Regulating the Unregulated: Stories of OTT Platforms in India

EPILOGUE:

Indian media has historically been self-regulated, essentially meaning that the government has no control or hold over media and its content. The Press Council of India (PCI) and the News Broadcasting Standards Authority are responsible for regulating media in the country. The former is a statutory body, whereas the latter is a self-regulatory body. These bodies are typically responsible for formulating guidelines for different kinds of media in India.

PCI was formed under the Press Council Act of 1978, to uphold and protect the freedom of press in India. However, while the PCI covered press in its ambit, broadcasting media such as radio and TV were not covered in its scope of work. In the recent past, however, there have been discussions to include TV and radio under the PCI’s scope. The Chairman of PCI, Mr. K. Katju, also commented on the same and mentioned that there are talks regarding the inclusion of these two mediums in the gamut of a similar regulatory body.

Media regulation laws in India play a critical role because, while the independence of media is crucial, regulations are similarly critical to protect individuals’ privacy and maintain the ethics of journalism. Similar to how decisions of the PCI cannot be appealed even in a court of law, one such body is required for the electronic media, TV, and radio also.

Media regulation holds great significance in a country such as India. These regulations play an important role in protecting Indian citizens and corporate entities from defamation while ensuring that national security is not compromised. Issues like obscenity or sedition can be avoided while ensuring that matters infringing privacy and content inciting violence or racism are not published. Similarly, matters like pornography, etc. are not indulged in by media houses. Regulations are also imperative to ensure that the published content is factually accurate and based on reality, backed by justified interpretation.

In modern times, the rise of OTT platforms has seen a corresponding rise in content indulging in vulgarity and obscenity, while some have outraged religious sentiments or incited communal violence, etc. Thus, the need for appropriate laws is the need of the hour to ensure privacy protection and that cultural diversity is well respected.

To better understand the purview of the Media regulation laws in India, please feel free to speak to a practiced lawyer of the caliber of Obhan & Associates.

The scope of public internet that started back in the 1980s has grown over the decades. It allows a telecom subscriber to access almost all the services required for information, education, and entertainment, etc. It has altogether redefined the conventional marketplace. Even personalized services, such as a taxi ride can be accessed at a person’s fingertips. This growth has also brought about a fundamental shift in other spheres including telecom and TV. Earlier, networks used to be built around specific applications, say voice, internet, or Pay TV. Voice, message, and video content have now been reduced to mere bytes. There has been a rapid proliferation of voice, video, and Over-the-top (“OTT“) application services being delivered over networks.

Based on the kind of service they provide, there are basically three types of OTT applications:(i) Messaging and voice services (Communication services);(ii) Application eco-systems (mainly non-real-time), linked to social networks, e-commerce; and (iii) Video/audio content.

Applicable Regulations

The OTT operators are increasingly adopting voluntary codes of self-regulation in relation to the content shown on their platforms. In January 2019, OTT players such as Netflix, Hotstar, Alt Balaji, along with others signed a code of best practices. The objective of this code is to empower consumers to make informed choices on age-appropriate content and protect the interests of consumers in choosing and accessing the content they want to watch, at their own time and convenience.

As per the media regulation laws in India, while films in India are required to follow certification rules and broadcasters of programs on television are required to adhere to the Program Code and the Advertising Code, however, the owners of web series, films and other content exhibited only online or on digital platforms (such as Netflix, Amazon Prime, Hotstar) are currently free from the hassle of censorship or any code, subject to provisions of the Information Technology Act, 2000 (the “IT Act“) discussed below. This position was confirmed by the Ministry of Information and Broadcasting in a response to a query filed under the RTI Act, 2005, wherein it stated the Central Board of Film Certification solely certifies films for theatrical release and has no control over online content.^[1]

Content Based Regulation

Sections 67A, 67B and 67C of the IT Act provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts, in electronic form. Further, under Section 69A of the IT Act, the Central Government has been empowered to issue directions to block public access of any information. The Department of Telecommunications had in 2015, directed intermediaries to disable over 800 websites containing pornographic material and later clarified that intermediaries were not required to disable such websites which did not have child pornographic content.

The Information Technology (Intermediary Guidelines) Rules, 2011 (the “Intermediary Guidelines“) notified by the Department of Electronics and Information Technology, provide a due diligence framework to be observed by intermediaries in respect of the information being hosted or published on any computer resource of the intermediary. The framework and provisions under the Intermediary Guidelines may also be applicable to OTT platforms, which qualify as intermediaries under the IT Act.

Additionally, provisions of the Indian Penal Code, 1860 (“IPC“) are also applicable to the OTT platforms. For instance, online platforms are subject to section 295A of IPC that criminalizes deliberate and malicious acts intended to outrage religious feelings, and Section 499 and 500 of the IPC which criminalize dissemination of defamatory content.

In addition to the above, there have also been suggestions to include online content explicitly within the ambit of the Indecent Representation of Women (Prohibition) Act, 1986, which currently prohibits indecent representation of women in advertisements, books, films, paintings, and writings etc.

Challenges in the OTT Environment

The growing popularity of OTT services worldwide is posing a major challenge to the Telecom Service Providers (“TSPs“). The technological differences between OTTs and TSPs have led to a situation where both TSPs and OTT service providers become capable of providing similar services to customers. The communication OTT players are actually competing with traditional TSPs. The TSPs bear the costs for the infrastructure, spectrum management and also pay license fees for use of spectrum. At the same time, they need to meet universal services obligations and roll-out obligations and comply with other regulations. The counterpart OTT service providers, however, are not obliged to adhere to any obligations under media regulation laws in India and do not have to bear any such costs.

Is there a need to regulate OTT Platforms/Services?

A public interest litigation was filed by the Justice for Rights Foundation in the Delhi High Court (WPC No. 1164/2018) praying for an order to direct the government to frame guidelines in order to regulate the said online platforms and contents broadcasted on the online platforms. The Hon’ble Court established the capacity of the IT Act to regulate online content through its provisions with no need for external regulations. To this, the Justice for Rights Foundation filed a special leave petition in the Supreme Court of India. The appeal is yet to be heard by the Supreme Court.

Generally, online content, as it stands today, appears to be unbridled and the creators of such content are exercising their creative liberties to the fullest. However, it is not accurate to conclude that OTT platforms are absolutely unregulated or free from censorship, only because there exists no regulatory framework categorically setting out the manner of censorship or certification of the online content or guidelines outlining dos and don’ts for the creators of online content.

The Way Forward

On November 12, 2018, the Telecom Regulatory Authority of India (“TRAI“) published a consultation paper on regulatory framework for OTT communication services (“Consultation Paper”). This Consultation Paper was deemed necessary due to existing regulatory imbalances between TSPs and OTT service providers, especially since the adoption and usage of OTT services have increased exponentially. The Consultation Paper aimed at collating views of industry players and stakeholders to analyse the implications of the growth of OTT services, the relationship between TSP and OTT players, and any reforms that may be needed in the current regulatory framework. The TRAI also held an open house discussion on the OTT regulation in May 2019. While the TRAI had earlier announced that it would release its recommendations pursuant to the Consultation Paper by end of May 2019, they are yet to come out.