Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525
Over the Top Media and Regulations Aditya Baslas274, Priyanka Deb275, Nabeela Tareen276, Shilpi Ghosh277, Shweta Tated278
DISCLAIMER: This research paper was written before the Indian Govt, move to regulate OTT Platform under Ministry of Information and Broadcasting, Govt of India.
Introduction The term ‘OTT’ generally stands for ‘Over the top services’. It refers to the content or service which is conveyed on an infrastructure of internet driven technology (mobile, tablets etc.). The striking feature of this service is that it is beyond the administrative control of the service provider which led it to free from restrictions. In other words, it refers to the delivery of films, TV series, short documentary and other content which is not done through the conventional cable operating service or satellite service but is provided through the internet. Initially the scope of OTT services was restricted to audios, text messaging and videos but with the advancement of technology, the scope has increased to include social media platforms and almost all kinds of services available on the internet. Certain examples of OTT that we use in our daily lives are Netflix, Amazon prime, Apple TV, whatsapp, Hike etc. Services which are directly provided by the service operators to their own subscribers do not amount to OTT. The OTT service has a vast scope. The term OTT came out as a result of more traditional telecom services coming under competition from content and service providers offering similar solutions using web services methods. Recently, over-the-top is wrongly used in the telecom world to describe any unmanaged service delivered over IP. If an operator offers an IP service (say IPTV), and that service is delivered over the operator’s infrastructure (whether mobile, fixed, or otherwise), it is not OTT. If that same operator, after building a content/service model, extends the service to any IP end point on another operator’s network, then it becomes OTT. Whether the operator decides to use Quality of Service (qos) for the service is irrelevant in the definition of OTT. In other words, an operator offering a service to its own subscribers is never OTT; rather if quality and bandwidth are enforced, it is a managed telecom service, and if not, it is an unmanaged telecom service. Only if it is extended beyond the boundaries of that telecom’s infrastructure is it ever correctly referred to as OTT. Traditional telecom services, specifically voice and SMS, have come under incredible pressure from OTT service providers that include voip, social networking, IPTV, and streaming audio. According to several projections, OTT messaging (by messages sent) is expected to surpass SMS messaging in 2013. As operators look to grow revenue in the face of declining voice and SMS, they are forced to turn to data service to supplement losses. As such, operators are investing considerable time and money investigating offering similar web services models for next generation voice and messaging.
274 L.L.B., Dr. Bhim Rao Ambedkar University, Agra 275 B.A.LL.B (Hons.), Assam University 276 B.A-L.L.B , Central University Of Kashmir 277 BA. LLB. (Hons.), Amity University Kolkata 278 L.L.B., DES.Shri Navalmal Firodia Law College,Pune
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According to Media Métrie, it was found that in 2017, 21% of web users subscribed to a SVOD platform and further it was found that 2.8 million households have all the necessary facilities to use OTT services. The statistics suggested that OTT services are one of the leading, fastest- growing markets in the world. Many reasons can be attributed to have caused the birth of OTT service. Desire for good original content from all over the world, easy availability for internet access with high speed lead to the popularity and birth of OTT, the easy use of such service anywhere regardless of the geography resulted in a paradigm shift from the traditional network which had a territorial boundary to a wireless network279. The scope of the OTT service has touched the whole world and India is no exception. With the right to the internet recognized by the Judiciary as a fundamental right in the case of faheemashirin R.K. vs State of Kerala and Others280. This approach has boosted the use of the internet in India. Further, the Free and cheaper schemes offered by the JIO network has resulted in a drastic increase of internet utility making India the 2nd biggest Internet user about 12% worldwide after China at 21%. The OTT trend is on the rise in India with popularity of national OTT service rather than of international OTT, with Hotstar as the most popular OTT service. Followed by Amazon Prime, Sony Liv and Netflix. It can be observed that there are many reasons why Indian OTT are doing better when it comes to the Indian markets. Some of the national OTT services offered content free of cost attracting more and more audience, Availability of affordable data and good content etc. In 2017, OTT revenue in India was generated around Rs. 2,019 crores and It is anticipated that by 2022 Rs. 5,955 crores will be generated as OTT revenue. With 500 million internet users and growing, India is a flourishing market in relation to entertainment and media. It is predicted that Indian OTT market will outdo the global OTT market and will acquire a spot for itself among the top 10 by 2022 of the world281.
Historyand background In the 1980s, the public internet started and has been growing ever since. Internet has facilitated its consumer’s commercial needs such as retail and redefined conventional marketplace. Besides, it also serves personalized services such as cab bookings which is just a click away. This growth has brought about a fundamental shift in other spheres including telecom and television282. In 2007, the video industry officials stepped into the digital world. First, netflix introduced consumers with the concept of video delivery on the internet and ott was born. Since then the world has seen a significant growth and development in the ott platform. Many digital platform companies started launching their own ott platforms in the fear of being left behind. Now that it has been operating for more than a decade, entertainment has never been so plentiful and flexible. The best known forms of ott are skype, viber, whatsapp, snapchat, instagram, amazon flipkart, ola, hotstar etc. These applications can be accessed online independent of the time and place using variety of internet connection used in the user’s device. The carriage is separated from content in
279http://www.cognacqjayimage.com/en/history-challenges-ott/ 280FaheemaShirin R.K. vs State of Kerala and Others (WP (C) No. 19716 of 2019 (L) 281https://www.startupstories.in/stories/the-rise-of-ott-platforms-in-india 282https://trai.gov.in/consultation-paper-regulatory-framework-over-top-ott-communication-services
169 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 internet, enabling the ott content and application service providers to directly deal with the end users. In 2008, reliance entertainment introduced the first ever ott media platform in india named as “bigflix”283. And 8 years later us owned netflix and amazon started operating in india as well. Many other traditional broadcasters also started their own ott services meanwhile. By 2020, the ot market is supposed to grow up to 218 million dollars in india. Shibasishsarkar, chief operating officer, reliance entertainment said, “indians are moving to digital entertainment in a big way with consumption growing on daily basis. Notably, bigflix will fill in the void created by the decline of the home video market by digitally delivering movies.” With 3.9 million registrations, bigflix is already amongst the leading svod (subscription video on demand) provider. It offers video content in categories such as feature films, short films, devotional, and movie trailers. Amitkhanduja, ceo, reliance entertainment-digital, said, “globally the demand for video content has risen steeply, and the digital platform is witnessing a wider audience everywhere, including india. Bigflix will provide high-quality video content from some of the biggest banners including dharma, disney, viacom, phantom, telegu one and rajshri, among others.” The over-the-top (ott) market284 has been expected to grow with a significant rate by 17.1% over the next decade, and to reach approximately usd 3.49 billion by 2025 . Likewise, according to the international telecommunication union (itu) telecommunication trends report, with machine-to-machine communication, cloud systems, and ott services, the mobile traffic is expected to grow by a factor of 18 between 2011 and 2015.
