Regulating OTT Platforms – One Step Forward, and Two Steps Back
Amidst a pandemic where enterprises are struggling to stay afloat, the business of various online streaming platforms is booming. With millions confined in their homes in a nationwide lockdown, reports have suggested that platforms like Netflix, Hotstar and Amazon Prime have observed an uptick in both viewing hours and new subscribers. However, all does not bode well for OTT (over-the-top) platforms, who may now be subjected to greater government oversight.
On 11th November, 2020, the Union Government brought certain OTT services under the regulatory ambit of the Ministry of Information and Broadcasting (I&B Ministry). The order issued by the Cabinet Secretariat seeks to bring the regulation of online streaming platforms (like Netflix and Hotstar) and online news outlets within the ambit of the I & B Ministry. Before this development, these digital content providers functioned in the absence of any specific government regulation.
Before moving forward, it is important to clarify as to what exactly is an ‘OTT Platform’. OTT platforms are those that provide services directly via the internet, without the involvement of traditional platforms like TV and radio. A TRAI Consultation Paper has noted that social media networks (Facebook, Twitter etc), e-commerce platforms (Amazon, Flipkart etc) and communication networks (WhatsApp, Skype etc) fall within the ambit of an ‘OTT Platform’. Hence, the term ‘OTT’ has a broader ambit, and is not restricted solely to entertainment platforms like Netflix. The only two types of OTT Platforms that the notification covers are online streaming platforms, and online news portals. Other OTT platforms such as Facebook, Twitter and Whatsapp are not covered within its purview.
This notification comes at a time when there is a growing debate on the steps that must be taken to regulate online streaming platforms, as well as digital media outlets. Last month, a Public Interest Litigation (PIL) was filed in the Supreme Court, seeking regulations for OTT platforms, and for filtering the content that they display. On the other hand, this move has also unearthed the fear that these regulations might curb free speech on the internet, and stifle the creative liberty of content creators.
Regulatory framework for films and conventional forms of media
Unlike OTT platforms, conventional forms of media - such as print and television, are subject to statutory control as well as self-regulation. The functions of print media, for instance, are overseen by the Press Council of India (PCI), which is a statutory body. The PCI’s primary function is to build a code of conduct for journalists to follow. But, the PCI is considered to be a toothless body as it has no power to enforce the guidelines that it issues, and also cannot penalize newspapers for violating its guidelines.
On the other hand, the Cable TV Networks (Regulation) Act, 1995 regulates the functioning of cable TV operators and broadcasters, and also prescribes Program and Advertisement Codes that must be complied with. But, as this statute does not have any regulatory body, enforcement remains poor. For TV media, the News Broadcasting Association is a self-regulatory body that has prescribed a ‘Code of Ethics’ for TV news content. Hence, while both print and TV media have statutory as well as self-regulation, enforcement remains tardy.
For films broadcasted in theatres and on TV screens, a sanction is required from the Central Board for Film Certification (commonly known as the Censor Board). The Censor Board does not prescribe any universal set of guidelines. It examines individual films on a case-by-case basis, and has wide powers to mandate cuts, prescribe ‘Adult’ or U/A ratings, and also refuse permission for broadcasting a film.
Avenues for regulating online news and streaming platforms
Online video streaming providers have argued in favour of self-regulation, over measures imposed by the government. In September, earlier this year, a code of conduct titled, ‘Universal Self Regulation Code for Online Curated Content Providers’, was signed by several OTT providers. The objective of the code is to provide consumers with a grievance redressal mechanism and prohibit objectionable content. However, service providers like Amazon, Facebook and Google have refused to sign this code, as they do not want to get involved in any sort of content regulation or censorship. This proposal was later rejected by the I&B Ministry which wanted to exercise greater regulatory control.
The 11th November notification is only the first step through which greater regulatory control can be exercised by the government. This is because the notification only brings online news and streaming platforms within the ambit of the I&B Ministry, and does not prescribe any specific set of regulations that shall apply. There are however, a few direct consequences and implications of this notification.
Regulation of all content available on streaming platforms
As the Censor Board falls within the ambit of the I&B Ministry, the Censor Board can now also review and certify movies that are launched directly on Netflix, Amazon Prime etc. In the past, movies have been launched directly on these OTT platforms, escaping the regulatory scrutiny of the Censor Board.
After this Notification, movies launched directly on OTT platforms shall also be subject to the Censor Board’s scrutiny, creating a level playing field. But, along with movies, even documentaries and episode-based web-series that are available solely on Netflix, Hotstar etc, will now be examined by the Censor Board. This may further stifle artistic and creative freedom, as the Censor Board can now suggest ‘cuts’ and modifications based on its subjective notion of what is moral or immoral.
The Censor Board itself needs to be reformed on an urgent basis, and its power to arbitrarily impose cuts and modifications needs to be curbed. Until such reform is undertaken, the 11th November notification may strike yet another blow on artistic freedom.
Online news portals and possible censorship
With respect to online news portals, there is a growing apprehension that the 11th November notification may permit the Government to censor content that it deems unpalatable. Although the notification does not lay down any specific guidelines, it confers the I&B Ministry with a general power to regulate online news portals. However, the merely half page notification remains silent on how the regulation shall take place. It only mentions that, “Films and Audio-Visual programmes made available by online content providers” and, “News and current affairs content on online platforms”, shall fall under the ambit of the I&B Ministry. As this power can be used to censor content that is critical of the present regime, this notification takes a step backward, and can potentially be another strike on online speech.
As a recent editorial in The Hindu (November 14th) argued, “For decades now, the print media and television media have managed themselves in self-regulation frameworks where one of their main goals has been to maintain their independence. Self-regulation is a must, and censorship a definite no-no.” Despite possible pitfalls with self-regulation (such as lack of enforcement and compliance), self-regulation is the most ideal framework, as it prevents the government from censoring government that it does not like.
As John Stuart Mill argued in his book On Liberty (1859), free speech is about creating a ‘marketplace of ideas’, where there is a free flow of ideas and opinions. Mill’s argument is even more relevant in the digital age, where artistic and editorial freedom is indispensable for ensuring a free flow of thoughts and ideas. By giving the I&B Ministry more power to censor based on subjective considerations, the 11th November notification further curbs our marketplace of ideas.
By Sarthak Bhardwaj & Varun Kannan (Guest Authors)
Sarthak Bhardwaj is a 3rd year law students at VIPS, IP University. He is also the host a legal podcast - Letter of Law - on YouTube.
Varun Kannan is a graduate of National University of Juridical Sciences, Kolkata