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LEGAL FRAMEWORK ON THE TOP(OTT) PLATFORM IN INDIA

Publications, Research paper

Abstract

The Indian government is actively developing a legal framework to regulate Over-The-Top (OTT) platforms, such as Netflix, Amazon Prime, and Hotstar, which stream content directly to viewers over the internet. Aimed at preventing content that could offend cultural or religious sensibilities or promote hate speech, this initiative has led to the formation of a dedicated committee. This committee has engaged with stakeholders from the OTT industry, traditional media, civil society, and other interested parties to formulate recommendations. Their findings suggest the establishment of a self-regulatory body for the OTT sector, tasked with ensuring adherence to new guidelines. These guidelines mandate content classification into appropriate age categories and prohibit material that promotes terrorism, violence, or hate speech. While the legal framework is still under development, these efforts mark a significant move towards a more transparent and accountable online content ecosystem. The proposed self-regulatory body and guidelines will help the OTT industry operate responsibly, respecting India’s cultural and religious diversity.

Keywords: OTT platforms, Legal framework, India, Regulation, Monitoring, Cultural sensitivity, Hate speech, Consumers.

Method used:

The research paper utilizes a descriptive and analytical approach to examine the legal framework governing OTT platforms in India. Here’s a breakdown of the methods used:

  • Legal Document Analysis: The paper analyzes existing legal documents relevant to OTT platforms, including the Information Technology Act (2000), the Cable Television Networks (Regulation) Act (1995), and the recent Information Technology Rules (2021).
  • Case Study Analysis: The paper explores the case of the show “Tandav” on Amazon Prime to illustrate the complexities of content regulation on OTT platforms.
  • News and Industry Reports: The paper incorporates news articles and industry reports to provide context and insights on the evolving OTT landscape in India.
  • Comparative Analysis: While not explicitly mentioned, the paper might draw comparisons to how other countries regulate OTT platforms to understand best practices.

By employing these methods, the research paper offers a comprehensive overview of the legal and regulatory challenges surrounding OTT platforms in India. It highlights the need for a balanced approach that ensures responsible content creation while safeguarding creative freedom.

Research methodology:

This report utilizes a secondary research methodology to explore the legal framework governing OTT platforms in India. Secondary research relies on existing data and information gathered by other researchers and institutions.

  1. Identifying Relevant Sources:
    • Legal documents: The Information Technology Act (2000), Cable Television Networks (Regulation) Act (1995), and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
    • Credible news sources: Articles and reports from reputable Indian news outlets like The Times of India.
    • Industry reports and research papers: Studies published by legal or media research institutions.
  2. Evaluating Source Credibility:
    • Authorship: Verifying the author’s expertise and affiliation.
    • Publication Date: Ensuring the information is current and reflects recent developments.
    • Source Reputation: Assessing the credibility of the news outlet or research institution.
  3. Data Collection and Analysis:
    • Extracting key information from the identified sources.
    • Analyzing the findings to understand the legal landscape, challenges, and future outlook for OTT platforms in India.
    • Synthesizing the information from various sources to create a comprehensive overview.
  4. Reporting and Referencing:
    • Presenting the research findings in a clear and concise manner.
    • Citing sources appropriately to acknowledge the original work of others.

This methodology ensures the report is based on reliable and up-to-date information while providing a well-rounded perspective on the topic.

Limitations of Secondary Research:

  • Dependence on the quality and comprehensiveness of existing research.
  • Limited access to unpublished data or internal reports.

Review of literature:

The Indian OTT landscape is experiencing a surge in popularity, but this growth is accompanied by growing pains concerning regulation. Unlike traditional media, OTT platforms operate in a complex legal environment with no single rulebook. Existing laws include the Information Technology Act, 2000 (for internet communication) and the Cable Television Networks (Regulation) Act, 1995 (for transmission aspects) . Content moderation relies on various sections of the Indian Penal Code and the Constitution, creating a patchwork of regulations. Provisions like Article 19(1)(a) guarantee free speech with reasonable restrictions (Article 19(2)), while others like Section 294 of the IPC punish the distribution of indecent content. This intricate framework necessitates a nuanced approach to content creation for OTT platforms.

