Recently, due to outbreak of COVID-19 pandemic, the government has imposed self-quarantine on people, due to which they are under obligation to stay within the boundaries of their houses. This has led to people’s dependence largely on media & Over-the-top (OTT) platforms as their primary source of entertainment. With the OTT platforms trending in today’s entertainment industry, it is must to realize that the content offered by these platforms are unregulated and uncertified while some of them being sexual explicit and religiously forbidden.
The Supreme Court in K. A. Abbas v. UOI[i] held that the treatment of motion pictures must be different from other forms of art & expression due to its versatility, realism, co-ordination of visual and real sense. The court further opined that he motion picture is able to stir up emotions more deeply.
In India, no laws being in place for regulation of content on OTT platforms, it is imperative of the government to take active steps in making sure that only regulated content is being served to its people as the unregulated content can at times leave such vulnerable impact on viewers that it may lead to disturbance of social, political, economic and cultural fabric.
In recent past, several petitions have been filed before different High Courts pleading the courts to pass an order directing government to regulate the content offered by these OTT players in India.[ii] In two of the petitions, the petitioners had prayed before the court to direct the government to frame separate guidelines to regulate OTT content.[iii] In another petition, the petitioner prayed before the court to rule that the OTT players be regulated under the existing Cinematograph Act, 1952.[iv] While most of these petitions have either been dismissed or are under-adjudication by the High Courts, one[v] has been taken up before the Supreme Court in appeal.
Before any solutions are proposed by the authors, let’s analyse the key developments brought in around OTT content regulation in India and around the world.
Key Developments Around Ott Content Regulation
- Indian Scenario
Trai Consultation Papers
Telecom Regulatory Authority of India (TRAI) published two consultation papers titled “Regulatory Framework for Over-The-Top (OTT) Communication services” and “Regulatory Framework for Over-The-Top (OTT) Services” on 12th Nov, 2018[vi] and 27th March, 2015[vii] respectively. All the stakeholders were asked to submit their suggestions and recommendations within a stipulated time period. The papers discussed regulatory challenges in OTT industry focusing on multi-dimensional aspects like licensing, taxation and security related concerns. However, both the papers did not discuss the content oriented regulatory challenges around OTT service providers. However, several news is doing rounds that TRAI is evaluating a consultation process to regulate online video platforms such as Netflix, Hotstar, Amazon Prime Video, etc. as well.[viii] It will be interesting to see if TRAI would cross its jurisdiction to regulate the content by way of censorship on these online video platforms because Telecom and Regulatory Authority Act, 1997 does not confer right on TRAI to censor or regulate the content in any manner whatsoever.
Code Of Best Practices
The Internet and Mobile Association of India (IMAI) released its OTT self-regulatory document known as “the Code of Best Practices for online curated content providers” (Hereinafter referred to as “Code”) in January, 2019. The Code was signed by eight online curated content providers (Hereinafter referred to as “OCC providers”) namely, Netflix, Hotstar, Eros Now, Zee5, ALT Balaji, Arre, Viacom18 and Jio digital life. However, Amazon Prime Video which is a leading OCC service provider in India chose not to sign this Code.
The Code applies only to signatories and specifically excludes providers which make available any user generated content and intermediaries that provide access to repertoire of OCC providers.[ix] The ‘objectives’ of the Code appear to help consumers make informed choices on age-appropriate content, safeguard creative freedom of content developers and artists, foster innovation, and to provide a complaint redressal mechanism in relation to content made available to consumers.[x]
Part B of the Code lists out ‘prohibited content’. It includes content which deliberately disrespects national emblem and national flag, content which represents child engaged in real or stimulated sexual activities, content which deliberately and maliciously outrage religious sentiments, content which promotes violence and terroristic activities against the state, and content that has been banned in the country under any other applicable laws. Further, the Code endeavors to classify content into different categories such as General/Universal Viewing, Content which requires Parental Guidance and/or, content which is solely created for age-appropriate audiences.[xi]
Although it seems that a decent effort has been made by the IMAI to regulate the content provided by these OCC providers, it still requires a lot more to achieve the intended regulation. Firstly, the Code is a self-regulatory code and has no binding value. Secondly, it does not include all the OCC providers in India as its signatories and therefore, cannot hold non-signatory OCC providers responsible for violation of the Code. Thirdly, it does not talk about any penalties on breach of the Code by the signatories.
