OTT CENSORSHIP: THE ISSUE AS IT PROGRESSES

Picture Courtesy: https://www.theweek.in/news/biz-tech/2020/11/11/it-was-good-while-it-lasted-what-the-new-ott-rules-mean-for-indias-internet.html

THIS ARTICLE WAS WRITTEN BY ARNAV SHASTRI, A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE.

INTRODUCTION

This article is written in order to study the whole scenario and developments that have taken place in the controversy over censorship and regulation of the Online Streaming services or OTT platforms like Netflix, ALT Balaji, Amazon Prime, etc. The article is written in sections that define the OTT industry, its rise in the Indian market, pleas filed against online platforms over censorship, current criteria for censorship, and the developments in the courts that followed.

OTT INDUSTRY AND ITS RISE IN INDIA

 The Over The Top entertainment industry popularly called the OTT industry are platforms that earlier started out as content hosting and streaming platforms but eventually entered into the production of movies, short movies, documentaries, and web-series. These platforms use Artificial Intelligence to note the interests of the user and cater to them the same content that they wish to watch. Some of these work on a free, trial, or subscription basis where the exclusive content is available to stream.

With the pandemic and lockdowns, the OTT industry has witnessed a drastic rise in subscriptions from all over India. It is predicted that this industry will reach a market worth 2.4 billion US dollars as of 2024[1], making India the sixth most profitable OTT media consumer. Indian masses connected more to the OTT platforms due to the pure, straightforward, and hard-hitting content provided in the forms of web-series and original movies. The industry has been thriving on the fact that there has been no explicit censorship board on the content they cater till now. The majority of the audience finds this content more engaging and entertaining as compared to mainstream television and cinema. Though things have panned out well for these platforms, there is also a percentage of the society which has been raising concerns on issues such as the incorrect portrayal of certain sections of a society or scenes that may hurt national and religious sentiments. In addition to this, there has not been a much clear age restriction on the content available online that has further triggered the issue. There has been a long-drawn war between the OTT industry and the aggrieved organizations to place the platforms under the umbrella of the government to regulate censorship.

IS THE OTT CONTENT BEING REGULATED BY AN AUTHORITY?

The OTT platforms have not been subjected to a regulatory authority and censorship for a long time up until now. With the increase in the reach of the online industry, the content was subjected to a variety of audiences. Numerous controversies forced the Ministry of Information and Broadcasting to pursue the platforms for some sort of regulation. Due to this the ministry also recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules) which brought platforms like Netflix, ALT Balaji, and others under the MIB(Ministry of Information and Broadcasting)[2]. A bench headed by the Chief Justice of India asked the government to submit a reply to the PIL filed by Shashank Shekhar Jha seeking the formation of an autonomous body to regulate web shows and films.

However, in September 2020. 15 OTT platforms came together under the aegis of the Internet and Mobile Associations of India (IAMAI) and signed a Self-Regulation Code which formulated a classification of age, appropriate content, and access control. The Ministry of Broadcasting however rejected the code and asked the IAMAI to look at other measures as the code was in no form a set of penalty rules but more of a guideline. It also lacked third-party watch and does not have a well-defined code of Ethics. The code as stated by an article in The Indian Express does not enumerate prohibited content.[3]

The minister of Information and Broadcasting Prakash Javdekar had a meeting with the OTT platform owners in the first week of March this year, where the code was expected to have an age-based five-stage classification (‘U’, ‘U/A 7+’, ‘U/A 13+’, ‘U/A 16+’ and ‘A’) and also a three-stage grievance redressal mechanism.[4]

It can be observed that even though the platforms were under the ministry it still lacked control on the censorship and regulation due to certain loopholes which have been mentioned further in the article and gave rise to the “censorship issue”.

WHAT IS THE OTT CENSORSHIP ISSUE?

It was on February 8^th, 2019 when the issue regarding the censorship on OTT platforms first came into public view when an NGO Justice for Rights Foundation filed a petition in the Delhi High court. The petition filed through advocate Harpreet S. Hora was based on the contention that online platforms like Netflix, Amazon Prime, and Hotstar have been streaming content online that is “Unsuitable and Unregulated” for the public domain. The plea also mentioned phrases like, “uncertified, sexually explicit, and vulgar”. It claimed that Web-series like “Sacred Games” and “Game of Thrones” on Netflix cater, “vulgar, profane, sexually explicit, pornographic, morally unethical and virulent content”[5] which often objectifies women and is ethically wrong. A bench of Chief Justice of Delhi High Court Rajendra Menon and Justice Justice V. K. Rao rejected the petition when the Ministry of Information and Broadcasting informed the court that online platforms are not required to obtain any license from the ministry. The government standing counsel Vikram Jetly also added that the online platforms are not being regulated by the Ministry. Since the petition had sought the ‘Ministry’ to issue guidelines and frame laws for the regulation of the content being broadcasted, it was rejected in the very first place. The Karnataka High Court had rejected a similar petition in August 2019 saying that the court cannot frame regulations in the nature of the legislation.[6]

