CENSORSHIP OR CERTIFICATION: HOW TO REGULATE OTT PLATFORMS

This Article has been authored by Sejal Gupta, a student at Nirma University, Ahmedabad

Introduction

Lights, camera, action!

And the director’s job would finish. One may ask how? But seeing now that even the Chairman of the Central Board of Film Certification (CBFC) Mr. Prasoon Joshi is all up and in support for regulating OTT platforms, the day is not far away when the all-time favorite Netflix or Amazon would have a disclaimer for moral policing as well.

In India, digital streaming services have seen a meteoric rise. However, this could change in the near future. On November 11, 2020 the Indian government declared that all digital news, audio, and visual content channels will now come under the control of the ministry of information and broadcasting[1]. Over-the-top (OTT) sites like Netflix, Disney + Hotstar were previously controlled by the Ministry of Information Technology and Electronics.

This may signal the end of an effective but brief era of the Indian entertainment industry. Away from the claws of the predators, aka, the Censor Board, the makers of these OTT platforms have had full freedom in their hands to tell whatever stories they want, however they want, without the compulsion of editing out violent scenes or nudity or maybe even ‘dialogues’ that hurt those so-called religious sentiments. OTT players such as Netflix, Amazon Prime, and Disney+ Hotstar have been redefining the quality of the content for around four years now. Sacred Games, the first major OTT exhibition, not only ruffled but managed to pull out a little too many political and religious feathers in just over two years. And there's no stopping the dice once it's started rolling. But now with what is portrayed to be curbing out hurt of ‘various’ kinds, the regulatory measures seem more of a censorship on all things right and wrong.

The picture: Then and now

The first dependent Indian OTT platform was Bigflix which was launched in 2008 by Reliance entertainment. In India, significant momentum was gained by OTT when Ditto TV and Sony Liv were launched in the Indian market around 2013. Hotstar, owned by Star India is the most subscribed to OTT platform in India, as of July 2020 with around 300 million active users and over 350 million downloads. The Indian OTT space is populated by many players. In 2018, the OTT was valued at ₹21.5B. The video OTT revenue in India was ₹2,019 Cr. in 2017. It is expected to reach ₹5,955 Cr. by 2022.[2]

Although the negative repercussions going on because of the ongoing lock down amidst the corona virus pandemic cannot be ignored, but it has also been a blessing in disguise for some. OTT platforms have benefited a lot from the current situation going on in India. There has been a surge of 80% in the subscriber bases of OTT platforms amid the lock down[3]

What will be the law all about?

Drafting regulatory laws for these OTT platforms with the Internet and Mobile Association, the Information and Broadcasting Ministry has decided to establish some laws to curb out the ‘unwanted’ from the content on these digital media platforms.

The law will not only put a check and control system on the OTT platforms but also check the authenticity of the news circulated on news websites[4]. As if giving assurance to the people, the law would also not overshadow the freedom of the makers on the aspect of creativity. It is equivalent to saying you have the right to vote but there’s only one candidate.

What laws exist already?

Everyone knows that films in the country must meet certain certification regulations, and television programme broadcasters must follow the Program and Advertisement Code[5]; however, creators of content published only online or on digital channels are excluded from censorship or other code, and are subject to the provisions of the Information Technology Act, 2000.

The Ministry of Information and Broadcasting verified this in response to a request made under the RTI Act of 2005, which claimed that the Central Board of Film Certification has no power over online content and only certifies films for theatrical release.

Moreover, for publishing or distributing pornographic content, sexually explicit material in electronic form, Sections 67A, 67B, and 67C of the IT Act[6] provide a punishment and imprisonment. According to section 69A of the IT Act[7], the Central Government has the authority to issue instructions banning public access to any information if it is considered objectionable.

The structure and provisions defined by the Department of Electronics and Information Technology to track information hosted on any intermediary device also extend to OTT platforms that qualify as intermediaries under the IT Act. OTT platforms are still subject to the rules of the Indian Penal Code, 1860.[8]

The main question: Should the OTT platforms be regulated?

“There should be no censorship, self-regulation works all over the world. Let people decide what they want to watch. If 18-year-olds can vote to decide India's next Prime Minister, they will surely know what to watch on OTT,” said Jaideep Alhawat, an actor in ‘Paatal Lok’. They do have age disclaimers and restrictions.

“OTT is the most democratic medium; there is no point making it autocratic. We are a generation that has used the internet since childhood but our parents always regulated the content we could watch online. I think the audience is smart enough to understand what’s good or bad for them,” says Abhishek Banerjee, who played ‘Hatoda Tyagi’ in ‘Paatal Lok.

“Films have a Censor Board but OTT platforms don’t. Shows like ‘Mirzapur’ which indulges in the debauchery of women, and ‘Tandav’ which hurts religious sentiments think they can get away with it but that’s not right. If you, as citizens of this country, believe that you have freedom of expression then somebody else also has the right to say that they don’t subscribe or don’t want their children to watch such content. We need to hear out both sides,” says BJP leader Shaina NC.

OTT platforms have the ‘Freedom to speech” under A. 19[9] and therefore, have the right to publish any kind of content on their platforms. They also have the right to “Self- Regulation Code” which was signed by all the OTT platforms including Netflix and Amazon Prime wherein they’ll themselves regulate the content that they present. This justifies the reason as to why these platforms shouldn’t be regulated.

When there are already restrictions on all platforms possible, would it be too bad to give freedom to at least the digital platforms on what kind of content they want to regulate. And people can choose for themselves as to what kind of content they want to watch.

Conclusion

If there’s a tale to be told, it is done the storyteller’s way.

Taking into consideration the ill-effects of such content on the young generation and the so-called ‘hurt’ faced by a section of a society, a collection of guidelines with a mild dose of self-imposed control could not only ease a jittery audience transitioning from television to digital, but also broaden their viewing base. Other market actors and stake holders may have a dispute with these platforms as their subscription base increases, so a proper and efficient system of rules and guidelines for these platforms should be established to prevent this from happening and establish a level playing field for all industry players rather than having a few goals.

[1] http://egazette.nic.in/WriteReadData/2020/223032.pdf [2] https://www.startupstories.in/stories/the-rise-of-ott-platforms-in-india [3] https://government.economictimes.indiatimes.com/news/digital-india/ott-platforms-to-take-over-cinema-due-to-lockdown/74979023 [4] Government of India (Allocation of Business) Rules, 1961 [5] Cable Television Networks (Regulation) Act, 1995 [6] Information Technology Act, 2000. [7] Information Technology Act, 2000. [8] Indian Penal Code, 1860. [9] Constitution of India, 1950