Tune In, Turn On: the Plug-In Drug
India has been in the centre of this debate of content censorship on OTT Platforms. Online obscenity has created uproar in the country and produced more questions than it has answered evident from the recent demand for creation of a law to bring in censorship for OTT platforms and web channels to cull out obscene scenes. The regulation in this space will shift the sands of the media and entertainment landscape.
OTT Platform has become one of the largest media markets in the world. They are subject to regulation of the State they exist in. Controlling internet space or the OTT Platform is not an easy task for any authority as the internet space is not completely controlled by any country except China and North Korea. Globally, countries are still in the process of bringing regulation in the space of OTT for example Australia has an ‘eSafety Commissioner’ for digital media and the content in the country is regulated by The Broadcasting Services Act, 1992 which has detailed guidelines, a complaint mechanism and a “refused classification” to be prohibited.
As provisions of the Cinematograph Act, 1952 are applicable to the films meant for release in theatres and as such are not applicable to the ones which are transmitted through the medium of the internet. Any certifications of a film by CBFC do not apply to the contents streamed on OTT platforms, the OTT platforms enjoyed complete freedom unlike traditional cinema and this led to numerous instances where plethora of complaints were filed on grounds of obscenity, hurting of religious sentiments, child pornography so on and so forth hence the need of the hour to regulate this space. This was also observed by the Supreme Court while hearing the plea filed by Amazon Head and opined that “Traditional film viewing has become obsolete. People watching films on these platforms has become common. Should there not be some screening? We feel there should be some screening… At times they are showing pornography too,” The court further stated that a certain degree of screening must be done before showing such films or web series to the general public.
The online content lacks such specific provision governing content available on the OTT Platform nonetheless these content are subject to certain existing legislation, rules such as –
1. Information Technology Act, 2000: Publishing or transmitting of material containing sexually explicit act, etc., in electronic form is punishable offence under section 67-A, Publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form is a punishable offence under section Section 67-B and the Government under Section 69A has the power to block the access of certain material for public consumption.
2. Indian Penal Code, 1860: Any person who indulges in the activities of selling and distributing any work of literature which is obscene is a punishable offence under Section 293. Any person who has the intention of outraging the religious sentiments with malice is punishable offence under Section 295A, releasing of defamatory content is punishable under Section 499 and if/and when any person insults the modesty of a woman is punishable under Section 354.
3. Protection of Children from Sexual offences) Act: For protection of children from either online or offline offences. This is one of the key legislation which ensures the protection of children from various acts like sexual assault various harassments and web pornography.
4. Indecent Representation of Women (Prevention) Act, 1986: this act explicitly prohibits the indecent representation of women in advertisements, movies, books, online content.
Though our Constitution under Article 19(1) provides the right to speech and expression to all, thereby, any person has a freedom to express their opinion, ideas and thoughts but this right is not an absolute right and is subject to restrictions (in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence) under Article 19 (2).
The Ministry of Information and Broadcasting (MIB) discussed and consulted with several stakeholders on any form of regulation of OTT platforms to make the sector more efficient and the Government of India released Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) which lays down the following guidelines for the intermediaries to follow which includes the OTT platforms under Information Technology Act-
(a) 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.
(b) Parental lock needs to be provided by OTT platforms.
(c) 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.
(d) 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.
(e) It also provides for the appointment of a redressal officer based in India for addressing the grievances within 15 days.
(f) There must also be an additional self- regulatory body of publishers from amongst the retired judge of the Supreme Court, High court or an eminent person and not more than 6 other members.
The recent past has seen stupendous increase in the number of OTT platforms launched in India (local and international) to cater to the diverse sensibilities of the Indian audience making India the fastest growing OTT Market in the world which however has caused a great deal of controversy, with many Indian and foreign shows being dragged into disputes over issues such as pornography, defamation and insulting religious sentiments and so on.
The absence of the specific regulation for OTT and plethora of cases filed against OTT Platforms has posed a speed breaker for the OTT platforms. Apart from content removal notices, the OTT Platforms have been subject to various litigation across states. Cannot ignore the reasons given by players coming from other countries that there is lack of acquaintance with the law of the land such as defamation, hate speech, national security, cultural insensitivity, political compulsion, and so on and the absence of specific legislation dealing with OTT creates an unfavorable environment. Therefore, need of the hour – A well defined comprehensive and a separate legislation in order to tackle the current issues which in a way will provide a safe environment for viewers and Platforms to flourish and prosper.
(Khushbu Jain is practicing advocate in Supreme Court and founding partner of law firm Ark Legal: arklegal.in and can be contacted on twitter: @advocatekhushbu)
