Index
- Introduction
- Overview Of Censorship In India
- The Bandit Queen Case And The Challenge Of Regulating OTT Platforms
- The Evolution Of OTT Regulation In India: A Three-Phase Journey
- Key Regulations For OTT Platforms Under IT Rules 2021
- Key Factors Intensifying The Debate On OTT Platform Regulation
- The Impact Of Censorship On OTT Platforms
- Conclusion
Introduction
As a democratic country founded on principles like freedom of speech and expression, India has always witnessed strong debates on the application of reasonable censorship. Over The Top (OTT) platforms, which stream content freely with minimal statutory regulations, are now under governmental scrutiny. This article explores whether regulation on OTT platforms is necessary and evaluates if self-regulation remains a viable method while considering fair principles of censorship.
Overview Of Censorship In India
Censorship is the suppression or prohibition of speech, writing, or images considered objectionable, harmful, or sensitive by a governing authority or controlling body. Media has always been a vital source of information for the public, exposing concealed truths and spreading ideologies. From traditional street drama to modern OTT platforms, media has evolved significantly, offering a vast array of content to entertain and inform audiences. However, the Centre Board of Film Certification (Censor Board), established under the Cinematographic Act of 1952, regulates the public exhibition of films in India. According to this Act, a film must not be certified for public screening if it is deemed against public interests. The enforcement of a ‘decency and morality’ clause, however, often restricts freedom of speech and expression.
The Indian constitution guarantees the fundamental right to freedom of speech and expression, with the Supreme Court ensuring a balance between this freedom and societal interests. Constraints under Article 19(2), such as public order, decency, or morality, are well-established. The Supreme Court upheld the constitutionality of censorship within the scope of Article 19(2) in the case of K.A. Abbas vs. Union of India, clarifying that films should be treated differently from other forms of speech and expression for the greater good of society.
The Bandit Queen Case And The Challenge Of Regulating OTT Platforms
The Bandit Queen case, also known as the Phoolan Devi case, centered on a woman who endured repeated rape and torment before seeking revenge on her abusers. The film’s graphic depiction of these events was challenged in a Public Interest Litigation (PIL) seeking to halt its screenings on grounds of indecency and obscenity. However, the Supreme Court ruled that screenings could not be halted solely because the film contained obscene imagery. The Court emphasized that obscenity must be evaluated within the context of the entire film, and that offensive scenes should not be judged in isolation. What may be considered indecent and obscene to some might not be perceived the same way by others. Nonetheless, not everything can be left to the judgment of an ordinary person, hence certain restrictions are imposed under Article 19(2) of the Indian Constitution. Consequently, the censor board censors movies to remove inappropriate content, primarily to make films suitable for their intended audience.
Despite this well-established concept, the issue of OTT censorship arose because the Cinematograph Act of 1952 was deemed inapplicable to OTT platforms. The Karnataka High Court ruled that films, serials, and other multimedia content transmitted, aired, or displayed via internet platforms, such as online streaming services, are not subject to the Cinematograph Act. The bench concluded that the transfer of files or films over the internet, initiated by user requests, does not fall under the purview of the Act.
The Evolution Of OTT Regulation In India: A Three-Phase Journey
The popularity of OTT platforms in India has surged, especially during the COVID-19 pandemic, which significantly increased demand. Streaming services offer content accessible to all demographics at relatively low costs, and the convenience of watching from anywhere at any time has captivated the public. However, this widespread appeal has sparked strong calls for regulation. The most recent and notable attempt at OTT regulation is the IT Intermediaries Rules 2021 (“IT Rules 2021”). The journey to regulating the OTT industry can be divided into three phases.
Phase I: During this initial phase, the OTT sector was still establishing its presence in the Indian market. Content experimentation was minimal, and most of the content was non-controversial. Although the sector experienced exponential growth, significant development occurred at a much later stage.
Phase II: The release of “Sacred Games” on Netflix marked a pivotal moment, bringing the issue of OTT platform regulation into the spotlight. As content became more controversial, numerous FIRs were filed, and calls for regulation intensified. The government initially advocated for self-regulation, avoiding direct involvement. During this phase, citizens approached various courts to block or remove certain content and shows. While courts recognized the grievances of petitioners, they were limited by the absence of direct legal remedies.
By the end of May 2021, video-on-demand providers had divided into two groups, each forming its own regulatory body. The first group, consisting of broadcaster-led OTT streaming companies, established a body under the Indian Broadcasting Foundation (IBF), which will be renamed the Indian Broadcasting and Digital Foundation (IBDF) to include digital platforms. This group created the Digital Media Content Regulatory Council (DMCRC) for digital OTT platforms, a self-regulatory body serving as a second-tier mechanism at the appellate level, similar to the Broadcast Content Complaint Council (BCCC) established by the IBF for the linear broadcasting industry in 2011.
The second self-regulatory entity was formed under the Internet and Mobile Association of India (IAMAI), which had previously drafted and revised content codes for OTT platforms. These drafts were initially rejected by the members and later by the government. At least ten streaming companies, including Netflix, Amazon Prime Video, ALTBalaji, and MX Player, joined IAMAI to create the Digital Publishers Content Grievances Council (DPCGC).
