REGULATION OF CONTENT ON DIGITAL PLATFORMS

INTRODUCTION

The Media, Broadcasting and Entertainment industries in India are one of the sectors which grew multifold even during the pandemic. The Corona induced pandemic shook the economic systems worldwide. But the pandemic lockdowns came as a blessing in disguise for the Digital media Industry. The movement restrictions forced people to stay at home and opting subscription-based digital platforms for entertainment. The Entertainment Industry too adapted to the changing needs and switched from the DTH connections to the Over-the-Top digital subscription-based mode. The switch from the TV and Movie Industry to OTT platforms was a witty plan as [1]the year 2020 alone witnesses a jump of Fifty Million new subscribers for these platforms.

 This almost doubling of subscription rose the revenue generation alone from paid OTT Subscription to 43.5 Billion INR. The OTT platform was earlier controlled by Foreign Market Players like Netflix, Amazon Prime, Disney + Hotstar, etc but during the pandemic, while looking at the profitability of OTT platforms, Indian players like Sony, ZEE, etc too entered the market. The estimates show that the demand for digital content will be doubling by the year 2023 with an annual growth of 3,000 hours. The Digital Content which was earlier mostly English is now replaced by regional languages to cater for the different linguistic and ethnic consumer bases. The regional languages will share almost half of the content demanded and available within the next 3 years. [2] This growing industry was earlier unregulated and the attention of the legislative body was drawn to this sector by the various FIRs and cases filed before Hon’ble Apex Courts and various High Courts on grounds of obscenity, defamation and hurting communal feelings. The controversies surrounding the content on OTT Platforms made it necessary for regulating the available content while protecting the Freedom of Speech and Expression of the entities involved in the business of broadcasting.

HISTORY OF REGULATION OF MEDIA IN INDIA

The advent and growth of OTT platforms were similar to that of Cable Television in India. Cable television caught the Governing authorities then off guard and in absence of a proper regulatory framework problem of misleading advertisement, obscenity, violence against a particular section of society and defamation was rampant[3]. Finally, in the year 1995, a draft of comprehensive guidelines for the Code of Conduct related to the broadcasting of content[4] in compliance with the Program Code and Advertisement Code was devised in Rule 1994.[5] The Program Code was a safeguard against indecent, obscene and defamatory content; attacks on national integrity, sovereignty and friendly relations with foreign nations; cause a contempt of court; derogatory to women and public morality along with promoting superstition. Keeping the diversity of India in mind special safeguard was provided against broadcasting content which portrays in a bad light and causes hate towards the ethnic, linguistic and religious communities.[6] The provisions of the Cinematography Act 1955 were also applicable under the 1994 Rules.[7] 1999 witnessed the entry of private players in the Broadcasting Industry and hence the need of setting up regulatory authorities too rose. The Broadcasting Industry witness a transmission from being the source of Information related to governmental policies and education to entertainment purposes.[8] In the year 2006, the Hon’ble Supreme Court opined on the need for privatization in Broadcasting Industry and highlighted the existing Government’s monopoly. The Government was directed to formulate a comprehensive law to regulate players in the Mass Media Industry. [9]

In compliance with the above-mentioned case, the Broadcasting Services Regulation Bill was proposed in the Houses of Parliament. The bill catered for the need of regulating the broadcasters who offered services related to news and entertainment along with providing information to the public in a fair, objective and competitive manner.[10]There was the establishment of a separate entity under name of the Broadcasting Regulatory Authority of India to perform regulatory functions. The non-broadcasting of content threatening integrity, unity, peace and harmony in a nation along with good relations with other nations, was put in the Bill. [11] But the revolutionary step was in vain as it faced widespread criticism. The draconian law was seen as a tool in hands of the government to curtail Freedom of Speech arbitrarily. Public accountability and foreign investment were placed in grey areas. In response to the controversy stirred by Bill 2007, The National Broadcasting Associations formulated a self-regulating action plan to regulate the broadcasting content in 2008. The Code was drafted by Sr. Ad. Harish Salve. The Code maintained the highest standard of public service, integrity and accountability. The indecent pictures were to be morphed and content related to sexual violence and with strong language were to be reported judiciously. The unnecessary intruding in private life and reporting merely to defame was prohibited.[12]

PROBLEMS TO REGULATE DIGITAL SPACES

The Digital platforms were largely unregulated except with general provisions of the Information Technology Act 2000 and ongoing online self-regulating content contracts. The spark for regulation of content in digital spaces was ignited in the year 2016 when an RTI query dated October 25. 2016 clearly stated that these entities being out of the ambit of the Ministry of Information and Broadcasting had created the grey area for unregulated content in cyberspaces.[13] In the year 2018, similar stands were taken by Government while hearing a petition to regulate digital platforms before the Hon’ble Delhi High Court.[14] In 2019, a directive framework of not including content which is prohibited by the court promotes terrorism, hurts religious feelings, and is obscene or disrespectful to the nation. In the year 2020, the fifteen OTT platforms formulated Self Regulating Code for Curated content which provided age classification, appropriate content description, access control and an in-house grievance redressal mechanism.[15] These measures were rejected by the government.

