March 15, 2021
Over The Top Platforms have proved to be a breath of fresh area in terms of content and innovation. It has given rise to a majority of talents to the industry.Last year, IAMIA introduced a code of conduct for Online Video Streaming Platforms laying down policies for the content that will be viewed online.The majority of the industry players have raised concerns regarding the Complaint Redressal Mechanism which will work in the same manner as the Broadcasting Content Complaint Council.
Over The Top (“OTT”) Platforms have increased steadily over the years due to recent developments in the areas of technology around the world. These platforms have facilitated reaching out to a large number of audiences with their creative and unorthodox content.
The outbreak of the recent pandemic has nonetheless facilitated the economic landscape of the industry. Several mainstream producers have shifted to such platforms due to the creative liberty granted them, as opposed to theatre or television releases.
The recent trend of making the OTT platforms the new normal, one question that still haunts us to date is whether Online Curated Content needs censoring?
In the case of Padmanabh Shankar vs Union of India & Ors, The Karnataka High Court clarified that OTT platforms, such as Netflix, Hotstar, YouTube, Google, and several others, do not come under the purview of The Cinematograph Act, 1952.
The Court observed that the content on these websites are user requested, therefore its affiliation with the internet cannot be brought under the purview of the said Act.
However, despite the order of The Karnataka High Court, the Government has taken indirect steps to regulate the content on such digital platforms.
The Internet and Mobile Association of India (“IAMAI”) issued a Code of Conduct in the year 2019, to regulate and monitor the content on these OTT Platforms. The “Code for Best Practices for Online Curated Content Providers” (“Code”), therefore sets out principles on which viewer sensitive content should be deliberately prohibited by the Online Curated Content (“OCC”) Providers. Major video streaming providers are already signatories to the Code.
The Code aims to protect the freedom of Speech and Expression along with the interests of the consumer viewing the content. The key objectives of the Code are:
Pursuant to the above-mentioned Code, the IAMIA issued another set of Code of Conduct, The Code for OCC Provider’ this year. Although the majority of the OCC Providers have refused to be signatories to the said code, they continue to abide by the earlier code.
The Code encompasses a Self-Regulatory Mechanism for the OCC Providers for the content that is made available to the viewers. This mechanism is set out to work in the same lines as the Broadcasting Content Complaints Council (“BCCC”) and the Advertising Standards Council of India (“ASCI”), which is a self-regulatory complaint redressal for non-news entertainment television channels and advertising respectively.
The initial code required each signatory to appoint an ‘internal’ person/department/team (“department”) to address any content related complaints.
Thereafter assessing the complaint, if the department finds any violation of the principles outlined in the code, it shall communicate to the aggrieved person within 30 (thirty) days and according to the procedure established therein.
The department will then take appropriate measures as it deems fit. The government, however, failed to incorporate any penalty or regulation for the non-compliance of the code.
In furtherance of the earlier code, the Government went a step further to regulate the online content. It introduced a two-tier complaint mechanism, namely:
The IAMIA lays down the rules to form a separate council called the Digital Content Complaint Council (“DCCC”), which shall operates at the Tier 2 level. Any person who is not satisfied with the decision of the department can approach the DCCC with their complaints.
Alternatively, DCCC can be directly approached without going to the department. The DCCC will be headed by a retired judge of the Supreme Court or High Court, along with 8 other members.
To ensure compliance with the rules encompassed in the code, IAMIA has imposed certain penalties for any violation.
The penalties will be charged in exceptional cases after the Council has assessed the nature and severity of the contravention. The maximum penalty imposed will be Rs. 3 lakhs, and it shall be graded according to the number of instances the violation has been committed.
The Tier 2 mechanism is the cause of the rift between major players of the Industry and the Government. The OCC providers that oppose the said mechanism assume that paying adults have a discretion on the contents that they view and any self-regulation will alienate the viewers.
With the OTT platform being highly under scrutiny by the Indian Penal Code, The Information Technology Act, Code of Criminal Procedure, along with laws of the host Country, an external Code of Conduct limits the choices and snatches the creative liberty of the OCC Providers.
The Internet Freedom Foundation of India, in its open letter to IAMAI and Information and Broadcasting Ministry (“IB Ministry”), has raised concerns based on recent developments. They went on to further elaborate on how curtailing online content can hamper the citizens’ rights envisaged under Part III of the Constitution.
This view was earlier reinstated in the case, Justice for Rights Foundation V. UOI wherein the Delhi High Court held the view that the IT Act is sufficient to regulate the online content and rejected the need for external regulation.
Although the Self-regulating Code introduced by the IAMA resolved the issues revolving censorship to a certain extent, it failed to cover nudity, abuse and politically sensitive content. Nonetheless, IB Ministry is set to initiate a fresh set of policies, under this jurisdiction of all the online streaming platforms, in order to bring them under the purview of the Government regulation.
With over 40 OTT platforms in India, including smaller and regional, the IB Ministry aims to bring under its ambit the Online Streamed Content and News Websites.
 Padmanabh Shankar vs Union of India & Ors, WP ( C ) No. 6050/2019
 Code for Best Practices for Online Curated Content Providers,
 Indian Constitution, Art. 19, Cl. 1(a)
 Justice for Rights Foundation V. Union of India (W.P. (C) 1164/2018)
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