Regulation of OTT Platforms: Challenges and Solutions

A rapid ascension into a culture of ‘binge-watching’ has begun to phase out the days of Doordarshan and satellite disks, with OTT content offering leisure viewing at home. India’s OTT viewership stands at 43 million people and is projected to rise up to 50 million by the end of 2023. The rising popularity of OTT platforms hosting a wide variety of content has often raised issues regarding its regulations.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules), was the first attempt to provide a dedicated framework for the previously unregulated OTT sector. It envisaged the creation of a three-tier grievance redressal mechanism which included a government body at its third level.

The IT Rules enclosed a Code of Ethics aimed to guide platforms to self-classify content into categories based on age appropriateness. Although this system attempts to emulate the Central Board of Film Certification (CBFC), albeit in a self-regulatory mechanism, monitoring is more complex considering the volume of content on OTT platforms and its accessibility. Television and film, i.e. linear modes of transmissions differ from the on-demand nature of digital content, which requires a change in legislative thinking and a dynamic system capable of withstanding accelerating technological growth and globalisation.

The IT Rules faced significant backlash, with many fearing its detrimental impact on media freedom. The Bombay High Court while staying the operation of Rules 9(1) 9(3),2, held that it was “an affront on the guarantee of the right of freedom of free speech and expression conferred by Article 19(1)(a) of the Constitution”. Moreover, it was observed that the Code of Ethics cannot be enforced in the manner envisaged under IT Rules, and like journalistic norms, should act as guiding principles. Else, it would have a “chilling effect qua the right to freedom of speech and expression of writers/editors/publishers”. This was also upheld by the Madras High Court.

Regulation of media hinges on a delicate balance between public interest and the fundamental rights guaranteed under the Constitution. Democratisation of media is underpinned by these principles, distinguishing online content from conventional. Web content is generally more liberalised, covering themes and concepts that are not seen in conventional media. Thus, it tends to stray from conventional censorship paradigms.

Notably, the draft amendments to the IT Rules released in 2022, are still a cause for concern due to their vague and uncertain provisions; the apprehension is that the proposed censorship body severely lacks transparency, possibly posing unreasonable restrictions on media. In fact, ‘censorship’ should not be the goal of media-related legislation or regulation, rather it should ensure that content reaches appropriate audiences, especially given the diversity of this country. Censorship may have been a necessity for British India, but it does not serve any purpose in a free, democratic nation. Television content, for example, is regulated by a self-regulatory body, the Indian Broadcasting Foundation (IBF).

Complications escalate since there is a substantial influx of OTT content from foreign countries, as noted by the Supreme Court previously. Effective enforcement of domestic redressal mechanisms against foreign entities remains a concern. Inadvertently, the blocking of foreign content also gives rise to piracy, another epidemic legal systems have struggled to control.

No matter how the regulation of content is approached, there will be hurdles. Any mode of disseminating content incites protest calling for its removal – while the number of petitions filed against web series is increasing, films released theatrically also face this issue. The makers of the web series Tandav were charged with offenses under the IPC,6 and the IT Act. Multiple FIRs were registered against the makers of Aashram, and petitions were filed against the release of Mirzapur. These are just a few examples in a sea of many.

Unfortunately, finding a solution is not as easy as pointing out the challenges. While it is well understood that although the right to freedom of speech and expression is fundamental, it is not unfettered and subject to reasonable restrictions. A sound principle, but difficult to implement to create a cohesive legal framework, especially for digital media.

A hybrid model of governance may be a possible solution. Pre-screening mechanisms would be challenging to implement. So, a likely option could entail an independent, self-regulatory body comprising stakeholders from the industry to deal with grievances and complaints relating to the OTT content, whose working would be guided by a certain set of principles, reflecting the ethos and mores of society in the 21st century.

Recommendations by this self-regulatory body could be appealed before an appellate committee established by the same body, with independent members on the panel. The next level of regulation could be a quasi-judicial body, comprised of industry experts and judicial members, whose decision will be conclusive. This structure can ensure speedy resolution and lessen the burden of High Courts and Supreme Courts that are inundated with somewhat frivolous claims against OTT content. However, the effectiveness of the proposed system depends entirely on the independence of self-regulatory bodies, the guiding principles, its members, and other minute details.

There is certainly a growing need for a better redressal / regulatory system for OTT content. However, an effective solution can only be reached when there is a convergence between the media industry, public interest, and government policy.