Finally, on November 9, 2020, the OTT platform was taken into the ambit of the Ministry of Information and broadcasting by adding two new entries in the Government of India (Allocation of Business) Rules, 1961. This led to the application of all existing laws on content regulation on TV and Films that apply to OTT content. The Cable Networks Regulation Act 2005 and Cinematography Act 1955 along with regulations formulated by regulators like Press Trust of India ( for Print Media); News Broadcasting Standards Authority and Broadcasting Content Complaints Council (for Television Content); Central Board of Film Certification (for Films) and Advertising Standards Council of India (For Advertising). [16] This was taken in response to the direction of the Hon’ble Supreme Court in a petition filed against the Government and the Internet and Mobile Association of India.[17] These digital platforms are already regulated under section 79 of the Information Technology Act 2000 under intermediary liability. These intermediaries who conspire, abet, aid or induce the commission of offences are punished under the foregoing provision. They may enjoy immunity if they merely host the data and can’t choose the receiver or alter the content. The year 2011 amendment added the word ‘due diligence’ to place greater responsibility on these entities.[18] But the year 2021 rules, placed a greater burden on these intermediaries in the following manner[19]

  • The news aggregators, publishers and other forms of broadcasters over the internet are under the purview of the definition of intermediaries.[20]
  •  The code of conduct has placed these intermediaries. This code was based on the same lines as provided by NBA in the year 2008.[21]

CONCLUSION

The intermediaries are considered spokes to the wheel of the Internet. The intermediary is considered necessary for the functioning of operations over the internet. The growing dependence on OTT platforms and the influence of motion pictures on the mind of viewers made it essential to regulate the content. The two-tier regulation will be held in building community-friendly content. The self-regulatory framework is in addition also regulated by the sectoral regulator. Additionally, an in-house grievance mechanism is also set up for speedy redressal of content-related queries. Although, the regulations look great on paper, but with the volume produced, it is virtually impossible to check every piece of content. Also, the regulations are often seen as a tool to suppress freedom of speech and the content in opposed to government policies is often removed.

Author(s) Name: Anukriti Mathur

References:

[1] FICCI, ‘Media and Entertainment industry expected to reach INR 2.23 trillion by 2023: FICCI-EY report, Mar 26, 2021’(FICCI, 26 March, 2022)

< https://ficci.in/pressreleasepage.asp?nid=4137&msclkid=1985867ccfb211ecb3805851bbbc7fee > Accessed on 10 May 2022

[2] Ibid

[3] TRAI, ‘Consultation Paper On Issues related to Quality of Services in Digital Addressable Systems and Consumer Protection’ (TRAI, 18 May 2016), 11< https://www.trai.gov.in/sites/default/files/CP_on_18May.pdf > accessed on 10 May 2022

[4] Cable Networks Act, 1995, s 5

[5] Cable Television Networks Rules, 1994, r 6

[6]  Ibid, s 6 (m)

[7] Ibid, s 6 (n)

[8] Shiv Cable v State of Rajasthan AIR 193 Raj 197 para 8

[9] The Secretary, Ministry Of Information & Broadcasting Cricket Association Of Bengal & Anr. v. Cricket Association of Bengal & Anr. AIR 1995 SCC (2) 161 Para 49

[10] Broadcasting Services Regulation Bill, 2007

[11] Ibid, s 4

[12]News Broadcasters & Digital Association, ‘Code Of Ethics & Broadcasting Standards’ (News Broadcasters & Digital Association New Delhi, 1 April 2008), 3 <http://www.nbanewdelhi.com/assets/uploads/pdf/1_CODE_OF_ETHICS_BROADCASTING_STANDARDS_1_4_081.pdf> Accessed on 10 May 2022

[13] RTI application dated October 25, 2016, online registration number MOIAB/R/2016/50541 and MIB’s response dated December 2, 2016 

[14] Justice for Rights Foundation v. Union of India WPC no. 11164/2018 para 4

[15] Ministry of Information and Broadcasting, ‘List of OTT Platforms associated with IAMAI’  (Ministry of Information and Broadcasting, 18 August 2021)) <https://mib.gov.in/sites/default/files/List%20of%20OTT%20Platforms%20associated%20with%20IAMAI-DPCGC.pdf>  Accessed on 10 May 2022

[16] Directorate of Printing, Department of Publication, M/o Housing and Urban Affairs, Government of India,  Cabinet Secretariat, ‘Notification dated  9th November, 2020’ (E- Gazette, 9, November 2020) <https://egazette.nic.in/WriteReadData/2020/223032.pdf?msclkid=5b1933ddcfd411ec9ec26d440c48ad05> Accessed on 10 May 2022

[17] Shashank Shekhar Jha vs Union Of India, 15 October, 2020 para 12

[18] The Information Technology (Intermediaries guidelines) Rules, 2011 section 3

[19] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

[20]  Ibid, r 2(i)

[21] Ibid, section III

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