The OTT Sentinel – The Need of the hour

Manmeet Kaur[1]

Are “Over-The-Top” platforms (“OTT”) literally over the top? As the question at hand has been under contemplation, the predicaments of the pandemic have thrown light on the overwhelming fact that these platforms are a paradise of the content originators, marketing firms and the masses of the country. The lack of dictum makes it the most alluring podium to display any content as per the creator’s whims and fancies paying no heed to the sentiments of masses, morals, ethics and social norms. The alarming call was given to the state and legislature when it was highlighted that the paid platforms have been successful in engaging 30% growth in the number of subscribers, from 22.2 to 29.0 million.[2]

A similar area, E-commerce was initially at its blossoming stage in India and now stands on equal footing with the brick-and-mortar retail. As e-commerce had developed dominance over the retail sector, we saw the enactment of various legislations to regulate the e-commerce sphere like Payment and Settlement Systems Act, 2007 by the Central Bank of India etc. But the “on-demand video playing platforms” have been under the self-governance wherein they have to observe the code of best practice for the circulation of the online Content. This earlier stance may appeal mockery because as per a national survey, the estimated worth of OTT is 4,000 Crore, with a current viewership of more than 17 Crore.[3]

The development of the OTT Platforms has led to the elimination of traditional audio-video services like cable television around the globe. The traditional customers are shifting to these platforms because of the convenience and succour it offers. India is considered as the potential target by the OTT firms because it has the second largest number of the internet users after China with the potential to accelerate the profits further because a major chunk of the Indian population is alien to the concept and usage of the Internet. Currently, YouTube is the most popular video streaming platform followed by various other Made in India Platforms like Balaji, Voot, Sony Liv, Alt Balaji, Hotstar etc. These facts point to the need for a specific substantial law in this regard to govern and regulate this ever-growing medium.

Peregrination of the New Amendment

The new amendment by the Ministry of Information and Broadcasting in lieu of regulating the OTT platforms has highlighted that the weight of balance is titled towards the ensnared circulation of the content on OTT platform. Existing statutes which have pondered about the unfettered cyber space in bit and parts are under Section 67A, 67B and 69C of Information and Technology Act, 2000, Section 509 of Indian Penal Code, 1860 and Section 3 and Section 4 of Indecent Representation of Women (Prohibition) Act, 1986. Various other legislations are involved indirectly like Emblems and Names (Prevention of Improper Use) Act, 1950, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Indian Contract Act, 1872.

Section 79 of Information Technology Act, 2000 and Intermediaries Rules[4] have an essence to regulate the cyber space by the way of the intermediaries. This was questioned in case of Shreya Singhal v. Union of India[5], where it was argued as being volatile to Article 19 of the Constitution because it enshrines upon the intermediaries to decide if an action is “lawful” and the restrictions in the rules and beyond the preview of Article19 (2). The court held that the backing of the court or the government is essential to validate the essence of the knowledge of the “intermediaries”.

Later, in 2015 Telecom Regulatory Authority came up with consultation paper[6] but due to lack of unanimities, no solution could be concluded. Later, in 2019 legislature proposed to amend the Cinematograph Act, 1952 grounded on the recommendations of the Shyam Benegal Committee which brought up the argument that the universal rating system cannot run parallel to the hybrid structure of OTT Platforms.[7]

In order to circumvent the digital disruption from hampering the concept of censorship in India, in 2020 President Ram Nath Kovind notified[8] the control of the Ministry of Information and Broadcasting on digital video surfing platforms but the lacuna in the amendment is the absence of any particular law in that regard rather an amendment has been brought in the Allocation of Business Rules. There is no concrete legislation in this sphere of untrammelled platforms rather a plethora of legislations in bits.

The Missing Sentinel: A Need for a Regulatory Body

The focal lucid after the need and urgency of the statute in this regard is a steep rise in the curve of the number of internet users and the superfluity of pocket-friendly internet services- enabled mobile phones, personalization of content and pricing. The steep rise in the number of users in the standing future attracts more firms to invest in the online sphere, in case of the absence of legislation; Judiciary will be compelled to contemplate which may lead to diversion from the path of justice and uniformity. Moreover, the prospective growth through the engagement of the rural masses in the cyberspace will lead to the uplifting of the market shares. In such a situation of growing and untrammelled market – the possibility of malicious practices is at the summit.

