Shubhangi Singh
The Government of India issued a gazette notification signed by President Kovind on 9 November 2020, bringing online films and audio-visual programmes, and online news and current affairs content under the ambit of Ministry of Information and Broadcasting (MIB).
The video streaming Over The Top (OTT) platforms such as Netflix, Hotstar, Amazon Prime Video,ALT Balaji etc were till now under the purview of the Ministry of Electronics and Information Technology (MeitY). This signifies a major change as currently, there’s no law or autonomous body governing content on such platforms as they are classified as digital media.
They had no regulation on the type of content they offered, the subscription rates, certification for adult movies. , etc.
What are OTT Platforms?
OTT platforms are streaming services offered directly to the viewers through the Internet such as Netflix, Hotstar, Amazon Prime Video, etc. These platforms bypass cable, broadcast, and satellite television platforms, the companies that traditionally act as a controller or distributor of such content.
The OTT platforms began as content hosting platforms but now they have started production and release of short movies, feature films, documentaries and web-series.
These platforms offer a range of content and use artificial intelligence to suggest users the content they are likely to view based on their past viewership on the platform.
Most OTT platforms generally offer some content for free and charge a monthly subscription fee for premium content which is generally unavailable elsewhere. The premium content is usually produced and marketed by the OTT platform such as Netflix, Hotstar, Amazon Prime Video, ALT Balaji etc themselves, in association with established production houses which historically have made feature films.
Current Regulatory framework
So far in India, there are no laws or rules regulating OTT platforms as it is a relatively new medium of entertainment. Unlike television, print or radio, which follow guidelines released by governments, OTT platforms, classified as digital media or social media, had little to no regulation on the choice of content they offered, the subscription rates, certification for adult movies and others.
In India, the regulation of such platforms has been widely debated and discussed. Following pressure to regulate the content being made available on these streaming platforms, the Internet and Mobile Association of India (IAMAI), a representative body of the OTT platforms such as Netflix, Hotstar, Amazon Prime Video,ALT Balaji etc had proposed a self-regulatory model.
The Online Curated Content Providers or OCCPs had also proposed a Digital Curated Content Complaints Council along with the self-regulatory mechanism as a part of its proposed two-tier structure. The proposal, however, was shot down by the Ministry of Information and Broadcasting, which will now oversee these platforms.
IT Act
However, the IT Act would be applicable and the concerned statutory authority under the IT Act exercising jurisdiction thereunder would be able to take action by virtue of its powers under Section 69 of the IT Act which includes direction for interception, monitoring or decryption of information, blocking of content etc.
The IT Act provides for penalties and imprisonment for transmission of obscene materials. Section 69A of the IT Act gives the Central Government the power to issue directions to block public access to any information online.
The IT (Intermediary Guidelines) Rules, 2011 provide a due diligence framework to be observed by intermediaries in respect of information being hosted or published on any computer resource of the intermediary.
The guidelines may also be applicable to OTT platforms which qualify as intermediaries under the IT Act.
Sections 66A and 67B prescribe the punishment for offences such as sending offensive messages through communication service, publishing or transmitting obscene material in any electronic form, publishing or transmitting material containing sexually explicit material, publishing or transmitting material depicting children in bad taste etc.
Accordingly, while no general power for regulation on the internet platform is available, however, if the internet platform is misused for carrying any information or material which is not permissible under the law then the provisions of the IT Act provide for deterrent action to be taken as and when complaints are received.
The Indian Penal Code
Online platforms are also subject to provisions of the Indian Penal Code, 1860 such as those that criminalize dissemination of defamatory content, deliberate and malicious intent of outraging religious feelings etc.
Implications of the new notification
Background
In October 2020, the Supreme Court of India had issued a notice to the Centre in a PIL whereby the petitioners demanded the creation of an autonomous regulatory system for online content. Through several other case laws in the recent years, the courts have held that online content would not fall under the ambit of the Cinematography Act, 1952 and have frequently dismissed broad petitions seeking censorship of online streaming services.
Amendment by the notification
As per the notification issued, the Government of India (Allocation of Business) Rules, 1961 have been amended to create a new sub-heading VA in the second schedule, titled “Digital/Online Online Media” and containing the following two (2) entries: i) films and audio-visual programmes made available by online content providers; and ii) news and current affairs content on online platforms.
The second schedule under the Rules has a total of nine (9) categories under the MIB which deal with broadcasting policy and administration, cable television policy, radio, doordarshan, films, advertising and visual publicity, press, publications and research and reference.
The notification includes the new sub-category VA under the category of films. Thus, by this notification, the MIB shall have the power to regulate policies for OTT platforms such as Netflix, Hotstar, Amazon Prime Video,ALT Balaji etc.
The way forward
With the issuance of the gazette notification, the Government of India will be able to keep a check on the content on OTT platforms such as Netflix, Hotstar, Amazon Prime Video,ALT Balaji etc as well as on the news and current affairs content on online platforms.
The OTT platforms might need to apply for the certification and approval of the content they wish to stream. Presently, the Press Council of India (PCI) keeps a track on the print media, the News Broadcasters Association (NBA) monitors the news channels, the Advertising Standards Council of India (ASCI) surveils advertising, while the Central Board of Film Certification (CBFC) monitors films.