Over-the-Top curated content platforms (OTT/OTT platforms) have found their niche in India. From international platforms like Netflix, Amazon Prime Video and Disney-Hotstar to home-grown streaming platforms like JioCinema, ZEE5, Voot, SonyLiv, Aha and ShemarooMe, India is a key market for one and all.
India has over 40 OTT platforms today[1], and the OTT industry is projected to reach a value of $12.5 billion by 2030[2].
The reasons behind this growth are obvious – the OTT platforms provide viewers the freedom to watch what they want, when they want. Being a pull service, free from licensing and pre-certification regime, it also allows content creators to experiment with the kind of content they want to create, in a manner which may not always be possible to experiment with through mass appeal mediums like cinema and satellite television.
The government of India has time and again taken note of the difference between OTT platforms and cinema or satellite television platforms and has accordingly, preferred an industry led, self-regulatory framework in the form of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[3] (“Rules”). These Rules are light touch and compliance based, aimed at safeguarding the users’ interest[4]. The Rules establish a Code of Ethics and a three-tier redressal mechanism for news publishers, OTTs and digital media to address complaints against violation of the Rules.
However, with OTT platforms becoming mainstream, and replacing linear TV in several households in India, there is once again a debate about the nature of content that should/ should not be shown on OTT platforms.
We discuss the current regulatory framework for OTT platforms in India, followed by recent content related issues, and the risk mitigation steps for the OTT platforms in the country.
Current Regulatory framework for OTT in India
Unlike traditional push platforms, such as cinema, where films require pre-certification from Central Board of Film Certification prior to their release in theatres, curated content on OTT platform does not need any pre-screening or certification prior to release. OTT platforms do not need any prior permission to broadcast curated content or comply with the provisions of Cable Television Networks (Regulation) Act 1995[1], which are applicable to satellite television in India.
However, there are certain checks and balances within Rules that oversee curated content on OTT platforms.
The Rules, although not prescriptive in nature, provide boundaries pertaining to the content that is permissible on OTT platforms. A key detail is that these Rules are appliable to Indian as well as foreign platforms engaged in systematic business activity[6] of making their content available in India[7].
As a starting point, the Rules clarify that they supplement the laws that are in force in India. The Rules also mandate OTT platforms to adhere to Code of Ethics, which inter alia:
A. obligate OTT platforms not to transmit or publish or exhibit any content which is prohibited under any law[8].
India does not have any content specific laws. This only means that different laws apply depending on the nature of content, regardless of the mode of dissemination.
For example:
- Acts that are capable of hurting religious sentiments[9], or are obscene in nature [10], are punishable acts under the Indian Penal Code 1860[11] (IPC). Outraging the modesty of women is a punishable offence under the IPC [12]. The IPC also penalizes disclosure of identity of a rape victim or sexual abuse victim without their consent[13].
- The Information and Technology Act, 2000 (IT Act) is a special law that is applicable to all transactions carried out by means of electronic data or electronic communication[14]. Publishing or transmitting of content in an electronic form that is obscene, including publishing or transmitting of material containing sexually explicit act, depicting children in sexually explicit act, etc., in electronic form is punishable under the IT Act[15].
There are also specific laws that could get triggered in certain instances such as in case of true crime documentaries, films or series.
For instance:
- Disclosing the identity of a child that has been subjected to any sexual abuse is a punishable offence under Protection of Children from Sexual Offences Act, 2012 (POCSO)[16].
- Indecent representation of women through publications, writings etc. is also a punishable offence under the Indecent Representation of Women (Prohibition) Act, 1986. Indecent representation of women has been defined as depiction of the figure of a woman; her form or body or any part in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals[17].
B. classify their content into age-based categories, i.e. as (“U”) for children, (“U/A 7+”) for persons aged 7 years and above, (“U/A 13+”) for persons aged 13 years and above, (“U/A 16+”) for persons aged 16 years and above and (“A”) – content suitable for adults[18]. In essence, this is somewhat similar to the certification process being followed for movies and television, but is done by an OTT platform itself, vis-à-vis categorisation by an external body.
C. provide content descriptors, informing users about the nature of content (violence, nudity, etc)[19]. This is aimed at enabling the viewers to use their best judgment prior to viewing any content.
D. required to take all efforts to restrict access of “A” rated content to children by implementing appropriate access control measures[20].
The Rules also provide a three-tier grievance redressal mechanism[21] where complaints regarding content can first be directed to the platform itself, then to the Self-Regulatory Organizations, and then to Grievance Appellate Committees[22].
Confusing state of affairs
Just when the industry was getting accustomed to the Rules, multiple petitions were filed before various courts in India challenging the validity of the Rules[23].
In the meanwhile, the government is also working on a conclusive framework through the proposed Digital India Act, which will likely govern the operations of OTT platforms including the content being exploited on them[24].
While the new law is some time away, there are some mixed signals from the Ministry about content regulation . For instance, the Union Minister of Information and Broadcasting and Sports and youth Affairs recently stated that “abusive language in the name of creativity will not be tolerated”. The Minister also expressed that the Government is willing to make changes to the Rules to address concerns of obscenity and use of profanity in the name of freedom[25].