Due to the freedom from censorship, there have been often instances across OTT platforms where the content broadcasted have been alleged to contribute to animosity, civil restlessness, racial or religious hostility which hurts the sentiments of the people due to the hysterical dynamic drift. Several such allegations have arisen in recent years:

• In the case of Justice for Rights Foundation v. Union of India[9], the court highlighted that there is a gradual shift from the radios to televisions to cables to mobile phones. The growth of the technology is inexorable and there is need to contemplate the restrictions illustrated under Article 19(2) to the cyberspace as well.

• In the case of Nikhil Bhalla v. Union of India[10], PIL was filed against the creators and OTT platform, Netflix series Sacred Games on grounds of derogatory remarks about the former Prime Minister, Rajiv Gandhi.

• Recently, member of Bahujan Samaj Party has filed a complaint against the makers of the web series “Tandav” on Amazon Prime Video for portraying and defaming the Uttar Pradesh police as a class.[11]

• Advocate Gurdeepinder Singh Dhillon of Punjab & Haryana High Court filed a police complaint against the web series “Paatal Lok” on grounds of being derogatory to Sikh Community, indecent representation of women and volatile to section 67 of IT Act.

• The mammoth hassle was twisted on the kissing scene in a temple in the series “The Suitable Boy” by the propagators of Bhartiya Janta Party to fire the burning issue of a religious tussle between Hindus and Muslims.[12]

  A Comparative Study with Indian OTT Regulations

  Adoption and adaption is looked-for and preferred by the liberal school of thinkers while framing the legislations for a new technology. In order to ameliorate the standpoint of OTT Platforms in India, it is essential to analyze procedure followed by various countries in order to come up with a rational elucidation. In several countries, the regulatory departments have branch off the content into the different categories and classifications depending on the nature of the content and the level of maturity of the viewer. In Singapore, Infocomm Media Development Authority issued the code for the implementation of the said mechanism in the case of the online video surfing platforms as well along with the traditional modes of entertainment. The code issued has illustrated the instructions in lieu of the content be hosted on these sites along with benchmark level of accuracy of facts, racial or religious harmony and prevent the delivery of subliminal memos from there podium. IMDA have the power to cancel the license and class license in case of any infringement. So is the case in United Kingdom, Director General of BBC (British Broadcasting Corporation) regulates the OTT Platforms and are subject to additional public scrutiny like other entertainment pedestals. There is no specific regulation[13] in this regard but the state has contracted a partnership with Netflix under which it allowed the streaming giant to set its own ratings for film and television programs. The white paper has been issued because of the threat of backlash that might be caused by the unfettered content, the contemplation on the subject is under due deliberation. The Canadian Government revisited[14] the Broadcasting Act and plans to charge the substantial fees in exchange of the right to sell content online to Canadians and these platforms are no longer exempted from the licensing and regulatory measures under the Broadcasting Regulatory system. In India, the television is governed by Cable Networks Television (Regulation) Act, 1995 coupled with the rule laid down in 1994 and the cinema is governed by the Cinematography Act, 1952. The mechanism of classification of the content is applied in similar fashion in India as in Singapore and United Kingdom but not in reference to the OTT pedestal.

  Conclusion & Recommendations: Author’s Analysis

  The system of censorship has been stringent in India but there is void in adapting the legislations to the changing technologies. There is remarkable progress in the statutes in some spheres but the void is not bridged in the case of the diversified and multiplying online space. The recent Amendment is an appreciable step towards the elimination of the unethical practices in the online universe but there is the absence of specific guidelines in reference to the control which is to be exercised by the Ministry of Information and Broadcasting. The glut of models of controls has been suggested for the surveillance of the OTT Platforms like Self-Regulation Model, Convergence Model, Global Rating Model etc. But due to lack of measures in implementation, the success rates were trifling. In imperative to curtail the exploitation of the Article 19 of the Indian Constitution, there is need legislation by the Parliament in regard to the OTT Platforms in specific and propounding of the mechanism which may be identical to the one in Cinematograph Act (because the effect on the minds of the viewers is homogenous) because there have been separate legislations for every sphere of the media entertainment. Secondly, there should be a proper committee set up for the purpose of elucidating the technicalities involved in the OTT Platforms and formulation of the guidelines and framework for the exercise of the power concentrated in the hands of the Ministry of Information and Broadcasting and to exclude any unwarranted use of the authority. These lacunas compel the adoption of the mechanism which is not identical but similar to the mechanism which governs the content available on television and in cinemas because of the fluctuating and gigantic vigorous vicissitudes prevalent in the internet world.