Abstract
In this research paper, we are dealing with constitutional challenges in making laws against online platforms and streaming platforms. This research paper presented the reason for popularity of online streaming platforms among general public and the problems facing by the government, other traditional sources as well as public such as – duplicity of the content, morally controversial content and also provide some suggestions to deal with this problem and to help the government to make strict laws for the regulation of the online streaming platforms as well the content provided by them. OTT video services, formerly considered a luxury, are now widely available. India’s consumers are growing accustomed to it in increasing numbers. Global streaming behemoths like Netflix and Amazon Prime have been slowly increasing their market share in India, while domestic competitors like Hotstar and JIO Cinema have begun to establish a foothold. This article uses research to examine the emergence, benefits, and potential of streaming services in India. We also go over the different OTT services and their technological underpinnings, audience composition, content, censorship, and projected future developments. A few years ago, the number of users on OTT platforms grew at a rate that reached the lockdown during the Covid-19 pandemic.
Keywords – Online streaming, OTT platforms, online content, duplicity, Morality
Introduction
Nowadays, Online streaming also known as video-on-demand streaming platform has became quite popular. Over The Top platform (OTT Platform) like Hotstar , Netflix , Amazon prime etc are commonly known platform . These platforms provide online services to the people while providing them with a wide range of entertainment and content such as films, web series, documentaries, TV shows, latest movies etc. The main feature of these platforms is that they give users a choice what ,when and where want to watch which is missing in traditional TV channels. There is also an option to get subscription of the online platform so that they can get access of latest movies and web series on the very first day of released.
But recently, government kept eyes on the working of online platform and feel the need to govern the regulation of content provided by the online streaming platform and also concerned about the privacy of the user enabled the platform. The intension of the government is to restrict the self-regulatory platforms by making some rules and guidelines. The delicate balance that must be struck between the public interest and the fundamental rights protected by the Constitution governs media regulation. These ideas drive the democratization of media and set online content apart from traditional media. In general, web content is more open-minded and covers topics and ideas that are not typically found in traditional media. As a result, it frequently deviates from accepted censorship paradigms. As the Supreme Court has previously stated, issues become more complex due to a significant influx of OTT content from other nations. It is still unclear how to effectively enforce domestic redressal procedures against foreign organizations. Unintentionally, preventing access to foreign content also encourages piracy, a problem that governments have failed to effectively combat. Regretfully, identifying the problems is not as simple as pointing them out. Although it is commonly known, the freedom of speech and expression is not unrestricted and is instead subject to reasonable limitations. A good idea, but it can be challenging to put into practice in order to develop a coherent legal framework—especially for digital media.
A hybrid governance model could be the answer. Pre-screening procedures would be difficult to put into practice. In order to handle complaints and grievances regarding OTT content, an independent, self-regulatory body made up of industry stakeholders seems like a likely solution. This body would operate under a set of principles that would reflect the values and customs of 21st-century society.
Literature Review
A study on user perspective on OTT platform in India-Seven robust over-the-top (OTT) methods were identified by this study: cutting-edge service plans, content localization, flexible technology adoption, competitive cheap pricing, improving customer experience, and proactive sales promotion. After implementing these tactics, consumers’ use of OTT changed from being infrequent to regular. The factors that influence customer preference for over-the-top (OTT) content include pricing, ease of accessing, danger of contracting COVID-19, diversity and quality of content, and online reviews. The various OTT experiences of consumers were also shown by this study.
The rise of OTT Platform -The entertainment sector is doing well with OTT services thanks to the explosion in smartphone technical features and growing internet usage. Due to plenty of free time and the desire for entertainment and education during lockdown, the pandemic Covid 19 has significantly increased the number of people subscribing to popular OTT programs. Due to lockdown, production of movies and TV shows was halted, which caused a consumer shift toward over-the-top (OTT) content and a sharp increase in demand. Because OTT services offer convenience and diversity without ads, customers are now more at ease using them. The OTT market is expected to increase substantially in the upcoming years, in line with the observed trends. The businesses now have to deal with consumers’ shifting choices for OTT platforms rather than entertainment
Reasoning Methodology
Exploratory research
A methodology approach known as “exploratory research” looks into research problems that haven’t been thoroughly examined before.