To address these challenges, the Indian government has taken steps towards establishing a more comprehensive legal framework. A dedicated committee has been formed to engage with stakeholders, including the OTT industry, traditional media, and civil society. This committee recommends the creation of a self-regulatory body to ensure adherence to new guidelines. These guidelines mandate content classification based on age and prohibit material promoting terrorism, violence, or hate speech. While still under development, these efforts represent a significant move towards a more transparent and accountable online content ecosystem.

However, concerns remain regarding the potential impact of these regulations. Critics argue that the current rules, outlined in the 2021 Information Technology Rules, might be overly broad and vague. They fear these restrictions could stifle creative freedom and silence important voices. Striking a balance between ensuring viewer safety and protecting artistic expression is a critical challenge in regulating this new media frontier.

Overall, the regulation of OTT platforms in India is a work in progress. The evolving legal landscape reflects the government’s attempt to rein in this dynamic industry while safeguarding free speech. As the industry matures, finding the right balance between these competing interests will be crucial for fostering a responsible and thriving digital media space in India.

Introduction

Over the past decade, the usage of Over-The-Top (OTT) platforms in India has surged, becoming a primary medium for entertainment, news, and information for millions. This dramatic increase has raised concerns about the legal framework governing these platforms. This article provides an overview of the legal landscape for OTT platforms in India, detailing the relevant laws, regulations, and guidelines issued by the Indian government.

OTTs have emerged as a haven for content creators in the 21st century, particularly during the pandemic when many media artists transitioned to these platforms, receiving overwhelming responses. OTT platforms are web-based services that link consumers to video and audio files hosted on their servers. Initially, they aired content previously screened in theaters, but they now produce their own material, including movies, documentaries, and web series.

In the United States, the number of paid OTT subscribers jumped by thirty percent from 22.2 million to 29.0 million between February and July 2020. While Netflix was initially dominant in the OTT market, competitors like Prime Video, Disney+ Hotstar, and others have since joined the fray, including domestic platforms like Alt Balaji and Voot. These platforms often face legal challenges due to their self-regulatory practices concerning shared content.

The Indian government’s efforts to create a comprehensive legal framework are aimed at addressing these challenges. The initiative includes forming a dedicated committee that has engaged with various stakeholders, including the OTT industry, traditional media, and civil society. The committee recommends establishing a self-regulatory body to ensure compliance with new guidelines, which require content classification by age and prohibit material promoting terrorism, violence, or hate speech. Although still a work in progress, these steps are crucial for fostering a transparent and accountable online content ecosystem in India

Background

Forget movie nights out, OTT platforms are the new entertainment hotshots in India! These web-based services, like Hotstar and Netflix, deliver content straight to your device, be it a laptop, phone, or tablet. The future looks even brighter with India’s net user base expected to explode to nearly 800 million by 2023, and guess what they’ll all be using? OTT platforms! Even though local players like Jio are making noise, international giants like Amazon Prime are here to stay. This surge owes a big thanks to the government’s “Digital India” initiative, making it easier than ever to access global entertainment. The global pandemic only fueled this fire, with movie theaters shutting down and people glued to their screens. Production houses smartly shifted gears, releasing content directly on OTT platforms. With a wider variety of shows, global content at your fingertips, and endless choices, OTT platforms became the go-to source for entertainment during a time when staying in was the new going out!

Law governing OTT in India

India’s OTT platforms are navigating a legal labyrinth! Unlike traditional cable TV, there’s no single rulebook. The Information Technology Act (2000), meant for internet communication, applies here, alongside the Cable Television Networks Act (1995) for transmission aspects. But the real twist comes with content. There’s no specific OTT law, so various sections from the Indian Constitution and Penal Code come into play.

Imagine Article 19(1)(a) guaranteeing free speech, but with reasonable restrictions as per Article 19(2). Similar tightropes exist – Section 294 of the IPC punishes distributing indecent content, while Section 295A tackles deliberate attacks on religious sentiments. Defamation (IPC 499) and harassing women’s modesty (IPC 354) are also no-go zones.

The Indecent Display of Women Act (1986) cracks down on lewd portrayals, while the Child Protection Rights Act (2011) safeguards children from online exploitation. And let’s not forget Sections 67A, 67B, and 67C of the IT Act – they outline consequences for spreading inappropriate content, including child sexual abuse material. Finally, Section 69A of the IT Act empowers the government to block public access to certain information.

