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REGULATIONS OF PORNOGRAPHY IN OTT PLATFORMS IN INDIA

INTRODUCTION

Platforms like Netflix and Amazon are becoming essential parts of our daily lives and our primary sources of entertainment. We are connected to the entire world through services like Twitter and WhatsApp, which also give us a forum to voice our ideas. According to the proverb “everything has two sides,” these platforms have grown to be a haven for criminal activity and obscenity, which has an impact on the general public[1]. Children may be significantly impacted by the obscenity displayed in episodes like Game of Thrones and Mirzapur on these sites. Numerous court petitions seeking to impose limits on the content presented on these platforms, such as Amazon and Netflix, have been filed since the content displayed is uncontrolled. Pre-screening content on OTT platforms is currently not governed by any such laws or authorities[2].

OTT PLATFORMS IN INDIA

These OTT platforms used to broadcast movies that were already out of theatres when they obtained the rights from the distributors, but today’s OTT platforms have begun to offer original material in the shape of films, documentaries, and web series on various hot-button topics. In our country, Netflix and Amazon Prime Video are the industry leaders in the OTT space thanks to their large subscriber bases and a number of rivals, like Alt Balaji, MX Player, Voot, Sony Liv, etc[3].

We live in a digital age where we can view movies and television episodes with just one click, where services like Twitter and WhatsApp let us communicate with people around the world and provide us with a forum to share our thoughts. However, these platforms have developed into high-crime areas. Children may be harmed by the prominence of vulgarity and nudity on websites like Netflix and Amazon. The movies and television series we see on these platforms are very different from the ones we see in cinemas[4].

CRITICISM & CONTROVERSY

Great ideas will always be the target of criticism. The content of theatrical releases has always been a source of controversy, with claims that it is offensive, improper, or hurtful to religious or societal sensibilities, among other things. However, the Central Board of Film Certification (CBFC) and the Cinematographic Act of 1952[5], along with supplemental rules and guidelines, deal with such matters in relation to theatrical releases, while the Broadcasting Content Complaints Council regulates television in the case of broadcast media (BCCC). Similar to Netflix’s self-imposed maturity ratings, these sites have their own set of self-regulation and censoring criteria. The Suitable Boy on Netflix, Taandav on Amazon Prime, and XXX on ALT Balaji are just a few recent examples of the controversy surrounding OTT platforms, which has sparked discussion over whether restriction and regulation of OTT platforms are now necessary. The same shall be examined in this post[6].

REGULATIONS

It is pleased that the new IT Rules enable more subtle censorship, following the CBFC’s example of requiring film alterations before certification. The three-tier regulatory structure is also not independent. The Inter-Departmental Committee, the third tier, is completely composed of bureaucrats; neither the legal system nor civil society is represented, casting doubt on the legitimacy of the regulations[7]. Regulations can guarantee that nothing illegal is displayed, but censorship, whether applied freely or in response to outside pressure, blurs or eliminates politically sensitive content or abuse. External platform regulation may result in self-censorship and reduce creative freedom. High courts are currently hearing a number of petitions contesting the regulations, but the Supreme Court has suspended all of them. Regarding the legitimacy of the rules and the laws on the platforms, there are many questions that need to be clarified. Only by clearly addressing the damages can this conundrum be resolved. If only rules are needed, they should be implemented through the proper laws passed by the legislature rather than the executive rule-making authority granted by an Act. The rules ought to be made with respect for artistic freedom and without engaging in censorship[8].

ROLE OF JUDICIARY

The courts have generally resisted attempts by a variety of people and groups to use the legal system to impose regulation and a regulatory code for the OTT business in the lack of any specific rules, laws, or codes being developed. Further, we can see that Nikhil Bhalla v. Union of India & Ors[9], which was heard by the Delhi High Court in the year 2018, was one of the early petitions calling for court intervention with regard to OTT platforms. This lawsuit included the censorship of specific words and sequences from the Netflix series Sacred Games[10].