In 2015, telecom regulatory authority of india285 (trai) released a consultation paper on the regulation of ott services. But until september 2019, no consensus on a regulatory framework had been reached. When working on the amendment of the cinematograph act of 1952 in 2019, recommendations were taken from the mukulmudgal committee and shyam bengal committee which was set up why the mib, to find ways to improve the existing regulatory framework for cinema and propose new standards for content regulation. The ott media helped us to grow with :286 Easy access through mobile computer tablets etc. Customised content based on geographical, topical and personalized demographic information. In a few ott platforms, users may opt for premium subscription plans and skip ads and enjoy a break free experience. One subscription can be streamed on multiple devices, thus making it cost effective.
Even though there are so many benefits there is also the downside to some of these media platforms as:287
283https://www.india.com/business/reliance-entertainment-launches-bigflix-indias-first-global-multi-language-hd- movie-platform-2074662/ 284https://www.futuremarketinsights.com/reports/over-the-top-ott-content-market 285 Supra note 1 at 1 286https://www.inventiva.co.in/stories/priyadharshini/is-ott-platform-over-used-during-lockdown/ 287 Id
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1. Some subscription plans may be expensive. 2. Creation of multiple similar kind of ott platforms example (netflix and amazon prime) can cause rivalry and conflict and with need to cover more of the market share, sometimes do even cross the limit with it. 3. A new trend of releasing movies on ott platform is causing a serious threat to the movie theatres.
Future with the ott platforms:288 In the modern technological era, where people are so dependent on the internet, ott is just upping their game. It amazes its customers with new features and updates and hence it may be predicted that ott has a bright future. The continuous rivalry and competition amongst various ott content creators pushes them to become more creative in their contents; thus attracting more customers. In addition the robust infrastructure of the model and flexibility of the platform from the user’s perspective, ott platforms are on the rise. As with covid-19 pandemic which has impacted every industry out there and media industry isn't an exception but there is a silver lining for the ott platform here because of this technology we are still together bonding over the video calls, text messages over these medium, online shopping for essentials and the continuation of entertainment by these different media sources. In this covid-19 crisis, the ott platform business seems to be booming and thereby testifying the ongoing information revolution. Laws applicable Since there is no specific given laws for the ott media but the government of india has provided for some restrictions in different act to uphold the laws for these mediums. The laws that cover these mediums are: The constitution of india, provides Article 19(2) of the constitution of india provides for these restrictions as nothing withstanding the rights given in the article 19(1)(a) cannot affect the right of state to make laws imposing reasonable restriction for the interest of
The sovereignty and integrity of india The security of the state The friendly relations with foreign state Public order Decency or morality Contempt of court Defamation or incitement of an offence
288 Supra note 6 at 2
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The indian penal code, 1860, where Sec 124a, which deals with sedation states “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. Sec 295a where deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs as “whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of india, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”. Sec 499 deals with defamation as “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”. Sec 500 deals with punishment of defamation as “whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”. The information technology act, 2000 Sec 66a i.e. Punishment for sending offensive messages through communication service, where any person who sends, by means of a computer resource or a communication device,– (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, Shall be punishable with imprisonment for a term which may extend to three years and with fine. Sec 66e punishment for violation of privacy in which, whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Sec 67 i.e. Punishment for publishing or transmitting obscene material in electronic form where, whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read,
172 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. Sec 67a i.e. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form in which whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. Sec 67b where punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form in which whoever (a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online, or (e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, Shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees: Provided that provisions of section 67, section 67a and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form– (i) the publication of which is proved to be justified as being for the public good on the ground That such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest Of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious purposes. Explanation–for the purposes of this section, ―children‖ means a person who has not completed the age of 18 years.
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Sec 67c i.e. Preservation and retention of information by intermediaries.
(1) intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe. (2) any intermediary who intentionally or knowingly contravenes the provisions of sub-sec (1) Shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine. Information technology (intermediaries guidelines) rules, 2011, issued by ministry of communication and information technology on 11th april, 2011 Rule 3 provide that due diligence to he observed by intermediary - the intermediary shall observe following due diligence while discharging his duties, namely : — (1) the intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person. (2) such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that — A) belongs to another person and to which the user does not have any right to; B) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; C) harm minors in any way; D) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; E) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; F) impersonate another person; H) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; I) threatens the unity, integrity, defence, security or sovereignty of india, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting another nation. Copyright act, 1957 Sec 31dcovers the statutory license for broadcasting of literary and musical works and sound recording -
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(1) any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section. (2) the broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the appellate board. (3) the rates of royalties for radio broadcasting shall be different from television broadcasting and the appellate board shall fix separate rates for radio broadcasting and television broadcasting. (4) in fixing the manner and the rate of royalty under sub-section (2), the appellate board may require the broadcasting organisation to pay an advance to the owners of rights. (5) the names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast. (6) no fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights. (7) the broadcasting organisation shall— (a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and (b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast,in such manner as may be prescribed. (8) nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the copyright (amendment) act, 2012. Here insection 31d of the act read with rules 29 and 30 of the copyright rules 2013 enables broadcasting organizations to broadcast or perform any literary or musical works and sound recordings by issuing a prior notice of such intention to broadcast the said works and by paying royalty to the rights holder, as fixed by the intellectual property appellate board (ipab)289. It is does not specify the broadcast medium it is a matter of debate among lawyers. Hence we included it as safeguard portion. Protection of children from sexual offence act, 2012 Sec 13 i.e. Use of child for pornographic purposes in which “whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes-• (a) representation of the sexual organs of a child; (b) usage of a child engaged in real or simulated sexual acts (with or without penetration); (c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.
289 https://www.lexology.com/library/detail.aspx?g=cd73f9de-0681-4d55-8b3c-9b7d42b0340f
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Sec 14 i.e. Punishment for using child for pornographic purposes, where
(1) whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine. (2) whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1). The indecent representation of women (prohibition) act, 1986 The proposed amendment is sec 4 of the act which provides prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women “no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form: provided that nothing in this section shall apply to— (a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern; or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the ancient monument and archaeological sites and remains act, 1958 (24 of 1958); or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose; (c) any film in respect of which the provisions of part ii of the cinematograph act, 1952 (37 of 1952), will be applicable.
