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Over The Top Or Below The Top

After the step of government to include OTT under the Ministry of Information and Broadcast would it be ideal to call OVER THE TOP AS BELOW THE TOP? Let's find this out. OTTs platforms such as Netflix, Amazon Prime, Hotstar, ZEE 5, ALT Balaji, etc., are famous for providing uncensored content for the audience that is liked by some section of the society but, some section also found the content as full of obscenity, abusive and cruel scenes.

The medium of viewership has undergone a drastic change in this half past decade. While a major section of the audience has transferred their interests from daily soaps, serials to series, and other content available on the internet. This platform via the internet has overtaken the task done by television through cables, satellite, etc. Unlike the content, which is provided like films, daily soaps that are regulated by CBFC, BCCC, the OTT platforms have no authority which can regulate them.

The reasons surrounding this OTT censorship issue are some shows on the internet that criticize the government, criticize some important personality, favour some religious beliefs, or oppose them, have vulgarity, or use abusive languages. Until now we can say that the OTT platforms were having a free reign amidst the protests of film distribution houses, theatre owners, and some print media agencies but from now the content available on these platform comes under the Ministry of Information and broadcast and would be interesting to see if they come up with another body like Central Board of Film Certification to tackle the problem of censorship.

OTT or over the top content refers to the delivery of audio, video, or other media over the internet without the involvement of a multi-system operator in control and distribution of content, or we can say that OTT is audio and video hosting and streaming services which sorted out as content hosting platforms, but soon become a production house. They release short films, feature films, documentaries, and web series, and censorship refers to suppression of information, ideas, or artistic expression by anyone, whether government officials, private pressure groups, or speakers, writers, and artists themselves.

The term refers to all those communication services which use the internet, such as voice calls, instant messages, and applications that allow for the streaming of video using the internet. So far, as our country is concerned there are no regulatory laws which can keep a check on OTT content as the platform is relatively a new platform of entertainment.

Our country lags very far behind developed nations across the world, when it comes to have a legislative framework for technology and related services. Recently, we saw an instance where  the Madhya Pradesh police filed an FIR under Section 295A of the Indian Penal Code against two senior executives of Netflix, on the charge that a series available on their platform had hurt the religious sentiments of a community by showing its lead character, a Hindu girl kissing her Muslim boyfriend in a temple. This has ignited the need of regulations which can deal with such things.

Is there a need for regulation?
Lack of regulation on these platforms means that there exists no form of censorship or any law prescribing what sort of content can be allowed and what cannot. The government is feeling pressurised to bring a law from the public and the judiciary. Previously the need for the legislation was not required. But in the current situation, there is a need for legislation that regulates the OTT content. Last year, a body was also formed by Hotstar, Jio, eros, and Sony LIV to deal with the regulation of the content provided named as Digital Content curated Complaint Council.[1]  It will provide consumers with a complaint's redressal mechanism with regard to content made available by OTTs.

If we see other modes of information, whether it is visual, audio or print every institute has its own regulatory body. The Press Council of India regulates the print media, the television news channel has News Broadcasters Association, for movies we have Censor Board (CBFC), for an advertisement we have Advertisements Standards Council of India, and even OTT platforms have a self-regulatory body named as Internet and Mobile Association of India (IAMAI).

The code disallowed them from hosting such content to be shown which are banned by Indian courts, which outrage religious sentiments, which disrespect the national flag, which promote child pornography, and those shows which incite terrorism or acts of violence against the State.

 Content regulation means that filtration of content available to the people is to be done before presenting them to the audience. The content available on these platforms provide us an enormous amount of knowledge and ideas,[2] [AK3] [AK4]  but as we say every coin has two sides. The OTT regulation has its pros and cons too. Some pros of censorship are - Children can have a bad influence when they view content that is related to violence, strong language, and sex. In the past years—people have filed legal complaints regarding the harsh content on the digital platform and arguing for censorship on series and movies released on the internet that has the potential to create bad influence. Often filmmakers include controversial content or uncensored clips in their films to gain popularity or more profits, this practice after censorship can be condemned.

The Central Board of Film Certification (CBFC) has reported that the usage of sex and abusive language in web series and movies is set as bait to attract the audience. Some people are also worried about the increasing foreign culture—the influence that web-series and movies promote. Now, its cons are - censorship can hamper the originality of the story. The censorship is being criticized as people feel that it is curbing the liberty and creativity of Indian filmmakers, who are anyways at a disadvantaged position due to constraints on content. It not only limits creativity but also regulates decisions that can be subjective too. People also feel that rather than censoring the content, it's more important to pay attention to the ratings that are provided. Moreover, it is the responsibility of the audience to perceive the content provided in a sophisticated manner.
Case Law[5] [AK6] 
In the case of Justice for Rights Foundation v. Union of India, Justice for Rights Foundation, an NGO, filed a petition in the Delhi High Court arguing that OTT platforms like Hotstar, Netflix, etc are unregulated and work without any form of censorship. The point was also placed before the Court that when the same film or show is presented on television, they have to censor and regulate what is shown but this is not the case with OTT platforms.

The Court sent a notice to the government of India demanding an explanation of the reason for why there was no regulation on these platforms. The Ministry of Information and Broadcasting answered that there are enough provisions in the Information Technology Act, 2000 for dealing with content. The Court agreed with this and held that there was no need for any regulatory law on the OTT platforms as there are enough safeguards in the IT Act, 2000.[1]

In yet another recent case, the Delhi High Court refused to grant an interim injunction against the censorship of the Netflix show, Hasmukh. While it was alleged in the petition that a monologue in the show defames lawyers, the court noted it not to be true and in refusing to censor the Netflix show, held that the creative liberty of an artist is the essence of democracy.[2]

Keeping in mind the sentiments and opinions of the section of the society who advocates the censorship of OTT, we can say that a regulatory body is a must, but then the question arises how the body will function? The fear is that this will just end up providing more governmental interference and this fear becomes more problematic when it comes to regulating digital news. In a democracy, whose progress is dependent on free speech and expression, it is important regulation must not curb or stifle voices. Self-regulation seems to be the only way for the time being for these platforms to be able to show their content without censorship.

Yet, regulating oneself is one of the most difficult tasks to do, if one is not able to regulate one's own actions, then there would be no choice but for the government and the courts to step in and frame strict regulations and impose restrictions on the wide freedom of such platforms.

  1. Justice for Rights Foundation v. Union of India, WP(C) 11164/2018.
  2. Aditi Singh, Essence of democracy is the liberty given to an artist: Delhi HC refuses to stay streaming of webseries 'Hasmukh' on Netflix, Bar and Bench (Nov. 23, 2020, 3:11 PM),

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