Furthermore, there have been reports suggesting the government may make anti-smoking disclaimers and warnings mandatory on OTT platforms, as seen in case of cinema or television. While such a measure is a great step in the interest of general public, it also has the potential to blur the lines between OTT and traditional media in the days to come[26].
The courts have also been diligently addressing content related complaints and also adopting a strong stance on the nature of content disseminated through OTT platforms. The case of TVF Media Labs & Ors vs State (Govt. of NCT New Delhi[27]) is a recent examplewhere certain content of a TVF show was considered to be obscene, profane, lascivious and sexually explicit in nature by the court. The court criticised the makers for depicting such content in the name of freedom of speech and allowed the registration of an FIR against its makers[28]. This matter is still pending its final conclusion is pending in the Supreme Court.
Prudence dictates that one must be vigilant and cautious with content, given the weight of public perception surrounding content. In the case of Saif Ali Khan-starrer Tandav, the creators, actors as well the OTT platform had to issue a public apology[29] and expunge the controversial scenes that were believed to have the potential to incite religious tensions[30]. In Amazon Prime Videos’ ‘Paatal Lok’, the makers were accused of stirring communal tension and showing national agencies like Central Bureau of Investigations, in bad light[31]. It also received criticism for racially stereotyping people from the Northeast region of India.[32] While several such shows / scenes where written and portrayed with all the right intentions, the perceived impact on a section of public still resulted in controversies and issues (like FIRs, public outrage) for the content.
Way Forward
Content is inherently contextual. Its impact and reception depend on the manner in which it is presented and the sensibilities of the target audience.
Thus, while the laws exist, and will continue to evolve with time, it is prudent for content creators and OTT platforms to do some content diligence before launching into production mode. This diligence could involve understanding the laws of the land (especially with foreign productions or when remake of foreign formats is involved), understanding the culture, societal norms and mind-set of the people (especially when content is around a sensitive topic), from a risk evaluation perspective. While many platforms have in-house legal and compliance teams, the issues relating to content are often tricky, with no clear answers. Sometimes, getting a third-party perspective also serve as risk mitigation strategy. These steps, though not risk free, are good to have from a business and compliance perspective.
For further information, please contact:
Aarushi Jain, Partner, Cyril Amarchand Mangaldas
aarushi.j@cyrilshroff.com
[1] OTT Video Segment in India Records Upward Growth Post-Pandemic (india-briefing.com)
[2] India’s video OTT market to touch $12.5 billion by 2030: Report – The Economic Times (indiatimes.com)
[3] IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in)
[4] Press Information Bureau (pib.gov.in)
[5] Cable Television Networks (Regulation) Act 1995.
[6] Rule 8 (2) (b) (b) of the Rules defines “Systematic business activity to mean any structured or organised activity that involves an element of planning, method, continuity or persistence”.
[7] Rule 8 (2) (b) of the Rules.
[8] Appendix – Code of Ethics II (A) (a) of the Rules
[9] Section 295A and Section 505A, Indian Penal Code, 1860.
[10] Section 292 of the Indian Penal Code, 1860.
[12] Section 509 of Indian Penal Code, 1860.
[13] Section 228(A) of the Indian Penal Code, 1860.
[14] Information Technology Act, 2000.
[15] Section 67 of the IT Act.
[16] Section 23 of the Prevention of Children from Sexual Offences Act, 2012.
[17] Section 2(c) of the Indecent Representation Of Women (Prohibition) Act,1986
[18] Appendix – Code of Ethics (II) (B) (i) of the Rules.
[19] Appendix – Code of Ethics (II) (B) (ii) of the Rules.
[20] Appendix – Code of Ethics (II) (D) of the Rules.
[21] Rule 9 (3) of the Rules.
[22] Rule 14 of the Rules.
[23] (i) Foundation for Independent Journalism & Ors. v Union of India & Anr Writ Petition (Civil) No. 3125 of 2021, (ii) (LiveLaw Media Private Limited and Ors. v. Union of India Writ Petition (Civil) No. 6272 of 2021 before the Kerala High Court, iii) Quint Digital Media & Anr. v Union of India & Anr. Writ Petition (Civil) No. 3659 of 2021 before the Hon’ble Delhi High Court.
[24] Microsoft PowerPoint – DIA_Presentation 09.03.2023 (meity.gov.in)
[25] OTT news: Govt to ensure strict action against obscenity and abuse on OTT content: IB Min Anurag Thakur – The Economic Times (indiatimes.com)
[26] Govt to make anti-smoking warning mandatory for OTTs (moneycontrol.com)
[27] TVF Media Labs & Ors. v. State (Govt. of NCT), 2023/DHC/001676 (accessible at: sks06032023crlmm22142020205613-462242.pdf (livelaw.in))
[28] ‘Vulgar & Obscene Language’, Delhi High Court Orders FIR Against Web Series ‘College Romance’ (indiatimes.com)
[29] Tandav makers apologise for unintentionally hurting Hindu sentiments – India Today
[30] Scenes snipped from Tandav, but trouble continues with more complaints | Entertainment News, The Indian Express
[31] Paatal Lok (Pataal Lok) review and rating: This is what audience say about Amazon Prime Video’s new web series – IBTimes India
[32] Casteist slur in Paatal Lok gets producer Anushka Sharma a legal notice – India Today
