Author: Dhruv Kalia, B.A.,LL.B(Hons.) From National university of advanced legal studies,Kochi.
This year, the Indian government has come under fire for its aggressive drive to tighten regulation of digital service providers. Its most recent target is over-the-top platforms, or OTT Platforms, and more specifically those platforms that offer services for online news, video, and audio content intermediation. The government recently rejected the draught of a Self-Regulation Code created by fifteen (15) key OTT Platforms, including Netflix, Disney Hotstar, and Amazon, in a sharp departure from its former position on the viability of a self-regulation framework for OTT Platforms. Following that, the Ministry of Information and Broadcasting (I&B Ministry) was given authority over the following categories of digital online content via notification dated November 9, 2020 (the Notification)
Preceding the Government Notification
In order to capture the debate unfolding around OTT regulation, it is necessary to glean context from the facts preceding the Notification.In March 2015, the Telecom Regulatory Authority of India (TRAI) had issued a consultation paper on OTT platforms hinting at a licensing regime which provided communication or application-based services on the internet. The premise for regulating OTT Platforms back then was that such platforms provided services directly through the telecom service providers, which were regulated by the TRAI. However, this proposition to comprehensively regulate OTT Platforms was later dropped.
After that, between January 2019 and September 2020, the IAMAI published three (3) draughts of self-regulation codes. The Digital Curated Content Complaint Council (DCCC), which was established in February 2020 by a number of OTT platforms, mandated that its members filter anything that encouraged violence, had images of child sex abuse, or was otherwise prohibited by law. For content available on OTT platforms, the DCCC also offered a method for consumer grievance redress. The government assigned the platforms a deadline of one hundred (100) days in March 2020 to join the DCCC and create a self-regulation code. The third draught of a self-regulation code provided by the IAMAI was rejected in September 2020, which led to the publication of the Notification.
Briefly, the judicial discourse on the issue of regulation of OTT platforms began in 2018. The Madras High Court sought regulation of OTT services, after taking Suo motu cognisance of suicide by a 19-year-old after having played the online game, the ‘blue whale challenge’. While highlighting the responsibility of online platforms towards content moderation in the public interest, the High Court directed the Central Government to formulate a framework for OTT services
Effect of the Notification on Regulation of Digital Content Platforms
According to the Government of India (Allocation of Business) Rules, 1961, the minister responsible for each ministry or department decides how to handle the government's business at various levels within those departments. "Digital/online media" has been included as entries to the list, and is now on the agenda for the I&B Ministry. Whether the ministry will adopt the UK model of regulation and assign the regulation of digital content to an already-existing organisation like the DCCC or create a separate body and announce regulations for digital content is still to be determined. The Government may divide regulation if UK or Australian patterns are any indication. For instance, duties like evaluating and allocating. o ascertains the level of regulation, two possible indicators in this regard are analysed further in this post (I) the Government’s grounds for rejecting the latest self-regulation code, and (ii) the existing jurisprudence on censorship and preserving artistic freedom under Article 19(2) of the Constitution of India.
Grounds of Rejection of Self-Regulation Code
Free speech is guaranteed in India under Article 19(1)(a) of the Constitution, and both written and broadcast content may be restricted in accordance with the guidelines listed in Article 19(2), which states that "Nothing in subparagraph (a) of clause (1) shall affect the operation of any existing law, or preclude the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said subparagraph in the in the in the in the in the in the in the I Broadcast material has been subject to regulation as a result. The Cable Networks Television (Regulation) Act, 1995 and the rules established under it govern television broadcasting in India. The Cinematograph Act of 1952 and the associated rules govern the public showing of films in India. There have been calls for the Central Board of Film Certification to have jurisdiction over OTT services. The Cinematograph Act of 1952 does not apply to OTT platforms, according to a statement made by the Karnataka High Court last year [10]. In contrast to the Act's definition of "public display," the Court determined that content on OTT platforms is made available to users on a device-by-device basis, not on a larger scale, and does not, therefore, qualify as public exhibition.
Tracing Contours of Censorship under Article 19(2) of the Constitution of India
Judge Holmes established the clear and present danger standard for restricting free expression in Schenck v. United States [12]. In S Rangarajan v. P. Jagjivan Ram [13], the Supreme Court of India used this in relation to movies under Article 19(2). In the case, a film that criticised a policy of reservations for the benefit of people from "backward villages" was shown in public. The Supreme Court acknowledged that, in contrast to books and newspapers, movies cannot operate in a free market due to their significant impact on the audience. The Court held that freedom of expression through movies can be limited if the expression poses a clear and present threat that has a direct and proximate nexus with the expression at hand.
Conclusion
The best course of action in terms of regulation would be for the Central Government to create general rules for OTT platforms and delegate control over content regulation to industry organisations. The Supreme Court's lines of demarcation on the topic can be followed by OTT content regulation in India given the fluid norms of decency, obscenity, racism, and communalism. Guidelines for OTT platforms can be created using the amount of artistic expression permitted in India through films and literature.
Globally, OTT regulation is approached through a partnership between the government and service providers. For instance, OTT platforms have been given the responsibility of age-rating uploaded video in Australia on a trial basis.