HM Journal

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OTT Industry, India

OTT platforms in India are growing rapidly in terms of subscribership mainly thanks to variety of things. Digital India plays a serious role in promoting the utilization of OTT platforms to stream diverse content from everywhere the planet. A youth oriented population has led to the rise within the viewership of OTT platforms like Netflix, YouTube, etc. The drop by prices of smart phones and cellular data has enabled an outsized chunk of the population to realize access to online platforms. India currently has about 220-250 million smart phone users which is predicted to hit 500 million by 2020.

There are also platforms like Saavn, Wynk, etc. that became more popular thanks to its big variety of choices in music. YouTube is that the 4th most used app in India, because the number of smart phone users increases in India, there’s scope for a rise in viewership.

Background

In response to a question posed under the Right to Information Act, 2005, MIB had previously stated that it had no authority to regulate or control online content and that it did not wish to provide a regulatory framework for OTT platforms. Subsequently, in October 2018, a public interest litigation (“PIL”) was heard by an NGO seeking alternative guidelines for managing content on online broadcast platforms. In dismissing the application, the Supreme Court ruled that MIB was of the opinion that online platforms did not need to obtain a license from it to display its content and that the same could not be controlled by it. In addition, the Department of Technology and Information Technology stated that it does not regulate online content and that there is no regulatory or licensing provision for any online content or organization. However, IT law will apply and the legal authority concerned under IT Act exercising its powers under which it will be able to take action in its own capacity under Section 69 of the IT Act [1]which includes the administration of termination, hiring or deletion of information, content restrictions etc. The Court further stated that Sections 66A and 67B provide for penalties for offenses such as sending sexually explicit messages, communicating or transmitting obscene material by any form of electronic media, publishing or transmitting sexually explicit material, publishing or transmitting sexually explicit material to children. Accordingly, the court stated that although no normal online platform control system exists, however, if the Internet platform is misused to handle information or illegal material under the provisions of IT Act provides for a prohibition to be taken whenever complaints are received. The court held that it could not issue a mandate to create guidelines or standard provisions where there are strict rules already in place under the IT Act. IT legislation has provided for adequate security measures to be taken in the event of any prohibited act by broadcasters or organizations in the online / offline.

Indian Laws which regulated these online contents before this amendment

  • Article 19 (1) of the Constitution of India, provides everyone with Freedom of Speech But under section 19 (2) of the Constitution of India, such freedom can be taken away by imposing appropriate restrictions if its content is in violation of the State. .
  • The Indian Penal Code serves to punish anyone who has indulged in selling or distributing disgraceful book work (Section 293). It is intended to provoke religious feelings deliberately and maliciously (Section 295 A). Any act of publishing derogatory content (Section 499) and of anyone who insults a woman’s dignity (Section 354).
  • The Indecent Representation of Women (Prevention) Act, 1986 works to ensure that there is a complete ban on improper representation of women in advertisements, books, movies, painting etc.
  • POCSO (Child Protection for Sexual Offenses) Act makes it illegal to sell and distribute child pornography.
  • Sections 67A, 67B and 67C if the Information Technology Act, 2000 provides for a fine and imprisonment imposed on anyone who distributes or publishes any kind of obscene material, or any sexually explicit material, including those where children are exposed to sexual activity. The Central Government is also empowered to issue directives to restrict certain information to the public, under Section 69A of the Act.

Current Regulatory Framework for Media in India 

The content of OTT platforms is currently largely regulated by the provisions of the Information Technology Act, 2000 (‘IT Act’), the Indian Penal Code, 1860, and special laws such as the Indecent Representation of Women (Prohibition) Act, 1986, Scheduled Castes Act and Tribed Tribes (Prevention of Atrocities), 1989, Symbols and Names (Prevention of Abuse Abuse), 1950, and others. As an example, Sections 67A, 67B, and 67C of the IT Act require OTT service providers to guarantee that the content on their platform complies with them. Publishing or transmitting pornography, sexually explicit material, or child pornography on the Internet is punishable by fines and imprisonment under these provisions. In Justice for Rights Foundation v. Union of India[2], the Delhi High Court confirmed this.

