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Regulating the Unregulated: Stories of OTT Platforms in India

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 on 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 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.

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, 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 regulatory obligations 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.

[1] RTI application dated October 25, 2016, received online vide registration number MOIAB/R/2016/50541 and MIB’s response dated December 2, 2016.

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