On 16th February 2021, the Supreme Court of India asked the Central Government to take measures to regulate content on over-the-top (OTT) video streaming platforms such as Netflix and Amazon Prime Video.
A bench headed by the Chief Justice of India asked the Indian Government to submit a reply to the Public Interest Litigation seeking the establishment of an autonomous body to regulate web shows and films. This makes us question the issue of “self-regulation” to preserve the notion of free speech and expression.
In November 2020, the Indian Government brought over-the-top (‘OTT’) platforms such as Netflix, Amazon Prime and others under the regulation of the Ministry of Information and Broadcasting (‘MIB’), thereby subjecting them to censorship standards set by the Government. This regulation poses policy and legal inquiries which ought to be explored on account of preservation of free speech and political ideologies. Through this article, we argue that instead of statutory regulations, OTT platforms should have been subjected to self-regulatory codes in order to protect free speech, thus acting independently from the whims of authoritative actions instead of promoting conservative ideologies at the hands of the government.
In India, the Central Board of Film Certification (‘CBFC’) is a statutory body under the MIB that has been vested with powers under the Cinematograph Act, 1952. It acts as a watchdog over movies that are shown to audiences in public cinema spaces, in the course of ‘certifying’ their broadcast to the public sphere. There is an established procedure in order to obtain the said certification, and the Board decides the age category rating for the audience on the basis of the nature and sensitivity of the film’s content. In the process of providing certification, the virtue of the Cinematograph Act itself has allowed the body to censor content at their discretion in the case of content not being fit for public consumption. However, over the years, the line between providing artistic freedom and curtailing the same in the course of upholding social and moral values has provided the body additional dominating power in the course of the release of a movie.
As we delve into the legal positions and evolved jurisprudence around the showcasing of movies, we can examine that the Supreme Court of India has looked at the significance of film censorship, alongside artistic freedom under the 1989 decision of S. Rangarajan Etc. v. P. Jagjivan Ram in a rather restrictive fashion. It held that “Film censorship becomes necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. Censorship by prior restraint is, therefore, not only desirable but also necessary”. However, the Apex Court in K. A. Abbas v. Union of India held that the requirement of protection of an artist’s expression can be superseded by the general public interest; however, a specific standard of censorship is to be recognized. This is to ensure that the freedom of expression and individuality is not curtailed. Furthermore, in the recent 2016 judgment titled Phantom Films Pvt. Ltd. and Anr. v. The Central Board of Certification, the Bombay High Court revisited the role of the CBFC stating that the role of the body is not to ‘censor’ films per se, but rather to certify them for its official release. Similar adherence can be placed over television broadcasting under the Cable Television (Regulation) Act, 1995, alongside the Cable Television Networks Rules, 1994 that prohibits airing of any content that may not be suitable for public viewing which may be otherwise prohibited under the Cinematograph Act. Therefore, although there has been preference given to artistic freedoms and liberties, films and television content have always fallen under statutory regulatory standards, which function at the discretion of the officials appointed.
In light of this, the fact that OTT platforms are being subjected to governmental regulations (which entails consequent censorship) raises a few pertinent issues that discourage one from accepting the same. This is primarily due to the platforms’ medium of dissemination i.e. the internet (as opposed to public viewing in a cinema hall/television set), and the creative liberty provided to the artist in terms of the content that is presented to the audience. As OTT content is entirely based over the internet, it would fall entirely under the ambit of India’s Information Technology Act, 2000 (‘IT Act’), and would not be subject to any content censorship board(s) currently in existence. This has been reiterated through a notification issued by the Cabinet Secretariat on 9th November, 2020, amending the Government of India (Allocation of Business) Rules, 1961 and inserting two new entries – 22A and 22B in its Second Schedule of the Rules. The two new entries include ‘Films and Audio-visual programmes made available by Online Content Providers’, and ‘News and Current Affairs on Online Platforms’, respectively. As the government has now brought OTT platforms under the purview of the MIB, the IT Act is reportedly said to get revised accordingly in the process.
Nonetheless, over the past few years, the Supreme Court of India and various High Courts around the country have been presented with several petitions in the course of the regulation of the OTT platforms on the grounds of obscenity, sexually explicit material, sensitive and violent content. The High Court(s) of Delhi and Karnataka had similar views aligning towards self-regulation codes for such platforms, with the existing IT Act acting as a mechanism, in order to govern content that stands in violation of the legislation, with no necessity of any censorship model to be installed. However, now that the Supreme Court has directed the MIB to create specific regulations in nature, the immediate legal reliance shall be on Section 67 of the IT Act which has an extremely broad approach (as this provision encompasses all kinds of information over the internet), alongside additional provisions that might be added in the future. This would turn out to be disheartening for OTT-content makers, as they would fall into a trap of regulation and censorship, which would limit their creative liberty. In the second part of this piece, we determine the scope of the idea of a fixed self-regulation model for these platforms and analyze its application in the context of the Indian jurisdiction.