So, while OTT platforms offer a world of entertainment, they must tread carefully within the boundaries set by these existing laws!

Current Regulatory Regime for OTT Platforms in India

India’s OTT platforms are like the Wild West of entertainment – a land of boundless content, but with few clear-cut rules. The Information Technology Act (like a digital sheriff) governs some aspects, but it wasn’t designed for the OTT frontier.

Self-Regulation: A Code with Loopholes

The industry tried to create its own code of conduct, with the Indian internet companies’ association (IAMAI) setting guidelines for content categorization and age-appropriateness. Imagine each show having a label, like “mature themes” or “suitable for all ages.” However, these guidelines are voluntary, and critics say they’re full of holes.

Courts Step in: A Call for Order

The Indian judiciary, ever the wise judge, has also weighed in. They recently declared that OTT platforms can’t just show “anything and everything” under the banner of creative freedom. They called for a stronger self-regulatory mechanism, and even suggested government laws if things don’t improve!

2021: New Rules on the Horizon

The Indian government, aiming to bring some order to the OTT landscape, released new Information Technology Rules in 2021. These rules apply to social media and online media, including OTT platforms. Here’s what they bring to the table:

Appointing a Compliance Sheriff: 

Every OTT platform now needs a “chief compliance officer,” basically a legal eagle responsible for making sure the platform follows the rules. Think of them as the marshals who keep things in line.

It’s a work in progress, but one thing’s for sure: OTT platforms in India are no longer the lawless frontier they once were. The future of entertainment in India is being shaped by a balancing act between creative freedom and responsible content creation.

Compliance with the Code of Ethics:

Imagine a rulebook for India’s OTT platforms, a guide to navigate the complex world of online entertainment. These “Rules of Engagement,” as they’re called, outline a moral code for the content we devour. Think of it as a map with clear guidelines: what content is off-limits, how shows are categorized for age, and how access is controlled.

But these rules are about more than just keeping things clean. They’re about building trust. A strong code of conduct, like a company’s ethical compass, sets the standard for fair and responsible content creation. This, in turn, fosters trust with viewers, stakeholders (everyone with an interest in the platform), and the public at large.

Following these rules protects everyone involved. By ensuring ethical practices, OTT platforms safeguard themselves from legal troubles and bad press. More importantly, it upholds the platform’s integrity and ensures it delivers entertainment responsibly, all while protecting its brand reputation. 

Grievance Redressal Mechanism:

Imagine hitting a snag with a show on your favorite OTT platform – maybe something inappropriate slipped through the cracks. The good news? India’s “Rules of Engagement” require these platforms to build a complaint resolution system, essentially a hotline for content concerns.

Think of it like this: a well-oiled dispute resolution system is the hallmark of a responsible administration. Just like the Ministry of Finance prioritizes resolving public complaints, these OTT platforms need to offer a clear path for viewers to voice their concerns. So, if you ever encounter something questionable, you’ll have a way to flag it and ensure the platform addresses it effectively.

Compliance with Indian Laws:

India’s OTT platforms aren’t operating in a lawless Wild West. The “Rules of Engagement” make it clear that they must follow all the established laws of the land. This includes big hitters like the Indian Civil Procedure and the Computer Act of 2000. Think of it as a legal compass – these rules ensure the platform stays on the straight and narrow.

It’s not just about entertainment, it’s about responsibility. India has a strong framework for legal compliance, just like their recent labor law reforms. By streamlining regulations and making things clear, the government ensures everyone plays by the rules. So, viewers can rest assured that the OTT platforms they use are operating within the legal boundaries

Challenges Faced by OTT Platforms

India’s OTT platforms are booming, but they’re also facing a legal and financial rodeo. Here’s a breakdown of the challenges they’re wrangling:

Copyright Calamity:

People often ditch paying for content when they can find free, pirated versions online. Imagine “uTorrent,” a notorious app for illegal downloads – it’s like a black market for movies and shows! This hurts both viewers and platforms. Viewers risk malware and unreliable sources, while platforms lose revenue they need to create great content.