Self-Regulation Code For OCC Providers
Yet another self-regulation code was developed by IMAI in Feb 2020[xii]. This code is more comprehensive than that of Code of Best Practices discussed above. The specialty of this code is that it puts in place a detailed two tier complaint redressal mechanism in Part C of its draft. It states that an aggrieved consumer may bring a complaint with either of the tiers. In case of dis-satisfaction with the decision of Tier-I, the complainant has choice to escalate his complaint to Tier-II. It further sets out that in case the complainant has approached the govt. with a complaint, the govt. may refer the same to either of the tiers. Moreover, the govt. may also file its grievances with either of the tiers.
Furthermore, it endeavors to set up a Digital Content Complaint Forum (“DCCF”) at Tier-I and Digital Content Complaint Council (“DCCC”) at Tier-II respectively. At Tier-I, it lays down functions of DCCF and procedure for reporting and redressal of complaint. At Tier-II, it sets forth provisions for nomination of representatives from founding members to form ‘OCCP Governing Council’. Additionally, the code talks about constitution of DCCC, term of office & service of chairman and members, jurisdiction of DCCC, procedure for redressal of complaint, and decision of DCCC.
Interestingly, this code also faces criticism for the same reason that it does not include all players as its signatories and does not provide penalties in case of non-compliance.
- Global Scenario
Regulation of content on OTT platforms is under progress in most of the countries. A very few countries have been able to devise the regulatory framework so far. To name some, Singapore, UK, Australia, Indonesia, Saudi Arabia, Turkey are the ones with pretty commendable regulatory frameworks at hand. Regulatory frameworks of some of these countries are analyzed below.
- Singapore
The Infocomm Media Development Authority (IMDA) is a statutory body that is assigned to regulate the OTT content in Singapore. The various roles of IMDA are enshrined in the Info-communications Media Development Authority Act, 2016. The IMDA has put in place various regulatory frameworks that provide clarity to both OTT service providers and consumers. The IMDA has issued Code of Practices for OTT and Video-on-Demand Services. Content creators or service providers are asked to classify their content in six different categories as also applicable to offline films. The six categories are (i) G- General, (ii) PG- Parental Guidance, (iii) PG13- Parental guidance for children below 13, (iv) NC16- No children below 16 years of age, (v) M18- Mature 18, for persons above 18 years of age, and (vi) R21- Restricted to persons 21 years and above.[xiii]
Further, restrictions are put on the service providers as much as they are allowed to offer content rated NC16, or higher only if parental locks are made available for such content. They can also publish R21 content only if bring in reliable age verification tool, provided further that all such content must be locked by default and cannot be accessed by viewers without R21 PIN or for free. In addition to all these, service providers are required to comply with other applicable laws, regulations, codes, and/or licence conditions before offering any content in the country.
Part 4 of the Code provides ‘General Principles’ bringing prohibition of content that may undermine national/public interest, racial and religious harmony. The code further requires service providers to display the ratings and the elements in the content, including theme, violence, nudity, sex, language, drug use and horror[xiv] which led to the rating, to be displayed visually and prominently to the viewer before such viewer chooses to consume the content.[xv]
In case of non-compliance the IMDA may impose appropriate sanctions as prescribed under Chapter 28 of Broadcasting Act, 1994. The Code seems to be maintaining a strong balance between freedom of expression and publication of alarming content.
- Australia
The Broadcasting Services Act, 1992 (BSA) that came into force in 1993, is the primary legislation governing the OTT industry in Australia. The BSA also devolves responsibility for the development of program classification, and the handling of complaints, to industry bodies in a co-regulatory framework, through the development of industry codes of practice approved and registered with the Australian Communications and Media Authority (ACMA). The Broadcasting Services Amendment (Online Services) Act, 1999 outlines legislative framework for regulation of online content in Australia. It sets out a complaint-based mechanism for assessment of online content. Schedule 5 (for content hosted outside Australia) read together with Schedule 7 (for content with an ‘Australian connection’)[xvi] of the BSA lay down detailed guidelines on the kind of content which may be hosted online.
