[This post has been authored by Kinjal Keya and Aditya Pratap Singh, students at the Chanakya National Law University, Patna.]
Introduction
In the modern-day and age, Over-the-top (“OTT“) video service platforms have become an indispensable part of our lives. Through this blog, the authors shall emphasize the multifaceted and adverse consequences of the unregulated functioning of this digital phenomenon and then proceed to highlight the need for regulations. This shall be done in a fourfold manner, i.e., by specifically dealing with social, legal, market and global aspects.
The Complexities of Unregulated Over the Top Service Platforms: A Social Perspective
Regulating the unregulated often postulates outcomes that are construed with a blend of both uncertainty and cautiousness. In this persistently evolving digital world, the dynamics of the consumption of entertainment content have changed substantially. The orthodox cable transmission network of the late twentieth century has been substituted by OTT video services. These services reach the viewer via the internet on platforms like Hotstar, Amazon Prime and Netflix which can be accessed from various kinds of devices, including mobile phones, televisions or any other digital source. Movies, documentaries and short films circulated through this mode have a global outreach and an influential effect upon the audience, thus, playing a vital role in the shaping public opinion. The enormity of the target audience and the highly diverse nature of the uncensored explicit content makes it improbable to address the various sensitivities of numerous vulnerable sections in a heterogeneous society like India – for instance, it may cater to the beliefs of a few while, simultaneously, hurting the sentiments of others.
While reformative and unorthodox visual work should be given a platform, there must exist a system of checks and balances to differentiate it from abusive and derogatory content. The Government has emphasized the need for ‘self-regulatory measures’, but these have proven ineffective to help OTT platforms address India’s peculiar requirements. In the case of Justice for rights foundation v. Union of India,[i] charges of displaying ‘soft pornographic’ content were raised against an OTT platform before the Hon’ble Delhi High Court. The platform had allegedly violated its self-regulation guidelines to publish this content. Evidently, these discretionary powers of self-regulation may be misused for commercial gains. Increasing viewership and encashing it to bring investment through advertising is part of the profit-oriented model adopted by such platforms – something which often results in OTT platforms failing to prioritise their social responsibilities.
Contemporary framework for regulations: A Legal Perspective
The freedom of speech and expression protected under Article 19(1) of the Constitution of India is subject to reasonable restrictions under Article 19(2). Accordingly, censorship or regulation of offensive content functions within the scope of decency, morality, public order, etc. However, there exists a pertinent question as to whether broadcasting over OTT falls under the definition of ‘public exhibition’ to be held eligible for censorship. To answer this, reference may be made to the definition of the public exhibition under the Cinematograph Act, 1957 which states that public exhibition refers to the action of exhibiting, submitting for inspection, displaying, or holding up to view something that is exhibited.[ii] The exhibited entity may include a work of art, movie, short film or play. In the case of Laxmi Video Theatres and Ors. v. State of Haryana,[iii] the Hon’ble Supreme Court brought DVDs and VCRs under the ambit of the Cinematograph Act as these satisfied the criteria to be ‘public exhibition’ by serving as a medium for exhibiting digital content like movies and documentaries among the general public. Furthermore, in 2010, the Delhi High Court, in the case of Super Cassettes Ltd. v. Board of Film Certificate & others,[iv] stated that streaming content on audio/visual platform amounts to public distribution. Therefore, upon perusing these judicial pronouncements, it can be derived that the content broadcasted on OTT platforms fulfils the criteria for public exhibition and its circulation amounts to public distribution. Hence, there is a need for OTT video platforms to be regulated in a manner similar to how movies and cinemas are under the Cinematograph Act, 1957. Nevertheless, these regulations must be structurally different from these conventional ones, as OTT services are a distinct medium to propagate various works.
The need for OTT regulations also arises from the fact that pre-existing laws have proven insufficient in dealing with matters concerning OTT content. OTT platforms qualify as intermediaries under 2 (1) (w) of the IT Act, 2000. Thus, if they are dealing with third party data, intermediaries lack the accountability for content published on the platform and are generally subject to the rules set by the platforms themselves. However, in reality, many of the OTT platforms indulge in making their own content, thereby escaping liability under this provision. Moreover, publicising obscene electronic content is a punishable offence under Section 67 of the IT Act. Yet, OTT platforms often publish frontal nudity and erotic content in gross violation of the IT rules and yet escape criminal persecution. Recently, there were allegations against Netflix for the sexually obscene and objectionable portrayal of certain female characters in its series ‘Sacred Games’.[v]
This unchecked functioning of OTT platforms leads to the publication of content which objectifies women and children and interferes with their right to reputation protected under Article 21 of the Constitution. The sexually explicit and vulgar portrayal of women in Amazon Prime’s series ‘Mirzapur’ and the sexualisation of pre-teen girls by Netflix’s French film Mignonnes or Cuties are just two of the many instances lending support to this case. It is against the equal stature of women in society and is discriminative in nature, violating the spirit of statutes such as the Indecent Representation of Women (Prohibition) Act, 1986 and is punishable under its sections 3[vi], 4[vii] and 7.[viii]
Distorting Fair Competition: A Market Analysis
The constantly increasing commercial pull of OTT services globally poses a major challenge to Telecom Service Providers (“TSPs”). The technological divide between OTTs and TSPs has led to a situation where both TSPs and OTTs are targeting a common market to provide services which are almost identical in nature. The TSPs bear the costs for the infrastructure, spectrum management and also pay license fees for use of spectrum.[ix] At the same time, they are required to fulfil universal services obligations, roll-out obligations and further abide by other regulations. On the other hand, the OTT service providers have virtually no obligations under the media regulatory legal framework in India and, thereby, do not have to incur any additional operational costs which are a consequence of having to comply with television and broadcast laws. This gives OTT service providers an undue advantage and, in turn, adversely affects market competition.
