohibition of indecent representation of women in advertisements, books,
movies, painting etc.
- Next, being the POCSO (Protection of Children from Sexual Offences) Act
2012, which makes it an offence to sell the child pornography and also to
distribute the child pornography.
- 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
- 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) 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:
- 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.
- Secondly, a definition to be given for age sensitive and the content
which is prohibited must be provided.
- 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
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
The new amendment in the Government of India (Allocation of Business) Rules,
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?
- 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
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
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
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, 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
This was one of a few notable instances where the government itself
argued against censorship (Justice for Rights Foundation v. Union of
India 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.
Written By: Aradhaya Singh
- Cinematographic Act 1952, Act no. 37 of 1952, Acts of Parliament, 1952
- Information Technology Act 2000, Act no. 21 of 2000, Acts of Parliament,
- India Const. Art 19 , cl 1
- India Const. Art 19, cl 2
- Pen. Code 293
- Pen. Code § 295 (A) §
- Pen. Code § 499
- Pen. Code § 354
- The Indecent Representation of Women (Prohibition) Act 1986, Act no. 60
of 1986, Acts of Parliament, 1986 (India)
- POCSO Act 2012, Act no. 32 of 2012, Acts of Parliament, 2012 (India
- Shivika Gupta, Regulation of the OTT platforms, IP Leaders, (April 6,
- Nikhil Bhalla vs Union of India & Ors., Delhi High Court, W.P(C)
- Justice for Rights Foundation vs Union of India, Delhi High Court, W.P(C)
, A Third Year Law Student Persuing BA LLB At
The Indraprastha Law College, Greater Noida.