Exploratory research is frequently qualitative and sometimes can also be quantitative depends upon the research. Because of its adaptability and open-endedness, it is also sometimes referred to as interpretive research or a grounded theory method.
Non-doctrinal research
Social-legal research, or non-doctrinal research, is study that uses techniques from other fields to produce empirical data that addresses research problems. To arrive at a conclusion, it makes use of primary sources of legal information. Experiments, surveys, questionnaires, and observations are examples of primary sources.
Hypothesis
An improved redressal regulatory framework for over-the-top content is required. But only when the public interest, government policy, and the media industry come together can a workable solution be achieved
Aim & Objective
- To know the need of formulating the guidelines regarding regulation of the content provided by the online streaming platforms.
- Protection of duplicity of content provided by the streaming platforms.
- To know the need of making laws which restricts the immoral content of online platforms.
- Violation of Fundamental Right.
Online platforms – Easiest Source of Entertainment!
Streaming is the most common and easiest way than any other method to get access of the content online and without any hardwork . In other words, it makes our lives simple. Now , we don’t have to wait for downloading to complete , we can enjoy the movie or web series and listen the audio without advertisements and any other error. It’s now became our source of entertainment.
With the COVID – 19 pandemic, the popularity of online platforms has increased rapidly. These platforms provide latest content at very minimal price and quite popular among general public as they can watch anything, anywhere and at anytime. However, with rising in popularity of these online platforms there is a need of time to regulate these platforms by making strong laws.
As the right to the internet is recognised by the judiciary as one of the fundamental right in the case of Faheema Shirin R.K. v State of Kerala ,people have various choices on the online platform according to their minds they can make their choices what to watch etc . Over- The- Top commonly known as OTT is a way to provide entertainment, filmy content over the internet at one’s instant request and as per the requirements of the individuals. In the Post -Covid era, streaming platforms such as Netflix, Disney+, Amazon prime, Hotstar, Sony and Zee5 etc got popularity in India.
A rapid change into the trend of “binge watching” has started to phase out the intrest in watching old television shows such as Doordarshan etc. The population of OTT users continued to rise and projected to 50 million from that of 43 million by the end of 2023. Regulation of these online and streaming platforms relies on the critical balance between the fundamental rights guaranteed under part 3 of the Indian Constitution, particularly Right to Freedom of Speech and Expression (Article 19(1)(a) ) and public demand.
Need to make laws for regulating the content provided by online platforms-
In the case of Rights Foundation vs Union of India , there is an urgent need to regulate the content of online streaming platforms and forms guidelines. There are some procedural safeguards in Information Technology Act, 2000 relating to the content provided by the broadcasts.
- Content – These online streaming platforms are generally self regulatory and there is no legislative control over them and the content provided by them. The content presented by them is of such type that has potential to divide the society on the basis of religion, caste etc and create walls among the groups. There are many cases in which certain platforms have been charged with the offence of hurts the religious and social sentiments of the public and promoting discrimination, racism , anti-national feeling etc.
- Article 19 of Indian constitution– Freedom of speech and expression which includes the freedom to propagate and publish one’s own views through any medium like newspaper, magazine, movies including online platforms.
- Reasonable – restrictions – The constitution provides every one the most important fundamental right i.e. Right to Freedom of speech and expression but this right is also subjected to some reasonable restrictions such as to security and integrity of the nation, abetment to offence etc which limits the absolute power of self regulatory online platforms to restrict the content which they provided and presented to public.
- Self – regulatory nature – As they have full power and authority over their content due to which, now they are teaching the general public what are their fundamental rights like right to speech and expression (Article 19) etc. rather than the government of India.
- Discriminatory laws for other content sources– The laws are similarly application to all other alternatives of the online streaming platforms such as cinema ,DTH and TV. Because of lack of proper laws regulating the OTT platforms, the other content providers facing heavy loss.
- Judicial support- Now judiciary also feel the need of screening of the content provided by these OTT platforms. Recently in case of pre-arrest bail of Amazon prime’s commercial head Aparna Purohit, The Allahabad High court deny her bail because of the controversial content in the ‘Tandav’ web series. But supreme court in against of Allahabad HC favour the screening of the content provided by the online streaming platforms.
Prevention of duplicity of content provided by online platforms
With the rapid increase in technology usage and online platforms services , the copyright owners are facing the issue of piracy . Due to the problem of duplicity, the hardwork of copyright owners has been gone in vain. Piracy means copying or selling of the copyrighted content without taking permission from the copyright owner.
