OTT Platforms: Can Indian Government Regulate Indian OTT Platforms

Can Indian Government Regulate Indian OTT Platforms

OTT Platforms now to be regulated by the Government

In pursuit of a change brought about by the amendment of Allocation of Business Rules; it was therefore announced by the Cabinet Secretariat through a gazette notification dated 9th November, 2020 that the OTT (over-the-top) platforms and various online news platforms will now be regulated by the Central Government by bringing the same under the ambit of the Information and Broadcasting ministry.

Now, before understanding the provisions leading to the above motion, we first need to understand and know what OTT platforms are.

What are OTT platforms?

OTT, or over-the-top platforms, are audio and video hosting and streaming services which started out as content hosting platforms, but soon branched out into the production and release of short movies, feature films, documentaries and web-series themselves.

OTT platforms include news portals and also streaming services such as Hotstar, Netflix and Amazon Prime Video, which are accessible over the internet or ride on an operator’s network.

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 viewing 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 themselves, in association with established production houses which historically have made feature films.

Certain OTT platforms are Netflix, Amazon Prime Video, Disney Hotstar, ZEE5, MX Player, VOOT, etc.

OTT/streaming and different digital media platforms have surely given a way out for film makers and artists to release their content without being worried about getting clearance certificates for their films and series from the censor board.

Now, let us move on to the laws governing and regulating OTT platforms in India so far.

What are the laws regulating OTT platforms?

Presently, India does not have an autonomous body that governs online content. The print media is currently overlooked by the Press Council of India and the News Broadcasters Association represents television news channels in the country, and the films are monitored by the government’s Central Board of Film Certification (entertainment being looked after by the independent Broadcasting Content Complaints Council, news television channels being governed by the cable and television act, and the newspapers are covered under the Press and Registration of Books (PRB) Act);

But there are no such laws or rules governing the sort of content available on streaming services or news websites, and complaints regarding these have largely been dealt by the Communications and IT ministry with the invocation of the laws such as the Information Technology Act and the Indian Penal Code.

Why is the regulation of OTT platforms a debatable topic in India?

In India, the regulation of such platforms has been widely debated and discussed. Owing to the undue pressure to regulate the content being made available on these streaming platforms, the Internet and Mobile Association of India (IAMAI) which is a representative body of the OTT platforms, had proposed a self-regulatory model.

Moreover, the Online Curated Content Providers (OCCPs) have 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 was, however, shot down by the Ministry of Information and Broadcasting, which will now oversee these platforms.

Hints about such a move were also evident in the government’s submissions to the Supreme Court during a hearing in September, 2020 to challenge the broadcast of a purportedly communal TV segment by Sudarshan TV. In an affidavit by a Union Information & Broadcasting ministry official, the government said that if the Court sought to regulate the media, then it should first do so for digital media, and not electronic media, since the former have a faster and wider reach which has further seen a steep rise in its popularity during the pandemic.

In streaming services such as Netflix, Amazon Prime and Disney Hotstar; the government has previously pushed for a self-regulatory mechanism as already mentioned earlier and the backing that the government provided for such a change was that these companies formulated a self-regulation code that the Information & Broadcasting ministry rejected due to what it saw as conflict in interest in the advisory panel.

It was further mentioned that the code proposed by the OTTs prohibited content, including that which deliberately and maliciously disrespected the national emblem or national flag, any visual or story line that promotes child pornography, any content that maliciously intends to outrage religious sentiments, content that deliberately and maliciously promotes or encourages terrorism, and measures need to be taken to counter these problems.

What new OTT rules could mean for India’s internet?

The government decided to come up with this move after realizing that vast amount of content, ranging from news sites to videos to entertainment on the web, was under no regulation. This was particularly because they were covered under the IT Act, which is more technical than content-based. And compared to this, other forms of media, all had some level of scrutiny.

This situation will change now, with the Information & Broadcasting ministry now getting the power to regulate the policies dictating, if needed, what should be shown or uploaded online and what should not be.

While the move is supported by many stating that the current move will ensure the limits on violations of the Programme Code by the OTT platforms which were so far unregulated and remained unscrutinized; many of them opposed the move by proposing that the current move will act as a curb on free media.

The further announcement stating that all digital news, audio, and visual content platforms (OTT) would now be under the jurisdiction of the Information & Broadcasting ministry, by the Government of India; came on 11th November, 2020.    

In a notice, Cabinet Secretariat stated, “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–These rules may be called the Government of India (Allocation of Business) Three Hundred and Fifty-Seventh Amendment Rules, 2020. They shall come into force at once.”

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–Films and Audio-Visual programmes made available by online content providers.

Now content providers such as Netflix and Amazon Prime are under the ambit of Ministry of Information and Broadcasting, through an order. Online news portals have too been brought under it.

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