DOES INDIA HAVE ENOUGH REGULATIONS TO CONTROL PORNOGRAPHY ON OTT PLATFORMS?

ABSTRACT

In the world of technology OTT, also known as the Over the Top platform, plays a major role in the entertainment sector. Over the years, it has become an important form of entertainment. This facility provides internet content to OTT users, providing multiple videos or live-stream facilities which can be availed from home by consumers. Platforms like Amazon Prime, Netflix, Disney Hotstar, and Apple TV are some examples that have witnessed a rise in customers over the year specifically after COVID-19. There are more than 40 platforms currently operating in India. As per the report released in late 2022, India has 119.5 million paid active users and in general, there are over 130 million subscribers in India. Hence it is a great opportunity for the content creators. With the increase of content on such platforms, there has been a rise in vulgarity, nudity, abuse, violation, and obscenity. This paper talks about the regulation of such acts. There have been a lot of controversies regarding this regulation in this paper author has tried to portray the legalities of such cases. This paper gives the reader an idea of legalities that revolve around the entrainment’s platforms such as OTTs. This paper has talked about international regulation over the subject matter. Also discusses the role of the judiciary in the regulation of such content. 

KEYWORDS

Pornographic, OTT (over the top), Regulations, censorship, IT Act, Guidelines

INTRODUCTION

As the world is moving toward more technology, people are switching from Television to OTTs. With the advancement of such platforms, the competition between broadcasters has set a major role. Covid-19 made people sit in their homes and people started watching online programs for a reasonable price on OTTs, as the theatres were shut down. Even earlier content like films and short films were called out for their showing obscenity, criminal activity, and pornographic content. As this is a wildly popular form of entertainment amongst the general mass it has cons as well. Constant controversies about the pornographic content on such platforms made government regulate such content to make it more appropriate for the general masses. There was no specific regulation formed to the obscenity and criminality have been portraying by the maker to get viewership. On 27th February 2021, the Ministry of Electronics and Information Technology issued rules to regulate such content. The Information Technology (intermediary Guidelines and digital media ethic code) Rule, 2021. The main reason for the regulation of such content was that there were numerous complaints against pornographic content which was circulated as creative content which was affecting children negatively. Several petitions were filed in the courts to limit such content.

RESEARCH METHODOLOGY

This paper explains the effect of non-censoring pornographic content. It is descriptive based on extensive research on the rules to regulate the pornographic content shown on OTT platforms. Both qualitative and quantitative methods have been used. The data for the paper has been gathered through extensive research from secondary sources such as editorials, journals, articles, newspapers, and websites. The author also uses primary sources of statutes to better portray the situation going over. This paper was written by the author by studying numerous journals, articles, news pieces, case laws, websites, and statutes. The author conducted intensive research on the subject matter including analyzing and interpreting the above-given sources. This paper is descriptive and based on secondary sources trying to analyze the rules and guidelines regarding the subject matter.

REVIEW OF LITERATURE

There was no authority looking after the digital content earlier, no specific laws were made, and no legislative body has been made to look after the content regulating digital regulation so all those contents were regulated under Information & broadcasting ministry. The release of the theatre was governed by the central board of Film Certification and by the Cinematographic Act, of 1952[1]. Later digital content got regulated by the IT (Information Technology) Act 2000[2]. SECTION 3 (1) (b) of IT (intermediatory guideline) 2021[3] states intermediary should observe due diligence with the discharge of duty- portrayal of pornographic, grossly harmful, objectionable, and many other activities will be illegal, and section 3 of IT (intermediatory guideline) states intermediary shall knowingly not host or publish should not initiate transmission. There has been a petition filed in the Delhi High Court by the Justice of Right and Foundation a non-governmental organization titled JUSTICE OF RIGHT FOUNDATION V. UNION OF INDIA[4]. The petitioner seeks the answer as the government is not following the IT Act. Also, according to the petition IT Act is not being followed by OTT platforms like Netflix, Amazon Prime, Hotstar, etc. The case was brought to the supreme court of India, to which question arose why regulation is not being followed. The Ministry of IB answered that no such regulation is made to regulate digital content. It is not in the jurisdiction of the ministry to control the digital content. To this Supreme Court contended that the provision given under the IT Act 2000 is enough for regulating digital content and there is no need for separate regulation.

Another case Nikhil Bhalla V. Union of India & ors[5] was filed in 2018 at the Delhi High Court where the case talked about censorship of various objectionable words. Many other cases have been filed in courts of India raising the issue of pornography that is being severed as an entertainer by the digital content creator.

