Online Content Regulation: A Legal Analysis
- Syin and Sern
- Jan 4, 2021
- 6 min read
Saksham Nalotia [1]
Introduction
On 9th November 2020, the Cabinet Secretariat, Government of India issued a notification, signed by the President of India, that brought all the Over the Top (OTT) platforms in India, such as Netflix, Amazon Prime Video, and Disney Hotstar, under the purview of the Information and Broadcasting Ministry. It gave the government the power to govern OTT platforms, which were free of government regulation, unlike television or print media. It included all the films, audio-visual programs, news, and current affairs available on such online streaming platforms. However, the official notification did not mention how the government is planning to regulate such OTT platforms.
The objective of this article is to understand the legal framework that presently regulates Television, entertainment shows, advertisements, news channels, etc. In contrast, the author aims to explore the various legal frameworks available to the government for regulating OTT contents. Following this, the article explores the impact each framework would have on the Indian OTT industry and its viewership. Finally, this paper concludes by comparing the Indian models of OTT regulation with that of Singapore to provide a global perspective on online content regulation and to understand the changes India can incorporate in its existing legal system.
Regulation of TV Content
Before looking into the distinct set of possibilities on how the government could govern the OTT platforms, we must understand the framework which governs television channels and their contents. Television content and all the cable operators, in India, are regulated by The Cable Television Networks (Regulation) Act, 1995. This Act provides the government exclusive powers over cable operators which will be discussed further in this paper; but primarily, this act lays down the procedures of-
1) Registration as a cable TV operator,
2) Transmission of programmes,
3) Setting up digital addressable systems,
4) Setting up code to administer advertisements and programmes.
Besides these procedures, the Act lays down rules regarding-
1) The use of some standard equipment in cable television networks,
2) Inspection of cable network services, etc.
3) Punishment for the contravention of the Act.
Apart from the Cable Television Networks (Regulation) Act, 1995, news channels in India have a separate legal framework of regulation. The News Broadcasting Standards Association (NBSA) is the body responsible for implementing the news broadcasting standards and the code of ethics. This code was framed by the News Broadcasting Association (NBA), headed by Mr. Rajat Sharma, the Chairman and Editor-in-Chief of India TV. The NBA currently has 26 news and current affairs broadcasters (comprising 77 news and current affairs channels as members), but some news channels like Republic TV, TV9 Bharatvarsh, and nearly 46 regional broadcasters have formed their news association which is called the News Broadcasters Federation (NBF). According to the Information and Broadcasting Ministry, the government is deliberating on the prospect of forming a common code of conduct for all the news channels.
These are the legal frameworks that are regulating TV entertainment shows and news channels in India. Besides TV, the print media is being regulated by the Press Council of India (PCI), advertisements are being governed by the Advertising Standards Council of India (ASCI), and films are being regulated by the Central Board of Film Certification (CBFC). These organizations have the duty to regulate print media, advertisements, and films respectively according to the generally accepted public decency standards.
Legal Regulation of OTT Platforms: Ways Forward
With insights into regulating television channels, news channels, print media, advertisements, etc., analyzing the mechanism of regulation and the impact of OTT platforms would be easier.
Option 1- Bring the OTT Platforms under Cable Television Networks (Regulation) Act, 1995.
The government may decide to bring the OTT platforms under the purview of the Cable Television Networks (Regulation) Act; 1955.It will allow the government to regulate online streaming services in the same way as television channels. Companies like Netflix, Hotstar, and Amazon Prime Video have made their stance by strictly opposing any such move to bring the OTT industry under the said Act. This is because the Act will give enormous powers to the government over OTT companies. Section 5 and Section 19 of the Cable television Networks (Regulation) Act, 1995 will endow the government with the power to prohibit the streaming of certain shows on online platforms that the government thinks are not in the public interest. This includes programmes that hurt religious sentiments, oppose morality, decency, or threaten friendly relations of India with any foreign state. OTT platforms argue that provision in the Act will narrow down the type of shows they can make available on their platforms, thus resulting in decreased viewership. Section 8 of the Act can mandate OTT platforms to stream certain content on their platform, which can cause unnecessary burdens on such companies. If any of the provisions of the Act are contravened, the government would have the power to altogether prohibit the streaming of an OTT platform, according to Section 20 of the Act.
