Media and Entertainment industry has emerged as one of the most rapidly developing and expanding sectors in the Indian economy. Media and Entertainment law includes diverse fields like music, art, sports, dance, theatre, motion pictures, visual effects, and many others. When we delve into the Indian media industry it has its very own definition and perspective which states that Media is very unbiased and free to reach anyone in the country but on the other hand it is very subjective to reasonable restrictions and necessitates a robust legal framework put on by the Government of the Country. This paper delves into the regulation of over-the-top platforms and recent amendments to censorship laws in India. The Findings strongly advocate the need for an approach to regulation that supports innovation while protecting public interest and cultural sensitivity and propose recommendations for fostering a balanced and equitable media ecosystem as no matter how globalized this modern world has become, fundamentals and those core values requirements that govern the people of its nation.
KEYWORDS
Media and entertainment laws, Over-the-top (OTT) platform regulation, Censorship, OTT streaming services, Obscenity, Defamation
Introduction
On wide-ranging subjects from censorship to sting operation and privacy to publicity rights, there has rarely been a dull moment. The system of Media and Entertainment varies from country to country as every country has its own culture and varied distinguishing factors that differentiate regulatory legal framework from other countries according to the needs of the political, economic, and regional climate of the country. Media and Entertainment laws are being regulated under the Department of Information and Broadcasting which is responsible for administering rules and regulations about information and broadcasting of press and films in the media industry and by the Prasar Bharti Act 1997. There is a rapid revolution of Media and Entertainment in India, based on many factors such as technological advancements and changing consumer preferences accordingly, Accountability and accuracy are hard to ensure in the virtual world, and regulation of social media can be tough. Ethical considerations should regulate censorship laws in Over-the-top platforms like Netflix, Amazon Prime Lionsgate, etc. before making such content that doesn’t favorably align with the viewership audience in India and leads to the unfavored public interest and protecting the cultural importance and offering a critical perspective on future legal reforms necessary to address the challenges of a rapidly changing media industry. As society evolves in the age of the internet new challenges are posed to fundamental constitutional freedoms, many of them by the activities of non-state entities. Real conflicts arise between values such as free speech on the one hand and privacy on the other or between commercial speech and the inviolability of the individual. The law must consolidate upon the principles that had evolved to deal with traditional sources of transgression against individual freedom. The law must be equally versatile enough to confront the new sources. The propensity to be offended much too easily manifests in the extra-constitutional censorship of art forms. The films are cleared by the Censor board, which does not prevent the hurt and hypersensitive from threatening to disrupt screenings.
What is the Media and Entertainment Industry in India?
In today’s digital era, Media and entertainment Industry is itself a much bigger umbrella term as it includes many other terms such as Gaming industry, Entertainment industry, Mass Media industry, Broadcasting industry and Telecommunications industry under which revenues are generated by different and varied mediums such as through copyright, advertisement, promotion and other such terms which plays a vital role in generation and creating the Media and entertainment industry a strong player in contribution to the country’s GDP, India has witnessed one of the highest expansions unlike any other field there was just 5.5% million users in India (0.5% of the population) but as the covid pandemic came India understood a strong need, movement and dependence on Digital media to reach out people and for other needs that went 825.30 million over 59% of the total population, On the digital advertising side emerged as the second largest medium in India generating revenue of around 200 crores in the financial year 2020. Digital subscriptions went up by 50% in the pandemic and thereafter because people saw it as a strong medium of income that could support their tough times. The public’s interaction with the Over-the-top platforms was seeing a significant rise as the pandemic and the consequent lockdown reduced fresh television so Over-the-top platforms were a cure to it, earlier when this new trend came in it was very low as 15% and was projected to grow by 72% more.
What is Digital media?
The 21st Century has already witnessed many reforms and developments in the term “Media” setting new standards of delivery content from the traditional ways to now newly incorporated and emerging forms of digital media without or rarely lacking anywhere. Media is merely an expression that brings some type of information or entertainment from one body to another, as its presence can be seen everywhere but, what exactly is digital media and how is it different from the traditional media? The answer is digital media is anything through which data is transmitted, formulated, stored, and shared in digital formats including a wide range of platforms and forms. Anytime you use your digital devices like a computer, tablet, or cellphone, or open a web-based system or website, you are consuming the digital media. It might come in the form of videos, articles, advertisements, music, podcasts, audiobooks, virtual reality, or digital art. Defining digital media is yet very dynamic about defining it because it is rapidly evolving alongside innovations in technology and how people are adapting it as we learn about new digital things and AI, the usage of media will only increase as develops and is incorporated into our life space.
