Paper Details Paper Code: RP-CLA-V2-09 Category: Research Paper Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Riya Hotchandani, “Freedom of Expression in the Digital Age: Regulation of Over-The-Top (OTP) Platforms”, 2 AIJACLA, 113, 113-126 (2022). Author Details: Riya Hotchandani, Student, Government Law College, Mumbai
Abstract The popularity of OTT platforms and their easy access being a reason behind more and more people seeking to express themselves on these platforms or trying to find a content that suits their viewpoint is noteworthy. However, while the freedom of expression holds supreme importance as a right conferred upon the citizens of this country, the fact cannot be brushed aside that the right cannot be overstepped in the name of ‘creativity’ or ‘ingenuity’. The growing representation of violence, strong language, drug abuse, sex, nudity etc. on the OTT platforms and the same being broadcasted without any specific regulations in place, has made the government to come up with the guidelines regulating the digital industry. While there are provisions in the Indian Penal Code and the Information Technology Act dealing with obscenity and sensitive content, still a huge part of the digital content goes unregulated and which is why a need has been felt for specific guidelines for the industry. The government has also taken into consideration the OTT regulations in different countries and has acted accordingly. Moreover, emphasis has been paid upon self-regulation of the OTT platforms, which includes self-classification based on content and age, parental locks, ratings display, self-regulatory body for complaint redressal etc. Keywords: OTT Platforms, freedom of expression, guidelines, regulations, and digital content.
The Freedom of speech and expression as enshrined under the Constitution of India has been a point of contention for a long time. The reason being the wide ambit of the term “speech” and “expression”, including the freedom to express one’s opinion in the form of visual representations like movies, short films etc. Over the years we have shifted from small cable TVs to even smaller mobile screens. The OTT platforms have gained far-reaching popularity in the contemporary world, with the Covid times adding to its already large fan-base. Amid the ongoing debate over the uncensored and unregulated content shown on these platforms, which can be easily accessed over the internet, the Government recently came up with a new set of guidelines providing for a robust three-tier grievance redressal mechanism. Moreover, it remains to be seen whether this is invading the creative space of the content producers or it is actually an effort to regulate these video streaming platforms.
AIM AND SCOPE OF THE PAPER
The paper aims to study the lacunae in the laws governing the online video streaming industry and the need to fill the gap so as to bring it on an equal platform as theatres and Cable TV. The paper aims to highlight the issues which can erupt as a result of the non-regulation of the OTT platforms. It further points out the laws which earlier dealt with digital content and as to why they were insufficient to regulate the entire industry. The author also tries to highlight the key takeaways of the new guidelines framed by the government in order to regulate the industry. Besides, the paper also calls attention to the arguments raised against the new guidelines and as to how these regulations can be a serious threat to the fundamental right of freedom of expression of not only the content producers but also the viewers. The stance taken by the judiciary on the issues of censorship and content regulation has also been taken into consideration while pointing out the contentions of those opposing the OTT guidelines. Lastly, the paper presents the growing trend of OTT platforms worldwide and a comparative analysis of OTT regulations in different countries and in India along with the differences and similarities between the two.
WHY IS THERE A NEED TO REGULATE DIGITAL CONTENT?
While we have bodies like the Central Board of Film Certification, which is responsible for regulating the filmmaking industry or the Broadcasting Content Complaints Council, which takes complaints related to non-news content broadcasted over TV and statues like the Cinematograph Act and the Information Technology Act, which filter the contents shown in theatres and cable TV; there is no specific legislation that regulates digital content. In order to level the playing field between movies that reach the public through theatres and those through the internet, it is necessary to have some regulations in place.
Dissemination through the internet surpasses cable and broadcasting TV platforms, one of the reasons being the “push” and the “pull” content. While on an OTT platform, the viewer can make an informed choice about what to watch and he himself searches the same on such platforms, the viewer, on the other hand, is pushed to watch the content broadcasted on the TV and cannot choose instead. Not only that, online video streaming platforms have a diverse range of content suitable for people belonging to any age-group. While platforms like Disney+ Hotstar have content divided as movies, serials, kids, comedy, sports etc., Netflix, on the other hand, has movies classified into genres like romance, thriller, drama, horror etc., thus appealing to a large audience.