Provisions in the Cable Television Networks (Regulation) Act, 1995 makes it clear why companies like Netflix and Disney Hotstar fear coming under the purview of the Act. Apar Gupta, the Director of the Freedom for Internet Foundation, has come forward to support platforms, arguing that Television and online streaming differ including script and content diversity. OTT industry cannot be regulated in the same way as television.
Option 2- A Universal Code of Conduct made by OTT Platforms, but governed by the government.
The Information and Broadcasting Ministry have the option to give the 35 OTT platforms present in India to frame a Universal Code of Conduct (UCC), which shall answer the concerns of the OTT platforms and apply to all the platforms. The government’s role would be to set up an Adjudicatory Council, which will monitor the OTT platforms and ensuring that the platforms are conforming to the regulations. The proposed council will also be responsible to look into the consumer complaints against the content on these OTT platforms.
Such a step has been proposed earlier but was scrapped after some OTT companies like Netflix dropped out of the negotiations. Additionally, in January 2019, eight OTT companies came up with a self-regulatory code of conduct for the OTT industry. This code of conduct prohibited five types of content. First, that disrespects the national emblem or national flag, second, that promotes child pornography, third, that maliciously outrages religious sentiments, fourth, that encourages terrorism, and fifth, any content which is banned for online streaming by the court. But this self-regulatory Universal Code of Conduct was rejected by the Information and Broadcasting Ministry. No reasons were provided for the decision.
Therefore, to go forward with this option, a lot of negotiations will be required between the OTT companies and the Information and Broadcasting Ministry.
Option 3- The Government may come up with a new bill in the Parliament to regulate OTT platforms.
The government has the option to pass a separate bill in the Parliament, which will cater exclusively to regulating online streaming platforms. Instead of bringing the OTT industry under the purview of an existing Act which regulates television, it can provide the online streaming platforms freedom to create the content of their choice in this new bill without heavy regulations.
This option can be beneficial to both, the OTT industry and the government; as the OTT companies will have the freedom to create the content of their choice without the risk of any unnecessary censorship, and the government can rest assured that no online content is streamed unregulated. The government, in this new bill, may introduce a new body/council to monitor these streaming platforms. The difference between this option and the prior option is that in option 2, the streaming platforms had the right to frame their own Universal Code of Conduct, whereas according to this option, it is the Parliament that shall frame the rules and provide the platforms freedom to create content.
Online Content Regulation in Singapore
The Infocomm Media Development Authority is the regulatory body responsible for framing rules which OTT companies are mandated to comply with. According to these rules, companies are free to create the content of their choice but to stream that content online; it had to be classified into some categories, that are- general, parental guidance for children below 13, not for children below 16, for people above 18, for the audience that is 21 and above. Moreover, features like parental lock are available on streaming platforms. The elements in the video contents, like violence, nudity, sex, drug abuse are to be mandatorily displayed on the streaming platforms before the content starts.
Additionally, the legal framework prohibits certain content that, say, it deems against national interest or public security.
Conclusion
It is only in recent times that online streaming platforms have come under government regulations in India. It will take a long time before some concrete rules are framed to regulate these platforms. The legal framework to regulate online content in India must be drawn in such a manner that it addresses the concerns of all the stakeholders, i.e. OTT companies, online content viewers, and the government. Legislation needs to be incorporated through a balance of interests: the right of free speech and expression to OTT platforms, and the boundaries till which this right can be exercised. The legal framework currently in place in some foreign countries, like that in Singapore, can serve as a template for the government to frame similar laws in India.
[1] Saksham Nalotia is a second year law undergraduate from Jindal Global Law School. For any discussion related to the article, he can be contacted via mail: 19jgls-saksham.n@jgu.edu.in
Preferred Citation – Saksham Nalotia, “Online Content Regulation: A Legal Analysis", Syin & Sern Law Review, Published on 4th January, 2021.
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