The NGO filed a rejoinder affidavit in response to the counter affidavit that was filed by the Central Government and Ministry of Communications, regarding content regulation of OTT platforms. The Supreme Court was scheduled to hear the plea of the NGO along with the Central Government’s transfer petition to transfer the cases of regulation pending in high courts to the Supreme Court. The transfer has been requested as cases with the same subject matter are filed in different High Courts. A three-judge bench of Justice D.Y Chandrachud, Justice MR Shah, and Justice Sanjiv Khanna will hear a batch of pleas. The request by the central government was made amidst the hints that the Ministry will issue guidelines for the regulation of online content which do not adhere to the regulatory framework of the Central Board of Film Certification under the Cinematograph Act.

THE ISSUES RAISED IN THE PETITION

The rejoinder filed through advocate Satyam Singh stated that the content posted on the OTT platforms is violative of the Indian Penal Code, 1860 and Information Technology Act 2000. Also, a lot of content broadcasted is violative of the Indecent Representation of Women (Prohibition) Act, 1986.[7] It was admitted to the court that there is no provision for licensing and regulating the online broadcasted content hence the content remains out of the purview of the Ministry and free from any regulation.

The petitioner was of the opinion that the self-regulatory body IAMAI established by the OTT players is ineffective in its role of censoring the content.

It is to be noted that the power granted to The Ministry of Electronics and Information Technology (MeiTY) functions as provided in the IT Act, 2000 is very limited and can be practiced in only certain circumstances.

According to the petitioner, the step taken by the government to formulate the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules) was commendable but filled with loopholes and was flawed. The petitioner raised an important concern where he stated that the framing of rules by the Executive as they will be defined under subordinate legislation is limited to the provisions and powers granted under the Act (IT Act 2000 in this case) passed by the Legislature in the parliament. The provisions in the Information Technology Act, 2000 are more of criminal proceedings and punitive measure based rather than having a regulatory code for the digital media environment.

 In the case of Aparna Purohit v. State of Uttar Pradesh[8] where a web-series titled ‘Tandav’ was put under scrutiny for allegedly hurting and misrepresenting Hindu sentiments, it was observed that the rules by the IAMAI are more of a guideline and lack authority or any penalty. Solicitor General Tushar Mehta also submitted that the Government will take appropriate measures and put the matter in court.[9]

THE CURRENT SITUATION IN THE COURT.

Now as for the current situation of the whole case is concerned the Supreme Court has stayed the proceeding of the cases pending in High Courts. The bench lead by Justice D.Y Chandrachud decided to stay the transfer and hearing of the cases till the second week after Holi and directed SG Tushar Mehta to complete the service in the meantime taking all the necessary steps. However, the High Courts of Haryana and Punjab already proceeded to decide the case through its order on 24^th November on the basis of merit.[10] The Supreme Court then ordered a stay on the proceedings and the cases are yet to be heard and decided upon in the Supreme Court.

CONCLUSION

With the online platforms a part of the new “normal” post the pandemic, there has been a prolonged issue for these platforms over censorship. The conflict is of freedom of speech and expression versus the sentiments, beliefs, and integrity of society. This is not the first time that an issue like this has grabbed attention. Cases like  Mahendra Singh Dhoni Vs. Yerraguntla Shyam Sundar[11] and Manohar Lal Sharma Vs. Sanjay Leela Bhansali[12] witnessed the same contentions where Article 19(1) and 19(2) have been used as a defence but has given different results on a broader study based on the content.[13] In the two cases mentioned above the court ruled in favor of the defendants on the basis that Section 295-A of the IPC only “penalizes only those acts of insults which are done with a deliberate and malicious intention of outraging the religious feelings of that class of citizens.”[14]

With all the developments that have followed and events that unfolded, it is now crucial so as to what will the Supreme Court rule in the cases. The ruling will definitely prove to be a benchmark and a much well-defined norm that will elaborate on the censorship of the content broadcasted by Online Platforms.