What is OTT?
OTT stands for Over-the-top, the term is concerned with the delivery and streaming of content over different mediums using the internet bypassing traditional television methods like content over a setup box using satellite umbrellas. Here it’s totally upon the consumer’s wish what they want to consume not the service providers and its demand has increased over the last few years, especially in the COVID pandemic. OTT services have also researched strategies and innovations in content delivery, user experience, and business models. Some of the most popular platforms include Disney+Hotstar, Netflix, Amazon Prime Video Lionsgate, etc. Having a vast audience worldwide and have become a significant player in content delivery. They produce original content in addition to licensing movies and shows from the producers and studios providing a vast selection of the content they want to consume and watch using these mediums. With the rise of this OTT culture, Consumers also changing their habits rapidly, More and more users consume content on their phones and other digital devices because of the accessibility and the smooth seamless experience provided by the providers which attract more of this type of consumer. So, can we add to it that OTT is replacing TV? Slowly, but yes, it is replacing OTT is becoming a new norm while TV viewership is declining. Creating a space in this digital media platform is a task because launching an OTT streaming service involves many things like investment, technological know-how, and a lot of time as the main thing it is concerned with is providing quality and meeting the expectations of the consumers. These OTTs rely heavily on social media platforms to gain traffic through advertisement and using Google ads sense through which fans and other audiences are informed and attracted to the websites and apps for the movies and shows through trailers and impressive posters.
Legal compliance in the OTT platforms
As the popularity of OTT continues to soar in India, ensuring legal compliance with media and entertainment laws is paramount for their sustainable growth and success. In India, the OTT platform was the only medium that was self-regulatory to bring it in line with similar platforms like Television as it is very relevant for any OTT business to understand and comply with regulations in each market they operate. Since the judgment of the Supreme Court in October 2020, the union government has not decided yet or revealed any final decisions regarding the measures to be taken to regulate digital content in India. The OTT platforms are expected to comply with the laws of the state including those related to defamation, obscenity, sedition, copyright infringement, and several other compliances before the production of such content starts. While making and producing this content regarding moderating the content policies enforcing community guidelines and handling user complaints, the government transferred the administration to MIB (Ministry of Information and Broadcasting), where different government-led authorities control and regulate the production of OTT content in India.
Information Technology, 2000 (IT Act)
OTT service providers must comply with the Information Technology Act, 2000 (IT Act) which defines several provisions related to content regulation, data protection, privacy, and other general compliances and other key functions such as
- Legal recognition of electronic data and transactions-
It grants legal recognition to electronic documents such as copyright, and digital signature, facilitating transactions conducted through OTT platforms. This ensures the validity and enforceability of such digital transactions.
- Electronic governance and records management-
It promotes electronic governance by facilitating the use of technology for the delivery of government services transactions and records management. It may interact with the OTT platforms to facilitate the delivery of digital services to the users.
- Liability for user-generated content-
OTT platforms must establish grievance redressal mechanisms to address complaints regarding objectionable or illegal content uploaded by users.
Section 79 mandates that intermediaries must act expeditiously to remove or disable access to unlawful content upon receiving actual knowledge or notification.
Case law– CHRISTIAN LOUBOUTIN SAS Versus NAKUL BAJAJ & ORS (Nov 2018) Great analysis of section 79 of IT Act, 2000 and the Intermediary Guidelines done by honorable Judge Ms. Pratibha M Singh. Importantly, it lays down the circumstances in which the Intermediary will be assumed to be abetting the sale of online products/services and therefore, cannot go Scott-free. In the said matter, the Complainant, a manufacturer of Luxury Shoes filed for an injunction against an e-commerce portal www.darveys.com for indulging in Trademark violation, along with the seller of spurious goods.
- Cybercrime and Cybersecurity– It criminalizes various cybercrimes such as identity theft, hacking, cyberbullying, and online fraud which can impact the OTT platform users. They are required to implement adequate cybersecurity measures to protect users’ data and ensure the security of the platform.
Ministry of Information and Broadcasting
The regulatory landscape for Over-the-Top (OTT) platforms in India is primarily governed by several laws and regulations overseen by the Ministry of Information and Broadcasting (MIB). It plays a crucial role in regulating OTT platforms in India, ensuring that they operate following legal requirements, content standards, and consumer protection measures. By promoting responsible content dissemination, fostering industry compliance, and protecting user interests, the MIB contributes to the sustainable growth and development of the OTT sector in the country. Here are some of the relevant laws and regulations for OTT platforms.