As suggested by a national survey, the online content industry, with an estimated value of INR 4000 crores, has a current viewership of more than 17 crore from OTT platforms alone. Data further suggests that the average time an Indian subscriber spends on OTT platforms has jumped from 20 minutes to 50 minutes to 1 hour since the Covid-induced pandemic. Even the number of OTT platforms has subsequently increased to 40, compared to only 2 platforms in 2012. An average of 2-3 hours is spent by 49% of the youth watching online content. Given the data, it will not be incorrect to infer that these OTT giants have a well-established audience, looking for more content desperately.
With the rise in the viewership and an ever-increasing avarice to cater to a diverse audience, it becomes imperative to draw a line between creativity and indecency. The use of violence, sex, nudity, obscenity, strong language and drugs on these platforms has raised different controversies over a period of time. Whether it is the petition filed in the Delhi High Court against the series “Sacred Games” alleging that it maligns the reputation of the former Prime Minister Rajiv Gandhi or it is the row over anti-women dialogues or a rape scene in “Paatal Lok” or it is the controversy over a kissing scene in a temple in “A Suitable Boy”, which was accused of hurting religious sentiments, there are many instances which make policing in the digital content industry necessary.
Therefore, considering the absence of a law dealing specifically with digital content, the increasing market of these online platforms and the expanding content shown in the name of ‘creative space’ of the producer, there is a need for some sort of regulation in order to prevent the morals of the people from getting depraved.
LAWS THAT DEALT WITH DIGITAL CONTENT BEFORE THE GUIDELINES WERE FRAMED
‘Obscenity’ as defined under section 292 of the Indian Penal Code means something which is lascivious or prurient or has the effect of depraving or corrupting someone. While these terms are not defined under the IPC, the Courts have laid down the test to determine whether something qualifies as ‘obscene’ or not. The famous test of obscenity, the Hicklin test, was adopted by the Supreme Court in the year 1965, which gave a wide ambit to the term ‘obscene’. However, over the years, the scope of the term has been narrowed down and the Supreme Court set aside the Hicklin test. The Court rather approved the American Roth test in the Aveek Sarkar case which leaves obscenity to be determined by applying contemporary community standards from the viewpoint of an average person. It was observed that with the evolution of the society, what may have been considered obscene then, may not be considered obscene now.
While obscenity over the internet has not been specifically dealt with under Section 292 of the IPC, provisions have been laid under the IT Act which stipulates punishment for publishing or transmitting obscene material in the electronic form. Section 67B of the Act lays emphasis on “punishment for depiction of children in sexually explicit act in electronic form”. Furthermore, Section 69A gives power to the Central Government to issue directives for blocking public access of any information in the interest of sovereignty and integrity of India, friendly relations with other states or for the security of the state or on the grounds of public order.
Section 295A of the IPC further deals with acts which are deliberate and malicious and intended to outrage religious feelings of any class by humiliating its religion or religious beliefs. The Supreme Court has, however, held that the section only penalises those acts of insult or attempts of insult which are carried out with the deliberate and malicious intent to outrage the religious beliefs of a class.
There are some other acts in place like the Indecent Representation of Women (Prevention) Act, 1986 which forbids representation of women in books, advertisements, movies, paintings etc. in an indecent manner and the Protection of Children from Sexual Offences (POCSO) Act which prohibits selling and distribution of child pornography.
WHAT ARE THE NEW GUIDELINES?
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as the government calls it, bring forth a soft touch three-tier regulatory mechanism for the OTT platforms. The first two-tiers aim at self-regulation by the platform itself through self-regulatory bodies and the third-tier focuses on oversight mechanisms by the Centre. Some key highlights of the guidelines are as follows:
▪ Time bound complaint redressal mechanism.
▪ Self-classification of content based on age and genre by OTT platforms.
▪ Proper content ratings for violence, nudity, sex, drug abuse, so that the viewers can make an informed decision.
▪ Increased accountability of the video streaming platforms.
▪ Counterbalance in the system against obscenity, indecent depiction of women, child pornography, national integrity, social order etc.
