Regulation Of Ott Platforms
Published: Dec 05, 2020
By Prashanth Shivadass & Pooja Rao
The Central Government recently brought under the ambit of Ministry of Information and Broadcasting ('MIB'), Over the Top ('OTT') platforms by way of amendment No. 357 dated November 9, 2020. The amendment to the Government of India (Allocation of Business) Rules, 1961 now reads as under:
"V A. Digital/Online Media
22A. Films and Audio-Visual programmes made available by online content providers
22B. News and current affairs content on online platforms."
Over the years, the regulation of OTT as a platform and their content have been of wide spread importance. The genesis of this recent amendment originates from two matters before the Delhi High Court and the Supreme Court of India. In this article, we analyse the concept of OTT platforms, the Code of Regulation (amongst OTT platforms), the decisions and the impact of the amendment.
WHAT ARE OTT PLATFORMS?
OTT are audio and video content hosting platforms which stream short films, videos, movies and daily soaps on demand via a high-speed internet connection. These platforms allow content to be viewed free of charge or have a monthly or yearly subscription. These platforms generally stream feature films, documentaries, and original web-series.
The overall OTT market in India is expected to grow at 21.8% Compound Annual Growth Rate (CAGR) to INR 11,976 Crore in 2023, according to PwC's Global Entertainment & Media Outlook 2019–2023. 1 Further a report by KPMG predicts that India will have more than 500 million online video subscribers by Financial Year 2023. 2
Online Content Creation (OCC), on the other hand, is contribution of information to online media. It includes collection of information from various sources and arranging it in a standardised and easy-to-use format in a digital media. The person creating such content is called an online content creator. The difference between the OTT and OCC is that OTT platforms are service providers of already existing content, whereas, OCC platforms provide information that is accumulated and assembled in a standardised form for easy access. For the purposes of this article, both OTT platforms and OCC will be collectively referred to as ' OTT '.
REGULATING OTT PLATFORMS
Unlike television, print media or radio which are governed by various laws like Telecom Regulatory Authority of India Act, 1997, Cable Television Networks (Regulation) Act, 1995, Press Council of India Act, 1978, Cinematographic Act, 1952, etc., there are currently no laws or regulations to govern OTT platforms. OTT first came under scanner with the decision of the Hon'ble High Court of Delhi judgement Justice for Rights Foundation v. Union of India 3
On October 11, 2018, Justice for Rights Foundation, filed a Public Interest Litigation ('PIL') which sought for guidelines to be issued in order to govern the content of certain web-based shows like Sacred Games, Game of Thrones etc., for vulgarity, pornography, and abusive language. One of the main contentions was that the matter noted only pertained to the content streamed but also licensing, regulation and certification of OTT platforms. Among other reliefs sought by the parties, one of them was to frame guidelines to regulate OTT platforms and content.
During the course of these proceedings, MIB and the Ministry of Electronics and Information Technology ('MEITY') informed the High Court that the Information and Technology Act, 2000 ( 'Act' ) is robust enough for regulating the same. They submitted that Section 69 of the Act provides for "Power to issue directions for interception or monitoring or decryption of any information through any computer resource”. This gives ample power to regulate OTT platforms. Further, the Act also provides for an entire gamut of provisions under Chapter IX, which includes offences for any illegal content.
On February 8, 2019, a division bench of the Delhi High Court dismissed the plea on the ground that it did not pertain to the subject matter of "Public Interest"and that these OTT platforms did not need license to stream their content; that the Central Government did not regulate these categories of companies as the provisions under the Act are sufficient. They also provide for enough procedural safeguards for taking action in the event of any prohibited act performed by the broadcasters or organizations in the internet/online platform.
In May, 2019, aggrieved by the order passed by the Delhi High Court, the petitioner filed a Special Leave Petition before the Supreme Court of India. The matter is currently sub-judice before the Supreme Court of India.
In the meanwhile, a number of OTT platforms came together under the umbrella of various organisations including the Internet and Mobile Association of India ('IAMAI'), to bring about a Code for "Best Practices for Online Curated Content Provider”. The first of such Code of Conducts was introduced in January 2019. Among OTTs, the Code of Conduct provides for principles of self-regulations, prohibited content and a grievance redressal mechanism with a time frame for compliance.
Thereafter, in February 2020, a new Code was introduced by the IAMAI i.e., Self-Regulation for Online Curated Content providers" This Code set up a "Digital Content Complaints Committee”( 'Committee' ), which would serve as an appeals body that has powers to penalise OTT platforms. This Committee is chaired by Justice AP Shah. The Code was opposed by many OTT platforms as there was a lack of consensus and adequate consultation within the IAMAI. Therefore, the IAMAI's Governing Council asked the Committee to come up with solutions which could be a best fit for the governance of the same.
In the meanwhile, on August 28, 2020, a Writ Petition was filed for urgent directions before the Supreme Court of India. In Firoz Iqbal Khan v. Union of India 4, the petition was filed challenging the telecast of a programme titled "Bindas Bol”. It was scheduled to be telecasted on the same day at 8 PM by a local news channel. The petition was based entirely on a transcript of the 49 second promotional clip that was aired a week earlier. However, the Court declined to issue a pre-broadcast interlocutory injunction as the clip was not vilified and the Court did not want to grant any injunction orders without investigating or understanding the matter fully.