The article Regulation of OTT Platforms – Bringing the Uncontrolled Under Control[6] by Sakshee Saxena published in Indian Review on advance legal research explained all the legalities of a regulation made to regulate OTT platforms.

The article name Regulation of pornography in Ott Platform[7] by Hiren Desai was published in Lawyered. it thoroughly explained the laws made regarding pornography shown in OTTs.

The Journal named Regulation of OTT Platforms and Digital News Media in India published in The Legal Journal on Technology[8] by Rishika discussed the developments of the regulation regarding OTT platforms.

There are numerous articles, journals, etc have been published showing the legalities of the regulation of such digital content. Most of them have been stuck to show the historical and social need for the regulation.

WHAT ARE OTT PLATFORMS

OTT as known as over-the-top platforms is the app or the services that are being provided over the internet services. The Scope of OTT platforms is much wider than just audio-video content. These Platforms are digitally capable of doing various things such as entertainment, texting, social networking, etc. there are mainly 3 types of OTT platforms:

  • Services- these services provided facilities to text, message, or send documents by the user to another user. Examples – WhatsApp, Telegram, etc.
  • Social media- this includes the socializing app, or used for E-commerce apps, etc. Examples- Facebook, Instagram, Amazon, etc.
  • Apps that provide video/audio services- For example- Voot, Hotstar, etc.

ISSUES RELATED TO OTT

Socially speaking pornography is wrong in the moral society. After the pandemic situation filmmakers, and content creators got an easy way to present their form of art by showcasing videos, movies, audio, etc through the platform of OTTs. Especially during the pandemic viewership of those content creators increased because people were exempted from going out. This is where the Popularity of OTTs increased. Now issue lies in the fact that less censorship of such content allowed content creators to make unfiltered content. Because viewers are highly influenced by the characters of the content.  Having pornographic scenes and people getting influenced by them, especially children & teenagers is highly dangerous for society. Psychological factor lies in such issue. Also, the cultural perspective censor board of India follows a certain framework which is in case of OTT platforms do not work. 

CODE OF ONLINE CURATED CONTENT

Seeing the situation of outrage of the public and fewer rules regarding the regulation of pornographic content famous OTT platforms came up and signed Code for self-regulation of online curated content providers in 2020[9]. where they all agreed to make their best efforts to make the content made on their platforms should follow some rules laid principles:

  • Not to show any content showing any child involved in any sexually explicit activity.
  • Disrespect of the national flag, emblem, or anthem.
  • Content promoting terrorism or any violence against the state.
  • Content causing religious disharmony, or clash between communities.
  • Any content that has been banned by the court of competent jurisdiction or any competent authority.

This code included filtering of contents, adding up age maturity rating [10], etc hence this code was not welcomed by some of the big platforms. Hence, this code failed to achieve its goal.

There are certifications provided for targeted audiences for example

  • U certification is for content suitable for children
  • A certification is contents that are only suitable for adult
  • U/A certification content can be watched by children with parents’ supervision.

This certification is issued by the authority based on the use of nudity, objectionable language, abuse, violence, etc in the content.

STATUES FOR REGULATION

Even when proper regulations have not been given there are several statutes provided by Constitution:

  • Information Technology Act 2000- section 67A states that transmission of material containing sexually explicit content is punishable by law. Section 67B states transmission of such material which contains sexually explicit children is punishable. Section 69A gives power to the government to restrict content for public consumption.
  • Indian Penal Code 1860[11]– section 293 states any person involving the selling or distribution of sexually explicit literature will be punished under this section. Section 354 states a person breaching the modesty of women shall be punished under this section.
  • ●       Indecent Representation of Women (Prevention) Act 1986[12]– as the title suggests this act deals only with women and their rights. It prohibits the indecent representation of women in any form.
  • ●       Protection of Children from sexual offences (POCSO) Act 2012[13] – prohibits any kind of sexual representation of children through any type of medium.

DEVELOPMENT OF REGULATIONS

In 2020 supreme court was notified to make a legislative boy who can control and regulate the online circulating content.  Afterwards, in November the president of India exercising power vested in Article 77(3) brought amendments to the Government of India (Allocation of Business) Rules, 1961[14]:

Primarily two more sections have been inserted into 2nd schedule

  1. 22A- Films and Audio-Visual programs made available by online content providers.
  2. 22B- News and current affairs content on online platforms

Such insertion has affected all types of online circulation of contents including OTTs, Journals, etc. Before IT Act 2021 had a grievance mechanism of its own to resolve user complaints but after the amendment of the IT Act 2021, the content provider of all platforms must have an officer to resolve the complaints by users within 15 days. If the officer fails to redress the complaint will transfer to a body headed by a retired judge of the Supreme Court or High Court. In case of failure to redress the complaint, a governmental committee would be set up for redressal, by the central government containing 3 members:

  • a member of the Ministry of Information and Broadcasting,
  • a member of the Ministry of Women and child development, and
  • a member of the Ministry of Law and Justice.