Present scenario – The rise of the era of OTT With the advent of entertainment industry and technology, there are emerging new ways of getting oneself amused. In the telecommunication services, everyday advancements are reshaping the way of providing the service to the customers. With the insertion of internet in telecommunication, a new form of online video platform has emerged i.e. Over-the top (ott) media platform. Ott media platform allows the providers to use the internet to broadcast video thirty minute metro ride while
176 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 going to the office or a lunch break, people are seen stuck to their phones or screens on netflix, hotstar etc. Paying for these ott subscriptions has become a part of peoples monthly expenditures. But, every coin has two sides. The emergence of otts has both pros and cons. The history of what content is shown in indian entertainment industries has always been the talk of the town. Often, film-makers include controversial content or uncensored clips in their films to gain popularity or more profits. To prevent this from happening, the centre has to come up with laws to refine the content which is displayed to the masses. From censorships in movies to what is printed in the newspapers, these content providers are never free to release or publish whatever they wish to. On the same footing, these ott content providers are now facing the problem of censorship, which is known as content regulation. Content regulation is the process of filtration of the content provided on these online platforms. As there are no laws to regulate the content provided by these over the top service providers in india, they are feeling free to deliver the audience whatever they want to. Ranging from usage of vulgar language to sexually explicit content, shows like sacred games and game of thrones are not the shows generally acceted by majority of indian audiences. Netflix and other platforms have also started to produce their own content. The content that they are making is a lot different from what is traditionally shown in the indian cinemas. While films in india are required to follow certification rules and broadcasters of programs on television are required to adhere to the program code and the advertising code, the owners of web series, films and other content exhibited only online or on digital platforms (such as netflix, amazon prime, hotstar) are currently free from the hassle of censorship or any code, subject to provisions of the information technology act, 2000 (the “it act“) discussed below. This position was confirmed by the ministry of information and broadcasting in a response to a query filed under the rti act, 2005, wherein it stated the central board of film certification solely certifies films for theatrical release and has no control over online content.290 furthermore, the measures must be applicable and sufficiently practical in order to enforce the takedown action against the ott service provider. Two such applicable laws i.e. The copyright act and the computer crimes act are discussed below:-
Copyright act The majority of content broadcast through ott platforms could variously be considered audio- visuals work, musical work, cinematographic work, or broadcasting work according to the copyright act b.e. 2537 (1994) and could thus be protected as copyrighted work under section 6 of the law. Considering the nature of ott content, there are two primary ways to commit copyright infringement: (1) direct infringement by an ott service provider; or (2) infringement by a user of an ott platform through user-generated content (ugc). Examples of the latter are self-uploaded video or audio clips and live broadcasting on open ott platforms such as youtube, facebook, and twitch. Direct infringement by an ott service provider occurs when the ott content is offered on the platform by the ott service provider and directly infringes the copyright of another person. This is considered copyright infringement under sections 27–29 of the copyright act. Although section 32 and 33 of the law provides a channel for an immediate takedown, this section is not applicable to this type of infringement because the ott service provider for this type of direct infringement is
290RTI application dated October 25, 2016, received online vide registration number MOIAB/R/2016/50541 and MIB’s response dated December 2, 2016.
177 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 actually an infringer, and not an internet or storage service provider under this section. Therefore, the copyright owner would have to apply for a preliminary injunction through general court proceedings in the central intellectual property and international trade court (ip&it court) if it wishes to compel a takedown of the content.. However, the ott service provider could still be liable for copyright infringement on its platform under section 31 of the copyright act. In order to be liable, the ott service provider must (or should) have known that the ott content infringed another party’s copyright, and despite such knowledge, continued to commit illegal acts such as communicating and distributing the infringing work to the public. The conditions relating to knowledge of the infringing works may be helpful in pressuring the ott service provider to voluntarily take down the infringing ugc from its ott platform, because if the ott service provider knows about the infringing content and does not comply with the copyright’s owner removal request, the copyright owner would have strong grounds to bring legal action against the ott service provider and directly request a preliminary injunction against them. With the ministry making a clarification statement with respect to a stand on internet broadcasting and section 31 d, it became essential to identify the validity of the clarification and thereby deciding on whether internet broadcasting organizations are covered under the ambit of section 31 d. In this regard, the hon'ble bombay high court in the landmark judgment of tips industries ltd. Vs. Wynk music ltd. &anr. (commercial suit ip (l) no. 114 of 2018 and commercial suit ip (l) no. 113 of 2018), has addressed various issues / questions raised with respect to internet broadcasting organizations and their scope under section 31 d. .
Computer crimes act The ott operators are increasingly adopting voluntary codes of self-regulation in relation to content shown on their platforms. In january 2019, ott players such as netflix, hotstar, alt balaji, along with others signed a code of best practices. The objective of this code is to empower consumers to make informed choices on age-appropriate content and protect the interests of consumers in choosing and accessing the content they want to watch, at their own time and convenience. As per the media regulation laws in india, while films in india are required to follow certification rules and broadcasters of programs on television are required to adhere to the program code and the advertising code, however, the owners of web series, films and other content exhibited only online or on digital platforms (such as netflix, amazon prime, hotstar) are currently free from the hassle of censorship or any code, subject to provisions of the information technology act, 2000 (the “IT Act“) discussed below. This position was confirmed by the ministry of information and broadcasting in a response to a query filed under the rti act, 2005, wherein it stated the central board of film certification solely certifies films for theatrical release and has no control over online content. Content based regulation The fundamental right of freedom of speech and expression seems to be discomforting Indians with a number of shows on online streaming platforms or over the top platforms having violence and do on. Sections 67a, 67b and 67c of the IT act provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts, in electronic form. Further, under section 69a of IT act, the central government has been empowered to issue directions to block public access of any information.
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The department of telecommunications had in 2015, directed intermediaries to disable over 800 websites containing pornographic material and later clarified that intermediaries were not required to disable such websites which did not have child pornographic content. The information technology rules, 2011 (the “intermediary guidelines“) notified by the department of electronics and information technology, provide a due diligence framework to be observed by intermediaries in respect of the information being hosted or published on any computer resource of the intermediary. The framework and provisions under the intermediary guidelines may also be applicable to ott platforms, which qualify as intermediaries under the IT act. Additionally, provisions of the Indian penal code, 1860 (“ipc“) are also applicable to the ott platforms. For instance, online platforms are subject to section 295a of ipc that criminalizes deliberate and malicious acts intended to outrage religious feelings, and section 499 and 500 of the ipc which criminalize dissemination of defamatory content. In addition to the above, there have also been suggestions to include online content explicitly within the ambit of the indecent representation of women (prohibition) act, 1986, which currently prohibits indecent representation of women in advertisements, books, films, paintings, and writings etc. Censorship rules related to the online space are likely to be applicable on content provided by ott service companies as such content is accessible over the internet. In the case shreyasinghalvs union of india291 , the supreme court ruled that user-generated content (usg) cannot be censored online, but delegated the question of on-demand video content, like that provided byott services, to the information technology act of 2000, which has a content regulation provision that empowers the government to regulate intermediaries, including ott platform.292 Public interest litigation was filed by the justice for rights foundation in the delhi high court 293praying for an order to direct the government to frame guidelines in order to regulate the said online platforms and contents broadcasted on the online platforms. The hon’ble court established the capacity of the IT Act to regulate online content through its provisions with no need for external regulations. To this, the justice for rights foundation filed a special leave petition in the supreme court of india. The appeal is yet to be heard by the supreme court. Generally, online content, as it stands today, appears to be unbridled and the creators of such content are exercising their creative liberties to the fullest. However, it is not accurate to conclude that ott platforms are absolutely unregulated or free from censorship, only because there exists no regulatory framework categorically setting out the manner of censorship or certification of the online content or guidelines outlining dos and don’ts for the creators of online content.294 On November 12, 2018, the telecom regulatory authority of india (“trai“) published a consultation paper on regulatory framework for ott communication services (“consultation paper”). This consultation paper was deemed necessary due to existing regulatory imbalances between tsps and ott service providers, especially since the adoption and usage of ott services have increased