On the same day, a Bench of the Delhi High Court in a similar matter , restrained the same news channel from broadcasting the proposed programme and directed the MIB to consider whether there was a violation of the 'Programme Code' under the provisions of the Cable Television Networks (Regulation) Act, 1995.
Thereafter, the MIB addressed a letter to the said news channel on September 9, 2020 to the said news channel, to ensure that the broadcast of the programme is consistent with the provisions of the programme code. However, the news channel had already broadcasted four of its episodes on 11, 12, 13, and 14 of September 2020. The remaining six out of ten episodes were to be aired between 15 to 20 September 2020, which were put on a hold.
While aforementioned case before the Delhi High Court remained pending , the Committee, in September 2020, came out with yet another Self-Regulatory Code.
This Code draws a difference between "curated content" and "user-generated content" (content generated by the youtubers, etc.). The Code further provides for two types of contents which exist in the market categorised broadly as " private exhibition" of content that doesn't fall under laws that apply for theatrical releases and " public exhibition" of content which included the theatrical and TV broadcasts.
The applicability of the Code is only to the extent of OTT platforms who work in India and the content developed by them. All the players who are signatory to the Code will implement its principles with "reasonable efforts in good faith”.
The regulatory framework of the Code emphasises that the Act is the "primary governing statute"for online content and the fundamental right pertaining to freedom of expression is intact. It further provides that there is no restriction beyond what is laid under Article 19(2) of the Constitution of India. The Code also provides for an age-categorised viewership policy ranging from all ages i.e., 7+, 13+, 16+ and 18+, which is based on the increasing intensity of violence, sex, nudity, drug use, and profanity. The Code strengthened the compliant/grievance redressal mechanism by introducing a 2-Tier system. Tier 1 requires all the signatories to create a Consumer Complaints Department (CCD) – an internal committee. Tier 2 includes an appellate committee be set-up.
Thereafter, when the matter before the supreme Court of India was listed for further hearing, it was argued by the Petitioners that the content of the episodes which have been telecasted constitutes hate speech directed against the Muslim community and vilifies the community by portraying it to be involved in the act of terror or, as it is labelled, "jihad”. It was also alleged that a carefully orchestrated attempt has been made to target the Muslim Community as being involved in a conspiracy to infiltrate the civil services. The release of the promotional video on an online social platform such as Twitter further aggravated the situation towards more people strongly condemning the Muslim community.
The Supreme Court of India, after hearing the matter at length, observed that it would not have stepped in and ordered an injunction on the show telecasted by a news channel, had there been a robust self-regulatory mechanism.
The Court observed as under:
"The issue is whether a pre-broadcast injunction should be issued in respect of the remaining episodes of the programme. At this stage, prima facie, it does appear to the Court that the intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community. An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services. Several statements in the episodes, which have been drawn to the attention of the Court are not just palpably erroneous but have been made in wanton disregard of the truth. There is no relaxation either in the age limit or in the number of attempts available to the Muslim community in the civil services. The drift, tenor and content of the episodes is to bring the community into public hatred and disrepute. The Court is duty bound to ensure compliance with the salutary principles of the Programme Code. The Programme Code has been formulated under Rule 6 of the Cable and Television Networks (Regulation) Rules and has statutory force and effect. Rule 6(1)(c), inter alia, stipulates that no programme should be carried which "contains attack on religions or communities or visuals or words 8 contemptuous of religious groups or which promote communal attitudes”. Under Rule 6(1)(d), the Programme Code should not, inter alia, contain anything which is defamatory, false or reflective of "half - truths and suggestive innuendos”. A breach of the Programme Code is subject to sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1995. The edifice of a democratic society committed to the rule of law under a regime of constitutional rights, values and duties is founded on the co-existence of communities. India is a melting pot of civilizations, cultures, religions and languages. Any attempt to vilify a religious community must be viewed with grave disfavour by this Court as the custodian of constitutional values. Its duty to enforce constitutional values demands nothing less.
Conscious, therefore, as we are of the previous order dated 28 August 2020 declining to issue a pre-broadcast injunction, we are of the view that there has been a change of circumstances, at least, prima facie, on the basis of the record which has emerged before this Court. On 28 August 2020, the Court was truly in the realm of a pre-broadcast injunction when even the first programme was to be aired. Since then, episodes have been aired between 11 and 14 September 2020 which indicate the content, tenor and object of the telecast in question. The remaining episodes admittedly will be in the same vein. On the basis of what has been aired, we are of the view that it will be necessary to interdict any further telecast. Consequently, we direct that pending further orders of this Court, the fifth respondent shall stand injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 either under the same or any other title or caption"
Although the OTT platforms are not required to meet any certification requirements, it will be interesting to note the Central Government's approach on regulation of content. While films in India will require certification from the Central Board of Film Certification, one may argue that the content created by OTT platforms are not subject to such certification. Be that as it may, the regulation of these platforms is in itself a step that can be viewed both with glee and glum.
[The authors are Founder and Associate respectively with Shivadass & Shivadass (Law Chambers)]
3 W.P. (C) 11164/2018
4 W.P. No. (C) 956/2020