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Megha Sahni, V year of B.A.,LL.B.(Hons.) from University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi

Coronavirus or COVID 19 has opened a Pandora's box giving way to not only health concerns but also economic disaster among other problems. Both the businessmen and the employees face financial problems. The economy of the country is facing a deep slump in these circumstances and it is believed that it would take years to come out of it especially for industries like travel and tourism, cinema, restaurants etc. However, the OTT or video-on-demand (VOD) industry has benefitted like never before from this crisis with subscribers for these platforms increasing manifold. This has brought the questions related to the regulation of this industry to the forefront.

For the unknown, the OTT or the video-on-demand industry lets you stream shows and movies available in the repertoire of the concerned OTT platform, according to the demand of customers, that is, any video, anytime, anywhere and that too without any commercials. All this is usually available on payment of subscription fees. Due to the lockdown following the COVID 19 crisis, the OTTs which were earlier restricted to few sections of the society have gained popularity and garnered new audiences, witnessing a further increase in questions related to censorship and regulation of these VOD platforms.

This is however not the first time that such questions have been raised. Both the High courts and the Supreme Court have, by way of petitions (PILs), been asked to deal with such questions. In 2018, two prominent cases, Justice for Rights Foundation v. Union of India[i] and Nikhil Bhalla v. Union of India[ii] reached the courts. While the latter was rejected summarily based on the right to freedom of speech and expression, the former which raised the question of adult, explicit content being streamed on such platforms was dismissed with an appropriate observation of the Court that Information Technology Act, 2000 and IT Rules, 2017 are sufficient to deal with the matter.

With an uncertainty upon questions as to what percentage of people are willing to go to picture halls given the social distancing requirements necessary to deal with coronavirus and recommendations avoiding going to crowded places, many filmmakers have sought respite in these OTT platforms to release their movies and while several movies have already been released on OTT in the last few months, major OTT giants like Disney+Hotstar, Amazon and Netflix have confirmed that certain movies would be released directly upon these platforms even after theatres being opened. This further raises questions as to whether certification requirements of CBFC would apply to these films and should these VOD platforms be required to get a certificate for all their content. While the issue remains unsolved given the lack of a body specifically dedicated to deal with OTTs, I believe that current laws like the IT Act, IT Rules etc. which regulate the digital space seem sufficient to deal with the OTTs as there are enough provisions in the IT Act that not only empower the removal of explicit content but also provide strict punishments for publishing and transmitting pornographic and obscene content.

However, the problem does not end with vulgar and pornographic content. The OTTs have been accused in the last few months of a plethora of other problems. There has been a large hue and cry concerning showing Indian Armed forces in a bad light in the last few months. The issue which arose related to a web series came to the spotlight after the release of ‘Gunjan Saxena: the Kargil Girl’. The movie showed Indian Air Force in a very bad light and tried to portray that there is gender discrimination in the Indian Air Force which forced the Indian Air Force to write to Central Board of Film Certification about the matter and recommended that a NOC should be taken from the defence Ministry before any movie or show based upon the theme related to the Defence forces is released.

A fascinating trend has also been observed whereby movies which are released directly on the OTT are not required to pass through Central Board of Film Certification while if the same movie would have been released in the theatres the certification of Central Board of Film Certification would have been a must. The movie Khaali Peeli which interestingly released simultaneously on OTT, as well as the theatres, had to obtain the certificate of the Censor Board which also recommended certain cuts in the movie and the movie released on OTT along with these cuts.

When the content is the same, it does not seem sane to regulate and censor it when it reaches the audience through one medium and not to do so when it reaches them through another medium. While the OTT platform owners had claimed to come together for ‘self-regulation’, such promises seem futile as the objectionable content has not taken any backseat as of yet. The nation-wide demands have forced the government to take the matter of regulation within its hand and the latest government notification declares vividly the intention of the Central Government as it has included the ‘online content- movies, audio visual programs and news on online platforms’ within the ambit of Ministry of Information and Broadcasting. It would be interesting to see what would be the impact of such a drastic step by the government, what would be the follow-up steps, and what all would be regulated and by what means? The OTT industry can surely foresee a regulatory code coming its way which would pull its strings.

[i]W.P. (C) 1164/2018

[ii]W.P.(C) 7123/2018


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