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THE OTT PLATFORMS AND THE CASE OF THEIR REGULATION

Best-OTT-platforms - aRNAB MATHUR

INTRODUCTION

“’Freedom’ means a lot to conservatives, but they have such a narrow sense of what it means. They think a lot about freedom from – freedom from government, freedom from regulation – and precious little about the freedom to. Freedom is absolutely something that has to be safeguarded by good government, just as it could be impaired by bad government. “                        

                        –   Pete Buttigieg

I guess for all those who spent their days and nights on different streaming platforms like Netflix, Amazon Prime, Hotstar etc, it was not very hard for them to feel frustrated after hearing the news of them coming under the regulation of the government. I also feel like a fish out of water after hearing the news because we all, as fans, know what kind of future we are heading forward to and the threat of over-regulation by the government, like they’re planning to do in every other sphere of our lives, casts a greater shadow over this precious thing which I may not be wrong to say, everyone loves!

Although we all can skip a few scenes which are quite literally, ‘over-the-top’ in nature, but the raw and amazing stories we want to hear can be easily tainted now just because we’re heading towards a country that is increasingly becoming more rigid in its cultural structure and the government, sometimes quite obviously, impeding on our freedoms. Let’s now figure where exactly we might be heading.

WHAT WE ARE GETTING INTO?

Some of us might know that the Press Council of India (PCI) keeps a track on the print media, the News Broadcasters Association (NBA) monitors the news channels, the Advertising Standards Council of India (ASCI) surveils advertising, while the Central Board of Film Certification (CBFC) monitors films.

An over-the-top (OTT) media services streaming offered directly to viewers via the Internet. OTT bypasses cable, broadcast, and satellite television platforms, the companies that traditionally act as a controller or distributor of such content.They are typically accessed via websites on personal computers, as well as via apps on mobile devices (such as smartphones and tablets), digital media players, or televisions with integrated Smart TV platforms.

From time to time, the government had indicated the necessity to monitor these platforms.In October 2019, the government had indicated that it will issue the “negative” list of don’ts for the video streaming services like Netflix and Hotstar. It also wanted the platforms to come up with a self-regulatory body on the lines of the News Broadcasting Standards Authority.

Anticipating the government’s intervention, in January 2019, video streaming services had signed a self-regulatory code that laid down a set of guiding principles for content on these platforms.

Now in July 2020, commerce and industry minister Piyush Goyal asked the entertainment industry to self-regulate their programs on OTT platforms, claiming that many of them portray India and Indian society poorly. Although, if the minister was concerned, there are hundreds of other real events taking place across the country which portray Indian society as still living in a medieval era.

But matters have quickly gathered steam since then. Recently, after hearing a petition filed in the public interest to regulate OTT platforms, the Supreme Court issued notice to the Centre and Internet and Mobile Association of India (IAMAI). And last week, a gazette notification brought all streaming platforms under the ambit of the ministry of information and broadcasting (I&B), sparking fears of a new censorship regime.

The question of freedom of expression in India needs a nuanced approach rather than a simple ‘for or against’ conclusion. The government has indeed had to deal with politically sensitive and inflammable situations with the history of oppression and religious divide in our country. However, is it possible to protect public order and promote respect for one and all without affecting art and scholarship?

Now, I’m not saying OTT platforms are all good on their own. It’s only the over-regulation we fear. In the age where people think of Amitabh Bachchan as the Don or their saviour literally, we need to watch out the negative effects this contains. A few days back, a young girl named Nikita Tomar was shot dead in broad daylight in Haryana by a man after she refused to accept his marriage proposal. A report revealed that the man named Tauseef was inspired by the character of Munna from Amazon Prime‘s web-series Mirzapur. Alt Balaji has a range of shows that tend to glorify soft porn. We must absolutely condone these kinds of acts and do away with the kind of extreme scenes the web series portray.

In the case of Mr Padmanabh Shankar vs Union Of India on 7 August 2019, the court held private viewing is not considered as a public exhibition on the OTT platforms. The Indian audience is not restricting their choice to domestic content and likewise, global citizens are watching Indian movies/TV series on OTT or Internet platforms. Can the government justify how it would be in “public interest” to shut our eyes to international TV series like Sex Education which is being aired even in Saudi Arabia?

Former information and broadcasting secretary Uday Kumar Varma said the step was long overdue. “Some people thought because the content was coming on the internet, it should become part of IT ministry. I suppose they have taken the decision based on content. News and entertainment content are both parts of I&B’s mandate. So irrespective of platform or medium, for instance, even today, the news if it comes on radio, TV or DTH, it is part of I&B’s mandate. It is an extension of that and to that extent logical,” he said.

Spokespersons of Amazon Prime, Netflix and the Internet and Mobile Association of India (IAMAI) did not respond to requests for a comment on the latest gazette notification.

Some producers who have released titles on such OTT platforms said the move could put them at a disadvantage. “This desperation for control of free speech and expression does not augur well. I am currently very disappointed,” filmmaker Hansal Mehta told PTI.

THE AIR OF ANONYMITY

Some questions remain unanswered that –

  • Will the government be discussing with stakeholders before implementing new regulations?Some experts believe that there is a trend in the making. First, the government added a regulatory structure around foreign direct investment (FDI) and now, it’s looking to regulate content.
  • Would the government impose stricter standards of artistic freedom to be applied to the OTT platform, considering – unlike broadcasting programmes, the OTT viewer has complete control of what to watch, where and how to watch.
  • How will user-generated content be regulated on platforms like YouTube, Facebook and others? How will digital news media be defined?
  • Will every news organisation on the internet will have to register itself? Not every news publication exists in the brick-and-mortar world, some are only digital. The freedom to register a website and dispense content at a minimal cost is of the primary pros of being on the internet.
  • Will this mean nobody can post on YouTube or Facebook if they’re not registered? Is the government going to block any news outfit or OTT that’s not registered in India?
  • Will movies that release exclusively on the internet now require a certification from the licensing board?

These are the kinds of questions the government got to deal with in the coming months or else things could get out of control with all the cards in their hands and all the rest of us simply following their orders.

There’s no clarity regarding how the Ministry proposes to go about the task of regulation but it is learnt that the Programme Code that governs content on TV and which found an outlet in the Cable Television Network Regulation Act, 1995, may serve as a template to frame rules for online content. The Programme Code lists several don’ts that channels are required to observe and follow. Currently, the Electronic Media Monitoring Centre, which was set up in 2008, is entrusted with the work of monitoring content on TV. It puts out reports on violations of the Programme Code. The findings go to an inter-ministerial committee. There is a possibility that the brief of the monitoring service could be extended to include online content.However, monitoring content 24×7 has its challenges. Whether the Ministry will set up a committee involving the public to look into complaints received remains to be seen.

CONCLUSION

The merrier and the wilder times of these OTT programmes and online news channels might be over, and a new dawn of governance and control over them is about to rise. What’s done shouldn’t be frowned upon especially after seeing the wrong effects and the way these platforms had influenced the world, let alone India, with the kind of freedom these programmes had earlier with them. We must shed off the unnecessary and look for cinema that is only content-driven and which does not derive extra ratings out of cheap and vulgar tricks.

India can be a Torch-bearer in the path to introduce the balance between over-regulation and their liberty & freedom. We just need to take care that for every step we take, we sacrifice a lot of other ways and therefore to tread carefully and with utmost sincerity is all we can desire of.

Author(s) Name: Arnav Mathur (Dr. Ram Manohar Lohiya National Law University, Lucknow)

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