By Pritha Jha
The Covid-19 lockdown has put the spotlight on content being streamed on OTT platforms. With theatres and cinema halls closed for regular business over the last five months, many production houses have been left with no choice but to release movies on digital platforms.
While the debate for content regulation on OTT platforms has been ongoing for several years, the lack of normal forms of entertainment during the continuing Covid-19 lockdown has brought focus on content available on OTT platforms. Players providing steaming content have seen a massive boom during the pandemic.
Normally, movies that are released in cinemas require to have a certificate from the Central Board of Film Certification. However, content that is released on OTT platforms is not regulated by the censor board. Movie makers can release their content in the exact form it was envisaged without it being chipped away owing to censorship regulations. The Ministry of Information and Broadcasting has been of the view that there is no reason for distinction between content on streaming platforms and content on TV/ in cinemas, and that OTT platforms should be subject to the same level of scrutiny. The Ministry of Electronics and Information Technology on the other hand continues to maintain that OTT platforms fall within its jurisdiction and is therefore regulated by the Information Technology Act, 2000. OTT platforms are of the view that since they are an on-demand service, they constitute “private exhibition” that does not fall under laws that apply for theatrical releases and TV broadcasts.
OTT players in the market are already involved in several litigations where parties have filed suits against online content providers asking for the government to regulate online content especially where it is sexually explicit. It is not that there is no regulation. While there is no censorship, OTT players do regulate content by providing age specifications, warnings of nudity, foul language, violence so that the viewer is able to identify content as being appropriate prior to viewing.
In order to escape the debate, and with the above backdrop, 15 of the Indian streaming services signed up to “Universal Self-Regulation Code for Online Curated Content Providers” last week. This is the third such code with two previous codes being released in early 2019 and then in early 2020, both of which failed on account of not being supported by most OTT players. The final code was adopted after much discussion between stakeholders and is applicable to those service providers that provide curated content.
The code requires organisations signing on to make reasonable efforts and to act in good faith to ensure that content offered on their respective services in India is in line with the principles laid out. At the outset therefore, there is no hard-coded self-imposed compliance requirement.
The new code objectives enable consumers to make informed viewing choices by making relevant disclosures, and to provide a grievance redressal mechanism. Programs are now classified into being appropriate for all ages, 7+, 13+, 16+ or 18+.
The functions of the grievance redressal system are limited to addressing complaints on violation of the provisions of the code in respect of age/ maturity rating, content descriptors (if applicable) and access control mechanisms (if applicable). So what about content?
The question therefore remains. Is what has been done really enough?
The national debate, the angst of the government, and litigations have not been prompted due to lack of warnings regarding age, maturity rating, content description, but have been prompted on the basis of depiction of women, themes picked up by content curators, and the fact that despite warnings, sexually explicit content continues to remain available on OTT platforms. It is also quite clear that the government is not just trying to regulate the actual content but certain themes itself. The most recent example is the court drama that ensued after the release of the movie “Gunjan Saxena”. The Centre argued that the movie showed the Indian air force in bad light and therefore should be banned.
Courts in India have so far been taking the view that content is regulated through the existing laws of India namely the Indian Penal Code, 1860, the Information Technology Act, 2000, the Indecent Representation of Women (Prohibition) Act, 1986 etc. however, the government clearly does not feel this is enough and is in the mood to regulate ability of people to gain access to content that it, in its opinion, feels is either immoral, indecent or of a particular theme, inciting violence or depicting Indian culture in an immoral way. The two failed codes referred to above, also attempted to regulate content and most OTT players were not comfortable signing up to restrictions on content depiction.
It remains to be seen whether the government will be satisfied with the steps taken, or whether it will press on for censorship.
The author is a partner at Pioneer Legal. This article is meant for informational purpose only and does not purport to be advice or opinion, legal or otherwise, whatsoever.