SIGNIFICANT SOCIAL MEDIA INTERMEDIARIES

This was the new intermediary introduced in the IT Act 2021 amendment rules. Significant social media intermediaries (SSMI) are platforms that contain more than 5 million or more users. Platforms under such categories must follow some more rules:

Some officers to be appointed-

  • Chief Compliance Officer- he must oversee compliance
  • Nodal officer- he is responsible for coordination with law enforcement body
  • Resident grievance officer- he oversees grievance redressal

CRITICISMS

VIOLATION OF FUNDAMENTAL RIGHT

Any type of restriction upon the content creator by the government can be said a violation of their freedom of expression. Under Article 19(1)(a) constitution guarantees the right to freedom of speech and expression, but it is not absolute. Article 19 can be restricted in certain cases such as in the interest of decency and morality. Hence reasonable restrictions can be made on such pornographic content so it would not amount to a violation of Article 19.  

GOVERNMENT MAY EXCEED ITS POWER

The new set of rules enables the government to classify significant social media intermediaries. The government may cast obligations that can lead to the government exceeding its power.

BREACH OF PRIVACY

New rules may lead to the end of end-to-end encryption and the government to regulate may end breach the privacy of individuals.

PUNISHMENTS

Over-the-top content is one of the biggest entrainment industries in India. Hence this makes the platforms available to upload pornographic content. There are several rules given under legislature rule made to punish the persons who do upload such things. As earlier we have discussed in the paper regarding rules those rules. Section 67A of the IT Act enables a person to get imprisonment for up to 5 years and a fine of up to 10 lakh rupees. Sections 292 and 293 of the Indian Penal Code can punish a person for up to 2 years and 20000 fines. And subsequent conviction can lead to a punishment of up to 5 years and 5000 fines.

ROLE OF JUDICIARY

The judiciary played a very important role in the making of regulations for OTT platform content. As we discussed earlier in the paper about the case of Nikhil Bhalla v. Union Of India & Ors where a petition was filed for censorship of the use of certain objectionable words in an OTT series. Another case of [15]Gurdeepider Singh Dhillon v. Union of India & Ors has been filed against a web series Pataal Lok for showing obscenity, pornographic, abusive language, etc content. Justice of Right Foundation V. Union of India is another case where there has been a petition filed for the use of the word “thieves” for lawyers. Delhi High Court rejected the petition. Although earlier courts could not decide in favour of a petition against pornographic content for the lack of rules and regulations. Later, the matter went on to the Supreme Court which Supreme Court asked the Ministry of Information and Broadcasting for an explanation for not having any specific rule for regulation. To which Ministry replied there are enough rules for the regulation of pornographic content. To which The Supreme Court agreed. There have been several High Courts such as Allahabad High Court, Calcutta High Court, Karnataka High Court, etc have dismissed various petitions upon restriction over content.

In another case of Aparna Purohit v. State Of Uttar Pradesh [(2021) 3 All LJ 634][16] this case plaintiff was denied anticipatory bail by Allahabad High Court as the court observed mere apology or deleting the scene over showing Hindu God Objectionably is not acceptable.  However, Court commented mere guideline for regulating the content does not constitute an effective mechanism.

INTERNATIONAL REGULATION OF OTTS

In Australia, the regulation of OTT content work based on user complaints. Categorization has been made for content if the content falls under illegal content, then the authorized body Australian Communication and media authority acts against the creator[17].

Singaporean authority has also classification over content but they allow such content to run with a condition that it must have the parental lock. For using the content rated R21(restricted to only use above the age of 21) there must be a lock facility and a verification of age. The code has been made to balance the nature of the content and the viewership.

In the states of America in 2019 there has been an introduction to a framework for the regulation of the subject matter. To which the US Federal communication commission replied has unnecessary. However, more practical rules were sought.

 In the European Union, there is no specific framework made for the regulation of such content but the concerned authority looks after the content which can affect national integrity and may affect children.

FUTURE OF OTT

Censorship of content by the Center Bureau of Film Certification (CBFC) [18]existed even before the presence of the OTT platform in India. Work ok CBFC was to maintain the balance between morality and creativity. This includes reasonable restriction over the right to freedom of speech.

The government of India is working on a better framework, bringing amendments to the existing laws, and issuing notifications over the situation of content. As a growing market OTT platforms are attracting more and more paid users to their platforms. In India, the number of users is more than 45 million which is expected to reach 50 million by the end of the year.

