Deepali Bhandari & Abhigyan Tripathi 

This article analyzes the Executive Action of November 9, 2020 which has brought regulation of OTT platforms under the aegis of Ministry of Information and Broadcasting. Such a step points towards overreaching regulation and unfettered censorship of content on OTT platforms.

Introduction

The consumption of digital content has become a norm rather than an exception in the past half-decade due to the availability of on-demand services on platforms like Netflix, Hotstar, Amazon Prime etc. This phenomenon is obvious from the exponential growth of Over The Top (“OTT”) media platforms showcasing highly diverse content. The existence of such OTT platforms is a classic example of creative freedom and expression, not only of those involved in creating such content but also of individuals consuming it.

The right to acquire and disseminate information is a key aspect towards fulfillment of the right to freedom of speech and expression enshrined under Article 19(1)(a). The same, however, is not absolute and is subject to reasonable restraints within the ambit of Article 19(2). Censorship is the corresponding restraint that suppresses artistic expression and free speech to ensure that creative works do not instill violent behaviour, portray obscenity and distort the moral fabric of society.                                                     

In the recent past, however, censorship has been used more as a tool for suppressing political criticism, religious opinions and expressions of sexuality just to align the creative content with the establishment’s understanding of nationalistic propaganda. The President brought the regulation of OTT Platforms such as Netflix, Hotstar, Amazon Prime under the purview of the Ministry of Information and Broadcasting (“MIB”) on November 9th vide an amendment to the Government of India (Allocation of Business) Rules, 1961 in exercise of his power provided in Article 77(3) of the Constitution.  

The aim of this piece, therefore, is to analyze the said Executive Action which indicates the possibility of overreaching regulation and potentially unfettered censorship of content on OTT platforms. It is essential to discuss the extent to which the lack of a comprehensive legislative mechanism can infringe upon the free speech, expression and artistic freedom of creators as well as the audience’s right to consume a wide variety of digital content.  By looking at examples from different jurisdictions as well as self-regulation frameworks hitherto followed by OTT platforms in India, the piece suggests policy prescriptions that can make the law compliant with the reasonable restrictions on  Free Speech envisaged under Article 19 of the Constitution of India.

Background – Changes brought about by the Notification

The Executive Order of November 9 has certain adverse implications as it lacks the backing of a specific and intelligibly defined law passed by the legislature and it is essential to analyse OTT Regulation in a comprehensive manner. The lack of a regulatory framework such as those existing for films and TV has been a concern for the Government ever since the consumption of OTT Media increased exponentially and there have been steps to bridge this gap. The two leading instances of such efforts are firstly the Consultation paper released by the Telecom Regulatory Authority of India (TRAI) to lay down a framework for economic regulation, licensing and telecom integration of OTT platforms in November, 2018 and secondly, the Universal Self-Regulation Code for Online Curated Content Providers (OCCPs) issued by the Internet and Mobile Association of India (IAMAI) in September, 2020. The hurried enforcement of the current regulation, imposing restrictions, has more to it than meets the eye.

The contentious executive action has come in the wake of a PIL filed before the Supreme Court praying for the Central Government to impose regulations on these platforms. This PIL aimed to stop OTT platforms from abusing their freedom of speech and expression based upon the premise that these OTT Platforms, under the guise of creative freedom, portray inappropriate scenes such as nudity, violence, drugs and unacceptable impressions of defence institutions. It goes as far as to claim that “Hinduphobia” has become prevalent due to the allegedly unregulated content on these platforms that seem to further certain propaganda. It is argued that prescribing necessary regulations for the same is in the interest of safeguarding the Right to Life of citizens enshrined in Article 21.

This executive action seems to be prompted by the rising intolerance in the country with mass boycott of Vikram Seth’s Netflix adaptation of A Suitable Boy owing to certain “objectionable scenes” by Hindu nationalists as well as widespread criticism for depiction of excessive violence in web series such as Mirzapur and Paatal Lok on Amazon Prime and erotica on platforms such as ALT Balaji. However the status quo of creators on OTT platforms having artistic freedom and liberty can potentially be modified since the Central Board of Film Certification (“CBFC”), which is a statutory body under the MIB, may very well be engaged (either directly or indirectly) to censor and filter content on OTT platforms on the basis of archaic criteria.

Censorship and Curtailment of Civil Liberties- How and to what extent?

The practice of censorship and overreaching regulation has been met with criticism owing to the potential for abuse and infringement. The Apex Court has interpreted application of Article 19(2) vis-a-vis Censorship to include restraints on such content which is against the sovereignty, integrity and security of India or is  defamatory, in contempt of Court or leads to incitement of any offence. However, creative works voicing personal opinion and criticism of the government cannot be censored by placing them in the aforementioned criteria of reasonable restraints.