- The Cinematograph Act, 1952
This Act regulates the certification and exhibition of films in India. The OTT platforms are required to obtain certification from the Central Board of Film Certification (CBFC) for certain categories of content, particularly for films and series.
OTT platforms are required to classify their content such as,
“U” (Universal)
“U/A 7+” (Content suitable for 7 years old)
“U/A 13+” (Content suitable for 13 years old)
“U/A 16+” (Content suitable for 16 years old)
“A” (Specifically designed for the people to be viewed by adults not for the age under 17 years old)
“S” describes the category of films restricted to the specified class of people only.
- The Cable Television Networks (Regulation) Act, 1995
Primarily focused on traditional television broadcasting, this Act also implies OTT platforms that offer television-like content. It mandates compliance with programming codes, advertising standards, and content regulations for television channels, which may apply to certain content on OTT platforms.
- The Cable Television Networks (Regulation) Amendment Act, 2011
This amendment introduced stricter penalties for violations of content regulations, including fines and suspension of broadcasting licenses. It underscores the importance of compliance with content standards for television channels and potentially for OTT platforms offering television-like content.
Indian Penal Code, 1860
It contains various provisions that can be applicable to Over-the-top (OTT) platforms in India, particularly concerning offenses related to content, privacy, and cybercrimes. IPC does not specifically mention OTT platforms, certain sections of the IPC can be relevant to regulating and addressing issues arising from the content or activities of such platforms.
- Obscenity under Section 292-
It prohibits the sale, distribution, or exhibition of obscene materials, including books, films, and other objects that may depict such kind of obscenity. The provision can be invoked if OTT platforms host.
- Defamation under Section 499-502-
Sections 499 to 502 of the IPC deal with offenses related to defamation, including both civil and criminal defamation. OTT platforms could potentially face legal action if they host or disseminate defamatory content that harms the reputation of individuals or organizations.
- Incitement to Violence or Hatred (Section 153A and 153B) –
Sections 153A and 153B of the IPC prohibit the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and forbid acts prejudicial to the maintenance of harmony. OTT platforms may be held liable if they host or promote content that incites violence, hatred, or communal disharmony among communities.
- Copyright Infringement (Section 63-70)-
Sections 63 to 70 of the IPC deal with offenses related to copyright infringement, including unauthorized reproduction, distribution, or sale of copyrighted materials. OTT platforms may be liable for hosting or streaming content that infringes on the intellectual property rights of content creators or copyright holders.
While the IPC provides a legal framework for addressing various offenses, its application to OTT platforms may vary depending on the specific circumstances and the nature of the content or activities involved. OTT platforms must ensure compliance with relevant laws and regulations to avoid legal liabilities and ensure responsible content dissemination. Additionally, it’s essential for policymakers to consider the evolving nature of digital media and update regulatory frameworks accordingly to address emerging challenges effectively. A periodic compliance report is also expected to be submitted to the government as it is very relevant for any OTT business to understand and comply with regulations in each market they operate. Since the judgment of the Supreme Court in October 2020, the union government has not decided yet or revealed any final decisions regarding the measures to be taken to regulate digital content in India.
Effect of OTT platforms on young minds
The effect can be seen as very complex having both positive and negative approaches towards the content shown how they consume it and in what way they understand because these platforms may offer valuable approaches towards educational, cultural, and entertainment exposure but the language used and the scenes which are shown related to inappropriate content they invite possible risk due to those particulars, the need here is that the content which is being shown directly affects the young minds as they try to imitate and especially at such age of learning, it’s the human nature that whatever we see the information is transmitted from the external environment and the information is transformed into our experiences of ourselves, in the society around us and relationships with the people around us and while addressing it, it is indeed an issue underlying reasons, impacts, contributing to its status as a pressing societal challenge. In comparison to television where the content and censorship are more standardized, OTTs offer a wide range of content with varying levels of maturity being depicted such as violence, explicit language, sexual themes, or other mature subject matters which can be psychologically harmful and even leave morally confused to them. Young minds may find themselves drawn into the cycle of increasingly sensational or controversial content further amplifying their exposure to inappropriate materials, as excessive usage of OTT platforms may lead to social isolation as today’s generation prioritizes and prefers digital screens rather than anything available, morally if we see this depiction and addiction to inappropriate content can erase the lines of right and wrong leading to moral desensitization or confusion among the young viewers. Socially, this exposure can lead to various negative impacts on interpersonal relationships and communicational skills. A long-term effect has not been yet fully understood or researched but as these contents are consumed and how vastly they evolve a mindset of the individual it’s not good in the short period even which may include psychological trauma, behavioral problems, and impaired social developments.