The BSA regulates both classified (prohibited) and unclassified (potentially prohibited) content. The prohibited content is further classified into different categories: (i) RC or Refused classification (for content which cannot be sold, advertised or imported in Australia), (ii) X18+ (for content restricted to adults due to its sexually explicit nature), (iii) R18+ (for content restricted to adults as it is considered highly influential and may be offensive to certain sections of the adult community), and (iv) MA15+ (for content that is restricted to viewers above the age of 15 as it is considered highly impactful below that age).
Apart from this, the BSA under Schedule 5 also lays down Internet Industry Codes that requires the internet service providers to include provisions for enabling parents to monitor the online activities of their children, filtering technologies, content labeling, and legal assessments of content. In case of non-compliance, ACMA is empowered under BSA to call for administrative, civil or criminal actions as the case may be.[xvii]
- Indonesia
The Ministry of Communications and Informatics (Hereinafter referred to as “MOCI”) has issued a new draft ministerial regulation on OTT services (Hereinafter referred to as “2017 Draft OTT Regulation”). The 2017 Draft OTT Regulation is still a work in progress and has not been issued yet. It is likely to be issued after taking suggestions and recommendations of stakeholders into account and revising accordingly. The 2017 Draft OTT Regulation seeks to distinguish between OTT service providers and Foreign OTT service providers.[xviii]
Article 3 of 2017 Draft OTT Regulation provides that for a foreign OTT service provider to do business in Indonesia, it must have some sort of presence in Indonesia.[xix] This has been provided to protect the interests of citizens of Indonesia. Registration of OTT service providers has been made mandatory in the country.[xx] Article 5 lays down ‘General Obligations’ enlisting Indonesian law compliance, data protection, content filtering obligation, etc. The OTT service providers are required to comply with the applicable Indonesian laws in addition to filtering “negative content”. “Negative Content” is defined under MOCI Regulation 19 of 2014 on Negative Internet Content as pornography and other “illegal content”. “Illegal Content” is not defined anywhere under Indonesia law. The MOCI determines what content can be considered as an “illegal content” based on reports.
In 2016, Indonesia’s biggest telecom operator Telkom blocked Netflix for violating country’s censorship laws.[xxi] Later in 2017, MOCI asked Netflix to comply with domestic regulations and partner with a domestic operator or create a domestic unit in order to do business in Indonesia. Subsequently, Netflix signed a deal with Telkom following which the latter unblocked user access.[xxii]
Regulation In India: The Way Forward
As far as regulation of OTT services is concerned, India should learn from countries where regulations have already been put in place. Just like India borrowed various ideals of Constitution from different countries in order to give it a comprehensive look, it should also adopt the same approach with respect to regulation of OTT services and content offered by them. Although the suggested borrowings would not suffice the need for a detailed regulatory framework, it would at least give a way forward to India to come up with regulations of a kind it desires to bring in.
India should frame separate guidelines in the form of a code backed by sanctions. The sanctions will ensure compliance of guidelines prescribed by the code. Further, the code should set out various provisions governing the OTT service industry. For an OTT player to do business in India, it should have some sort of presence in India (ideally in the form of a permanent establishment), as established in Indonesia also, so as to protect the interests of Indian citizens. This will ensure compliance of domestic laws ensuring protection of data, protection against other fraudulent activities, etc. Licensing of OTT players should be made mandatory. Revenue generated out of business in India by these players should be taxable according to a reasonable and justified taxation rate. At the same time, OTT players with an Indian Connection offering services in other countries should also be regulated accordingly.
