Updated: Dec 4, 2020
In the recent past OTT (over the top media) platforms like Netflix, Amazon Prime, Hotstar, Zee5, etc. have become the largest form of entertainment for the general public. Their ease of access and mobility make them the choice that the common folk chose. With the recent situation of the pandemic and the nation-wide lockdown, this form of media has been the most sought after. This has forced a lot of content creators to shift their services from the regular cable TV and dish TV, and nowadays even cinema, to these OTT platforms. In the past few months a lot of movies and TV series have been released via this format. This may seem like a substitute to the usual cinema theatres, but legally does it have the same checks and balances that a cinema or a television program does? This has also led to a lot of controversies where a lot of their content hurt the emotions and sentiments of a section of people.
To curb this, recently a set of OTT platforms came together to form a self-regulatory body to review the content that is posted/uploaded on this medium. We would, therefore, discuss the feasibility of such a self-regulatory guideline and its position in law along with its binding value in the court of law. The practice of self-regulation has happened before in countries such as the United States of America, where these OTT companies were asked to have their own self-regulatory guidelines to review content, but will this work in a country like India? India is unique in its own way. We are a heterogeneous society and our laws have been structured similarly where each religion, caste, etc is given the same standing before law, and violation of the sentiments of even one is not accepted. The laws are made keeping in mind the social and cultural diversity and ensuring that the law is just and suitably applicable. There are multiple reasons as to why a mere self-regulatory guideline is not sufficient with regard to OTTs in India. For starters self-regulatory guidelines are not binding in any court of law nor do they have any value as legislations, and it is not compulsory for the parties associated to follow. Even if the parties do not follow the said guidelines there can be no action that can be taken against them. In a country like India it is absolutely necessary that there is an element of accountability that is established so as to ensure any violation, that has resulted in violating a law or one’s right, does not carry on regularly and justice is denied. At the present scenario OTTs get more content (shows and movies) than direct to home networks, cable TV networks or even cinemas that are released in theatres. Hence the element of accountability is very important when it comes to OTTs. Self-regulatory codes will always be tainted with bias to earn profits. It is not likely that a very strict code is set which checks all content and removes or does not air content, regardless of how much profit that content is going to get you. Even assuming that these codes are formed in a strict manner, the next question arises with regard to implementation. As stated above these codes have no proper standing in law, they are mere mutual understandings and if such an understanding is breached then in that case too there could be no possible remedy available thereby making the task of implementation all the more difficult. Since there is not binding value of these codes, any OTT platform can easily disassociate itself from this self-regulatory code and continue to air questionable content and there can be no action that can be taken against them. There may also be cases where there are two or more associations forming two or more codes, and in such a scenario which code will be followed remains a question. All these signs show that a self-regulatory code will not bring any changes to the already existing issues with the content.
Whereas if there is a law that is laid down by the legislature then, in that case, there is a binding value that is established and at the same time any violation can be punished and the judiciary will be able to rely on the same to decide on the violations. Since it is important for the government to ensure that the content has no adverse effect on the population such as - too much violence in shows meant for children might normalise the norm of violent and destructive behaviour which might incite them to cause harm to others in the future which is not acceptable under the law, or shows that hurt the religious sentiments of the people or shows that affect the healthy relation of the country with other countries or compromises with the integrity of the country and incites anarchy and chaos or any act not permitted by law, most of the content that comes to us is regulated. Cinema is regulated by the Cinematographers Act of 1952 and the Cinematograph Rules under which a Central Board for Film Certification is constituted which reviews movies before the launch and ensures any harmful content is removed and labels as to which age group of the audience it is fit for. Similarly, the Cable Television is governed by the Cable Television (Regulation) Act of 1995, wherein all channels and their content is reviewed and regulated.
Recently there has been a Cable Television (Regulation) Amendment Bill of 2020 introduced in the Parliament to regulate and rectify and ensure no extreme or graphic or misleading agenda is spread to the public causing panic. While there are enough regulations to regulated content such Cinema and Television shows, merely asking the OTT platforms alone to have a self-regulatory guideline while these platforms being governed by the government is arbitrary and without sound logic. It is clear that in today’s scenario the OTT platforms have similar if not more viewership than Television or the Cinema, and OTT platforms have started airing their own shows and movies. There are multiple instances that in the present scenario can advocate for the necessity of a regulatory body. For instance, in the case of P.A. Josseph vs. The State Election Commissioner, The Tamil Nadu State Election Commission and Ors. the case was brought before the High court of Madras regarding the content of an Online series named “Queen” where the life of the late Chief minister Tamil Nadu Ms. J. Jayalalitha was depicted. This was set to release close to the dates of the elections and the petitioner felt it would affect the sentiments of the people and would affect a free and fair election. There is a high possibility that the self-regulatory code does not take into consideration such aspects and that these maybe tainted by bias to make profits or for political and other considerations. A question may arise as to when self-regulation may be an accepted norm in the USA then why not in India? The answer is the heterogeneous nature of India’s population. Article 25(1) of the Indian Constitution states- “25. Freedom of conscience and free profession, practice and propagation of religion- Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” This Article when read with Article 14 which reads “Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” shows that it is imperative that the government ensures that no religious sentiments are hurt and having mere guidelines which do not ensure any form of legal binding effect on the OTTs will not assist the government in making sure that these values are maintained and not result in a law and order situation. There were multiple claims that show on different OTTs violated or hurt the religious sentiments of different religious groups in the recent past. Since following the guidelines or not following them is also a matter of discretion for these OTT networks, it becomes even more difficult to regulate or stop any content that is in violation or could possibly violate these above mentioned articles or be illegal or incite an illegal act. Another important detail to notice here is the two different types of OTT networks. One is a Platform that curates content completely and the other is one that curates content partially. These two follow different methods and procedures where one can produce/create its own shows/content, and the other merely collects content from different forms of media and posts it in its platform. Since they have two different methods, it is highly likely there will be two guidelines or they would press for two guidelines, or a platform that uses one particular method would not like to be a party to a guideline that the platform which follows the other method has made or created as it may feel it is not applicable to him. In the case of Swaraj Abhiyan vs. Union of India (UOI) and Ors., the Supreme Court agreed that the disaster management guidelines have no binding value and were mere guidelines.
Moreover considering the fact that a lot of the recent content shows explicit violence or raw content, OTTs need a solid set of regulation so as to mark shows and movies as per the content either as only for adult or both adult and children (U/A, A) which should not be tainted with bias of viewership and profits. It is necessary for the Ministry of Information and Broadcasting to realise that this matter requires a lot larger and more comprehensive set of regulations thereby fixing the accountability on content producers and content distributors i.e. OTT platforms.
For further information, please contact:
Siddharth Nayak, Managing Partner, Atharva Legal