Controversial Cases Related to OTT in India
Tandav Controversy (2021)– One of the recent cases related to OTT platform in India the infamous “Tandav Controversy (2021)” The allegation in the F.I.R lodged against the applicant and six other co-accused persons is that a web series is being shown on Amazon Prime Video, which is an online movie OTT platform and on 16.01.2021, the movie part-1, “TANDAV” has been broadcasted. The web series is being shown through Amazon Prime Video through Head of India Originals, as a paid movie. The movie was directed by co-accused, Ali Abbas. The content of this movie is affecting the image of the police of the State of Uttar Pradesh adversely. In a Dial 100 police vehicle, two actors are shown traveling with open doors in a police uniform, consuming liquor, and hurling abuses. The shooting has taken place in the District- Gautam Buddha Nagar. After witnessing part 1 of the movie, it is seen that the Hindu Gods and Goddesses have been depicted in a bad light to incite communal sentiments. The post of Prime Minister has been depicted in a manner that will adversely affect the democratic system of the country. Caste and community-related utterances have been made deliberately so that they may affect the public peace. Similarly, utterances have been made against the State police, public administration, and the constitutional posts so that the element of hate is developed between the communities and there are scenes that show disrespect for the scheduled castes. Because of the scenes and dialogues in the movie, social harmony, and public peace are being adversely affected. All this has been deliberately done to make the web series controversial and gain publicity for the purpose of commercial gain. Hence, the F.I.R. has been lodged against the producer/ director and actors/actresses of the movie series.
Mirzapur Web Series Case (2020)- A legal notice was served to the creators and OTT platform airing the popular web series “Mirzapur” for allegedly tarnishing the image of the city of Mirzapur and depicting it in a negative light. The notice demanded the removal of the series or deletion of objectionable content in “Mirzapur” on a plea seeking a ban on the second season of the web series on the grounds that it has completely tarnished the historical and cultural image of the city/district. The petition also sought the setting up of a pre-screening committee for programs directly launched on online platforms. A bench headed by Chief Justice of India S A Bobde also sought the response of the central government on the petition filed by the fellow resident of the Mirzapur
Suggestions
Despite many legal compliances and much governance and control over the content, still, those limits are still crossed and such things happen to lead to social and psychological tension among the consumers of those contents, even after applying parental lock and many restrictions practices by OTT content producers, viewers find their way of watching that content which is almost next to the impossible thing as up to what extent the control can be put on the viewers. Still in my opinion that “Glimpse Behind the Veil” should be there which defines that-
- Enhanced Disclosure through Video Disclaimers: Disclaimer shown at the start of the movie or series in written form is hardly or barely visible to anyone as it only depicts the need to be there not with the context of making it understood to anyone if there can be some compliance changed from written form to video form in which the makers or the roles playing those characters itself state the facts about the movie and it’s nature as that can be proven very promising.
- Implementation of Screen time limits: There should be there on OTT platforms regarding the series as the generation nowadays tends to binge watch (To watch multiple shows, parts, and videos of the series in one sitting which can lead to different psychological pressures and trauma to the people of different age group.
- Strengthened Legal Control and Enforcement: More legal control should be there as the root cause level is concerned with the upcoming and growing trend can be very disturbing as despite such legal compliance from the OTT platforms the content there still contains harmful content in which hate speech, violence, obscenity or harmful behaviors, Legal regulations can establish clear guidelines and penalties for OTT platforms to remove or restrict access to content that incites violence, spreads misinformation, or violates community standards which would be ensuring diversity and inclusivity as viewers value different diversity and representation of different cultures.
Conclusion
The rise of Over-the-Top (OTT) platforms has undoubtedly transformed the landscape of digital media consumption, offering unprecedented access to a vast array of content. However, with this accessibility comes the responsibility to address the potential negative impacts of content consumption on viewers. Proactive measures are essential to mitigate these impacts and foster a safer and more responsible digital media environment. There is a need for proactive measures to mitigate the negative impacts of content consumption on OTT platforms. By adopting innovative approaches to disclosure, promoting responsible viewing habits, and enforcing stringent legal regulations, stakeholders can work towards creating a safer and more responsible digital media environment. Additionally, fostering collaboration between policymakers, industry stakeholders, and civil society organizations is essential to address emerging challenges and ensure that regulatory frameworks evolve to keep pace with changing technological trends and societal needs. Legal control can encourage OTT platforms to invest in producing and promoting diverse content that reflects the richness of society and caters to the interests of a broad spectrum of viewers.
SUBMITTED BY:
DEV GULATI
ASIAN LAW COLLEGE