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Validity of over the top platforms Dire need of regulatory authority

Online content is in the need of a regulatory mechanism that may offer a protective measure to its audience and also helps in the protection of viewers from violent and vulgar content. Also in countries including Singapore, UK, and the United States, the government has implemented the mechanism of online content regulation or some are in the process of doing so which helps in covering a major grey area of the regulatory framework of content clarity and regulation. These platforms anticipated the government intervention and they had signed a self regulatory code that laid down a guiding principle for regulating and prohibiting five types of content:
  1. Content that deliberately and maliciously disrespects the national emblem or national flag
  2. Any visual or storyline that promotes child pornography
  3. Any content that harshly intends to outrage religious sentiments
  4. Contents that promotes or encourages terrorism
  5. Any content that has been banned for exhibition or distribution by law or court
The Apex Court has heard the plea for a Centre's response on a Public Interest Litigation for the regulation of OTT platforms by an autonomous body and PIL alleged that no regulation was imposed wherein the digital content is made available to the general public without any form of filter or screening , following which the bench of Chief Justice SA Bobde and Justice AS bhopanna and V ramsubramanian, issued notices to the central government, Ministry of Information and Broadcasting and Internet and Mobile Association of India[1]

PIL has been filed in Delhi High Court by NGO called Justice for Rights Foundation[2] for seeking framing of guidelines to regulate the functioning of OTT platforms and to provide more clarity for content on these platforms and it is also alleged that they show unregulated , uncertified , vulgar, religiously forbidden, and legally restricted content and also some show depicts women in objectifying manner as obscene, nude and vulgar scenes which are offenses under the Cinematography Act, Indian Penal Code, Indecent Representation of Women 9Prohibition) Act and Information Technology Act.

A petition has also been raised many times as in Bombay High Court against AltBalaji for Broadcasting Gandi Baat and against Netflix for the show �Sacred Games�. The petition mainly refers to the content broadcasting illegally and shows which are vulgar and vile and the petitioner demanded the court to frame regulatory guidelines for online shows and to ban objectionable content on these platforms.
The Ministry of Information and Broadcasting has taken task for the regulation of online content which is available on OTT Platform by the notification issued by the Cabinet Secretariat on November 9, 2020[3] which amends the Government of India ( Allocation of Business) Rules 1961 by addition of two new entries in 22A and 22B to the Second Schedule of the Rules. The inclusion of these entries results in regulation of online content but it also has a wide perspective as it includes social media platforms and current affairs available online.

Statutory Regulation for OTT platforms:

Guidelines set out in the Cinematography Act 1952 when read along with the Cinematographic (Certification ) Rules 1983 and the other guidelines which are issued by the Central Government from time to time for Certification and Censorship of films in India which are primarily undertaken by CBFC and also the act helps in regulating and certifying the films which based on the content with the perspective of public order, morality and decency but this act fails in regulating the content which is available on OTT platforms and does not have the right to monitor or certify which is available on these platforms.

For content based regulation, the Information Technology Act 2000 plays a key role in prohibiting any sexually explicit data concerning children and any other sexually explicit content in electronic form. Section 67A, 67B, and 67C of that act provide penalty and imprisonment for publishing or transmitting any of the above-mentioned content. Along with this The Information Technology (Intermediary Guidelines) Rule 2011 provides a due diligence framework to be observed by intermediaries in respect of information hosted or published on any computer resource of the intermediary. The framework and provisions under the Intermediary Guidelines may also applicable to OTT platforms that qualify as intermediaries under the Information Technology act.

The Cable Television Network (Regulation) Act 1995 governs the cable operations and under Rule 6(n) of The Cable Television Network (Regulation) Rules, 1994[4] which ensures that the films which are accessed by the viewers should be certified by the CBFC and by this the term 'exhibition' is said to include 'exhibition' of films for private viewing by the public on these platforms.
OTT Platforms cannot be left untouched to broadcast unrestricted and unregulated content in the name of Right to Free Speech and Expression as Section 19 (1)(a) of the Constitution of India is also subject to certain restriction like the right of reputation, public order or of public health, etc and these platforms are subjected to the reasonable restrictions which are enshrined Under 19(2) of the Constitution of India. The content in these platforms also shows women in a bad light and merely as an object which is also violative of their right to live with dignity under Section 21.

Steps taken by Central Government:

Indian Government can moderate and regulate OTT Platforms and online content from the recent times after the notification released by the Central Government on 9 November 2020 which amend The Government of India (Allocation of Business ) Rules 1961  aimed at bringing digital and online media program provided by the content providers on OTT platforms or on any media or news platform within the ambit of the Ministry of Information and Broadcasting by adding two new entries 22A and 22B to the Second Schedule of the Rules of 1961 namely:
  1. Films and Audio Visual Programmes made available by online content providers.
  2. News and Current Affairs on Online platforms.
Inclusion of these entries results in the regulation of the online content released by OTT platforms and also this is not restricted to OTT platforms but also includes new platforms, social media, and current affairs available online and also ensure that the vast unregulated content can be regulated that can protect to its viewers.

Cases which made amendment necessary:

On June 15, 2020, the Punjab and Haryana High Court issued a notice for censoring Paatal Lok and this petition tells for the regulation on the content of OTT platforms.

Voluntary cuts made by the makers of Amazon Prime Video's in the latest political drama series Tandav which was done by fearing arrest in connection with an FIR in Uttar Pradesh in grave charges.
Anil Kapoor and Netflix India asked for an apology to the armed forces for �Unintentionally hurting the Sentiments�.
OTT platforms are vast and dynamic in nature and the content shown is in dire need of a regulatory framework which is proposed by the Ministry of Information and Broadcasting concerning the digital content. Grey Area has to be covered and the time has come for the Government to come with the stringent laws to put a check on obscene material and not morally appropriate content for the society, also under the Information Technology Act, 2000 penalties and imprisonment is provided for transmission of obscene material.

The Information Technology (Intermediary Guidelines) Rules 2011 provide a framework for the regulation of intermediaries which being hosted or published on any computer of the intermediary and these guidelines are applicable also on OTT platforms. OTT platforms are also subjected to the Indian Penal Code for defamatory content, outraging religious feelings, etc, and the Indecent Representation of Women Act 1986 for obscene material and vulgar description of women.

The use of OTT platforms has been increased in COVID 19 times, which can also be amplified in the future which made it necessary for the Central Government to make the regulatory network for digital broadcasting. The framework which provides clarity and provides regulation is in the development process to regulate content online as broadcasters.

  1. Shashank Shekhar Jha vs Union Of India on 15 October 2020 - Writ Petition(s)(Civil) No(s).1080/2020
  2. Justice for Rights Foundation Vs. Union of India WPC no. 11164/2018

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