SUGGESTIONS

Witnessing a changing era of television to Online content platforms, especially after access to free or cheap internet in the country there has been a spin-off the future of entertainment to OTT platforms. As the world is changing lawmakers should also adopt the dynamics of the situation and bring reasonable changes to the framework or introduce a new complete set of regulations that should make a balance between morality as well as it should not restrict the freedom of the content maker. The content must be made thoroughly with the proper research in the interest of the public. That should not hurt morality, or decency, and should not subject to disrespect of any community[19].

CONCLUSION

OTT is completely different from normal Television broadcasting. It also has a huge number of viewership which is rapidly increasing. It includes viewers of all ages. Indian society is complex. Some cultural rules have been set up for people to follow so that even if the country has diversity people will stick together as a community. Thus, issue regulation of control is also difficult. Showing content unfiltered may include violence, abuse, pornography, obscenity, etc which is not suitable for some specified category of viewers. The content shown in some of such platforms which hold some power to influence people may affect the physiological condition of teenagers and children. However, in this century equal opportunity is given to creators for exercising their creative freedom enabling various actors, singers, producers, etc can pursue what they want to and enjoy a livelihood. Making a framework to regulate the OTT platform can be a restriction to their creative freedom. But reasonable restriction of pornography in OTT content is not a threat to that freedom.

By: SANSKRUTI BRAHMA

CAPITAL LAW COLLEGE, 

BHUBANESWAR, ODISHA


[1] The Cinematography Act, 1952, Acts of Parliament 1952 (India)

[2] IT Act 2000, No 21, No. 26, Acts of Parliament 2000 (India)

[3] IT (intermediatory guideline) 2021, §3, No. 21, Acts of Parliament 2021 (India)

[4] Justice of Right and Foundation v. Union of India, (2018), W.P(C)111164/2018 (India)

[5] Nikhil Bhalla v. Union Of India & Ors., W.P(C)7123/2018 (India)

[6] Sakshi Saxena, Regulation of Ott platforms- bringing the uncontrolled under control, Indian review of advance legal research, https://www.iralr.in/post/regulation-of-ott-platforms-bringing-the-uncontrolled-under-control, (May 9, 2023, 7:49)

[7] Hiren Desai, Regulation Of pornography in Ott Platforms, Lawyered. in, https://www.lawyered.in/legal-disrupt/articles/regulation-pornography-ott-platforms/, (May 9, 2023, 9:30)

[8] Rishika, Regulation of OTT Platforms and Digital News Media in India, The Legal Journal On Technology, https://www.thelegaljournalontechnology.com/post/regulation-of-ott-platforms-and-digital-news-media-in-india, (May 10, 2023, 10:25)

[9]Aradhaya Singh, Regulation code for OTT Content, Legal service India E-Journal, (May 10, 2023, 12:13)

https://legalserviceindia.com/legal/article-8260-regulation-code-for-ott-content.html

[10]Utkarsh Anand, OTT regulations a necessity as some even show porn: says SC, Hindustan Times, (March 05, 2021, 02:49), https://www.hindustantimes.com/india-news/ott-regulations-a-necessity-as-some-even-show-porn-says-sc-101614892661756.html

[11] IPC Acts 1860, § 293 & § 354, No. 45, Act of Parliament,1860 (India)

[12] Indecent Representation of Women (Prevention) Act 1986, No. 60, Act of Parliament, 1986, (India)

[13] Protection of Children from sexual offenses (POCSO) Act 2012, No. 32, Act of Parliament. 2012, (India)

[14] Government of India (Allocation of Business) Rules, 1961, § 22A & § 22B, Act of Parliament, 1961 (India)

[15] Gurdeepider Singh Dhillon v. Union of India & Ors, CWP-8089-2020 (India)

[16] Aparna Purohit v. State Of Uttar Pradesh, 2021 3 All LJ 634

[17]The Economics Times, (May 10, 2020, 11:23), https://economictimes.indiatimes.com/industry/media/entertainment/how-are-countries-regulating-ott-platforms/why-regulation/slideshow/80670099.cms,

[18]Niti Manthan, Overview: Regulating OTT Platforms In India, YL Cube, (May 9, 10:43)

https://ylcube.com/c/blogs/overview-regulating-ott-platforms-india/

[19] Vaishnavi Krushna parate, Regulation of pornography in OTT platform in India, Jus Corpus Law Journal, (May 9, 2023, 6:08)

https://www.juscorpus.com/regulations-of-pornography-in-ott-platforms-in-india/#:~:text=Any%20person%20who%20engages%20in,a%20woman%20is%20subject%20to