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OTT stands for Over-The-Top. Any video streaming platform that allows viewers to access content directly over an internet connection is referred to as OTT. Netflix, Amazon Prime, and Hotstar are some of the most common OTT services in India. The year 2020 will be remembered as a pivotal moment in the history of OTT. Due to the pandemic, several movies were broadcast over the internet when theatres were closed.
“The Indian government has recently attracted criticism for its aggressive campaign to tighten regulation of digital service providers, with over-the-top (OTT) platforms, which provide intermediation services for online news, video, and audio content, as its latest target.”
There has been a series of developments made in this regard. In Shashank Shekhar Jha & Ors. v Union of India & Ors, the Supreme Court issued a writ petition asking for the formation of an independent organisation for censoring content on the internet in the country. The Madras High Court asked the Supreme Court to address the question of content moderation for the public interest and to develop a mechanism to scrutinise digital platforms after a teenager died while playing the online “blue whale challenge.”
After NGO Maatr Foundation filed a petition alleging that uncertified accessible material on OTT platforms is unregulated, pornographic, vulgar, sexually explicit, and legally limited, the Central Government and ten OTT websites were served with notification by the High Court of Madhya Pradesh. The petitioner also argued that these OTT players should be classified as intermediaries and therefore be responsible for violations of the IT Act and the Indian Penal Code, 1860.
In the case of Justice for Rights Foundation v. Union of India, an NGO filed a lawsuit in the Delhi High Court alleging that OTT websites such as Hotstar, Netflix, and others are unregulated and operate without any form of censorship. The same was dismissed by the HC following which the issue was taken to the Hon’ble Supreme Court which said that there is no need for any separate legislation for the purpose of censoring the OTT platforms as there exists enough provisions in the Information Technology Act, 2000 to deal with the same.
The Supreme Court held in Shreya Singhal v. Union of India that the judicial ruling and/or notice seeking takedown by the respective government or its entity shall strictly follow the relevant guidelines set out in Article 19(2) of the Constitution.
In the month of January 2019, when a group of eight OTT platforms had come up with a self-regulating code which aimed at forbidding the streaming of content which either outraged public sentiments, promoted child pornography, wrongly supported the idea of terrorism, showed disrespect towards the National emblem or the flag, or was prohibited by law or court, the same was rejected by the Government citing the reasons that there is no comprehensive complaint mediation system in operation, and there is no third-party oversight process. In October 2019, the government had hinted towards releasing a separate list of “don’ts” for the online content streaming platforms.
In a PIL moved in the Karnataka High Court by Mr. Padmanabh Shankar, a division bench consisting of Chief Justice AS Oka and Justice M Nawaz ruled “movies, serials, and other multimedia contents distributed, broadcasted, or displayed via internet platforms like YouTube, Google India, and video streaming platforms like Hotstar, Amazon Prime, Netflix, and Alt Digital cannot be monitored under the Cinematograph Act, 1952.”
While there were various regulations and legal frameworks already in place for censoring the electronic and print media, there was no such regulation on OTT platforms, barring the IT Act 2000. “At present, the Press Council of India regulates the print media, the News Broadcasters Association (NBA) represents the news channels, the Advertising Standards Council of India regulates advertising, while the Central Board of Film Certification (CBFC) monitors films.” Apart from the IT Act, certain sections of the Indian Penal Code had the effect of criminalising the publication of defamatory material, as well as the deliberate and malicious intent to offend religious feelings, among other things. Additionally, the Unlawful Activities (Prevention) Act, 1967, Indecent Representation of Women (Prohibition) Act, 1986 are also applicable to the OTT platforms.
Let us look at the regulation of online content in other countries. Countries such as Australia and Turkey tend to want to establish a regulatory framework for online players that is close to that used for offline players. Their laws are written in this manner, and they appear to fill the (real or perceived) regulatory gap that exists between OTT and offline players. Kenya, Indonesia, and Saudi Arabia, on the other hand, tend to want to restrict space in order to strengthen government power and impose a stringent censorship regime. Their laws are written in this manner, and they tend to put a strong focus on state supervision and regulatory oversight. The United Kingdom and Singapore tend to be a combination of both concepts, in that they want to regulate the players while still protecting their people from potentially harmful and deceptive information.
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On 9th November 2020, the Government of India released a notification that brought the Over-the-top (OTT) websites under the scope of jurisdiction of the Ministry of Information and Broadcasting, GOI. This indicated that the online content providers like Netflix, Amazon Prime, HotStar, etc. would now be monitored by the MIB which would possess the jurisdiction to formulate policies regarding them. This was done by amending the “Government of India (Allocation of Business) Rules, 1961(‘Rules’)” to include another fresh sub-heading VA in the second schedule, termed “Digital/Online Media,” wherein the undermentioned two entries have been incorporated-
- “films and audio-visual programmes made available by online content providers
- news and current affairs content on online platforms.”