▪ The first-tier shall be a self-regulation mechanism by the publishers of the content who will appoint a ‘Grievance Redressal Officer’. The Officer shall deal with the grievances received and resolve them within a period of 15 days.
▪ At the second-tier, one or more self-regulatory bodies shall be constituted by the content publishers and the platforms.
▪ Self-regulatory body to be headed by a retired judge of the Supreme Court or a High Court or by an eminent person who shall be independent and belonging to the field of media, entertainment, child rights, human rights or any other relevant field.
▪ The self-regulatory body is empowered with the right to delete or modify any content in order to prevent commission of a cognizable offence relating to public order.
▪ The Ministry of Information and Broadcasting shall administer the third-tier, which will establish an inter-departmental committee to resolve grievances that were not resolved by the other two-tiers.
▪ The I & B Ministry shall have the power to block public access of any information in case it is expedient and justifiable, without a reasonable hearing of the concerned platform.
▪ Parental locks to be implemented for contents classified under U/A, 13+ or higher category along with mechanisms for age verification for content classified under “A” category.
ARGUMENTS AGAINST OTT REGULATION: WHAT OTHER SIDE HAS TO SAY AND WHAT IS THE JUDICIAL STANCE ON THE ISSUE?
The online content producers have been enjoying two major privileges attached to the OTT industry. First, the director has an opportunity of enlarged storytelling and second, the extended runtime unlike the movies released in theatres. The producers can go up to any extent to explore their characters and the story, without any time constraints.
The most indispensable argument is to what extent these guidelines endanger the freedom of expression of not only the content producers but also the viewers and to what extent they can be justified as ‘reasonable restrictions’. The concept of “Heckler’s veto” comes into picture in such a case. Heckler’s veto is a situation in which the freedom of speech and expression of a person is restricted so as to hold back the reactionary behaviour of another person. A similar situation has been created through the guidelines framed by the government. The guidelines jeopardise the fundamental right as the provisions are in addition to the existing prohibition of law. For instance, one of the provisions states that “A publisher shall take into consideration India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.” Thus, it gives more grounds to file a complaint than are prescribed under the reasonable restrictions that can be imposed on the exercise of the fundamental right.
Furthermore, it is provided that any grievance against any digital content can be filed with the Grievance Officer of the concerned platform, who is obligated to acknowledge the grievance within 24 hours and address the same within a period of 15 days. An appeal can also be filed against the decision of the Grievance Officer to the self-regulatory body, which shall constitute the second-tier of the grievance redressal mechanism. The second and the third-tier are government oversight layers and have been provided with the powers of punishment, which includes censuring, warning, reprimanding, reclassifying the rating and even blocking the content which is objectionable or offensive.
While the government has emphasised self-regulation of the OTT platforms, it is an undeniable fact that the second and the third-tier are bodies which are to be governed by none other than the government itself. The composition of the self-regulatory body under the second-tier is subject to the approval of the Ministry of Information and Broadcasting. Not only this, the Inter-Departmental Committee constituted under the third-tier consists of various ministries of the government, chaired by the Ministry of Information and Broadcasting Joint Secretary. Thus, to what extent it is self-regulation is a question left unanswered by the government.
Talking about the right to freedom of expression, an important judgment of the Supreme Court has to be taken into consideration. The Court in S. Rangarajan v. Jagjivan Ram laid down that while reasonable restrictions, including in the interest of public order, can be imposed on the exercise of the right, “freedom of expression cannot be suppressed on account of threats of demonstration, processions or violence.” It was further held that a producer has a right to “think out” and it is a part of democratic give-and-take, which no one could complain about. The State is not empowered to prevent open discussion and open expression, however, hateful it is to its policies. The Court in another case of M/S Prakash Jha Productions & Anr v. Union of India & Ors. has observed that movies on social issues like reservation are important for public discussions and debate on such issues and are necessary for smooth functioning of a healthy democracy, which in fact help in the growth of the society.