291ShreyaSinghal vs. Union of India, 5 SCC, Supreme Court of India, 2015 292Government of India, Information Technology Act, 2000 293WPC No. 1164/2018 294AbhijitAhaskar, “Supreme Court Asks Centre to Regulate Online Video Streaming Services,” Livemint.Com 10 May 2019, available online at https://www.livemint.com/news/india/supreme-court-asks-centre-to-regulate- online-video-streaming-services-1557492797710.html
179 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 exponentially. The consultation paper aimed at collating views of industry players and stakeholders to analyse the implications of the growth of ott services, the relationship between tsp and ott players, and any reforms that may be needed in the current regulatory framework. The trai also held an open house discussion on the ott regulation in may 2019. While the trai had earlier announced that it would release its recommendations pursuant to the consultation paper by end of may 2019, they are yet to come out. Citing the example of streaming platforms in china, france and singapore who abide by government regulations for streaming content, prakashjavadekar, minister of information and broadcasting had set up a meeting with industry giants on monday, giving them a deadline to abide by the rules of the digital content complaint council (dccc), a brainchild of the internet and mobile association of india (iama) that was set up in february. The meeting included representatives of netflix, amazon prime, zee5, mx player, altbalaji, hotstar, voot, jio, sonyliv. In, the report said, four ott platforms have refused to comply with dccc. Amazon prime is refraining from signing up with the dccc, not liking the idea of censorship. Netflix, mx player, zee5 and altbalaji have asked for some time to mull the idea of signing up with the regulatory body, the report said. So far only hotstar, voot, jio, sonyliv and arre have come on board with the idea as per the report.the centre has been mulling the idea of a regulatory board for ott platforms since 2019, having multiple discussions with key players in mumbai and new delhi in october.speaking at cii big picture summit in november, amitkhare, secretary, information& broadcasting ministry had said that the government was in the process of consultation with the industry players to work towards a self-regulation model. A self-regulatory code for the ott players was drafted in january. Before the dccc, complaints related to the platforms ’adherence of news and non-news broadcasters with the programming code were looked into by bodies like news broadcasting standards authority and broadcasting content complaints council. According to dccc’s rules, platforms will need to censor content which are banned by the court, outrages religious sentiments, promotes violence against the state or depicts child pornography, the report said. Video streaming platform hotstar india, for instance, had recently blocked an episode of john oliver’s ‘last week tonight’ where the comedian had actively criticized prime minister narendramodi and the citizenship amendment act (caa). While some laws are medium-specific, such as the cinematograph act of 1952—which provides for the certification of cinematograph films for public exhibition or the cable television networks (regulation) act, 1995 —that applies to content appearing on cable television—there are others that are platform-agnostic. For instance, the indian penal code, 1860, prohibits anti- national content. Obscene content comes under the it act, which punishes people who publish or transmit any such material. It also prohibits publishing or transmitting of material containing sexually-explicit acts. There’s also the protection of children from sexual offences act 2012 that prevents child pornography. Clearly, ott platforms or the online curated content providers (occp) as they are called, are subject to applicable laws ● in a pil filed by mrpadmanabh shankar in the karnataka high court295, a division bench comprising of the chief justice as oka and justice m nawaz held that films, serials, and other multimedia contents being transmitted, broadcasted or exhibited through internet platforms like youtube, google india, and online streaming platforms like hotstar, amazon prime, netflix and alt digital, cannot be regulated under the cinematograph act, 1952.
295WRIT PETITION NO.6050 OF 2019 (C) PIL
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● in another petition filed before the High court of madhya pradesh bench at indore by marat foundation, an ngo296, regarding the regulation of content made available by the ott platforms, it has been alleged that the available content is uncertified, obscene, vulgar, obscene, unregulated, sexually explicit, and legally restricted. It was emphasized that such content objectifies women and portrays them in a bad light, hence making them susceptible to indecent thoughts and hampering their fundamental right to life. The petition also contended that these ott players should be brought under the definition of intermediaries and be held liable for offences under sections 67, 67a, and 67b of the information technology act, 2000 and sections 292, 293, and 294 of the indian penal code, 1860. The division bench comprising of justices sc sharma and s shukla issued notices to the central government and ten ott platforms (altbalaji, netflix, amazon prime, ullu, voot, vuclip, hoichoi, yashraj films, arre, and zee5). As of the last hearing, the matter is posted for hearing on february 04, 2020, and it remains to be seen how this writ petition folds out. ● a Pil for the introduction of regulatory mechanisms has also been filed at the Nagpur bench of the Bombay high court297. The petitioner, msdivyagontia, pleaded for setting up of pre-screening committees before the content is put up on digital platforms. The petition highlighted certain obscene scenes being shown on shows such as gandibaat (alt balaji) and sacred games (netflix). A division bench comprising of justices bp dharmadhikari and mg biradkar had issued notices to four ministries – ministry of information & broadcasting, ministry of electronics and information technology, ministry of law and justice, and ministry of home affairs. Any substantial progress on this pil is yet to be seen. ● Justice for rights foundation, an ngo filed a petition in the delhi high court298 to issue guidelines for the regulation of content available on digital platforms, which included shows like game of thrones, sacred games, etc.. However, the bench comprising of chief justice r menon and justice vk rao dismissed the petition after it was brought to the court’s notice by the government that these digital platforms were not under the mandate to obtain a license from the mib since the matter was outside its domain. ● Later, the ngo filed an appeal in the supreme court against the decision of the Delhi high court. The appeal contended that the ott services provided on these digital platforms are not just portraying unregulated, unlicensed content, but in addition to that, are running ungoverned as well. They also claimed that this has led to the creation of another class of broadcasters with government agencies discriminating against consumers and cable operators. The supreme court bench comprising of the chief justice r gogoi and justice s khanna issued has issued notices to the concerned ministries. This special leave petition (slp (c) 10937/2018) is likely to be taken up for hearing on february 07, 2020 In an attempt to avert censorship concerns, online streaming platforms such as sonyliv, hotstar, voot and netflix among several others have adhered to a self-regulatory code regarding non- exhibition of any sort of content depicting hatred or disrespect towards religious sentiments and national interests. The ceo of netflix, reed hastings, argued 2019 that self-regulation should be the way forward because nobody wants government regulation, but also because the internet gives
296WP 18801/2019 297PIL 127/2018 298WP(C) 11164/2018)
181 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 users total freedom to choose the content they want299. The self-regulatory code of best practices, under the aegis of iamai, also includes signatories such as zee5 and alt balaji. Although this self- regulation can be viewed to curb any governmental action towards these digital streaming services, some notable exclusion from this self-regulation include amazon prime video, tvf play, and hungama etc. The code also includes:- ● content which deliberately and maliciously disrespects the national emblem or national flag; ● content which represents a child engaged in real or simulated sexual activities or any representation of the sexual parts of a child for primarily sexual purposes; ● content which deliberately and maliciously intends to outrage religious sentiments of any class, section or community; ● content which deliberately and maliciously promotes or encourages terrorism and other forms of violence against the state (of india) or its institutions; and ● content that has been banned for exhibition or distribution by online video service under applicable laws or by any court with competent jurisdiction. The initiative of self-regulation syncs all the major stakeholders towards safeguarding the interests of users in terms of content scrutinizing the creative freedom. According to the code, these digital streaming services providers will endorse procedures to establish a crystal-clear classification for disclosure in terms of the nature of the content available. They will also adopt measures to issue viewer discretion advisories to aware the users about the accessibility of their content. A similar argument has been taken up in the petition against amazon prime video’s paatallok300. Firstly, it has been argued that section 67 of the information technology act, 2000 has been violated for displaying anti-social, vulgar and violent content. Secondly, the web-series was challenged under the indecent representation of women (prohibition) act, 1986 for explicitly showing a gang rape scene. Thirdly, the petition states that the show violates section 153a and 298 of the indian penal code, which deal punishments for promoting enmity on the basis of religion, race and language between different groups and for uttering words with an intent to hurt the religious sentiments of a person, respectively. Perhaps the most striking point of contention by the petitioner was that the argument of a person having the choice not to watch such a content is flawed and impractical and drew the likeness of this choice to be available to a person who visits a cinema hall to watch a movie, yet, that particular movie has to obtain certification from the cbfc while the same movie broadcasted on an ott platform is devoid of such a requirement. Similarly on 27june
