OTT services are (Over the Top) services which provide access to several web series, contents and many more to their customer based on their preferences and choices. Generally, the OTT service providers charge a fixed amount monthly or yearly based upon the package selected by the consumer. These services are easily accessible on any electronic device be it a laptop, smartphone, or tablet. In India, Netflix, prime video, Hotstar are some of the most popularly used OTT services, especially among the youth.
Since the introduction of Reliance Jio, the internet usage of the Indians sharply sky-rocketed from 700 MB per month to 11 GB per month on average, all thanks to the cheaper rates, fast internet, dependable services, and better connectivity provided by Jio. In the year 2016, the jio was launched as a free trial for customers for zero to nominal charges. As a result, the appetite of Indian consumers for data increased accordingly and so did the supply of internet from jio. It created a revolution in the telecom industry and almost manipulated all other competitors like Airtel, Idea, Vodafone, etc to change and modify their plans and prices for providing data services. Another aspect that changed a lot was the data usage pattern among us Indians. And accordingly, our video and OTT platforms consumption also increased because why not, now we get a whole 1-3 Gb per day instead of 1 Gb per month like the older days. Added to it is the fact that our country was in lockdown due to Covid-19 since March 2020. After lockdown more and more things became digitized and virtual, using online internet means. This also contributes majorly to the day by day increase in the internet consumption. As a result, people consumed more and more videos and streaming services online. So increase in OTT platform consumption like Netflix, Prime Video, Hotstar, Zee5, etc called for regulatory measures and strict regimes in order to have control over what shows and series the particular platform is casting. It should not be offensive to any religion, caste, population, or anyone in any manner directly. So let’s discuss the further aspects of OTT (over the top) platform streaming regulations.
On 9th November 2020, The President of India invoked his powers through Article 77 of the Indian Constitution introduced certain amendments in Government of India (Allocation of Business) Rules, 1961 by adding 2 entities under the Ministry of Information and Broadcasting, Government of India 22-A. Films and Audio-Visual programs made available by online content providers. 22B. News and current affairs content on online platforms
This new amendment now enables the Government of India (Ministry of Information and Broadcasting) to regulate, authorize, and channelize the content produced by the streaming giants. Earlier, only the radio-television, and press were under the regulation of the concerned ministry. But now, the content and audio-visual programs also come under the purview of this ministry.
- The Supreme Court on 15th October 2020 issued notice to the Information and Broadcasting Ministry and Indian Mobile Association of India in response to the plea filed by two advocates. The plea seeks “the establishment of a proper board/institution/association for the monitoring and management of content on different OTT/streaming and digital media platforms.” The contention raised by the applicants is that several OTT services and digital media platforms are now releasing the content without issuing due clearance certificates from the relevant authority. The plea also talks about the web series like 365 days on Netflix and Mirzapur and pataal lok on prime video which are loaded with immoral, inappropriate, and indecent contents not suitable for common Indian households. The government is negligently ignoring these aspects and is reluctant to fill the void created by these streaming giants, averts the plea. That the Central Board of Film Certification should be headed by an IAS officer of secretary level, seeks the petition.
- In January 2019, the ‘Code of Best Practices for Online Curated Content Providers, 2019’ was released by the Internet and Mobile Association of India (IAMAI) jointly developed by the companies in OTT service providing business in India to ensure that reasonable efforts are being made and good quality content is provided as per the industrial standards laid down by the authority. The Preamble of the code says “This document establishes guiding principles for Online Curated Content Providers [hereinafter referred to as ‘OCC Providers’]to conduct themselves in a responsible and transparent manner. This shall be achieved by adhering to industry best-practices as laid out in this Code.” The code prescribes that OTT service providers should mandatorily be governed by the provisions mentioned in The Information Technology Act 2000, Indian Penal Code, 1860, Emblems and Names (Prevention of Improper Use) Act, 1950, Indecent Representation of Women (Prohibition) Act, 1986, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, Protection of Children from Sexual Offences Act, 2012, Copyright Act, 1957. The code also balances between the preservation of the right to freedom of speech and expression and the necessary prohibition on content. The code briefly states the Applicability, Key Features Business models, Principles for self-regulation, Objectives, Prohibited content, Sensitive content, and Complaint Redressal. The major signatories of this code are Netflix, Hotstar, Zee5, Altbalaji, Volcom 18, Sony Pictures Network, Arre, Eros now, and Jio (Jio cinema).