Unlike television and movies, there are no laws that apply to the OTT industry. The Cable Networks Television (Regulation) Act, 1995, and its guidelines govern television transmission in India. The 1994 Act established a Program Code (the “Code”) that governs television content. According to the Code, no system that tastes good or modestly; contains anything obscene, blasphemous, deliberately false sexual innuendos and minor facts; promotes superstition or blind belief; may promote or incite violence; may promote or incite violence or contain anything that violates the rule of law or promotes anti-nationalism; etc. If any authorized official (including a Regional Magistrate, Commissioner of Police, and so on) determines that the provisions of the Code have been violated, the police officer has the authority to seize the victim’s property.

The Cinematograph Act of 1952 and its regulations govern the Indian film industry. Anyone wishing to show their film must have it certified by the Central Board for Film Certification (the “Board”) under the Act. The Board has the authority to certify films in four categories, withhold a certificate until a film adaptation is made, or reject the certificate entirely. Principles such as friendly relations with other provinces, social order, ethics and conduct, and so on should guide the Board.

Role of judiciary

In the absence of a specific content management framework on OTT platforms, the courts have strongly opposed the efforts of various individuals and groups to bring control of the OTT industry through a judicial process. One of the first cases to be sought by the courts in relation to OTT forums was Nikhil Bhalla v. Union of India[3], heard by the Delhi High Court in 2018. It was about processing certain scenes / conversations in the Netflix series ‘Holy Games’. The Court took a broad and broad view and dismissed the application saying it did not want to reduce human rights. In fact, this was one of the few instances where the government itself opposed the ban (Justice for Rights Foundation v. The Union of India is one such example). Another case seeking the closure of a web-series calling lawyers ‘thieves’ was also dismissed by the Delhi High Court.

Other high courts such as the Supreme Court of Calcutta and the Supreme Court of Allahabad have also rejected appeals requiring control / restriction of content on OTT platforms. In the absence of a specific law governing the content of OTT platforms, the separating bench of the Karnataka Supreme Court ruled in favor of the Cinematograph Act, 1952 on media available on OTT platforms. In all these cases, the courts have reversed the government’s authority to bring about any changes in the situation.

Conclusion

The battles to watch movies on the big screen are nothing else for content producers in India, movies like Udta Punjab, Bandit Queen, Lipstick under my Burkha were important battles between the makers and Censor Boards. OTT as a service to Indians according to various industry professionals has provided an increase in innovation, innovation, innovation and a new break or gold opportunity for content creators, some of which are rising as a new achievement and achievement in the entertainment industry of Netflix ‘Delhi Crime’ of Netflix Original Crime ‘in the work of the global award, Emmy Awards, 2020. categories, with the ultimate goal of not being explored to be available to each other in their own space and still making good use of their opportunity for communication and freedom of expression.

With regard to the regulatory parameter of OTT platform services, India should learn from countries where regulations are already in place. As India has borrowed many constitutional provisions from different countries to make it look good, it should also apply the same approach with regard to the control of the OTT platform and the content available and available to them.

India should develop separate and explicit guidelines in the form of code-based sanctions. Penalties will ensure compliance with guidelines set or code determined. In addition, the code should reflect the many provisions that govern the OTT services industry. Licensing of OTT players must be compulsory. The income generated by the business in India by these players must be taxed at the appropriate and appropriate tax rate. At the same time, OTT players with Indian Connection providing services abroad should be regulated.

Written by- Srishti saini

College name- Fairfield Institute Of Management And Technology (7th semester)


[1]Indiankanoon.org. 2021. Section 69 in The Information Technology Act, 2000. [online] Available at: <https://indiankanoon.org/doc/1439440/> [Accessed 6 August 2021].

[2] Indiankanoon.org. 2021. Justice For Rights Foundation And … vs Union Of India & Anr on 20 May, 2020. [online] Available at: <https://indiankanoon.org/doc/90669015/> [Accessed 6 August 2021].

[3] Medianama.com. 2021. [online] Available at: <https://medianama.com/wp-content/uploads/Nikhil-Bhalla-v-Union-of-India-Netflix-Ors-PETITION.pdf> [Accessed 6 August 2021].

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