NEED TO REGULATE OTT IN INDIA

 OTT platform gained huge popularity during Covid-19. People around the world got a new source of entertainment within the comfort of their home in the form of OTT media platforms. Time and again various content showcased on these platforms have been criticized on the grounds of being obscene, having such content which is against the sentiments of Hindu community etc. Since its inception regulation of OTT has been a debatable issue. With the shutting of cinemas and break on shooting of various T.V shows during Covid-19 OTT like HOTSTAR, Netflix Amazon prime gained lots of popularity. Unlike Cinema OTT does not have a specific regulating body like CBFC (Central Board of Film Certification) for theatrical and BCCC (Broadcasting Content Complaints Council) for content that is telecasted on TV. In the beginning OTT platform were under the purview of a self-regulatory code, then government came out with Guidelines in the form of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

Regulation of OTT in India

Unlike movies and content on T.V we do not have a special regulatory body for controlling the OTT platforms. In the absence of any particular regulation OTT was being regulated by different provision of Indian Constitution and Information Technology Act. 2000(hereinafter IT Act). Section 67A, 67B and 67B of the IT Act were the governing provision for OTT content. These provisions were providing for punishment for anyone who will be indulging in the transmission of any obscene material. Under Section 69A of the Act government is also empowered to issue directions for blocking of alleged content from public. 

Internet and Mobile Association of India (“IAMI”), a representative body of OTT platforms came up with the concept of Self-regulating guidelines for controlling the content on OTT by the OTT themselves in year 2020 but nothing much could be implemented of this idea. After sometime in the month of November 2020 amendment was made in Government of India (Allocation of Business) Rules, 1961 and as a result OTT platforms were brought under the supervision of Ministry of Information and Broadcasting.

Recently Indian Government has issued Information technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 while exercising its powers under Section 87(2) of IT Act, 2000 as a mandate for social media platforms, digital media and OTT platforms. These rules are special as they are covering OTT platforms within its ambit unlike previous rules in Indian jurisdiction as well as the rules of other jurisdiction around the world.

Highlights of these rules are as follows: 

Code of Ethics 

Rule 19 requires every publisher to exercise his due caution and not publish following content: 

1. Content which can affect the sovereignty and integrity of India;

2. Any content which has the potential to threaten the security of the state. 

3. Content that can have adverse effect on International relation of India with foreign countries. 

4. Content that can disturb the internal peace of the state. 

Content Classification: As per these rules all OTT platforms are required to classify their content on different parameters like the audience for whom the content is made, age of the audience and the impact that it may have on its viewers. 

If the content is suitable for everyone including children it will be classified as U rating. Content which are suitable for a person who is above 7 and below 7 under the guidance of parents shall be marked as U/A7+ rating. A content will be classified as U/A13+ rating if it is suitable for a person who is above 13 and below 13 in case he is accessing it under the parental guidance. U/A 16+ rating shall be given to those content which is suitable for a person who is above 16 and if is below 16 and he can watch that under the guidance of his parents. Lastly A rating will be assigned to only that content which is suitable only for adults.

It also recommends OTT platforms to label their content based on the themes and message they want to convey, its language and kind of work they work that they want to showcase like nude, sexual, drug abuse etc. This list is subject to modification by the Ministry of Information and Broadcasting.

Grievance redressal mechanism:

Rule 9(3) of IT rules. 2021makes provision for a three tier structure for redressing the grievances in case of violation of the code of ethics by the publisher of online curated content who are operating in the Indian territory. It talks of grievance redressal mechanism on three levels. 

Level-1 Self-Regulatory Mechanism by OTT Platforms 

Level 1 provides for self-regulatory mechanism by the publishers. Every publisher shall be responsible for appointing a grievance officer based in India for handling the complaints received by him. Grievance office so appointed will be the one who can be complained of in relation to violation of any code of ethics. 

Level –II Self-Regulatory Mechanism by Self Regulating body:

Second level of regulatory mechanism will be done by a self- regulatory body which will be an independent judge of Supreme Court or High Court or an eminent independent personality relating to the field of entertainment industry, media or human rights. It will also consist od not more than six members from these different fields. This regulatory body will be mainly responsible for ensuring effective compliance of the code of ethics by the publishers. It will be responsible for acting as an appellate authority against the decision of publisher or grievance officer appointed by the publisher. 

Self-regulatory body have been empowered to issue various order while deciding upon the grievance or any appeal. It can issue warning or reprimand the publisher. It can also ask the publisher to apologise. Publishers can be asked to reclassify their ratings and modify the content on different parameters of code of ethics. 

Level III Oversight Mechanism 

Foe ensuring the effective abidance of code of ethics by the Ministry of Information and Broadcasting will be developing an oversight mechanism. Under this mechanism ministry will be responsible for the publication of a charter for self-regulating bodies. It is also responsible for constituting an inter-departmental committee for addressing the grievances.

 To reprimand or issuing warning to the publishers. 

1. Reclassification of the content 

2. Requiring changes in the description, age classification and parental control. 

3. Requiring removal or modification in the content If it is of such a nature which may cause incitement for the commission of a cognizable offence. 

At level three authorised officer is empowered to issue recommendation to ministry of Information and Broadcasting for blocking of any content on the grounds which have been provided in the Section 69 of the IT Act. 

Under this rule ministry is also authorised to appoint an authorised officer who will be the chairperson of the Inter departmental committee. The Rules require OTT Platforms and News Portals to formulate a robust three-tier grievance redressal mechanism, as follows:

It is mandatory for every publisher of online curated content in case it is rated A to make sure that any child should not be able to access it. Lastly this section also talks of the duty of publishers to make its content available to any person with disability. 

Need for Regulation of OTT 

There is a divide amongst the public on the regulation of OTT in India. One section is of the view that content on OTT does not need any regulation as it does not fall under the purview of broadcasting. OTT is enabling people to have access to all the content individually which is not so in case of a theatrical release. In OTT content is provide on individual demand. So we do not need any regulation to check on the content on these OTT platforms. This view follows that any regulation on these platforms will be a violation of Right to freedom of speech and expression under Article 19 (1)(a). of the Indian Constitution. 

Contrary to this there is a different opinion which believes that OTT definitely require some amount of regulation as in the case of theatrical and T.V release. Time and again various content has been challenged before different High Courts wherein claims have been made that content on these platforms is against the sentiments of various sections of society. Freedom of speech and expression given in the Indian Constitution is not absolute in nature and it can be curtailed on various grounds under Article 19(2) of the Indian Constitution. Supreme Court of India also opined that various content published on these platforms is having obscene content. 

In the recent times OTT platforms have gained huge popularity. OTT platforms have made it very easy for anyone to have access to large plethora content. It is more easy for the audience now to watch anything and everything in the comfort of their home or their own space on any mobile device. It is highly recommended to have a control mechanism for these OTT platforms. IT rules 2021 is a remarkable step in this regard.