In another case of Bobby Art International & Ors. vs. Om Pal Singh Hoon & Ors., the Supreme Court noted that the right to freedom of expression of a producer cannot be restricted. It was further held that movies that deal with themes that are socially relevant must be susceptible to the least censorship. The Courts have customarily supported free speech and expression. It has also been held by the Supreme Court in the case of K. A. Abbas v Union of India & Anr , that “the standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.” In another judgment by the Karnataka High Court, it was observed that the digital content aired on the OTT platforms should not be considered as public exhibitions and should not be subject to censorship on grounds as absurd as “social interests matter over individual freedom”.
It may, further, not be wrong to argue that the OTT regulations are an attempt to protect the government from being pictured in a bad light or the politicians from being negatively depicted. A recent controversy revolving around the series ‘Tandav’ very well explains the driving force behind the government’s steps towards the OTT platforms. The series touched a lot of raw nerves, whether it is depicting JNU protests or the arrest of former JNU student Umar Khalid under the Unlawful Activities (Prevention) Act (UAPA) for his alleged involvement in the protests against the Citizenship Amendment Act (CAA) or it is depicting the farmers’ protests, there has been a clear attempt to bring out the loopholes in the current government’s policies. Though the series was accused of hurting religious sentiments which led to all the controversy, the government in the guise of protecting religious sentiments tried to subdue the burning issues raised by the series. The list also includes the controversy relating to the series ‘Mirzapur’, which was accused of portraying the state of Uttar Pradesh in a bad light and the blocking of comedian John Oliver’s show critical of the Prime Minister on Hotstar.
The growing popularity of these platforms clearly point out to the fact that it is the increased freedom to express which has led to a mixed audience coming together. We have seen stories, content and perspectives like never before. Actors and writers, who couldn’t leave their mark while performing in movies, have come out more confident now because of a platform which is diverse and wide-ranging.
In a recent interview, actor Manoj Bajpayee acknowledged the fact that people no longer watch movies just as a source of entertainment. The audience is more demanding these days and they want actual picture to come out and with the OTT platforms this has become possible. We have seen content based on rampant corruption in our country, homosexuality, rising number of crimes against women, justice system of our country, situation of women in a patriarchal society and what they truly want and many other issues, which are not just limited to our country but which are present all across the world. This freedom of the writers to explore novel areas can thus be attributed to the OTT platforms.
Another important aspect of the argument deals with non-consultation with the concerned stakeholders like the Internet and Mobile Association of India (IAMAI), the OTT platforms which are signatories to the IAMAI’s Universal Self regulatory Code, producers, actors and others. The IAMAI in fact expressed surprise at not being consulted and added that consultation with the stakeholders would have led to more effective and implementable guidelines. The government not only turned its back on the fact that the association was working on drafting a toolkit according to the issues and concerns raised by the government for effective guidelines on the platforms, but also omitted to deliberate with them on the new guidelines.
Furthermore, it has also been apprehended that the guidelines may lead to over-regulation and instances like CBFC (Central Board of Film Certification) overreach that happened in the case of ‘Padmaavat’ or ‘Udta Punjab’. From time to time the Censor Board has acted in the direction of repudiating movie scenes which oppose socially accepted narratives as in the case of the movie ‘Lipstick under my Burkha’ where the depiction of sexual desire of a woman was condemned and was held as potentially sensitive towards some sections of the society. The advent of OTT platforms is headway towards an open society where the lurking demon of “socially assumed narratives” could be defeated. The fact that movies play a significant role in shaping societal believes cannot be emphasised enough and till the time we do not supplement them with the required creative space, we will not be able to reach to the desired solution.
Moreover, what further seems to be a valid argument is while streamlining the OTT platforms; the government has overlooked the actual adult content creators, which are porn websites. The regulation of content over the OTT appears to give these websites the leeway of expanding more and cater to an increased viewership. With the recent arrest of businessman Raj Kundra, the question arises as to what extent is regulation necessary when it comes to adult content. While there has been a significant increase in porn viewing since the lockdown similar to as seen in the case of OTT platforms, it should not happen that the organised sector is subjected to excessive scrutiny and the unorganised entities go unregulated.