One of the few prominent occasions where the government opposed censorship occurred in this case (Justice for Rights Foundation v. Union of India[11] being another such case). The Delhi High Court also rejected the second petition that sought to restrict a web series for referring to lawyers as “thieves” in one episode. In addition, it is clear that numerous other high courts, like the Calcutta High Court and the Allahabad High Court, have rejected numerous petitions calling for the control or restriction of content on OTT platforms. Additionally, a split bench of the Karnataka High Court disregarded the Cinematograph Act, 1952’s application to media found on OTT platforms[12].

THE LAWS REGULATE ONLINE CONTENT

The Indian Constitution’s Article 19 (1)[13], which guarantees everyone the freedom of speech and expression, is the first. Thus, according to the limitations set forth in Article 19, anyone who chooses to express their opinions, thoughts, and ideas online may do so. These limitations are put in place for the sake of social security, public safety, and maintaining good ties with other countries.

Second, the Indian Penal Code[14] discusses the penalties in specific circumstances. Any person who engages in the sale and distribution of obscene literature is subject to punishment under Section 293; under Section 295A, anyone who intentionally outrages religious sentiment is subject to punishment under Section 499; and under Section 354, anyone who insults the modesty of a woman is subject to punishment under Section 354.

The government also has the authority to restrict public access to certain materials under section 69A. In addition to the aforementioned, the Cinematograph Act of 1952[15] contains provisions for the certification of films for exhibition. However, MIB made it quite apparent that it lacks the authority to regulate OTT platforms, and that the IT Act is the appropriate action for the job. A number of petitions were submitted calling for the establishment of an independent organization to control OTT platforms. The regulations mandate that OTT platforms and digital news organizations adhere to the same content standards as television and print media. In addition, digital media and OTT platforms will need to establish a grievance resolution process to address content-related complaints[16].

CONCLUSION

Although the goal of legislation to govern OTT platforms is admirable, at the moment it has acted as a speed bump for the platforms. A difficulty emerges when someone sees it even after the content has been rated, and then wants to sue the OTT platforms over it. Due to the absence of specific grounds for complaint and the varied sensitivities of the audience, the current rules and modifications are likely to result in a variety of complaints[17]. The three-tier methods also prevent OTT services from operating quickly and effectively. Even so, it is accurate to say that the amendment and the recommendations were the first steps in a long line of advancements in this area[18].

Author(s) Name: Vaishnavi Krushna Parate  (Shri. Nathmal Goenka Law College, Akola)

References:

[1] ‘Regulation of OTT Platforms in India’ (ilms. academy) <http://localhost:4000/blog/regulation-of-ott-in-india> accessed 12 February 2023.

[2] ibid

[3] ibid

[4] Ayush Sahay, OTT platforms and their regulation, IPLEADERS, (May 1, 2021, 12:12 PM) https://blog.ipleaders.in/ott-platfors-regulation/

[5] Act no. 37 of 1952, Acts of Parliament, 1952 (India)

[6] ‘Regulation Code For OTT Content’ <https://legalserviceindia.com/legal/article-8260-regulation-code-for-ott-content.html> accessed 12 February 2023.

[7] ibid

[8] ibid

[9] Nikhil Bhalla vs Union of India & Ors., Delhi High Court, W.P(C) 7123/2018. (India)

[10] Editorial, ‘Government Regulations for OTT Platforms – Details and Implications – Navarreroylaw.Com’ <https://navarreroylaw.com/updates/government-regulations-for-ott-platforms-details-and-implications/> accessed 12 February 2023.

[11] Justice for Rights Foundation vs Union of India, Delhi High Court, W.P(C) 111164/2018. (India)

[12] ibid

[13] Indian Constitution, Art. 19(1)

[14] Indian Penal Code, s 293, 295A, 499, 354

[15] Cinematograph Act of 1952, s 69A

[16] ‘Regulations on OTT Platforms – A Perplexity’ <https://www.khuranaandkhurana.com/2022/09/28/regulations-on-ott-platforms-a-perplexity/> accessed 12 February 2023.

[17] Rachit Garg, ‘Regulation of the OTT Platforms’ (iPleaders, 6 April 2021) <https://blog.ipleaders.in/regulation-ott-platforms/> accessed 12 February 2023.

[18] ibid