In a democracy, free speech is not merely a tool furthering its principles but is an essential which defines its basic structure. In Shreya Singhal v. Union of India, the Supreme Court adopted a method of strict scrutiny while striking down Section 66(A) of the Information and Technology Act, 2000 (“IT Act”) in light of the proximity and proportionality standard. The Apex Court held that the wording of the impugned section was in disharmony with Article 19(2) since it failed to make a clear distinction between legitimate and illegitimate forms of speech and covered within its ambit protected speech as well. 

If the CBFC does get involved, it implies that OTT platforms may also be made subject to the same basis for censorship as cinema and TV broadcasts, i.e. through the use of open ended and vague phrases like “obscenity”, “immoral”, “religious sentiments” for unreasonably curbing the creators’ liberty of expression. Such grounds leave the door wide open for misuse or overreach of vested power as has been portrayed by cases of unnecessary censorship of films such as Udta Punjab, Aligarh, NH10, among others and ends up violating the fundamental rights of both the creator and consumer.

The imposition of regulation on OTT platforms can have a plethora of far-reaching ramifications (unnecessary suppression of fundamental rights) making the requirement of a comprehensive legislative framework even more apparent. Censorship should not be such as to disproportionately curb the freedom of speech and expression and civil liberties of individuals. If the present notification leads to censorship in a manner which deprives the wishing and consenting target audience from consumption of content freely, the same cannot be termed as a proportional restraint and is an all-out suppression of Fundamental Rights. Furthermore, an imposition of unreasonable restrictions upon creators and consumers without any corresponding legislation specifically dealing with OTT, can be made subject to judicial review and held ultra vires subsequently since it made merely through an executive order and does not abide by the requisites of restraining the fundamental rights. 

Suggestions through Comparative Analysis

In light of the current scenario, it seems imperative that the authorities take into account self-regulatory codes, which was floated by the IAMAI and signed by various OTT platforms, so as to build upon it. This is possible only through an intelligible law which ensures that access to content suitable only for specific audiences is limited to that demographic itself. A unilateral decision on the part of MIB to closely curate the content on OTT platforms without any consultation with the stakeholders is an imposition which is not good in law, keeping in mind that digital content cannot be governed by the Cinematograph Act, 1952.

Regulation of online platforms is a common phenomenon in countries such as Singapore, Australia and the UK. However, it is important to notice that these regulations are to be implemented by the platforms based only upon reasonable do’s and don’ts given by the State for OTT platforms to adhere to. The UK and Australia have come in partnership with Netflix for allowing it to classify content as per age, provide stringent parental locks so that children are denied access to content unsuitable for them and ensure proper mechanisms in case of content which may have greater impact for more sensitive individuals.

An analysis of the Content Code for Over-The-Top, Video-On-Demand and Niche Services that regulated OTT content in Singapore lends perspective to this discussion owing to a similar social structure in Singapore and India. The Code provides a very comprehensive guideline which needs to be followed by the concerned Authority while curating content for OTT Platforms to ensure harmony in a multi-racial and religiously diverse land. It has effectively and clearly demarcated certain grounds for classification with reference to content which might be construed as offensive to religious sentiments and/or cause incitement of racial intolerance. A parallel from Singapore can be drawn while formulating a law related to OTT platforms in India which is in consonance with the standards of proportionality and proximity.

The aforementioned States do not seek to eliminate content which might not be acceptable to the general public at large but merely require OTT platforms to classify and treat different viewers suitably in an efficient manner. Obscenity and immorality of content are subjective concepts and therefore cannot be assumed to be the same for everyone. Wanton deletion or censorship of content can therefore lead to a situation whereby platforms would only be allowed to provide such content which is suitable to children exclusively and arbitrarily curtails the right of individuals to consensually consume any form of content legally qualified to be exhibited.

Conclusion

From the above discussion it can be established that any legislative regulation aiming to provide for regulation of OTT must adhere to flexible guidelines which are in harmony with Article 19(2) of the Constitution. The law when dealing with the facets of immorality, religious opinion and political criticism cannot be such which unreasonably infringes upon the rights of content creators and their target audience. The current executive action, as far as the purpose of regulating OTT Platforms is concerned, seems to be moving in the wrong direction since it does not provide for any modalities entailed despite the existence of self-regulatory codes as well as the provisions of IT Act, 2000.

It would be fitting to conclude with the Apex Court’s judgement, relating to the movie Padmaavat, in the matter of Viacom 18 Media (P) Ltd v. Union of India wherein it was stated that “if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilization corrode.”

 Deepali Bhandari is a student at NALSAR University of Law, Hyderabad

Abhigyan Tripathi is a student at Rajiv Gandhi National University of Law, Punjab