- Shubham Mishra
The creative content in India such as movies or documentaries needs to be certified by the Censor Board. The Censor Board empowered by the Cinematograph Act categorizes the same on the basis of the content as A/UA/U etc. Such regulations cater to the demands of law and order, prevention of public unrest, and curtailment of vulgar content among others. These regulations were imposed by the government because, in the earlier times, the mode of screening was either television or cinema which was in turn state-regulated. However, in the last 10 years or so this entire platform of the showcase of creative content has diversified with the evolution of the internet. The first OTT (Over The Top) platform in India was launched by the Reliance by the name of ‘Bigflix’ in 2008 and since then the industry has witnessed tremendous growth. Indian entertainment industry witnessed a boom particularly in the video streaming services when American giants like Netflix and Prime entered the market. Since then the number of subscribers of these OTT platforms has been on a constant rise.
The on-demand video streaming platforms have spurred the debate of the regulations for these platforms and the extent of such regulations. One needs to understand that these OTT platforms consist of content that has been approved by our board, contents which are approved by the foreign regulators, contents not certified by any regulator, and also content that has been produced especially for these platforms. The questions that need to be asked keeping in mind the reach of the internet and smartphone are: whether it is possible to regulate such on-demand video streaming platforms given their presence is only on the internet and to what extent we should regulate these platforms without curtailing their freedom of expression.
STATUS QUO OF REGULATION FOR OTT PLATFORMS
In 2019, India Today filed an RTI application with the I&B Ministry asking for the status quo of regulation in relation to the OTT platforms. The ministry in its reply made it clear that “the content on online platforms is not being regulated at present”. Now, since it has become amply clear that films and television are more regulated than OTT platforms; the debate for the regulation of the latter has more intensified. An NGO, Justice for Rights Foundation filed a PIL in Delhi High Court in 2019 asking the court to issue directions to the government to regulate these online platforms. The HC whilst dismissing the petition observed that there is no need for exclusive legislation and considered the IT Act to be ‘sufficient’ for such regulation. The petitioner appealed against the dismissal and the case is pending before the Supreme Court.
There exist plenty of legislations that these platforms have to adhere to until a uniform and single law is detailed for which suits the needs and concerns of the industry. Out of the different enactments, section 67A, 67B, and section 69A of the IT Act, 2000 is the most fitting and plausible bit of enactment. Section 67A and 69A empower the government to penalize the ‘intermediaries’ for publishing or transmitting of material containing sexually explicit act, etc., in electronic form whereas giver power to the block any content the government deems inappropriate. Another major legislation is IPC, as per section 295A any deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs are prohibited.
Meanwhile, anticipating the rising discontent against the unregulated OTT platforms, all the major as well as some minor streaming platforms came together and signed a Code of Ethics primarily with the object of self-regulation. However, one major platform i.e., Amazon Prime refused to sign the code citing some reservations.
The questions that arose then were, whether such self-regulation will be sufficient as opposed to specific procedures that need to be followed by the television and the film industry, secondly, what will happen if a platform violates the code or refuses to respect its provisions (similar to the above-mentioned case of Amazon Prime). Thirdly, whether such code will evolve with the needs or its just a ploy to avoid regulation from the legislature.
REGULATING THE SELF REGULATION- ‘CARROT AND STICK’ MODEL
The Supreme Court in the case of K.A. Abbas v. Union, (1970) 2 SCC 780 held that
….in the matter of censorship, only two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a Producer who does not keep within the standards.
The court back in the 1970s observed the model of self-regulation as a plausible mechanism to regulate the content produced and showcased by the platforms. However, due to factors such as television as the only source of entertainment for masses, low literacy, and protectionist behavior of the state, the idea of self-regulation seemed farfetched at that time. But in this era of the internet and smartphones, the consumer wants an uncensored version of entertainment. Self-regulation of the content on these platforms translates into certain advantages such as creative freedom to the parties, no political or social pressure on the creators, and the most important bein the growth of OTT.
The Internet and Mobile Association of India drafted the code for self-regulation which was signed by almost all the prominent OTT players of the country except Amazon prime in January 2019. The Code basically carved out the content which must not be displayed on their platforms as well as established a two-tier grievance redressal forums- tier 1 would resolve the consumer complaint within 30 days from such receiving and tier 2 (if consumer not satisfied with the tier 1 then could go for tier 2) would then redress the complaint through New Digital Council.
There is no denying that if the government goes ahead with the self -regulation model then it would be based more upon the trust reposed in these platforms by the government for the adherence to the provisions of the code. These OT platforms are the ‘new normal’ which further justifies the need for a self- regulation code. The Delhi High Court was correct when it observed in the above-mentioned case of Justice for Rights Foundation that the IT Act, 2000 is enough to regulate these video streaming platforms and there is no need for exclusive legislation or guidelines for the same.
However, those against the self-regulation model argue that such self-regulating codes are rarely followed due to lack of penalties and the parties usually tweak the provisions very easily in the name of creative freedom. Therefore, according to them, there should be a body mandated by the government to supervise the functioning of these platforms like CBFC.
To pacify all the critics of the self-regulation model, India could adopt the model of Singapore which ‘regulates the self-regulation model’. Singapore’s Info-communications Media Development Authority of Singapore (“the IMDA”), the authority empowered to issue and from time to time review codes of practice relating to programs and advertisements came out with the ‘CONTENT CODE FOR OVER-THE-TOP, VIDEO-ON-DEMAND AND NICHE SERVICES’ in 2018. The code in its spirit mandates the platforms to self regulate themselves by classifying their content on the basis of six ratings provided under the code such as G-General, PG – Parental Guidance, PG13 – Parental Guidance for Children below 13, NC16 – No Children below 16 years of age, etc. and the platforms have to display the rating to aid the consumer to make a more informed choice. Moreover, the platforms cannot stream contents which are banned in some way or other by the laws of the country. A striking feature of the code is that if any platform violates the code then the IMDA has the authority to penalize such platforms including the imposition of financial penalties and withdrawal of the content.
Such a model in the Indian context would authorize the government to formally recognize the code at par with the legislation. The government would then be authorized under the code as well as other legislations such as the IT Act and the IPC to make sure the content on these platforms does not violate the community guidelines as a whole while having a minimum interference inside the on-demand video streaming industry. Self-regulation as a model has proved beneficial in the case of media (press) industry where the Code of Ethics governs the conduct of their members. Adoption of such a model for the OTT platforms would not only empower the platforms but would also empower the government to keep a vigil on them without hampering their freedom of expression at the same time.
The author is a fifth-year law student at RGNUL, Punjab.