Following that, on 25th February 2021, the government came up with “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021” that replaced Information Technology (Intermediary Guidelines) Rules 2011. It was the first attempt at regulating the censorship of OTT platforms by the Government of India. It said “Rules about digital media and OTT focuses more on in house and self-regulation mechanism whereby a robust grievance redressal mechanism has been provided while upholding journalistic and creative freedom”. They were described as “soft-touch regulatory architecture” by the government.
Via a three-tier mechanism, it strengthened its hold over digital news media and OTT (over-the-top) video streaming services. “While the first two levels established a framework of self-regulation by the platform and self-regulatory bodies for content publishers, the third tier demanded a central government oversight mechanism. The digital website or content publisher shall appoint an Indian-based grievance redressal officer who must respond to the complaint within 15 days, according to the new regulations. The second tier will be made up of the news publisher’s or streaming service’s self-regulatory body, which will be headed by a former Supreme Court or high court judge or an eminent person. Finally, and perhaps most importantly, the I&B ministry will create an inter-departmental committee to investigate complaints.” That apart, the owners of the video streaming platforms would have to categorise their content into various age categories, such as “U” or universal ranking, as well as 7+, 13+, 16+, and 18+. Platforms would be expected to put into effect parental locks for content categorised as U/A 13+ or above, and trustworthy age verification mechanisms for contents categorised as ‘A’.
The government’s decision sparked a flurry of debates about the legal as well as sociological implications of censoring such platforms. I’d like to use this article to illustrate some of the major issues that emerged as a result of this move.
The idea that OTT censorship infringes on the human right to speech and expression is, of course, the first big issue with OTT censorship. Article 19(1)(a) of the Constitution of India ensures for all its citizens the right to freedom of speech and expression. According to it, “all citizens shall have the right to freedom of speech and expression”. Article 19(2) provides for “reasonable restrictions can be imposed on the exercise of this right for certain purposes.” One of the most important elements of a healthy democracy is the fundamental right to freedom of speech and expression, which enables people to engage completely and efficiently in the country’s social and political processes. In the past, there have been various instances that are evidence that such censorship has the ability to stifle free speech and artistic freedom on the internet. In the matter of K.A. Abbas v. Union of India, when the CBFC denied a ‘U’ certification to the movie “A Tale of Two Cities” stating the reason that a scene in the movie had been filmed in the “red light area” which renders it unsuitable for child viewership, the petitioner i.e., the producer filed a lawsuit for violation of his rights provided by Article 19(1)(a). The Court had rejected the same on the ground of reasonable restrictions and further held that “since motion picture is able to stir up emotions more deeply than any other product of art, films, in general, should merit a separate treatment.” In recent times, various movies have faced severe opposition due to a plethora of reasons. When the movie ‘Padmaavat’ faced the problem of prohibition, the Court held “if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction and when creativity dies, values of civilization corrode.”
“The Indian government is taking a proactive approach to online censorship, as evidenced by the recent removal of John Oliver’s Last Week Tonight web episode on Prime Minister Narendra Modi from Hotstar. Given this, as well as cases where political inclination has influenced decisions to allow public screenings of films like Udta Punjab and Padmaavat, the Notification could be a precursor to a regime that stifles free speech and creative freedom on the internet.”
The next issue pertains to the Rule 8 sub-rule (3) which provide for a three-tier framework for adherence and compliance to the Code, as follows:
“(a) Level I – Self-regulation by the applicable entity;
(b) Level II — Self-regulation by the self-regulating bodies of the applicable entities
(c) Level III – Oversight mechanism by the Central Government.”
This oversight structure is being developed without explicit legislative approval, and it will gradually carry out functions identical to the ones performed by the Ministry of Information and Broadcasting for television regulation. For example, according to Rule 13(4), this now incorporates censorship powers for instance apology scrolls, as well as content blocking! All of this is being prepared without any statutory approval or specific legislation from parliament.
Increased censorship would have a negative effect on the economy of the country, as India is not only a major user but also a major producer of online video content in today’s world. It has established itself as a major player in the global market. Censorship would result in a reduction in the quality of content generated, which will have a significant effect on citizens’ digital rights, cause economic damage, and harm India’s increasing cultural presence by means of the development of recent and contemporary video formats entertainment.
The material on OTT platforms is Subscription on Demand, which allows audiences to pay and choose what they want to watch. This is one of the strongest arguments against censorship. Unlike the Film industry, here the viewers are given the discretion to select the type of content they wish to see. Censorship will essentially curb this freedom of the viewers.