299Jagmeet Singh, “Netflix CEO Describes Why Self-Regulation Is Better Than Alternative,” NDTV Gadgets 360, 19 March 2019, available online at https://gadgets.ndtv.com/entertainment/features/netflix-india-self-regulation-online- censorship-reliance-jio-red-hastings-interview-2009865
300Gurdeepinder Singh Dhillon v. Union of India, CWP-8089-2020, https://www.medianama.com/wp content/uploads/CWP_8089_2020_15_06_2020_INTERIM_ORDER
182 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 after the release of netflix show- bulbul, there was a controversy of hurting religious sentiments which was passed by dccc based on online consultation code. In yet another recent case, the delhi high court refused to grant an interim injunction against the censorship of the netflix show, hasmukh. While it was alleged in the petition that a monologue in the show defames lawyers, the court noted it not to be true and in refusing to censor the netflix show, held that the creative liberty of an artist is the essence of a democracy301. Recently, on june 22nd, 2020, the chief minister of bihar, mr. Nitish kumar, wrote to the prime minister of india demanding for the censorship of ott platforms on the allegations that such platforms incite violence, promote crimes against children and women and exhibit inappropriate content. What is also requested by the chief minister is to bring these platforms under the purview of the cinematograph act, 1962. However, in light of the minister of electronics and information technology’s official statement that the government does not plan on censoring content on digital streaming platforms the demand of the bihar chief minister seems most likely to be rejected. History shows though that the government will attempt to introduce legislation expanding its content control ambit when a tipping point in technology is reached. That would mean that although attempts of self-regulation coming from the industry can go in the right direction, it when a tipping points the government who will ultimately formulate the regulations.that doesn’t mean bad. It could be an opportunity for the government to build a convergence- based regulatory model that could align policy with technological change. Nonetheless, the ideological bias in this process is hard to gauge or forecast. If the government properly understands the freedom of choice that the internet gives to people, it could go for a regulatory model entrenched in a more liberal paradigm, which is the one that would best serve society. Continuing in the recent updates there are multiple shows that are shedding light on different department of government which are showing the hard work done by them like the recent show “gunjansaxena” depicting the life and struggles of the face by indian military. But there are some shows that are offending the emotions and the hard work of indian defense forces, the similar instance is happened where the alt balaji series of ekta kapoor reportedly hurt the sentiments of the armed forces and their families upon which on 27th july 2020 the ministry of defence (mod) wrote to central board of film certification (cbfc) to advise production houses to obtain a no objection certificate (noc) before the telecast of any film or documentary on indian army. The decision came the ministry received complaints raising strong objections about portrayal of indian army personnel and military uniform in an insulting manner.it has been brought to the notice of this ministry that some production houses, making films on army theme, are using contents which are distorting the image of the indian army. Therefore, the producers of the movies/web series etc based on army theme may be advised to obtain the noc (no objection certificate) from the ministry of defence before the telecast of any movie or documentary on army theme in public domain”. The suggestions are also extended to over the top (ott) platforms as well. A similar outrage can be seen in the series named “abhay 2” on zee5 where actor kunalkhemu was being criticized for misusing the image of freedom fighter khudirambose causing the trolling and
301Meera Emmanuel, Legal notice sent to makers of Netflix show Hasmukh over “false, inauthentic, defamatory” content against the legal profession, Bar and Bench (Apr. 20, 2020), https://www.barandbench.com/news/legal- notice-sent-to-makers-of-netflix-show-hasmukh-over-false-inauthentic-defamatory-content-against-the-legal- profession
183 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 boycotting hastags has overflown the internet and social media. Upon which a written apology was made by the crews of the show and scene criticised has been blurred to cover up the problem, still outrages are continuing, these situations are shown the dire need for the regulatory authority which can help in making peace and people from acting out in their own ways as to cause harm or mental stress on people working to earn their living. These cases and events are depicted here to show the need of balanced authority for these medium to manage these situation and helping the law and order to be maintained at social media platforms as well as real world which also sometimes entangled with these social media outrages as well. The rise of ott platform during pandemic India has been selected as a case study as it is one of the largest emerging markets for ott video streaming services. In 2018, the asia-pacific region saw the steepest growth, of 24%, in the ott video market globally. India has also seen in recent years a sustained debate about content regulation on ott platforms. India has a vibrant audio-visuals industry. The overall media consumption in the country has been growing at annual rate of 9% over the course of the last six years, one of the highest in the world. Digital media consumption has been also growing fast as the number of broadband users increased to 480 million. The number of internet users in india rose by 13.9% during 2016 to 2017.302 people in india consume 190 minutes of video content a day on different platforms. The rate of consumption of video content has grown by 8% in the last seven years. There has also been an increase in platforms available for viewing, including ott services and apps on different devices, apart from existing television channel303 In the first quarter of 2020, netflix added a staggering 15.8 million paid subscribers as a locked- down audience turned to the platform in the absence of other entertainment option. According to a report by reuters, netflix’s global total has reached 182.9 million from january to march, with the audience bingeing on shows like love and blind, and money heist. According to ormax media’s research, the size of the indian streaming audience (number of people over 15, who watch online videos for at least two hours a week on at least one ott platform) stands at 76.5 million. That’s not all – ott is expected to grow at 22% a year to reach rs 12,000 crore in the next four years.a significant reason is the penetration of smartphones, on which content is generally viewed. Based on research by assocham and pwc, the number is likely to hit 859 million by 2022.no wonder, the number of ott platforms is growing by the day – from only nine in 2012, the number stood at 35 in 2019. With the covid-19 lockdown, the ott industry has seen a significant uptick in the number of users and consumption. Originals grew by 200%+ and movies grew by 236% respectively. During this lockdown period, we saw our daily active users (daus) and app downloads rise by 33% and 41% respectively. In particular, there has been a substantial rise in subscription numbers by over 80% and a 45% rise in paid viewers watching the content. Internet and mobile penetration have experienced an immense growth in the past decade in india, making ott services available to masses304. The number of digital subscriptions to ott services has boomed and the penetration of
302 “Yearly Performance Indicators of Indian Telecom Sector,” New Delhi: Department of Telecommunications, TRAI, 2018, available online at https://main.trai.gov.in/sites/default/files/YPIRReport04052018.pdf (accessed on 2 September 303KanchanSamtani&KarishmaBhalla, “One Consumer, Many Interactions,” Mumbai, India: Boston Consulting Group, 2018. 304RoshiSujata, SarkarSohag, DewanTanu, DharmaniChintan&PurohitShubham, “Impact of Over the Top (OTT)
184 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 the audio visual traffic was expected grow to 82% of the total digital traffic305. In 2017, the user base of netflix and amazon prime (the video streaming services of the e-retail giant amazon) grew by 5.37 million and 12.64 million, respectively.the indian government and other regulatory bodies have not tried to adjust policies to the change in technologies. The debate in india about digital content regulation has varied between calls for state censorship and self-regulation306. The dilemma that authorities have been faced with is whether to subject the ott media platforms to broadcast or films policies or to include it in the larger internet regulation frameworks. Such a growth in ott video streaming services is therefore raising the question of content regulation. Trai released in 2018 a consultation paper about the regulation of ott services,307 inviting third- parties to make suggestions about the circumstances in which ott can be regulated as traditional media. As a response to the government’s attempts to regulate the ott media space, the internet and mobile association of india (iamai) issued in 2019 a code of best of practice, which was signed by some of the ott platforms.
