Laws Regarding OTT Platforms in India

This article is written by Dipanwita Chatterjee, currently pursuing BA.LLB, 6th Semester at KIIT School of Law. The topic covers Laws Regarding OTT Platforms in India.

Introduction

Over The Top (OTT) platforms in the present age and particularly during this pandemic had become the heaven for content makers, which was unmistakably obvious in this pandemic when a few content makers picked to push their content to run on these OTT’s and still got a mind-boggling reaction. OTT’s are the real-time features that stream sound and visual content on their foundation through the web.

These administrations in the past just streamed content that was at that point out of theatres subsequent to acquiring the rights from the wholesaler of such substance, yet as of late they have started the creation of their own substance, which incorporates include films, narratives, web arrangement, and so forth.

The OTT viewership in India has encountered a monstrous 30% development in the quantity of paid endorsers, from 22.2 million to 29.0 million among March and July 2020. The market for OTT’s was before supposed to be syndication of Netflix, which began getting its competition from Amazon Prime Video, the OTT wing of Amazon administrations.

In India, Amazon Prime Video, Disney+ Hotstar, and Netflix rule the OTT market, which has its own set of local competitors like, Alt Balaji, Voot, Sony Liv, etc. It very well may be said that these stages regularly fall in legal difficulty since they self-manage the content that they make accessible on their platform.

According to the latest amendment in the Government of India (Allocation of Business) Rules, 1961 these OTT platforms along with content on current affairs and digital news will all be planned by the Ministry of Information and Broadcasting.

Indian Laws which managed these online content before this Amendment

• Article 19(1) of the Constitution of India[1], provides everybody the Freedom of Speech but right under Article 19(2) of the Indian Constitution, there are reasonable restrictions in case such content is in contrast to the well-being of the State, leads to hampering in the public order, international relations or aims towards inciting any crime.
• The Indian Penal Code (IPC), aids to punish anybody who has been indulged in the selling or spreading of work of literature that is obscene (Section 293[2]). Has the intention of outraging religious sentiments which is intentional and done maliciously (Section 295 A). Any act of publishing defamatory content (Section 499) and of anyone who insults any woman’s modesty (Section 354).
• The Indecent Representation of Women (Prevention) Act, 1986 aims that there is a complete prohibition of indecent representation of women in advertisements, books, movies, painting, etc.
• The Protection of Children from Sexual Offences Act (POCSO) makes it an offense to sell and distribute child pornography.
• Sections 67A, 67B, and 67C if the Information Technology Act, 2000 be responsible for a penalty as well imprisonment to be imposed on someone who has transmitted or published any kind of obscene material, any sexually explicit material including those where children are depicted in sexual acts. The Central Government is also provided with the authority to issue directives to block certain information to be in public access, under Section 69A of this Act.

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Code of Best Practices for Online Curated Content Providers

Several of the OTT platforms signed a self-regulatory Code, the ‘Code of Best Practices for Online Curated Content Providers’ which was released by the Internet and Mobile Association of India (IAMAI). This code functions towards a framework of open disclosure. The 3 major features of this code are:

• Categorization of content into separate categories, also where disclaimers would be provided for content that is inappropriate for certain age groups.
• Providing a definition for age-sensitive and the prohibited content.
• Working towards providing its consumers with a proper grievance redressal mechanism to address any concern or complaint that has been raised by the consumer against any content available on these platforms.

The Supreme Court in K. A. Abbas v. UOI[3] held that the treatment of motion pictures must be different from other forms of art & expression due to its versatility, realism, co-ordination of visual and real sense. The court further opined that the motion picture is able to stir up emotions more deeply.

In the recent past, several petitions have been filed before different High Courts pleading the courts to pass an order directing the government to regulate the content offered by these OTT players in India.[4]In both the petitions, the petitioners had prayed before the Hon’ble bench to direct the government to frame separate guidelines to regulate the OTT content.[5]

One more petition, the petitioner prayed before the Hon’ble court to rule that the OTT players be regulated under the existing Cinematograph Act, 1952.[6]While most of these petitions have either been dismissed or are under-adjudication by the High Courts, one[7] has been taken up before the Supreme Court in appeal.

In a particular case of Padmanabh Shankar v. Union of India & Ors[8], the petitioner prayed to the court to consider 4 matters.

• The petitioner prayed that the court should set up a suitable regulatory authority to regulate these OTT platforms
• He prayed that until the time such authority is set up, the court should make these platforms come under the purview of the Central Board of Film Certification (CBFC) and also the Cinematograph Act of 1952.
• The 3rd prayer of the petitioner was to make these OTT platforms liable and not get to use the safety cloak available to them under Section 79 of the IT Act.
• The petitioner in his last prayer requested that the viewing of content that is available over the internet inside the four walls of an office or a house should also come under the meaning of “public exhibition”.

The court in the present case observed that it was impossible to give remedy to the first prayer since it “is not possible to accept the submission that transmission of films, cinemas, serials, etc. through the internet, will come under the purview of Section 2 (C) of the Cinematograph Act.”  Therefore, since the 2nd prayer was dependent on the decision of the first one, the same cannot be dealt with. The bench also stated that even though they cannot provide relief for what the petitioner has prayed for, the concern conveyed by him was of serious consideration, and wished the state to apprehend into this matter.

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Conclusion

Oversight battles of films on the big screen isn’t another thing to content producers in India, movies like Udta Punjab, Bandit Queen, Lipstick under my Burkha were significant tussles between the makers and Censor Boards.

The OTT stages in the Indians as per different industry specialists have given an ascent in the innovative opportunity of content makers, one such ascent is the new success of a Netflix Original ‘Delhi Crime’ at the global award function, the Emmy Awards, 2020.

Whether or not these platforms ought to be directed and regulated or nor can generally be pondered upon, however, the State needs to think and take motivation from different nations alongside a couple of nation focused guidelines on these stages, with the end goal that they aren’t being examined for each other substance accessible on their platform and still make the most of their opportunity to communicate and freedom to express.

As far as regulation of OTT services is concerned, India should learn from nations where regulations have already been put in place. Just like India borrowed various principles of the Constitution from different countries to give it a comprehensive look, it should also adopt the same methodology with respect to regulation of OTT services and content accessible by them.

India should structure discrete guidelines in the form of a code backed by sanctions. The sanctions will ensure compliance with guidelines prescribed by the code. Further, the code should set out several provisions governing the OTT service industry.

Licensing of OTT players should be mandatory. Revenue produced out of business in India by these players should be taxable according to a reasonable and justified taxation rate. At the same time, OTT players with an Indian Connection providing services in other nations have to be regulated.

 

– Edited by Ayush Jain

(Editor)

 

 

[1] India Const. art. 19, cl. 1.

[2] Substituted by Act 8 of 1925, S. 293.

[3] K. A. Abbas v. UOI (1970) 2 SCC 780

[4] Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019); Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]; Nikhil Bhalla Vs. Union of India, [W.P.(C) 7123/2018]; Divya Ganeshprasad Gontia v. Union of India (Public Interest Litigation No. 127/2018); Un-canned Media v. Ministry of Information and Broadcasting & Ors (W.P. (C) No. 10724/2016)

[5] Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]; Nikhil Bhalla Vs. Union of India, [W.P.(C) 7123/2018]

[6] Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019)

[7] Justice for Rights Foundation Vs. Union of India, [W.P.(C) 11164/2018]

[8] Padmanabh Shankar v. Union of India & Ors (W.P. 6050/2019)