The piracy not only affected the income of legitimate copyright owners but also make owners unable to identify the person infringing their rights. The government and its subordinate authorities are engaging in identity the challenges and taking several steps to deal with the problem of piracy and duplicity of the content.
Need of separate legislature other than copyright law for prevention duplicity
The copyright law is there whenever there is infringement of rights of copyright owners but it is not sufficient because of the upcoming trend of online piracy. Due to which , the real owners are still facing loss as actual salary is going to online streamers which only copy the content and provided it to the general public. The copyright act currently not define the duties of the online streamers and doesn’t provide any definition of the online streaming platforms.
Since there is no proper and effective laws for online copyright infringers and about their liability there is an urgent need to formulate some strong and efficient laws so that the orginal owners gets their profits and the online streamers can be put in imprisonment .
Morality of online streaming platforms content –
Online-streaming platforms has gained popularity not because of it is easiest and user-friendly way but also the content provided by it. But with popularity, it also faced moral controversies. They face many problems and challenges because the content presented to public is not morally accepted by the general public. This problem is getting worsened due to inability of legal provisions to regulate the content which is opposed to public policies.
There are several laws dealing with particular subject area but since streaming platforms provides ad a package of various things it is impossible to regulated by a single strong law.
Violation of Fundamental Right
There is a violation of Fundamental Rights. Part III of the Constitution guarantees fundamental rights, many of which are violated by the new regulations.
Firstly, the Rules contain an abundance of ambiguous terms. For example, “inconsistent,” “libellous,” or “insulting.” The governed must be given the chance to learn about and comprehend what is prohibited, according to a fundamental principle of legal jurisprudence. Imprecise language results in an unduly expansive statute that stifles individual liberties.
In the Shreya Singhal case, the Supreme Court invalidated section 66A of the IT Act, which also used the word “insult.” The Constitutional Court’s interpretation of fundamental freedoms and the Constitution is categorically rejected if such terms are used in any legislation or regulation going forward.
Second, no data protection law has been passed to protect the Right to privacy, despite the fact that it was declared a fundamental right in India in 2017 (Justice K.S. Puttaswamy v. Union of India). According to Rule 4(2) of Part II of the Rules governing Due Diligence by Intermediaries, intermediaries that offer services primarily connected to messaging must make it possible to identify the information’s original source. This suggests that end-to-end encryption will be discontinued. When public order is disrupted, it is desirable to identify the originators; however, this cannot happen at the expense of blatant privacy violations. India lacks appropriate awareness of the value of privacy and does not have data protection legislation.
Suggestion
There is need of stringent and proper legislation to control the morally controversial content. Over two million users access this content every day, and it speaks to the essence of Indian society. It is relatable in terms of language, caste, religion, economic standing, and societal norms and behavior. Because of this, the regulation of content is an important issue that is determined by its social impact. To balance out the necessary restrictions and freedom of expression for the sake of law and order, the government and stakeholders must work together to introduce legislation with a suitable framework. There should also be provisions for strict punishment of the offenders of piracy as well as those who breach privacy of the users for fulfil their selfish motives. A efficient solution may be hybrid model of governance as it is difficult to pre-screen each and every content before releasing over the streaming platforms.
Conclusion
It Is essential to take the required actions to regulate the content given the availability of explicit content on OTT Platforms, which is uncensored and accessible to all age groups without restriction. With the amount of content available online, censorship concerns should also be highlighted at this point. The problem calls for a comprehensive and well-balanced set of rules that address accountability on these platforms while also allowing for plenty of room for creativity to flourish. In the interim, the relevant authorities must provide clarification regarding licensing, rules, or new limitations pertaining to the management of digital content.
The freedom of speech and expression that every person has the ability to write, publish, circulate, or broadcast is the foundation for the rights of over-the-top (OTT) services and their participants, including broadcasters, producers, directors, actors, writers, viewers, and writers. The problem with this is that OTT platforms only show social ills and offer no comparable remedies. Furthermore, the majority of viewers are unable to comprehend the reasons behind these crimes and how they can prevent similar occurrences in real life.
References
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This article is written by Banshika Gupta, 3rd year BALLB (Hons.) student at School of Law, DAVV University, Indore (M.P.).