Compliance Conundrum:

The new “Rules of Engagement” aim for a fair playing field, but some argue they create unnecessary hurdles. Following all the legal and financial guidelines can be a complex dance for both OTT companies and content creators. Imagine creators having to check their work against a massive list of rules to avoid any legal trouble!

Chilling Effect on Creativity?

The rules about content that can’t “disrupt public safety” or “jeopardize India’s sovereignty” are a bit vague. Some worry this could stifle creative freedom and diverse voices on these platforms. It’s like walking a tightrope – ensuring responsible content without silencing important stories.

The Subscription Scramble:

With over 12 OTT platforms in India, viewers have a feast for their eyes, but a battle for their wallets. They can’t subscribe to everything, and some resort to password sharing with friends and family. For platforms, it’s a fight to stand out and convince viewers their content is worth the price.

The Content Conundrum:

Viewers want fresh, relevant content, but producing it costs a lot. Without huge profits, it’s hard for platforms to invest in new shows and movies. It’s a balancing act – keeping viewers engaged with high-quality content, while generating enough revenue to keep the platform running.

India’s OTT landscape is exciting, but it’s also facing growing pains. These challenges need to be addressed to ensure a future where viewers have access to a rich variety of content, creators can express themselves freely, and platforms can thrive within a clear legal framework

Case Study: Content on the OTT Platform

India’s OTT platforms are a hotbed of entertainment, but also a battleground for content regulation. Let’s untangle the complexities:

Religious Controversies and Self-censorship:

Remember the show “Tandav” on Amazon Prime? It sparked outrage for allegedly depicting Hindu deities in a disrespectful manner. FIRs (police complaints) were filed, and creators faced legal battles. This case, and others like it, have led to a chilling effect – creators are wary of exploring religious themes, fearing self-censorship to avoid trouble. 

Balancing Freedom and Responsibility:

The government has implemented Information Technology (IT) Rules, 2021, aiming to strike a balance. These rules outline what platforms can and can’t show. However, some argue they’re a bit vague. For instance, content that “disrupts public safety” is open to interpretation. It’s a tightrope walk – ensuring responsible content without stifling creative expression.

The Power of Grievances:

The rules empower viewers! Platforms must now have a designated grievance officer to address complaints about content. If you see something inappropriate, there’s a clear channel to report it. This ensures viewers have a say in shaping the content landscape.

Transparency and Traceability:

The rules also promote transparency. Platforms must clearly label content with age restrictions and provide parental controls. This empowers viewers, especially parents, to make informed choices about what they watch. Additionally, the rules require platforms to identify the “first originator” of certain content, if legally mandated. This helps track down the source of potentially harmful material.

A Three-Tiered System for OTTs:

For news and OTT platforms, the IT Rules establish a three-tier grievance redressal system. Imagine a pyramid – first, complaints go to the platform itself. If unresolved, they move to a self-regulating body, and finally, to a government-appointed committee. This multi-step process ensures thorough examination of complaints.

Codes of Conduct for Content Creators:

The IT Rules also set “Codes of Conduct” for content creators, including news providers and OTT platforms. These codes outline best practices for responsible content creation.

Blocking Content in Emergencies:

The rules also address emergency situations. If content poses a serious threat, the government can authorize temporary blocking. This is a safety net to prevent the spread of harmful information in critical situations.

Age Verification and Accessibility:

Protecting children is a priority. The rules mandate age verification systems for adult content and parental control mechanisms. Additionally, they emphasize making content accessible for disabled individuals.

India’s OTT landscape is dynamic and ever-evolving. The IT Rules are a step towards creating a responsible and accountable content ecosystem. As the industry matures, striking the right balance between creative freedom and viewer protection will remain a key challenge

The Cable Television Networks (Regulation) Act, 1995: 

The Cable Television Networks (Regulation) Act, of 1995, regulates the broadcasting of television channels, including those on OTT platforms. Under the Act, all television channels, including those on OTT platforms, must comply with the program and advertising codes. The program code prohibits the broadcast of content that is obscene, defamatory, and against the sovereignty and integrity of India.