- Another code was released by the IAMAI titled “Self Regulation for Online Curated Content Providers, 2020” on the month of February 2020. It was a revised and updated advanced version of the code mentioned above which was released in the year 2019. The preamble of this code says “The present Code for Self-Regulation of Online Curated Content Providers (hereinafter, referred to as “Code”) has been jointly developed by companies carrying on business in India. Organizations that sign on to this Code, commit to making reasonable efforts and acting in good faithtoensurethatcontentofferedontheirrespectiveservicesinIndiaisinline with the Principles laid out herein. By adhering to industry best-practices as laid out in this Code, the signatories commit to conducting themselves in a responsible and transparent manner. Additionally, the signatories to this Code invest extensively in several safety features (such as those relating to content descriptors, age classification maturity rating filtering, and access/parental controls) to empower consumers to make informed viewing decisions” This code was made keeping in mind the specific core issues and to facilitate the self-regulation mechanism for all the OTT service providers. The principles of self-regulation are in total compliance with the mandatory laws and rules mentioned and prepared specifically for this online industry. This code exhaustively deals with Key Features, Business models, Objectives, Principles of self-regulation, Complaint Redressal Forum, Digital Content Complaint Forum, and Digital Content Complaint Council among other relevant aspects.
RECENT CASES AGAINST OTT AND DIGITAL MEDIA CREATOR
- The fresh case filed apropos OTT services on 18th September 2020 is that of Netflix series titled – “Bad Boy Billionaires: India”. In this case, the appellant Sahara India filed a case against the respondent ie. Netflix seeking a permanent or temporary stay on the release of the Netflix original series named Bad Boy Billionaires: India citing that the defendant (Netflix) had already approached the plaintiff (Subrata Roy) for cooperation in the making of the series and also for seeking his guidance for knowing life history of people who were economic or financial intellectuals. However, when the trailer was launched, it portrayed malicious and defamatory contentions about the plaintiff. Regarding this, the court granted an interim injunction in favor of the plaintiff. The counsel representing the streaming service provider argued that there isn’t any prima facie evidence that the trailer is defamatory or scandalous to the plaintiff and the contents of the trailer were never produced before the court. Mere statement (without any concrete evidence) made by the plaintiff said the counsel. He also argued that the learned court doesn’t have any jurisdiction in this particular matter.
- The biopic of the famous war hero Gunjan Saxena titled – “Gunjan Saxena: The Kargil Girl” was in limelight not only because of the person whose biopic it was but also because its production company – Dharma Productions was sued by the Central Government, particularly the Ministry of Defence claiming the Indian Air Force is wrongfully portrayed in the film. As per the Air Force Act and Air Force Rules, the movie, film or any series depicting the Indian Air Force must take all the necessary permissions from the institution itself or the Ministry of Defence. According to the 2013 guidelines of the Ministry of Defence, the preview of the film is to be presented before the ‘Preview Committee’. The name of the film was also changed from ‘The Kargil Girl’ to ‘Gunjan Saxena: The Kargil Girl’. “A Historical film made on the Indian Armed Forces based on the life story of a war hero has to be based on the true incidents/instances and the audience watching such a biopic film assumes that the incidents/events shown therein are actual and true event. Such a movie cannot be fictionalized or dramatized to such an extent as in the present movie wherein an entirely different perspective is created based on false and misleading facts/events which leaves an adverse impression in the minds of the viewers thereby tarnishing the image of the true characters and the organization which is shown in a historical and biopic film” said the petition.
- The famous Indian show Mirzapur also received wide criticism for portraying the story as anti-Hindu. Although no official step was taken by anybody. But it received a huge social media bash from both the groups – one who supports them and another one who opposes them.
Today we have a plethora of options available to stream, watch, or download as per our convenience. The need for regulating the content provided by the OTT Service Providers should be fine-tuned with respect to the freedom of speech and expression are given in the Constitution under Article 19(1)(a). As legal professionals, we can understand that nothing can be regulated without due laws and legislations, but some aspects are too fragile to be strictly monitored and structured by the regular rules and regulations. Binging or watching any show is for entertainment purposes only. It should be taken from a light-hearted point of view. On the other side, these streaming giants also should not misuse or extend the limits provided by the law in our country. They should stop making content that is sensitive in nature or which could provoke any particular group, caste, or religion. Anyway, whatever the laws are, we Indians especially the youth will always be having a binging session for relieving our stress from the workload. So, work, play, and enjoy like a law abiding citizen of this country. Because ultimately we as a youth will guide our country’s path to prosperity and happiness.
Author(s) Name: Apurv Umredkar (School of Law, KIIT University, Bhubaneshwar)