Surveys and analysis The data submitted here is covered by the authors through a survey form where data from 163 responders have covered and presented here, to express their views for the ott platform and their responses are presented here as such.
The audience which has catered the response was a mixed audience response with almost equal participants from both the genders male (about 52%) and female(about 47%). The responses here are from groups of different people but the major responses here are from age group of 16-28 (with almost 82%), other than that 29-40 (12%), 41-60(7%) and above 60(1%) were received. We have tried to cover people from every profession but most of them are students (about 67%) other than that there are bankers, businessman, chartered accountants, content creator, company secretary, doctor, engineer, lawyer, professors, teachers, housewife for the other (33%). This concludes the diversity of responses received by us. The further questions are asked regarding their view of these people on the variety of ott platforms. 1. Do you use any of these platforms?
305 “Digital Media: Rise of On-Demand Content,” Deloitte, 2015 306Rajkhowa, “The Spectre of Censorship: Media Regulation, Political Anxiety and Public Contestations in India (2011–2013),” 307 “Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services,” Consultation Paper, New Delhi: Department of Telecommunications, TRAI, 2018,
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The first question was asked regarding their use of these platforms and which platform most often used by people upon which most of the responses received are youtube (95.7%), then netflix, hotstar, amazon prime respectively, people also stated different ott platforms used by them like voot, mx player, tvf play etc. Which shows the activeness of people from the survey as an appropriate audience for their thoughts. 2. How much does the covid-19 pandemic affected your viewing and consumption of these content?
The next question was regarding the current scenario of covid-19 pandemic, lockdown and its effect of it on the consumption of these content. Where the responses was in a form of multiple choice question as per the basis of excessive, a little more, neutral and a little less. Upon which mostly people agreed that there watched these shows more because of the content driven platforms and new forms of material leading to almost 72% people have agreed that there is increase in the consumption of people toward there media platforms. Only 24.5% agreed that they remained neutral during this situation and has not either increased or decreased there current consumption. 3. Do you know that digital content comes under the purview of ott (over the top) services. Have you ever face any issues on these mediums?
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In the 3rd question we look for the people to describe if they ever face issues on these mediums upon only 13.5% people agreed that they face problem on these platform there are more than 64% who has provided “no” as the answer asserting that they never faced issued on these media platform only a 22% people are not certain about the response as they didn’t understand what the face was actually a issue or glitch.
4. Which service provider would you mostly prefer?
This question deals with the scenario of traditional media against the online content and also shows the people are shifting more and more toward the online/digital content mode for the medium of information and entertainment. Here more and more people have agreed that they like online/digital media over the traditional media. About 78.5% of people agree for the digital media and only 21.5% has assented in favour of traditional media. The rise of these media and shift of people give us the responsibility to see through it that none of these platform provide wrong or fake information and that the sentiment of people from any particular community does not get hurt. 5. Have you came across web series on any ott platform which is discriminatory or defamatory to some communities?
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The question her was to understand that whether the content so available on these platform is discriminatory or defamatory to any specific religion, caste, creed, nationality or gender or has a bias toward any of the religion, caste, creed, nationality, political party, gender or communities. As we seen the cases in this regard in many different shows, so we added to understand the perspective of people where about 61% said no, they haven’t come across any such material but the other 38.7% people agreed that there is discriminatory or defamatory content on these media. For these people we added the question 7 in the form regarding there responses toward it. In question 7 people responded toward the action like showing communal violence, defamatory content in paatallok and bulbul, discrimination on the basis of gender and sexual orientation based b grade content on some platforms were also included in the responses.
6. Have you come across content on these ott platforms promoting cyber bullying?
Upon the question of cyber-bullying people agreed that 23.3 % of them have come across content that promotes cyber bullying or has been seen cyber-bullying. Other 76.7% people don’t have seen any content that shows or promote cyber-bullying. As we read the responses as mention in question 7 of the survey regarding their thoughts on cyber-bullying and where did they see it. The comment so provided by people are regarding the cyber-bullying and trolling on the platform of youtube to people and similar content showing and promoting trolls and people who are hiding behind screen causing distress to other which lead to depression and traumatic episodes from such horrific acts of people trying to undermine others.
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8. Are you aware about any data protection and privacy service available?
As we can understand from the pie chart above that there is less than 50% people who are aware about their rights for data protection and privacy of service available to them. 30% of them didn’t know about the laws regarding it and 23% aren’t sure that are there any laws safeguarding there interest. It shows the inefficacy of knowledge among the people regarding their rights. As no such awareness program of data protection law and privacy of data is on the plain sight. Since there is no knowledge lot of people getting scammed and the increasing case of identity theft arose, which is also the evident effect or rise of internet services from which filed data with any company is passing through to the 3rd party companies who sell it after getting from these platforms. 9. Is it too early to establish any statutory body (self-regulatory body) for ott content in india?
Upon the question of establishing any statutory body (self-regulatory body) for the ott content, there are 60% people who are in the impression for having a self-regulatory body to convene and establish order in these platforms. There are 24.5% people who are not certain about this decision and 15% who do think it is early for having any regulatory body to maintain and organize the rules and orders for the content so move by these platforms.
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As with the advent and up-rise of these media platform it is also necessary to regulate the content as we see above the dissenting people who agree about putting in charge someone to protect these medium from discriminatory or defamatory or cyber-bullying content.
“even with censorship, the internet is a force for change” Peter singer 10. How far do you think censorship will affect the freedom of these service providers?
