It was only recently that Over The Top platforms (OTT) became a major source of entertainment for the people and with the current ongoing pandemic, the dependence on such mediums have increased to a considerable new extent. In India, Netflix, Amazon Prime and Disney+ Hotstar dominate the field with other local competitors such as Alt Balaji, Sony Liv, Voot etc. Data shows a 30% massive growth in the OTT viewership with subscriptions. Earlier these OTT platforms could release the content only after theatre releases, but now they have started their own productions with documentaries, films, short films etc. And such un- controlled dominations raised concerns about the contents that they show and the regulations required. Thereby, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules were released in 2021 with the main objective of regulating the content and to establish efficient redressal grievance mechanisms. But, before jump starting to the guidelines and the recent amendments made, it is imperative to understand the laws in place before such amendment and how other theatre platforms were controlled.
Laws before amendment for regulating the contents available online
Up until now, there were no such separate laws for the content available in the net, but there are some articles and sections from different legislations that provides some kind of regulations and they are as follows-
The first one is Article 19 (1) of the Indian Constitution which provides the right to speech and expression to all. Thereby, any person who wishes to express their opinions, thoughts, and ideas through online can do so subject to restrictions under Article 19 (2). These restrictions are imposed for the social security, public order and maintenance of international relations.
Secondly, Indian Penal Code speaks about the punishments in certain cases. Section 293 punishes any person who indulges in the activities of selling and distributing any work of literature which is obscene,1 Section 295A punishes any person who has the intention of outraging the religious sentiments with malice, Section 499 punishes a person for releasing defamatory content and Section 354 is applicable when any person insults the modesty of a woman.
Then there is the Indecent Representation of Women (Prevention) Act, 1986 which prohibits the indecent representation of women in advertisements, movies, books, etc.
For the offence of child pornography there is the POSCO (Protection of Children from Sexual offences) Act.
Under the Information Technology Act, 2000 section 67A, 67B and 67C imposes fine and imprisonment to any person who transits obscene materials, sexually explicit contents including depiction of children in sexual acts and the Government under Section 69A has the power to block the access of certain material to public.
Apart from the above stated there is the Cinematograph Act, 1952 which provides provision for certification of movies for exhibition and also there is a self- regulatory code known as the ‘Code of Best Practices for Online Curated Content Providers’ released by IAMAI- Internet and Mobile Association of India.
In 2018, a PIL was filed for providing separate guidelines for OTT platforms and the petition was dismissed by the Delhi High Court stating that MIB is of the view that content curators of OTT does not have to get separate license for displaying it’s content and MIB does not regulate it.2 To regulate the content available online, the Government had issued a notification on November 09, 2020, bringing the online/ digital media under the purview of Ministry of Information and Broadcasting (MIB). However, MIB clearly noted that regulation of OTT platform does not come under its authority and IT Act is the competent Act to deal with. Several petitions were filed for creation of an autonomous body for regulation of OTT platforms. Thereby a new amendment was brought in the Government of India (Allocation of Business) Rules, 1961 to include VA as the sub- head in second schedule titled Digital/ Online Media which contains two entries-
Films and audio visual programmes made available by online providers;
The news and current affairs content on online platforms.3
The second schedule provides for 9 categories under the MIB and the notification includes VA, thereby granting power to the MIB to regulate OTT platforms.
Further, the Guidelines for “Intermediaries and Digital Media Ethics Code” lays down the following guidelines for the intermediaries to follow which includes the OTT platforms under IT Act. The following are the provisions-
The OTT platforms have to self categorize themselves into five age based categories such as U- Universal, U/A 7 years, U/A- 13 years, U/A- 16 years and A- Adult.
Parental lock needs to provided by OTT platforms.
The digital media will also have to follow the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under Cable Television Networks Regulation Act.
To establish a three level grievance redressal mechanism, where the first level is the self- regulation by OTT platforms, second- level would be for self- regulation by the self- regulating bodies of publishers and the third level for an oversight mechanism.
It also provides for the appointment of a redressal officer based on India for addressing the grievances within 15 days.
There must also be an additional self- regulatory body of publishers from amongst the retired judge of Supreme Court, High court or an eminent person and not more than 6 other members.
The intention behind legislature to regulate the OTT platforms is although commendable but at the present it has posed as a speed braker for the OTT platforms. A problem arises when even after content classification, if a person watches it can such person file a suit against the OTT platforms for it? The present rules and amendment is likely to give rise to various complaints owing to the lack of grounds mentioned for complaining and different sensibilities of the viewers. Also, the three tier mechanisms disrupt the OTT platforms in performing efficiently and speedily. Even then, it can be rightly stated that the amendment and the guidelines are the pioneers in opening a wide range of developments in this regard. A comprehensive and a separate legislation for the same is needed in order to tackle the current issues.
Ayush Sahay, OTT platforms and their regulation, IPLEADERS, (May 1, 2021, 12:12 PM) https://blog.ipleaders.in/ott-platfors-regulation/. ↩
Justice for Rights Foundation v. Union of India WPC no. 11164/2018. ↩
Ashima Obhan & Bambi Bhalla, OTT platforms brought under government regulation, MONDAQ, (May 1, 2021, 12:43 PM), https://www.mondaq.com/India/broadcasting-fil-tv-radio. ↩