COMPARATIVE ANALYSIS: ONLINE CONTENT REGULATIONS IN DIFFERENT COUNTRIES
The soaring instances of digital content over OTT platforms acting in disregard of public and political sentiments are not limited to India. Governments across the world have been witnessing the surge of these platforms and are not only regulating the content that reaches their public but also asking objectionable and sensitive content to be removed. The Government of India has taken into consideration the laws dealing with online content in foreign countries and framed the guidelines accordingly. While there are specific regulatory bodies constituted in some countries like Singapore and Turkey, countries like the UK, Australia, Indonesia and Saudi Arabia, on the other hand, have laws and regulatory frameworks in place dealing specifically with OTT content.
I. Singapore - The laws of Singapore mandate digital content providers to classify contents the same as their offline movies on the basis of age as general, parental guidance, maturity audience, audience above 21 years of age etc. Other provisions include parental lock, age verification mechanisms and ratings display along with the theme and the genre of the content. The regulatory body, the Infocomm Media Development Authority (IMDA), has additionally issued the do’s and don’ts for the video streaming agencies.
II. Australia – The Broadcasting Services Act, 1992 provides for the guidelines to be complied with while hosting digital content. Similar to the Singapore laws, the Australian guidelines also stipulate content classification and restricted access of some contents. The Australian Classification Board also recently allowed Netflix to self-classify its content. The law further allows viewers to lodge complaint against objectionable or offensive content and action can be taken on such content.
III. Indonesia – While some countries have taken a slightly lenient approach towards the online content industry, countries like Indonesia have come down strictly and in fact blocked Netflix after its global rollout in 2016 for infringing the laws of the land. However, in 2017, the concerned Ministry of Indonesia allowed Netflix to function with the condition to tie up with a local operator.
IV. Japan – Japan, as compared to other countries, has been a strong consumer market for OTT platforms but has not specifically regulated the OTT industry. Most of the content is uncensored and unfiltered; however, measures have been taken to protect children and young people, depending on the broadcasting time of a program. The only content that is censored is pornography.
V. China – Unlike any other country, China has banned foreign OTT operators and instead replaced them with local video streaming platforms like Tencent Video, Youku etc. The local operators are subject to the same regulations as cable TV service providers and have to obtain a licence for “Spreading Audio-visual Programs via Information Networks”.
UNDERSTANDING THE SIMILARITIES AND DISSIMILARITIES IN THE OTT TREND IN VARIOUS COUNTRIES
The online video streaming industry is expanding its market all over the world, with the United States leading the tally. A study suggests that North America alone had a revenue share of 46.2%, with approximately 67.66 million Netflix users in the US and Canada in 2019. It has been estimated that US viewers have collectively viewed 204 million hours on Netflix per day during the Covid-19 induced pandemic. Not only this, it has been reported that OTT platforms like Netflix took over Cable TV in the US back then in 2017, which is the fastest as compared to any other country in the world. Another survey reveals that 82% of the OTT subscribers find streaming more entertaining than cable TV.
Similarly, the UK has also observed a gradual shift from traditional satellite or cable TV services to online streaming platforms. 45% of the ‘online’ adults have been reported to have a Netflix subscription. It is expected that the Asian Pacific region will soon come to light as the fastest-growing regional market, displaying a 23.8% CAGR (Compound Annual Growth Rate) from 2020 to 2027. After the US and Canada, China has the most number of OTT subscribers, which is 68 subscriptions per 100 households in 2020, followed by Chile, Mexico, Argentina, Colombia and Brazil.
Unlike the countries discussed above, France has not seen a drastic change in its television market and has placed some regulatory obstacles for the video streaming platforms. The laws are strict in the sense that the OTT platforms are not allowed to function in the country if they don’t adhere to the French laws with respect to financing local content and investing in local content production. As a result, the growth of the OTT industry has slowed down to a great extent.
Similar is the case in China which has shut the doors for every internet service provider from abroad. The platforms have to obtain a special licence before entering the Chinese market. While the most important goal of all the online streaming services is attracting as many subscribers as possible, what differs in different countries is how the government and the audience influence them. While some countries have accepted it with open arms, some have been a bit reluctant to do so and have regulated the industry accordingly.
WITH FREEDOM COMES RESPONSIBILITY: AUTHOR’S VIEWS ON WHAT IS THE POSSIBLE WAY AHEAD AFTER THE NEW GUIDELINES THAT HAVE COME IN PLACE?