Constant discouragement and unfair treatment rendered to TSPs will eventually lead to a monopolistic market scenario in the longer run, where OTTs will disproportionately influence the demand of the consumer and TSPs will be limited to a negligible role despite offering equally good and verified content.
This phenomenon has also hampered the growth of new start-ups in the TSP sector while their OTT counterparts are thriving due to a lack of market responsibility.[x] Furthermore, due to the absence of a regulatory mechanism, new OTT ventures have lacked accountability for the content they publish. Consequently, the quest for initial market success has driven many of them to circulate inappropriate, vulgar and offensive content.
Data Localization and Accountability: A Global Perspective
An analysis of the international scenario advocates for the need to regulate OTT platforms in India, for the general public’s interest. The scrutiny system in place for OTT platforms in the United Kingdom is on par with that of any other public service broadcaster. Australia has primary legislation, namely the Broadcasting Services Act, 1992, which governs the OTT sector. Similarly, under Turkey’s dedicated licensing regime, OTT platforms are provided with a license for a period of 10 years. Countries like Indonesia and Turkey also have strict regulations to check and balance the content being circulated by such platforms.
Governments around the world have had a two-fold approach in forming regulations for OTT platforms that is aimed at ensuring ‘Data Localization and Accountability’ of OTT service providers. While the former essentially affects multinational OTT service platforms particularly, the latter is applicable to all such platforms, irrespective of where they are based. Two models can be used to explain these concepts. Firstly, the Indonesian Government’s regulations which primarily focus on ensuring that OTT platforms have a transparent data storage system for national consumers who access their platforms and along with this specifically for monetary transactions the OTT shall set up a national payment gateway system.[xi] This, in turn, prevents data theft from offshore operators and also ensures the financial safety of the consumers. Secondly, Thailand’s government has worked on a structure for regulations which serves as a grievance redressal mechanism.[xii] The government would act against OTT providers on the basis of complaints received by them from individual users in case of hurtful and offensive content. These may prove helpful in establishing a dedicated regulatory mechanism for the OTT platforms operating in India.
The process to formulate a robust regulatory mechanism would be of dynamic nature and will evolve over time, considering valuable inputs from all stakeholders to perfectly meet the requirements generated by the enhanced outreach of OTT operations. In the meantime, an alternative way to begin this process can be seen in a decision by the President of India to exercise his powers under Article 77(3)[xiii] to amend the Government of India (Allocation of Business) Rules, 1961 and add two new entries under the Ambit of Ministry of Information and Broadcasting, namely (a) Films and Audio-Visual programs made available by online content providers and (b) News and current affairs content on online platforms. This will enable the government to keep a vigil on discrepancies or violations by content circulated on OTT platforms with immediate effect so that any provocative and offensive content does not go unchecked till the dedicated regulatory mechanism is being formulated and implemented.
Conclusion
In their present form, OTT platforms lack the adequate mechanism and diligence for the identification and prevention of circulation of inappropriate content which is discriminative on lines of religion and gender and may prove detrimental for the social fabric of the nation. Their current functioning creates an unfair market bias and excludes OTT platforms from the onus of complying with their ethical and legal responsibilities towards society. All these factors thereby highlight the emergent need of having dedicated regulations to check and balance the new-age digital phenomena of OTT.
[i] 2019 SCC OnLine Del 10962.
[ii] ILR 1989 KAR 183
[iii] AIR 1993 SC 2328.
[iv] (2012) 5 SCC 488.
[v] Justice for Rights Foundation v. Union of India W.P. (C) No. 11164 of 2018.
[vi] Section 3 – “Prohibition of advertisements containing indecent representation of Women: No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.”
[vii] Section 4 – “Prohibition of publication or sending by post of books, pamphlets, etc; containing indecent representation of women”
[viii] Section 7 – “Offences by companies” In failure to abide by the safeguards given for women under this statute.
[ix] Impact of Over the Top (OTT) Services on Telecom Service Providers, February 2015, Indian Journal of Science and Technology 8 (S4):145.
[x] Cellular Operators Association of India and IIMA-Idea TCOE’s submissions on public consultation held by TRAI available at https://www.medianama.com/2019/01/223-ott-submissions-coai-iima-ideatcoe/
[xi] Al Hakim Hanafiah’s New regulation for OTT activities in Indonesia available at https://law.asia/new-regulation-ott-activities-indonesia/
[xii] Komsan Tortermvasana’s Complaint-based framework to govern OTT available at https://www.bangkokpost.com/tech/1263947/complaint-based-framework-to-govern-ott
[xiii] Article 77(3) in The Constitution Of India 1949 states that ‘The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business’.