 WORKS CITED

1. Verma M. (October, 2020) in her article ‘India set to become 6^th largest OTT user’ on Business Line available at, https://www.thehindubusinessline.com/info-tech/india-set-to-become-the-sixth-largest-ott-market-by-2024-pwc/article32919127.ece
2. The Team of TRILEGAL(March, 2021) in their article on Mondaq titled ‘IT Rules 2021’ available at, https://www.mondaq.com/india/social-media/1043676/information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021#:~:text=On%2025%20February%202021%2C%20the,Information%20and%20Broadcasting%20(MIB).
3. Sharma P.(November, 2020) in her article titled ‘OTT Platforms under Government purview’ in Indian Express available at, https://indianexpress.com/article/entertainment/web-series/ott-platforms-under-government-purview-7047502/
4. Mathur S.( Feb 2021) in her article ‘OTT Content to be Regulated in Five stages’ in the Times of India available at, https://timesofindia.indiatimes.com/business/india-business/content-on-ott-platforms-will-be-divided-into-five-age-related-categories/articleshow/81219365.cms
5. Ojha S. (March 2021) in her article on LiveLaw available at, https://www.livelaw.in/top-stories/ott-platforms-supreme-court-netflix-amazon-prime-regulated-by-statutory-body-171562
6. Live Law news team (Feb 2021) in their article titiled ‘OTT Regulation : Centre Seeks Transfer Of Cases Pending In High Courts To Supreme Court’ available at, https://www.livelaw.in/top-stories/ott-regulation-centre-seeks-transfer-of-cases-pending-in-high-courts-to-supreme-court-169723
7. Ojha S. (March 2021) in her article, ‘OTT platforms need to be regulated by a statutory authority’ on LiveLaw available at, https://www.livelaw.in/top-stories/ott-platforms-supreme-court-netflix-amazon-prime-regulated-by-statutory-body-171562
8. Misc. Bail Appl. No. 2640 of 2021
9. Bansal S.(Feb, 2021) in her article “ Self Regulation of OTT: Too little, too late?” on Mint available at, https://www.livemint.com/opinion/columns/selfregulation-of-ott-is-it-too-little-too-late-11613610412625.html
10. Ojha S. ( March 2021) in her article ‘Supreme Court stays cases in High Courts on OTT Content Regulation’ on Live Law available at, https://www.livelaw.in/top-stories/supreme-court-regulation-of-online-media-streaming-high-courts-ott-platforms-171582
11. 2017 SCC OnLine SC 450
12.  (2018) 18 SCC 492
13. Bharadwah P.(2017) in her article on SCC Online Blog available at, https://www.scconline.com/blog/post/2017/04/21/complaint-against-ms-dhoni-for-allegedly-hurting-religious-sentiments-quashed/
14. Section 295 A, Indian Penal Code.

[1] Verma M. (October, 2020) in her article ‘India set to become 6^th largest OTT user’ on Business Line available at, https://www.thehindubusinessline.com/info-tech/india-set-to-become-the-sixth-largest-ott-market-by-2024-pwc/article32919127.ece

[2] The Team of TRILEGAL(March, 2021) in their article on Mondaq titled ‘IT Rules 2021’ available at, https://www.mondaq.com/india/social-media/1043676/information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021#:~:text=On%2025%20February%202021%2C%20the,Information%20and%20Broadcasting%20(MIB).

[3] Sharma P.(November, 2020) in her article titled ‘OTT Platforms under Government purview’ in Indian Express available at, https://indianexpress.com/article/entertainment/web-series/ott-platforms-under-government-purview-7047502/

[4] Mathur S.( Feb, 2021) in her article ‘OTT Content to be Regulated in Five stages’ in the Times of India available at, https://timesofindia.indiatimes.com/business/india-business/content-on-ott-platforms-will-be-divided-into-five-age-related-categories/articleshow/81219365.cms

[5] Ojha S. (March 2021) in her article on LiveLaw available at, https://www.livelaw.in/top-stories/ott-platforms-supreme-court-netflix-amazon-prime-regulated-by-statutory-body-171562

[6] Live Law news team (Feb 2021) in their article titiled ‘OTT Regulation : Centre Seeks Transfer Of Cases Pending In High Courts To Supreme Court’ available at, https://www.livelaw.in/top-stories/ott-regulation-centre-seeks-transfer-of-cases-pending-in-high-courts-to-supreme-court-169723

[7] Ojha S. (March 2021) in her article, ‘OTT platforms need to be regulated by a statutory authority’ on LiveLaw available at, https://www.livelaw.in/top-stories/ott-platforms-supreme-court-netflix-amazon-prime-regulated-by-statutory-body-171562

[8] Cr. Misc. Bail Appl. No. 2640 of 2021

[9] Bansal S.(Feb, 2021) in her article “ Self Regulation of OTT: Too little, too late?” on Mint available at, https://www.livemint.com/opinion/columns/selfregulation-of-ott-is-it-too-little-too-late-11613610412625.html

[10] Ojha S. ( March 2021) in her article ‘Supreme Court stays cases in High Courts on OTT Content Regulation’ on Live Law available at, https://www.livelaw.in/top-stories/supreme-court-regulation-of-online-media-streaming-high-courts-ott-platforms-171582

[11] 2017 SCC OnLine SC 450

[12] (2018) 18 SCC 492

[13] Bharadwah P.(2017) in her article on SCC Online Blog available at, https://www.scconline.com/blog/post/2017/04/21/complaint-against-ms-dhoni-for-allegedly-hurting-religious-sentiments-quashed/

[14] Section 295 A, Indian Penal Code.