With respect to classification of content, it is suggested that India should follow the footsteps of Singapore and Australia. The classification of content by Singapore into six different categories and additional features attached to it (as discussed above) seems to be fair, reasonable and in the interest of both service providers as well as consumers. The Australian classification of content into ‘R18+’ & ‘MA15+’ can also be incorporated after due consideration. However, a pre-screening committee/body can be constituted to decide as to whether the content offered by OTT players fall into these two categories or not.
Further, a complaint redressal mechanism can also be adopted by the service providers so that display/advertising of age-restricted content can be kept in check from time to time.
[i] (1970) 2 SCC 780
[ii] Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019); Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]; Nikhil Bhalla Vs. Union of India, [W.P.(C) 7123/2018]; Divya Ganeshprasad Gontia v. Union of India (Public Interest Litigation No. 127/2018); Un-canned Media v. Ministry of Information and Broadcasting & Ors (W.P. (C) No. 10724/2016)
[iii] Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]; Nikhil Bhalla Vs. Union of India, [W.P.(C) 7123/2018]
[iv] Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019)
[v] Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]
[vi] TRAI, Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services, https://main.trai.gov.in/sites/default/files/CPOTT12112018_0.pdf
[vii] TRAI, Consultation Paper on Regulatory Framework for Over-the-top (OTT) Services, https://main.trai.gov.in/sites/default/files/OTT-CP-27032015.pdf
[viii] TRAI weighs regulations for online video streaming platforms like Netflix, Hotstar, https://www.livemint.com/Politics/AS6gBUYswQlzPFneATXIkJ/Trai-mulls-regulation-for-online-video-streaming-platforms.html
[ix] Applicability, https://www.viacom18.com/pdfs/SelfRegulation_of_Online_Curated_Content_Providers.pdf
[x] Objectives, https://www.viacom18.com/pdfs/SelfRegulation_of_Online_Curated_Content_Providers.pdf
[xi] Prohibited Content, https://www.viacom18.com/pdfs/SelfRegulation_of_Online_Curated_Content_Providers.pdf
[xii] Self Regulation for Online Curated Content Providers, https://www.medianama.com/wp-content/uploads/IAMAI-Digital-Content-Complaint-Council-NEW.pdf
[xiii] IMDA, Content Code for Over-the-top, Video-on-demand and Niche Services, Part 1: Classification, https://www.imda.gov.sg/-/media/Imda/Files/Regulations-and-Licensing/Regulations/Codes-of-Practice/Codes-of-Practice-Media/OTT-VOD-Niche-Services-Content-Code-updated-29-April-2019.pdf
[xiv] Ibid. Part 5: Classifiable Content Elements.
[xv] Ibid. Part 2: Display of Classification Rating and Consumer Advice.
[xvi] ACMA, Submission by the Australian Communications and Media Authority to the Australian Law Reform Commission Inquiry into Serious Invasions of Privacy in the Digital Era – Issues Paper 43, November 2013, https://www.alrc.gov.au/wp-content/uploads/2019/08/52._org_acma_submission.pdf
[xvii] Types of action available to the ACMA, https://www.legislation.gov.au/Details/F2011L01778
[xviii] Article 1, 2017 Draft OTT Regulation, http://www.gbgindonesia.com/en/main/legal_updates/the_indonesian_government_resumes_discussions_on_over_the_top_regulation.php
[xix] Ibid. Presence of foreign OTT service providers.
[xx] Article 4, http://www.gbgindonesia.com/en/main/legal_updates/the_indonesian_government_resumes_discussions_on_over_the_top_regulation.php
[xxi] BBC, Netflix blocked by Indonesia in censorship row, 28 January 2016, https://www.bbc.com/news/technology-35429036
[xxii] The Drum, Indonesia’s largest telco Telkom unblocks Netflix after new partnership, 12 April 2017, https://www.thedrum.com/news/2017/04/12/indonesia-s-largest-telco-telkom-unblocks-netflix-after-new-partnership
Cover Image Disclaimer: We do not own rights of the same. Image is purely for academic representation.
This article is written by Sunil Singh of HNLU, Raipur & Rajnandini Singh of PGCL, Mumbai.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. You may also refer to our Copyright regulations