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During the censorship debate, the issue of obscenity and the representation of women in movies has also come up. It is not a new statement, but it is fair to conclude that the patriarchal aspect of Indian culture has had an effect on the film industry. C.B.F.C. removes scenes from films like Lipstick Under My Burkha, in which the entire plot revolved around four women seeking liberation from society’s shackles, claiming that the film denigrates women’s roles in front of the public. Nonetheless, when the matter was brought to the attention of the Film Certification Appellate Tribunal (FCAT), in the case of Sudhirbhai Mishra v. Central Board of Film Certification, Mumbai, the panel ruled that the C.B.F.C. was incorrect in banning the film solely because it was women-oriented and depicted sexual imaginings and preferences of women in an order dated 18th April 2017. On the other hand, films with genuinely obscene content, such as Mastizaade and Great Grand Masti, get off scot-free with V/UA and U/UA certifications with relative ease. These rudimentary and conventional censorship standards are tipping the scales in favour of online networks, which are proving to be more accessible and inclusive of creators’ ideas. With the OTT websites coming under the scope of the MIB, this privilege of the content creators has also been taken away.
On the other hand, there are several advantages of censoring OTT channels. Censorship aids in the prevention of anti-social, hateful, and explicit material reaching the public, thus preserving social order. It is important to ensure that credible information is posted on all OTT sites, which does not manipulate public views in a way that has a negative effect on society. Another purpose is to discourage child nudity and sexual abuse of children. Some online material can encourage hate speech centered on colour, ethnic background, national origin, religious affiliation, sexual preference, class, sex, sexuality, and gender expression, as well as significant physical disability, all of which have the potential to hurt people’s feelings. As a result, censorship would help society avoid needless disputes. Adult content may have a negative impact on a child’s psyche, leading them in the wrong direction, which is why parental control over such content is critical.
In India, the growth of OTT services has changed video consumption in recent years, giving viewers more power over what they watch, when they watch it, and when they watch it at their leisure. OTT Platforms in India today have a strong foothold and a large fan base, including in rural areas. To access the contents of the OTT Sites, all you need is a smartphone with an internet connection. People’s viewing habits have shifted as a result of technological advancements, allowing them to control when, when, where, and how they consume online content. The rise in popularity of Internet-delivered OTT services, combined with the development of more creative stories, has aided in the popularisation of a particular viewing habit among audiences known as “binge-watching.” The OTT Platforms’ content combines culture and technological assistance to draw a wide number of viewers. Since online channels are interactive, they are more popular among netizens than their television or film equivalents, which have mostly passive audiences.
With the increase in its popularity, it has also faced intense resistance. The move of regulating the digital media and the OTT platforms has had both positive as well as negative consequences. While on one hand, it has curbed the freedom of speech and creative expression of the content creators, it has made sure that there exists a framework for effective supervision and moderation as in other areas like print and electronic media.
What is necessary at this point in time is the harmonious strike of balance between both of them and protecting the dignity, confidentiality, and thus the rights of customers. There needs to be effective control of digital content censorship while preserving the most fundamental right to freedom of speech and expression.
Columbia Global Freedom of Expression, available at: https://globalfreedomofexpression.columbia.edu/updates/2021/01/government-of-india-to-regulate-ott-platforms/ (Visited on March 16, 2021).
Shashank Shekhar Jha & Ors. v Union of India & Ors., Order dated 15 October 2020 in WP (Civil) No. 1080/2020.
Maatr Foundation v Union of India and Ors., Order dated 19th October 2020 in WP (Civil) No. 18801/2019.
Justice for Rights Foundation v. Union of India, Order dated 8 February 2019 in WP (Civil) No. 11164/2018.
The Information Technology Act, 2000 (Act 21 of 2000).
AIR 2015 SC 1523.
The Constitution of India, art. 19(2).
Mr. Padmanabh Shankar vs Union of India, Order dated 7 August 2019 in WP (Civil) No. 6050/2019.
Supra note 5.
Special Correspondent, “Government to govern Netflix, Amazon Prime and other OTT platforms”, The Hindu, 11 November 2020, available at <https://www.thehindu.com/news/national/netflix-amazon-prime-other-ott-platforms-now-under-govt-regulation/article33072710.ece> (last visited on 17 March 2021).
Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.
Saumya Tiwari, “Govt tightens scrutiny on social media sites”. Mint, 26 February 2021, available at <https://www.livemint.com/news/india/govt-announces-stricter-norms-for-social-media-news-sites-streaming-platforms-11614264095658.html>
Supra note 11.
Supra note 7, art. 19(1)(a).
Supra note 7.
(1970) 2 SCC 780.
Viacom 18 Media Private Limited & Ors. v. Union of India & Ors., Order dated January 1, 2018 in WP (Civil) No.36/2018.
Supra note 1.
Supra note 11.
Sudhirbhai Mishra v. Central Board of Film Certification, Mumbai, Order dated 18 Aril 2021 in F.No. 2/4/2017-FCAT.
Author: ABHILIPSA MOHANTY
Editor: Kanishka Vaish, Senior Editor, LexLife India.