As a poll we asked people about the thoughts of people on the effect of censorship on the freedom of these service provider where 1 (means the least) and 10 (means the most). It was seen that more 75% of people are above 6 to 10 as they agree that the censorship on these media’s affect the freedom of these media services and affect the creativity of material with them. There are many people who are at the point of 5-7 and shows that they are more than agree to believe that the censorship will kill the content for these media. Even though it is derived in the last question that regulation is necessary, it is also necessary to provide these media to make their creativity free from the shackles of censorship. 11. What are your views on the growth in the online content and the shift of people from broadcast media to online media? Since it’s descriptive question we received numerous comment of people for their liking toward these platforms and since there are so many comments that isn’t possible to put it out here. So we have agreed to post most repetitive comment made by people on the survey form.
It provides variety and it is easier in accessibility at any time. Since there is too much commuting nowadays, and traditional media is so time consuming. People need the information and content on to go while commuting via audio, video or electronic form of newspaper etc.
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The growth in the quality of these media is increasing day-by-day and it provide information on every aspect. It gives platform to new ideas and content creator to try there form of material which cannot happen on traditional media. The content is user driven, so the emphasis is more on user control. As in traditional media content need to be searched but with development in a.i. lead to better suggestion of content on the need and taste of the viewers. It provide freedom of watching or seeing or reading content that is needed by the user, which cannot be possible in the case of traditional media platforms. It is cheaper that the traditional tv broadcast and newspapers. As the ensuing pandemic, these content serves as the escape from the real life problems and relaxation to people. These are few of the recurring comment we see on the survey form other than that there are comment about serving new idea and methods of presenting the content is also seen. From these comments we understand the benefit and the reason of jump of people toward these media’s
Comment of expert from various field for ott platform The interview was made with Ms. Trinanjana Das, Assistant professor, Amity College of Communication and as Content creator, writer and stakeholder for these medium, we talk about the question upon the many different aspect and the role of online or digital platform in our life. On the point of experience in comparison to previous means it was attested by her that this is the nature of events at time as times before this modern era we find comfort in talking and gazing to starry skies but with change of time and especially at the time of this pandemic we have a lot of time in hand that we used to spend on commuting and other thing, now we are working online and watching content online, using online service for essential. She commented on the current scenario as “we are on the steps of a learning curve for these platform and here as we are restarting things with new way of life and in the scenario of pandemic the online media and platforms are like becoming the part of essential needs” The basic for them is they have adhered to some regulations and some laws, what broadcasters do; the only difference is that they are independent from the hassle of censorship. But other than that there are laws like it act which keeps the control on fallacious use of their independence. Herthoughts on the censorship were based on the point of balance, if we go overboard with the censoring it lead to kill the content like censoring words upon material can’t solve the problem and if try to be ignorant it lead to obscenity, so balance of the media is required to cover the ground on censorship. And it must be the choice of the consumer to decide what they want to see or not. The interview was conducted with Mr. Peer Viqarulaslam who is a prominent journalist and tv debater-based in Kashmir. He was interviewed to gain the local perspective of how the ott has impacted the valley of Kashmir (J&K) given the communication disparity of the region.here mr. Viqar answered about ott trends that had a special importance in relation to kashmir as kashmir lacked mainstream platforms for news and entertainment. He was of a view that whatever platforms were available were controlled heavily by the state, favoring the state narrative and was
191 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 used to control the masses. So, for him these ott platforms become an important way of expressing social, economic, political and entertainment-based needs of the people and provide the people with a voice to express and dissent. But even these platforms are regulated due to imposing restriction such as lack of 4g network etc. Being from a media background in kashmir, mr. Viqar in depth explained that how his use to the ott platforms due to the network disparity became limited. Compelled by the situation he is forced to use applications which work on 2g. In view of the recommendations, mr. Viqar did not favor strict regulations on ott platforms but advocated for introduction of a mechanism which would keep a check on fake news, rumor mongering etc. But he specified that such control should be in a ‘non-state-ish way’. The control should be administered by the ott operators and not the government. User’s safety and privacy should be upheld and respected. He was of the opinion that certain platforms are irresponsible in creating a safe environment for the users therefore some restrictions are necessary. But other platforms are setting up their community standard ethics which are followed for creating a safe and free environment. The report mechanism is automated in a way that the user is able to control what goes on the platform and what doesn’t through their feedback. A system on the similar lines should be adopted to regulate such ott platforms. He strongly supported the view that there should be minimal state intervention in such matters and the state should act as the torch bearer of freedom of speech and expression on all platforms. Further, he believed that policies of regulation should be formulated by the people, users and the ott operators to decide what suits their needs and what doesn’t. Freedom should be given to the user to express, subject to certain reasonable restrictions. The comments are made by advocate pallavipratap, advocate on record, supreme court of india on the ott platform as the need to have a regulatory body is dire, we cannot know for sure that the content we see on this platform can be children friendly or is supporting of family cultures. We are in constant fear for our children or other family members as such an awkward moment can arrive and spoil the family time. It is needed to have balance censorship with content specific criteria and a regulatory body to affirm the truth of such certified content. As the matter of these content started with shows like sacred games, gandibaat to the current case of patallok and bulbul shows that there are something needed to be done, so that we can be at peace while watching. Also these platforms are content driven on user specified taste, so watching such content keeps on repeating the similar kind of content that cannot be sustained. The interview was with Mr. Anuj Kumar, founder and editor-in-chief of Legal Desire Media & Insights upon the changes in the time from 2013 till now with increase in ott platforms. There were fewer amounts of mobile and internet users, also there has been a significant increase in mobile users as 80% of the things are available on mobile. Previously, they were all limited to a website but due to the current situation there is a need for an online channel. About his views on seminars and webinars that they both have their own advantages and disadvantages, annually there are 3-4 conferences. And due to this situation the public and policy tv channel started so that the audience gets content and is not lost. There are changes like there is no personal touch and interaction has become one way. But due to no limit on youtube now the channel has 5000 plus viewers. As in regards to regulation of content on ott platforms, he speak about the freedom of speech and expression cannot be stopped. A community at large is on these platforms there should be reasonable restrictions as complete ban can’t be helpful. But yes there should be provisions like ban on promotion of violence or promotion of features for kid’s friendly youtube search and netflix for kids. On the topic of certification or censorship, he commented that
192 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 there should be a ban on obscene material, religious, violence, terrorism with some reasonable restrictions. As complete ban would lead to miss some actual content and also the new comers would not be given opportunities The interview was with Ms. Apoorva Mehta, the Executive manager of Legal Desire Media & Insights. The questions were on the basis of a stakeholder and conducting authority of public & policy tv. She acknowledged that everything is shifted online and there’s no scope of offline seminars due to the situation. There was no situation of work from home earlier and also people would find it difficult to use online platforms. The thoughts on censorship were that there should be proper regulation as it would tend to curb the arc. The concept of ott platforms isn’t open for all kinds of public such as people below the age of 18. Censoring would be a taboo and that, the whole platform should be regulated and people should be aware about the use of it and make awareness among them about the use of these platforms should be age restricted. The next comment was raised from Adv. Sonam Chandwani , Managing partner at KS Legal & Associate and she spoke about the rising prevalence and user base of ott platforms has propelled the i&b ministry to promulgate a light touch regulatory regime bringing print, television, radio, film and digital media under the media and entertainment industry. A uniform all-encompassing framework aims to provide a level playing field to all media platforms, but a heavily regulated structure may hamper the industry’s ease of doing business thereby affecting the existence and effectiveness of such regime in attaining its primary objective. Currently, bodies like the press council of india and the news broadcasting standards authority powers to govern the media industry lack necessary teeth, due to absence of review, enforcement and penalization powers regarding violation of their guidelines. Thus, the proposed move is indicative of the right mindset, however the government must be wary of an overly regulated regime, which may prove to be counterintuitive to the sustainable development and regulation of different media platforms under a single regulatory framework. Accordingly, Ms. Mannat Sardana, Research Assistant at Department of Media, Advertising and Entertainment Law, Legal Desire talked about the issues related to over the top platforms where a show like gandibaat is promoting pornography, violence ,child abuse and against the norms of basic culture .freedom of speech and expression seems to be discomforting indians with a number of shows like this, even on youtube which is the most easily available online streaming platform, videos related to domestic violence, sexual aggravation etc. Can be easily available. She also mentioned about shrimatishantachhetri who questioned the ministry of information and broadcasting on 16 march 2020 in rajyasabha about the government's planning on online video content regulations to restrict the streaming companies or censoring the online video content .beside the dark side of over the top platforms she also talked about the positive side where a separate norms are features made for the disabled people like the situation of movie “gulabositabo” where amazon prime has made special features for blinds which cannot be possible in the traditional media or movie platform and also where some series focuses on the dealing with basic issues of the society can be seen too.
