Regulation of Online Content Creators in India- The Way Forward

By Chirag Jain, Advocate, Supreme Court of India

On 9th November 2020, the Government of India issued a gazette notification bringing the ‘films and audio-visual programmes made by online content providers’ and ‘news and current affairs content on online platforms’ both of which hitherto were free of supervision, under the ambit of Ministry of Information and Broadcasting.

The Government until now had not taken a singular approach in dealing with these Over The Top (OTT) platforms. The same could be seen in the ‘Justice for Rights foundation’ case, a public interest litigation filed before the Hon’ble Delhi High Court. The Union Government thereinhad stated that it had no intent to bring in regulations to monitor the content available on online platforms. It was further submitted by the Ministry of Electronics and Information Technology that there were sufficient remedies available in the existing laws to curtail any abuse of such platforms.

However, in the case relating to Sudarshan News ‘UPSC Jihad’ show [1] and its ‘vilification of members of Muslim community’ as alleged, the Union had opined that the need of the hour was to regulate the online content providers more than the mainstream television news channels, when it was asked by the Supreme Court to frame guidelines to regulate the content available on the news channels on television.

In light of the pandemic, majority of the creators of films and movies have shifted to video streaming services. Therefore, it was only a matter of time that a need of some sort of regulatory framework was felt by the Government. It is also common news that the Government had been receiving complaints and requests to monitor the content being shown on the platforms such as Netflix, Amazon etc. as the same were allegedly hurting religious, nationalistic sentiments et al. It was a source of concern for the video streaming services as well which prompted them to sign a  ‘self-regulatory pact’ in January 2019.The ‘self-regulatory pact’ was signed with an intention of avoiding any potential censorship by the government.

In this pact, several such video streaming services had adopted guiding principles for content available on their platforms which prohibited content that was derogatory to the National Emblem or National Flag, content or storyline which promoted child pornography, malicious content that outraged religious sentiments, content that promoted or encouraged terrorism, or any content which was banned by a court of law. However, since there was no credible system to monitor whether they were adhering to the pact, it could not garner much support from the Government. Additional challenges that came up with a self-regulated model also included interpretation of the guidelines enumerated in this pact which could be different for all such signatories.

While the notification issued earlier this month is an important step, much is left open for subsequent legislative or executive action. For example, up until now the content providers came under the purview of Information Technology Act, 2000 but now the Government would have to provide details as to how the regulation under the new system would work.

There is a further distinction to be noted here. The two types of media content that have been discussed in notification are also of distinct nature. While one deals with the content available on the video streaming services which are more akin to films, movies and series etc, the other deals with news and media. However, the nature of internet being what it is, these services are also interchangeable, for example satirical late night comedy shows. The rules for both the digital news platforms and video streaming services would have to be different and cannot be kept at an equal pedestal.

Further, there is a problem of execution of these regulatory steps. There will be a need to have clear instructions from the government as to the mode of enacting these regulations which may be in form of entry barriers, licensing etc. Currently the films and movie content are regulated by Central Board of Film Certification, which only has the authority to ‘certify’ the content and not ‘censor’ it. However, there are other regulations such as Cable Television Regulations Act which squarely regulate the content shown on Television. The video streaming services by their innate nature are amalgamation of the two and thus would require clearly distinct set of framework to operate. The lack of such clear guidelines would leave room for a lot of misinterpretations and possible overreach of state authority in the field of media, art and culture.

While there are considerable reasons to have a regulatory oversight in order to stop the spread of ‘fake news’, it also carries a very substantial risk of censorship which could be detrimental to the society.It will be very interesting to see the further developments in this regard, from various stakeholders involved like the Government, the digital platforms and the consumers.

[1] W.P. (c) 956/2020

11 Replies to “Regulation of Online Content Creators in India- The Way Forward”

  1. Generally, online content, as it stands today, appears to be unbridled and the creators of such content are exercising their creative liberties to the fullest.However, it is not accurate to conclude that OTT platforms are absolutely unregulated or free from censorship, only because there exists no regulatory framework categorically setting out the manner of censorship or certification of the online content or guidelines outlining dos and don’ts for the creators of online content. On November 12, 2018, the Telecom Regulatory Authority of India (“ TRAI “) published a consultation paper on regulatory framework for OTT communication services (“ Consultation Paper” ). This Consultation Paper was deemed necessary due to existing regulatory imbalances between TSPs and OTT service providers, especially since the adoption and usage of OTT services have increased exponentially. The Consultation Paper aimed at collating views of industry players and stakeholders to analyse the implications of the growth of OTT services, the relationship between TSP and OTT players, and any reforms that may be needed in the current regulatory framework.The TRAI also held an open house discussion on the OTT regulation in May 2019. While the TRAI had earlier announced that it would release its recommendations pursuant to the Consultation Paper by end of May 2019, they are yet to come out.

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  4. In addition to the above, there have also been suggestions to include online content explicitly within the ambit of the Indecent Representation of Women (Prohibition) Act, 1986, which currently prohibits indecent representation of women in advertisements, books, films, paintings, and writings etc. The growing popularity of OTT services worldwide is posing a major challenge to the Telecom Service Providers (“ TSPs “).The technological differences between OTTs and TSPs have led to a situation where both TSPs and OTT service providers become capable of providing similar services to customers. The communication OTT players are actually competing with traditional TSPs. The TSPs bear the costs for the infrastructure, spectrum management and also pay license fees for use of spectrum. At the same time, they need to meet universal services obligations and roll-out obligations and comply with other regulations. The counterpart OTT service providers, however, are not obliged to adhere to any regulatory obligations and do not have to bear any such costs.

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