OTT Platforms Brought Under Government Regulation

Lately, there have been debates regarding the decision of the government to bring the digital media under the government regulation by its notification. On one hand, it has provided clarity regarding who has the jurisdiction over such regulation, and on the other, it has raised fears among the minds of some regarding the censorship of content offered on these platforms. 

This article discusses the notification in detail, and what were the conditions that led to its release. It also talks about the implications of the notification.

Introduction

The Government, by a notification dated 9th November, 2020 brought the OTT platforms like Netflix, Amazon Prime, Hotstar, etc. under the regulation of the Ministry of Information and Broadcasting (MIB). Even the digital news platforms have been brought under the ambit of MIB. 

While the Press Council of India regulates the print media, the News Broadcasters Association (NBA) represents the news channels, the Advertising Standards Council of India regulates advertising, and the Central Board of Film Certification (CBFC) monitors films, there was no specific regulatory framework for the digital media. They were subjected only to the provision of the Information and Technology Act 2000 (IT Act). 

Due to this reason, there was ambiguity surrounding the regulation of digital media, especially the OTT platforms. They were under constant fire for some or the other show/movie offered on their platforms. For example, recently there was mass boycott of the movie “A Suitable Boy” owing to certain objectionable scenes; web-series like “Pataal Lok”, “Mirzapur” were criticised for being “too violent”; and an FIR was filed against Ekta Kapoor alleging that a web-series called “XXX Season 2” airing on her platform ALTBalaji hurts religious sentiments and also promotes  obscenity. All these instances show the urgent need for regulation of content offered on these platforms, especially because of the rising consumption of the content on OTT platforms owing to the pandemic. 

Background

Amid the increasing consumption of the content on OTT platforms and the concerns regarding its regulation, the MIB was supposed to issue a negative list – a list of some non-negotiable prohibited content to OTT/Streaming service providers, and had also urged the OTT/Streaming Platforms to come up with a self-regulatory body. In light of this, the first self-regulation was done by the OTT platforms through the “Code of Best practices for Online Curated Content Platforms (OCCPs)” which was adopted in January, 2019. However, the government suggested strengthening the Code. Thereafter, a revised version of the self-regulatory code was introduced in February, 2020 but was signed only by 5 of the OTT platforms. Thus, it received a major set-back. Subsequently, on 4th September 2020, the new code, i.e., the Universal Self-Regulation Code for OCCPs (Online Curated Content Providers) was announced by the Internet and Mobile Association of India (IAMAI).

The current notification comes in light of a PIL filed before the Hon’ble Supreme Court of India praying for the constitution of an autonomous body/board namely ‘Central Board for Regulation and Monitoring of Online Video Contents’ to monitor and filter the contents and regulate the videos on various platforms for viewers in India The PIL stated, inter alia that these platforms “have became a hub of Hinduphobic shows”, and is affecting the value system of our country. Therefore, the petitioners stated that regulation is necessary “to protect and safeguard the social fabric of the society at large and uplift the fundamental rights of all which is being violated in the name of freedom and creativity”

Thereafter, the Supreme Court issued notices to the Union government, Ministry of Information and Broadcasting and Internet and Mobile Association of India seeking their response on the issue of regulating OTT platforms through an autonomous body/board/association. 

The notification bringing the digital media platforms under the I&B Ministry was issued in light of the above. 

Implication of the notification

The notification was issued on November 9, 2020 by the Cabinet Secretariat, and was published in the official gazette on 10th November, 2020. It stated that:

“In exercise of powers conferred by clause (3) of Article 77 of the Constitution, the President hereby makes the following rules further to amend the Government of India (Allocation of Business) Rules, 1961, namely—

  1. (1) These rules may be called the Government of India (Allocation of Business) Three Hundred and Fifty-Seventh Amendment Rules, 2020. 

(2) They shall come into force at once.

  1. In the Government of India (Allocation of Business) Rules, 1961, in THE SECOND SCHEDULE, under the heading ‘MINISTRY OF INFORMATION AND BROADCASTING (SOOCHANA AUR PRASARAN MANTRALAYA)’ after entry 22, the following sub-heading and entries shall be inserted, namely:- 

VA. DIGITAL/ONLINE MEDIA

22A. Films and Audio-Visual programmes made available by online content providers. 22B. News and current affairs content on online platforms”

Thus, by the issuance of notice, an amendment has been made to the Government of India (Allocation of Business) Rules, 1961 by adding a new sub heading, VA named the “Digital/Online Media” under the heading concerning the MIB in the second schedule. This amendment was made by the President in furtherance of the powers granted to him under Article 77(3) of the Constitution of India, which provide 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. 

The instant notification provides clarity regarding the jurisdiction over such content. However, ever since this notification was released, it has been subject to criticism over fears of censorship and curtailment of freedom of speech and expression. Moreover, some people expressed their concerns about the kind of content that will now be released on such platforms, because of its regulation by the MIB. However, there are still discussions to be held in order to further clarify the exact implication of the notification in terms of the extent of such regulation, and the course of action to be adopted by the ministry. 

Conclusion

Digital media has become so prevalent that the content on these platforms is gaining more popularity than the regular TV shows, especially because of the pandemic when everyone is locked inside their homes and can easily access the content available on their platforms to binge watch. With the consumption of their content far and wide across the country, there was a need to regulate such content and the release of the notification offers a little clarity over the jurisdiction of MIB to regulate the digital media. 

The actual manner and extent of such regulation is yet to be seen. It has to be made sure that a balance is maintained between the regulation of content and the freedom of speech and expression, and creators’ freedom. 

References

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