Recommendations: the upcoming laws and the need to amend
193 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525
“i am free, no matter what rules surround me. If i find them tolerable, i tolerate them; if i find them too obnoxious, i break them. I am free because i know that i alone am morally responsible for everything i do”. Robert a. Heinlein Till here we have wrote all about what was what and what is happening, but here we have tried to do something different and talk about the betterment of law. The law as we all know should be proactive and should not wait for the particulars to happen and act upon later. So we all are here to make our plea to listen to the upcoming storm brewing in the content driven industry with cut throat competition to gain competitive edge over the above, so stop making the mistake which shall be regretted by the next generation of content creators, writer, the stakeholder and the advocates who favour for these media platform. As for the present acts, there are certain amendments that are required to adapt –
The proposed amendment should be made to sec 4 of the indecent representation of women act and sec 13 of protection of children from sexual offence act which does not specifically contains the word over the top media or any form of technology driven content to abide by the said section, which can be the cause of loophole in the law towards these content on the online platform. The sec 31d of the copyright which is a endless discussion, do not describe the coverage or have any specific regulation toward the intellectual property i.e. The content or idea to be safeguard within the same act. Cyber-bullying has become a great part of cybercrime these days, causing to depression and mental strain on a person leading to death or self-inflicting damages by the youth. It is proposed that there shall be separate grievance redressal cells and such provision to be added into information technology act to fight against cyber-bullying. As we continue to discuss about the current ott scenario, there are certain points we like to add to the future laws, and we will be grateful if you accept our contentions –
To promote fair play amongst various ott platforms there shall be a self-regulatory body answerable to ministry of information and broadcast which shall contain members from different content platforms and from different profession of these mediums. There shall be one member each of these content platform, headed by a retired justice of supreme court and also include the secretary of ministry of information and broadcast as the secretary of this board to present their side of views too. The rules regarding censorship should be balanced one. We understand the need to have some power regarding banning or censoring the content if crosses lines, but we need to understand that the audience perspective can be different. Hence it is to be proposed the concept of balance censorship where a preview screening shall be made for people of different walk of life’s to hear the content and approving such content, which shall address concerns if any for it, as using these methods can be expensive but it also saves tax payers money which is to be spend in the event of litigation and also saves time of our courts where there are hundreds if not thousands of cases pending at many courts. We completely agree with the reason of banning such content that are promoting harassment, or hatred among communities, or such content that are derogatory towards the
194 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525
nation, its flag or its heritage. We believe that even though there platforms are user driven there shall be some kind of technological law that can cover the aspect for keeping the innocence of children alive by comprehending measures to ensure that such content shall be not easily assessable by children’s. Like the facial recognition feature to guess appropriate age or any system locking features should be implemented by law to these platform for keeping the accessibility minimum. The criteria for these content regarding the age of comprehension shall be lower in that respect, as in a country where we expect youngsters to understand sex education at the age of 14 and beyond and to understand the situations and ongoing crisis in the world, it is necessary to decrease the age of content understanding maturity to be lower to 16 years of age, to let them explore the content and understand the hard truths of life as to regard to increase the education and understanding parameters to evolve. As our last suggestion we would like to add that there shall be a public participation and opinion on content shall be encouraged to make a law for the people, by the people and to the people. Conclusion From our analysis, it is evident that the media is a symbol of freedom of expression and speech. It is a foundation that provides the voice to voiceless and helps in bridging the communication gap between the common masses and the state. The words and actions of the media industry are heavily impacting our society and they have been rightly called the fourth pillar of the state. It is because of the media, that a mechanism of accountability is operational and the media acts as watch dog to make sure that the government is working for the welfare of the people. No doubt india is one of the ideal states which encourages and promotes the freedom of media but with india among the lowest ranked states at 142 out of 180 on the reporters without borders world press freedom index (2020). India still has a long way to go. Rigorous censorship not only chokes the freedom of the media but always reduces the whole concept to a shallow hoax. But we know, human beings are born to express their emotions and their voice cannot be unreasonably suppressed. Therefore, new alternatives are used to replace the traditional media which is grappled in the shackles of extensive laws. Hence, over- the- top services and media has become the need of the hour. The reason behind the growing popularity of the ott platforms lies in the absolute freedom which is offered to the users with minimal or no control on the part of the government. The ott media platforms are used in positive manner to express and dissent, thereby allowing people to practice their right of speech and expression which is guaranteed to them under the article 19 of the constitution of india. Further, these platforms can be used to express the freedom of choice. It is important to understand that ott services have become a very important part of the human existence; the stories that do not make it through the stringent tests of the traditional media platforms are easily expressed through ott (digital) media and is made available to the world in a fraction of second. With the growing internet viewership in india, the ott platforms have become the next most important thing of the coming era. Therefore, some sort of regulation is a necessary evil. But such
195 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 regulations should not be of a nature that hinders the freedom of truth and authenticity of the content available online. In 2020, where the common people are more awakened regarding their rights and more vocal about their choice. It is imperative to include their opinions under the umbrella of regulations. A balance between the freedom of expression and standard of ethics should be achieved. With the race to survive in this competitive atmosphere and the fear of being left out. The operators have opted for different approaches to capture the eyes of the market. They tend to deliver content which at times may oppose to the principles and sensitivity of cultures, heritage or can be sexually intensive or aggravated or against religious sentiments. It is in these circumstances that the role of regulations accounts of significant importance. No doubt, the ott is an open atmosphere to express ones’ choices and freedoms. But it will not be wrong to highlight that ones’ rights are subject to a duty not to violate the rights of another. One cannot practice his or her rights without any due regard to the freedom and expression of another. Therefore, a balance between the two is needed for the welfare of the society. It is not possible to take arbitrary steps in this direction. An approach of one step at a time & to take decisions based on the viewer’s perspective is momentous.
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