2003-Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act):

Cable subscribers in India were feeling the pinch! Accusations flew about unfair price hikes and sneaky tax practices by cable companies. These companies defended themselves by claiming the unregulated nature of the industry allowed them to raise prices freely. Adding insult to injury, viewers had no choice but to pay for entire channel packages, even if they only wanted a few specific programs. To empower viewers and break this cable monopoly, a special task force recommended a revolutionary system: Limited Access Procedures (CAS). Imagine being able to pick and pay for only the channels you wanted to watch, instead of an entire expensive bundle. This idea was so popular; it was written into law in 2003! The goal? To give viewers control over their cable bills and stop the arbitrary price hikes that had plagued the industry for too long.

Impact of the Rules on OTT Platforms:

India’s OTT platforms are booming, but with great popularity comes growing pains. The government stepped in with the “Rules,” a set of regulations aimed at bringing transparency and accountability to this wild west of entertainment.

Sunshine and Spotlight:

The Rules are a breath of fresh air for many. They shine a light on how platforms operate, ensuring responsible content creation. Controversial content that might have previously slipped through the cracks is now being addressed.

But is it Too Much Control?

Critics argue the Rules are a bit overbearing. Some fear they might restrict creative freedom and silence important voices. It’s a delicate balance – ensuring viewer safety without stifling artistic expression.

From Wild West to Regulated Frontier:

Remember when OTT platforms were a free-for-all? You could find anything and everything, from hidden gems to questionable content. The rise of OTT popularity led the government to step in and establish some ground rules. The “Rules” are like a sheriff in this new digital frontier, ensuring things run smoothly and responsibly.

A Three-Tiered Approach:

The Rules take a multi-layered approach to content regulation. First, platforms have more autonomy, but with self-regulatory guidelines. Then, a three-tier grievance redressal system allows viewers to address concerns if they see something inappropriate. Finally, the government can intervene in extreme cases.

India’s OTT landscape is still evolving. The “Rules” are a work in progress, and striking the right balance between creative freedom and viewer protection will be an ongoing challenge

CONCLUSION

India’s OTT platforms are like a thrilling Wild West of entertainment, but the rules of the game are still being written. Currently, a mix of older laws (like the IT Act of 2000) and newer regulations are trying to tame this digital landscape.

The good news? Recent rules have brought much-needed transparency and accountability. It’s like shining a spotlight on how these platforms operate, ensuring they create responsible content.

But here’s the challenge: striking a balance. The government needs to rein in the OTT frontier without stifling free speech. Imagine a wise marshal who keeps things orderly without silencing important voices.

Right now, the rules are a bit like a first draft – they need some revisions. Stakeholders (everyone with a stake in the game) are voicing concerns, and some worry the rules might infringe on fundamental rights. Additionally, the rules themselves could be clearer and more specific. Think of them as instructions for a complex game – a little more detail would prevent confusion and misuse.

The future of OTT regulation in India is like building a sturdy house. The legal framework is the foundation, and it needs to be constantly updated as technology and content evolve. By staying adaptable, India can ensure a thriving digital media space with clear rules and protected freedoms.

Suggestion

To make the regulatory framework for OTT platforms in India more appropriate and beneficial for society, it is essential to strike a delicate balance between regulation and creative freedom. The framework should be transparent, consistent, and inclusive, ensuring that it protects viewers while fostering innovation. First, clear and specific guidelines should replace vague and broad terms to avoid ambiguity and prevent misuse. Engaging with a wide range of stakeholders—including content creators, legal experts, and civil society—can help refine these rules to better reflect diverse perspectives and needs. Second, a robust, independent self-regulatory body should be established, supported by a transparent grievance redressal mechanism. This body could oversee compliance and address viewer complaints efficiently while minimizing government intervention in creative content. Third, educational campaigns are crucial to inform both creators and consumers about their rights and responsibilities, promoting digital literacy and ethical content consumption. By ensuring that regulations evolve alongside technological advancements and societal changes, India can build a legal framework that not only safeguards public interest but also nurtures a vibrant and dynamic OTT ecosystem.

Future Research Opportunities:

  • Conducting primary research through surveys or interviews with stakeholders like OTT platform representatives, content creators, and viewers.
  • Analyzing the impact of the regulations on content production and viewership patterns.

REFERENCES

ASHUTOSH TRIPATHI

Presidency University, Bangalore