Though a lot has been said about the significance of the right to freedom of expression, the argument that not everything can be allowed in the name of ‘freedom to express’ is equally strong and invincible. Though there have been instances of excessive censorship and attempts to restrict the creative space of the producers, they are important to a great extent, as they remind us all that not anything and everything can come in the public domain. It is important to understand that even though societal narratives need to be changed with time, we cannot altogether transform to a different society leaving behind our customs and traditions. Given the growing freedom that content producers enjoy on OTT platforms, time has come for some regulations in place so that we have a ‘code of ethics’ and an appropriate balance between creativity and indecency.
An equally pertinent issue, as also raised by the Supreme Court, is that self-regulation alone is not sufficient and it should be coupled with stringent punishments for the rule-breakers. There should be increased accountability on the part of the video streaming platforms and adequate ratings display about the genre and the content of a particular movie or web series. Depiction of women in an indecent manner or as sex objects should be discouraged. Parents should be more vigilant about what their children are watching inside the closed doors of their room and they should be acquainted with tools like parental locks. Given the lack of sex education in our country, the youth can easily fall prey to content involving sex or nudity, which can lead to corrupt or depraved mentality. Use of drugs and strong language are also a matter of concern thereby making these regulations the need of the hour.
However, the new guidelines have to be implemented wisely and it has to be ensured that it is ‘self-regulation’ and not ‘over-regulation’. The committee and the self-regulatory body constituted under the three-tier mechanism should act broad-mindedly while dealing with the complaints against any content on the OTT platform. The Grievance Redressal Mechanism should ensure that actually sensitive or objectionable content is prevented from being aired on these platforms and not the content which is politically sensitive or which tends to bring out the loopholes in the government’s policies. A comparative analysis should be done between our approaches towards digital content with that of other countries’ perspective. Their policies on OTT regulation can be taken into consideration and a better approach can be adopted. Furthermore, dialogue with the concerned stakeholders should be done to at least ensure better implementation of the guidelines. The say of the OTT platforms and the content producers has to be respected so as to prevent arbitrary implementation of the norms.
It may be surprising to note that since the implementation of the guidelines, the redressal agencies established under the norms, have not received any serious complaint as of now against any of the video streaming platforms. This means that the government has not yet exercised its power to take down any offensive content. Moreover, Information and Broadcasting Secretary, Amit Khare, has also clarified that these regulations are not supposed to be used day in and day out, but only when it is necessary and in the interest of the public.
Looking at the insanely growing popularity of the OTT platforms and the increasing revenue they are generating, the guidelines are a step in the right direction. However, a point of contention that can be raised is that the term ‘offensive content’ is quite subjective and what one person may find offensive, the other may not. It is, therefore, the responsibility of the regulatory bodies to make sure that the freedom of expression is not unnecessarily sacrificed because of an over-sensitive audience. We need to understand that a standardised approach cannot to adopted towards such a diverse content on the internet and the grievance redressal agencies should be more receptive towards a wide range of content.
The new regulations seek to streamline the online video streaming sector, which was otherwise unregulated. It needs to be understood that the principles of democracy, free speech, expression, equal rights and larger public good all form the very root of our society and all have to be harmoniously balanced. The freedom of expression has to conform to other rights of the citizens without sacrificing the sanctity of the entertainment industry. The guidelines have to be properly implemented so that there are lesser negative impacts and more accountability on the part of the concerned stakeholders. The regulations are also necessary to ensure that digital content is subject to the same level of scrutiny as theatres and Cable Televisions. Furthermore, the regulations have to be implemented in accordance with the judicial pronouncements, so that there is no more interference than is necessary. Content producers as well as the OTT platforms have to take up the responsibility of classifying the content accurately and adequately displaying age-ratings. The viewers are equally responsible for making an informed choice and filing complaints against offensive content. Besides, as an open and a progressive society, it all depends on the audience as to how receptive they are to something which goes one step ahead of how they see things. In a nutshell, it is to be seen that to what extent the regulatory mechanism has a chilling effect on the fundamental right to expression and whether it is self-regulation or state sponsored censorship
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