With respect to the OTT platforms, self-regulation immunizes them from the political ideologies of the ruling government by creating a set of regulations created by the industry experts as “Best Practices”, which are devoid of the view of morality under the subjective interpretation of the ruling government and their fundamentalist ideologies. In January 2019, eight video streaming services under the Internet and Mobile Association of India (‘IAMAI’) had signed a self-regulatory code that laid down a set of guiding principles for content on these platforms which prohibited five types of content: dishonor of national emblem and flag, child pornography, promoting terrorism, outraging religious sentiments, and content expressly banned by law or court. Interference of the State in relation to the censoring of the content on the ground of communal harmony may run against the “Right to Freedom Speech and Expression” enshrined under Article 19 (1)(a) of the Indian Constitution as a fundamental right.
Instances of communal harmony-based restrictions by CBFC have been visited previously in documentary film ‘Aakrosh’ (Cry of Anguish) (2003) and Faaiz Anwar’s film ‘Chand Bujh Gaya’ (2005) which were later released in cinemas upon orders from the judiciary against such bans setting them outside the purview of morality as an exception under Article 19(2) of the Indian Constitution. Dr. Subradipta Sarkar in his article titled “Right to Free Speech in a Censored Democracy” in the University of Denver Sports and Entertainment Law Journal has established with several case studies how, the Government of India has been known for its attempts in the past to censor content on grounds of public morality, communal harmony or the need to protect history, among various reasons. The OTT services created a parallel medium to disseminate such content. That has led to a situation where the same content might be censored in cinemas and on television, but not on streaming platforms as regulation of content on paid OTT services does not exist.
Self-regulatory censorship has been implemented in the commercial advertising space in India under the Advertising Standards Council of India (‘ASCI’) through its Code of Self-Regulation, which provides for a mechanism to challenge the advertisement which runs contrary to the said ASCI Code. According to Section 7(9) of The Cable Television Network Rules, 1994, the advertisements played on television must compulsorily adhere to this Code. This compulsion imposed by the Parliament reflects the support extended towards self-regulation for television advertisements.
From a jurisprudential perspective, Professor Michael C. Douglas posited a theory under which he established conditions that may support ‘self-regulation’ over ‘control by federal agencies’. First, the theory emphasizes on “special knowledge of the industry members” for the purpose of introducing the self-regulatory codes. It is more efficient for the government to rely on the industry’s collective expertise than to reproduce it at the agency level. In an Indian context, this position of expertise can be provided by bodies such as FTII (‘Film and Television Institute of India’) and CINTA (‘Cine And TV Artistes’ Association’).
Second, self-regulation is more flexible than government regulation. It is easier for a trade association to modify rules in response to changing circumstances than for a government agency to amend its rules. Not only are government agencies bound to follow the notice and comment procedures of the Administrative Procedures, but it is often difficult for an agency to obtain the political support and consensus needed to act. For example, the ASCI self-regulatory process includes the formation of a ‘Board’ with Chairperson and Board Members which include expert members from the community including a Grievance and Complaint Board. Thus, executive decisions by the ASCI Board are taken with a public narrative and the industry into consideration with faster redressal. In absence of such a forum, the redressal falls with the judiciary, thus increasing the burden and time for such redressal. The National Secretary of Bhartiya Janta Party Youth Wing, Gaurav Tiwari, filed an FIR against the Netflix Show “A Suitable Boy” over certain religious grounds; if OTT Platforms are provided a self-regulation body with its independent redressal forum, these issues could have been resolved by the platforms themselves within a short period of time.
A comparative view of the time frame taken to examine and regulate content can be viewed through the procedural amendments to the Cinematograph Act, 1952 of the CBFC and the Code of Self-Regulation under the ASCI. The Cinematograph Act, 1952 requires the approval of the Parliament and then passed onto the CBFC, whereas the ASCI Code of Self-Regulation depends upon the ASCI committee significantly reducing the time for the implementation of such rules.
Third, if rules are developed by the industry, industry participants are more likely to perceive them as reasonable. Fourth, self-regulation is less costly to the government because it shifts the cost of developing and enforcing rules to the industry. Thus, the self-regulation route is also independent of the ideology of the ruling government, conservative or liberal.
In conclusion, from a legal and policy perspective, self-regulation empowers platforms to provide narratives that are important to preserve free speech independent of the whims of political ideologies, and translate the true form of creative liberty. However, now that OTT content has been prescribed to fall under regulatory codes, the artistic space can only hope that they do not face similar censorship scissors as that of film and television content, and are given a reasonably independent domain to thrive in the Indian democracy.
Vishwajeet Deshmukh is a law student at Government Law College, Mumbai, India, and a Staff Writer for JURIST.
Mustafa Rajkotwala is a law student at NALSAR University of Law, Hyderabad, India.
Suggested citation: Vishwajeet Deshmukh and Mustafa Rajkotwala, Self-Regulation of Over-The-Top (OTT) Content under the Indian Regime: A Missed Opportunity?, JURIST – Student Commentary, March 8, 2021, https://www.jurist.org/commentary/2021/03/deshmukh-rajkotwala-self-regulation-of-ott-content/.
This article was prepared for publication by Akshita Tiwary, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
