Over-the-top (OTT) platforms such as Netflix, Amazon Prime, Hotstar, and others, are subscription-based audio or video hosting services that are majorly involved in streaming feature films, web series, documentaries, etc. These platforms offer a wide range of content and modify the suggestions according to viewers’ choice by using Artificial Intelligence (AI). They generate revenue by charging the viewers a monthly subscription fee. These platforms transmit content via SOVD (Subscription-Based Video on Demand) or narrowcasting as opposed to broadcasting. Consumers can access content online at their convenience without any interference from advertisements.
This market is expected to grow at a compound annual growth rate (CAGR) of 28.6% over the next four years to get $2.9 billion in revenues. The number of subscribers increased from 22.2 million to 29 million during the first COVID-19 lockdown phase in India. With provisions like language dubbing, original regional content, direct to digital releases, affordable subscription/pricing plans, and increased internet penetration, OTT platforms will become a hyper-competitive market. OTT Platforms’ business models/strategies are evolving to acquire direct subscribers in Tier-II cities. Unfortunately, despite the digital revolution, there are no laws that regulate content on these platforms in India.
The Information Technology Act, 2000 governs the technological aspect of OTT platforms. As OTT platforms qualify as intermediaries under the IT Act, they fall under the Information Technology (Intermediaries Guidelines) Rules, 2011, that define the due diligence framework for publishing content online. The Delhi High Court clarified in its order that provisions of the IT Act pertaining to publication or transmission of obscene/sexual/illegal material in any electronic form would apply to OTT platforms. Moreover, the Supreme Court directed the Central government to take charge of the digital content showcased on these mediums; however, there was confusion regarding what regulatory authority controlled the online content.
Earlier, the representative body of OTT platforms, i.e., Internet and Mobile Association of India (IAMAI), had proposed a self-regulatory voluntary censorship model, “Code for Self-Regulation of Online Curated Content Providers.” This Code prohibited the broadcast of content that dishonors or insults the national flag/emblem, promotes child pornography, causes sacrilege, instigates terrorism, or is banned by the court of law for exhibition or distribution. However, the Ministry of Information and Broadcasting rejected it for lacking independent third-party monitoring, a clear definition of prohibited content, and a defined Code of Ethics.
Notification dated 9th November 2020, via Government of India (Allocation of Business) Three Hundred and Fifty-Seventh Amendment Rules, 2020, empowered the Information & Broadcasting Ministry to regulate Over The Top (OTT) Platforms. Before the OTT platforms that came under the Ministry of Electronics & Information Technology, it would now be governed by the Ministry of Information and Broadcasting. It is unclear if this Code will be revised or the Ministry will formulate new rules – which means that these OTT platforms would now have to apply for certification and approval of the content. It is also unclear if the Ministry of Information and Broadcasting will adopt a strict code of conduct or notify a broad framework within which OTT platforms can adopt self-regulation Codes. The situation will only be clarified on the notifications of the rules.
Firstly, the moot point is to define what party would be held culpable for any obscene, profane, or seditious content made available to the public. For example, millions of peoples express their opinions on varied topics on Youtube. Now, any seditious or illicit comment can be expunged by the Ministry, and the platform, i.e., Youtube, will not be responsible as it is a free medium that does not own the content published there.
Secondly, working on the internet, which is relatively free from the regulations and censorship norms, gives content creators intellectual freedom to experiment without fear of getting censored in the end. Moreover, OTTs are relatively new and free from formulaic content generation and accepted public morality standards, making it a highly liberated medium for creating art. Unlike broadcasting, SOVD does not come under the Cinematograph Act, 1952, and movies released on the OTT platform do not need any license from the Central Board of Film Certification (CBFC). However, with the new content regulation rules, the government’s fear of censorship would limit the spread of creativity and out of the box content.
Thirdly, monitoring content 24*7 will be a humongous task for the government. Lastly, such unchecked regulation and amendments made without prior permission would violate the fundamental right to freedom of speech and expression as enshrined under Article 19 of the Indian Constitution. One such example is ALT Balaji, wherein the Madhya Pradesh High Court held that impugned episode depicted simulated copulation that cannot be outrightly stated to be not obscene. The court emphasized that unwarranted restrictions on content by the government would violate Article 19(1)(a) of the Indian Constitution, but at the same time, if the content is against public decency and morality, then freedom of content should be subject to reasonable restrictions.
The issue of content regulation on OTT is crucial because the content made available to the 2 million users daily resonates with the nature of Indian society in terms of religion, caste, societal norms/behavior, economic status, caste, and language. Therefore, the regulation of OTT by the State is governed by how it affects society. In times of fast-changing entertainment media, the government and other stakeholders must come together to bring a proper framework that will balance the freedom of expression and necessary restrictions for the sake of law and order.
An excess of restriction/ guidelines could influence the creative freedom of the content makers, and that this way will influence the viewership of the OTT platforms. The digital media’s fate under the Ministry of Information and Broadcasting’s control leaves little hope for the actors and the new age content makers who are breaking all the moral stereotypes to bring us the new vibrant face of the entertainment industry. With details undisclosed on the rule that will be formulated and a decision being taken without prior public consultation, this move surely portends a regime of heavy internet censorship. Though developing a legal framework for OTT regulation is still a work in progress, the government’s manner and extent of content censorship would decide this digital revolution’s fate.
Vrinda Bhardwaj is a Research Associate at the Centre for Policy Research, New Delhi, India, and previously worked as a Judicial Clerk at the Supreme Court of India.
Ankur Rana is an LLM student at the Faculty of Law, University of Delhi, India.
Suggested Citation: Vrinda Bhardwaj and Ankur Rana, Netflix and Chill: Online Content Regulation in India, JURIST – Professional Commentary, February 11, 2021, https://www.jurist.org/commentary/2021/02/bhardwaj-rana-ott-regulation/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