Phase III: In November 2020, the Ministry of Information and Broadcasting (MIB) brought all OTT platforms and digital news websites under its jurisdiction, resulting in the IT Rules 2021. Part III of these regulations includes a Code of Ethics, procedures, and protections for digital media, with the MIB responsible for enforcement. These guidelines apply to OTT platforms, online news, and digital media companies, which are now referred to as “publishers of online curated content” under the new rules.
Key Regulations For OTT Platforms Under IT Rules 2021
OTT platforms, referred to as “publishers of online curated material,” must self-classify content into five age groups: U (universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). They are required to implement parental controls for content rated U/A 13+ or above and establish reliable age verification procedures for content rated “A.” At the beginning of each program, the classification rating and a content descriptor must be prominently displayed, informing viewers about the nature of the content and advising on viewer discretion if applicable. This allows users to make an informed choice before watching.
OTT platforms must appoint three compliance officers, all Indian citizens:
- Chief Compliance Officer,
- Nodal Contact Person,
- Resident Grievance Officer.
Platforms must publish a monthly report detailing the complaints received and the actions taken. Additionally, a three-tier grievance redressal system must be established alongside the Code of Ethics to address customer concerns.
A Grievance Officer will handle complaints from users. The officer’s contact information must be provided, and complaints must be acknowledged within 24 hours and resolved within 15 days of receipt.
Unresolved complaints are escalated to one or more self-regulating organizations. These bodies, led by a retired High Court or Supreme Court judge or an independent distinguished person, will have a maximum of six members.
The Ministry of Information and Broadcasting (MIB) is responsible for establishing the oversight mechanism. An Interdepartmental Committee will be formed to hear and resolve concerns.
The regulations for OTT platforms in India under the Information Technology Act so far are primarily governed by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules categorize digital media into publishers of news, intermediaries, and OTT platforms, mandating adherence to content classification, age ratings, and self-regulation. OTT platforms are required to appoint compliance officers, implement grievance redressal mechanisms, and ensure traceability of originators in some cases. The regulations aim to provide structure and user protection but have faced criticism for potential challenges related to privacy and freedom of expression
Key Factors Intensifying The Debate On OTT Platform Regulation
Since OTT platforms operated with self-regulation and lacked legislative restrictions, much of their content has been controversial. Various shows have faced accusations of defaming India’s political history, misrepresenting cities, and offending social, religious, and regional sentiments. Additionally, some content has been criticized for promoting discrimination, untouchability, and hurting the feelings of saints and marginalized communities like SCs and STs.
Regulations such as the Broadcasting Rules, Cinematography Act, and Cable Television Act apply to TV, DTH, and cinema, imposing significant restrictions on artistic freedom. As the Indian public increasingly turned to OTT platforms, traditional content providers argued that the lack of regulation for OTT platforms was negatively impacting their businesses.
The self-regulation code proposed by the Internet and Mobile Association of India (IAMAI) raised concerns due to the absence of an impartial authority to address grievances. Critics argued that OTT companies were attempting to define fundamental freedoms of speech and expression instead of leaving this role to elected representatives (i.e., the government).
Several High Courts and the Supreme Court have acknowledged the need for some form of screening for web programs, films, and other content on OTT platforms. For instance, during a plea by Amazon Prime’s commercial head Aparna Purohit against the Allahabad High Court’s denial of pre-arrest bail concerning a controversial scene in the web series ‘Tandav,’ the Supreme Court expressed support for screening content on OTT platforms. The court indicated that, as audiences have shifted from theatres to OTT platforms, some level of screening is necessary, referencing the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021.
The Impact Of Censorship On OTT Platforms
Censorship plays a significant role in preventing anti-social, hostile, and explicit content from reaching the public, thereby maintaining societal order. It also safeguards people’s sentiments by blocking content that may be offensive to certain cultures or communities. However, in a censored environment, creators often struggle to obtain certification and approval, especially when their content critiques the government and its policies. This suppression hampers diverse viewpoints, stifles innovation, and restricts creativity, indirectly threatening freedom of speech. Power and money can manipulate content to serve political agendas and spread propaganda. While some may find certain films offensive, others may view them as progressive. Therefore, dictating what people can watch is unfair. Unlike television, OTT services allow users to choose their content and provide age-appropriate ratings, eliminating the need to restrict creators’ words and ideas. Truly autonomous self-regulatory bodies are preferable to government censorship, as they enable the public to access a broader range of content.
Conclusion
Given the popularity of family-friendly content in India, OTT streaming services should adopt a realistic, comprehensive approach to content production. This aligns with the original purpose of OTT platforms. To provide a level playing field for content creators, filmmakers, actors, and other stakeholders in the media and entertainment industry. OTT platforms have enabled creative experimentation and pushed the boundaries of content development. The challenge now is whether these platforms can withstand the proposed regulatory measures and continue their growth without restrictions.
