This Article is published in collaboration with LAWgical Learning, written by Rishika of Pravin Gandhi College of Law, Mumbai.
If you make 10,000 regulations you destroy all the respect for the law.
-Winston Churchill
In recent times, there has been a surge in the content consumption of Over the Top (“OTT”) platforms and digital news. Subsequently, there was a hue and cry about this sector being unregulated and contrary to the interests of some viewers. A section of the society called for the regulation of OTT platforms and digitalnews websites analogousto their counterparts, movies, and print media. A logical rationale behind the regulation of OTT platforms is that when a movie releases in the theatres,it is subject to censorship, whereas when the same movie is streamed online, there is no regulatory body to scrutinize it. So, why should there be a differential treatment of content based on the medium of broadcasting them? Naturally, the stakeholders of various digitalplatforms opposed such a demandstating that the concept of OTT platformsi.e., private viewingis very different from that of a public exhibition like in theatres. They have adoptedmeasures like contentrating, description, and categorization. Further,moderation by the Government will curb their freedom of speech and expression.
Recent developments
In October 2020, while hearinga PIL filed to regulate OTT platforms, a three-judge bench of the Supreme Court headed by the CJI issued a notice to the center to set-up an autonomous body to regulate digital content providers.
Subsequently, on 9th November, 2020, the President of India in the exercise of the power conferred under Article 77 (3) of the Constitution of India issued a notification bringing about an amendmentin the Government of India (Allocation of Business) Rules, 1961 (“Rules”), thereby inserting the following entriesin the second scheduleof the rules:
I. 22A: Films and Audio-Visual programsmade available by online content providers.
II. 22B: News and current affairs content on onlineplatforms
The legal implication of this amendment is that OTT platforms like Netflix, Amazon Prime, Hotstar, and digital news media like Scroll.in, Inshorts,The Wire, The Quint, and many independent journalists who operateonline have been brought under the ambitof the Ministry of Information and Broadcasting.
Current regulations
It isn’t accurateto state that online streamingplatforms are entirely unregulated. Indeed there is an absence of a regulatory regime but there are laws in place to govern them. For instance, the provisions of the InformationTechnology Act, 2000, and the rules notified under it do apply to OTT platforms. Moreover, the provisions of the Indian Penal Code, 1860 are applicable too. Hence, one of the major arguments of digital content providers against their regulation is that they are alreadysubject to stringent laws of the land and can be dragged into litigation for transgression anytime.
Self-regulation
Self-regulation is one of the mechanisms to monitor the functioning of streaming platforms. An initiative in this regard was taken by the leading players likeNetflix, Hotstar, Voot, Viacom18, Zee5, etc. in January 2019 as they came forwardto sign the ‘Code of Best Practicesfor Online CuratedContent Providers’ formulated by the Ministry of Information and Broadcasting and the Internet and Mobile Association of India (“IAMAI”). The code providedfor the classification of contentinto distinct categories, age appropriated contentto enable consumersto make an informed choiceand an internal grievance redressal mechanism for each platform. Additionally, it prohibited the streaming ofcontent that outragesreligious sentiments, depictschild pornography, encourages terrorism, etc.
Thereafterin February 2020, a second-tier code, ‘Code for Self-Regulation of Online CuratedContent Providers’ was launched by IAMAI. However, this code was not received well by the OTT players and it had only 5 signatories. Surprisingly, Amazon prime was not a signatory to both the codes. Moreover, with only a few signatories, this code was inadequately represented and failed to bring all the OTT platforms to a level playingfield.
Mode of regulation: the way forward
On one hand, the amendmentto the Rules in November2020 has come asa surprise for many; the content creators, on the other hand, are more concerned about how they’ll be controlled. The mode of regulation is obscure as of now and has given room for speculations. Some industry expertsare predicting the enactment of new legislation, a broad framework to govern the OTT platforms and digital news content. Others are expectingmoderation by setting up an autonomous or self- regulating body similar to the Central Board of Film Certification and Press Council of India. The most deadly move, a censorship regime is also a possibility. Once the mode of regulation is declared, its implementation will raise questions too.
On National Press Day, the Union Information and Broadcasting Ministerstressed the importance of responsible journalism and responsible freedom and stated that the current Government has no intentionsof interfering with the freedomof people but it has to step in now to regulate ‘the unregulated’. The Government may be justified in doing so; however, there is a possibility of over-regulation that may slaughter the very purposeof its inception. Nonetheless, it would be interesting to witness how the Government draws a line between Freedom of Speech and Expression and public policy.
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