Over the top (OTT) media service is a streaming media service offered directly to viewers via internet. This platform has overtaken the task done by television through cable, satellite, etc. There are a large number of OTT platforms working in India such as Netflix, Amazon Prime, Hotstar, Voot, etc. Unlike the content provided by cinema or television that is regulated by CBFC, BCCC, etc., the OTT platforms have no regulatory body over them to control the content streamed, and consequently enjoy their freedom.

The content provided on such platforms though in violation of various laws of the nation is still under Supreme Court's observation. Whether the platform shall be under a self-regulatory body or there shall be a proper legislation which provides for a statutory body to control and censor the content streaming on such platforms is an important question.

Government's Take On The Issue

The Union Ministry of Information and Broadcasting, Law and Justice, Electronics, Information and Technology, Telecom and CBFC do not exercise any sort of jurisdiction over such platforms. The Government considers such platform to be intermediaries where they cannot exercise jurisdiction.

Although, as per Rule 3(2)(b), (c), (e), of Information Technology (Intermediaries guidelines) Rules, 2011, due diligence shall be observed by the intermediaries in displaying, hosting, publishing any obscene, pornographic or unlawful content and shall not harm minors. As per Rule 3(3) the intermediary shall not knowingly host, initiate transmission of such content.

In 2016, Justice for Rights, an NGO filed a petition [W.P. (C) 11164/2018] before the Delhi High Court, alleging that Hotstar displayed soft-pornographic, unethical and religiously inadequate content and this promotes disrespect to the country, objectifies women, engages children in criminal activities, and somewhere promotes terrorism. They urged that the platforms shall be regulated and censored or licensed and the vulgar and legally restricted content shall be removed. However, the petition was dismissed and is currently pending in Supreme Court [SLP (C) 10937/2018].

Previously the need for legislation was not felt. But in the current situation there is requirement of a body that regulates the content provided by OTT platforms. However, in a recent report, MEITY has refused to introduce censorship but they plan on making a self-regulatory body. Last year Digital Curated Content Complaint Council (DCCCC), an adjudicatory body was formed by Hotstar, Sony Liv, Jio and Eros, to deal with the content provided by such platforms and to avoid imposition of Government's own rules on them.

But to our surprise, most of the OTT platforms such as Netflix, Amazon Prime, Alt Balaji, Mx Player, Zee, etc. don't support this move as it is similar to the Broadcast Content Complaints Council (BCCC), a self-regulatory body for non-news entertainment channels. They think that the thin line difference between a broadcasting channel and an OTT platform will get null and their Right to Free Speech under Article 19(1)(a) (Freedom of Speech and Expression) will be violated.

However, the said OTT platforms contravene Article 19(2) of Constitution, which provides for reasonable restriction on Freedom of Speech and Expression in the interests of sovereignty and integrity of India, security of State, public order, decency or morality, etc. The Government has power to remove any content that is objectionable and/or harms India's sovereign interests under Section 69A of IT Act i.e., Power to issue directions for blocking for public access of any information through any computer resource, the said section is considered to be Internet Kill Switch.

Reason For The Arousal Of This Necessity

The most recent issue surrounding OTT's was the John Oliver show on Hotstar, where he actively criticized Narendra Modi and CAA and the show was further blocked on Hotstar. A similar incident occurred on Hasan Minaj's show that dealt with Lok Sabha Elections, 2019 and was highly criticised later.

However, Netflix didn't succumb to the pressure. Shows such as Sacred Games was criticised as it mentioned some speculative lines on Rajeev Gandhi and also mentioned about the Bofors scam. Leila was criticised as it hurt the feeling of Hindus by promoting Hinduphobia. It was highly criticised by viewers.

Other than Netflix, Amazon Prime also deleted an entire episode of CBS Political Drama "Madam Secretary" in its Indian version. The show was said to hurt the sentiments of various people as it deals with Hindu Nationalism, India occupied Kashmir, violence on Muslims by majoritarian society, etc.

Recently the Madhya Pradesh High Court dealt with the situation in a PIL filed by an NGO, Maatr Foundation (W.P. No. 18801/2019).

The plea was filed to deal with the regulations against alleged streaming of obscene and sexually explicit content. They alleged that these media content streamers are broadcasting content that is unregulated, un-certified, vulgar and legally restricted. The platforms portray women indecently and shall be punished under sections 3, 4 and 7 of Indecent Representation of Women (Prohibition) Act, 1986.

The streamers shall also be punished under Sections 292-294 of Indian Penal Code, 1860 for publicly exhibiting, distributing and portraying obscene acts, pamphlets, representation, figures, etc. The content can also be viewed by children under 18 years of age which exposes them to sexual acts, terrorist activities and vulgar content.

Indians On Censorship

As per a survey by YouGov, 57% of people (1005, approximately.), support partial censorship for online streaming. They think that a lot of offensive content i.e., unsuitable for public viewing is put up on such platforms. Majority of the people supporting censorship are adults of the age above 40s. However, the strongest arguments against such censorship is that the content on OTT platforms are Subscription on Demand, where viewers have choice to pay and select what to watch.Apart from this, the piracy of movies is another factor why filmmakers take the route of OTT. There are a large number of artists who don't have enough money to portray their creative thoughts through cinema, OTT comes as a great breakthrough for them.

Perhaps it provides a worthy pedestal to build gripping story lines. And this is the reason why most of the viewers get attracted to the content provided by such platforms. They are fearless of the involvement of political parties and hence stream bold narratives and plots. They portray various socio-political issues which due to one or the other reason is not included in mainstream cinema.

And even after censorship in cinema, time and gain there have been huge disputes with regard to various movies like Padmavat, PK, My Name is Khan, etc. So there exists no reason that after censorship on OTT platforms, the content will not face any opposition.Also the content available on such platforms are affordable,belongs to the native language, deals with regional content, provides free-trial facilities to users and most importantly is convenient. In the current pandemic like situation, there is a huge rise in viewers of OTT platforms. As per a report by Secretary of MIB, the rise in viewers of the OTT media providers shall increase 21.8% annually.

International Perspective
Countries like Singapore, UK have regulatory bodies to keep a check on the OTT platforms. In Singapore, the service providers have to display the elements such as nudity, drugs, sex, violence, etc. in the content.

However, in UK, the OTT platforms face the same scrutiny as any public service broadcaster. Australia has a principal legislation BSA, 1992 that governs the OTT sector. While in Turkey, there is a licensing regime under which the OTT platforms are given a licence for 10 years. Countries like Indonesia, Turkey and Saudi Arabia have strict regulations. They want total control in the hands of Government. Many OTT platforms including Netflix has been blocked.

Conclusion
Looking at the present scenario, the need for an unbiased regulatory body is a must. The Internet Content Streaming cannot be controlled by a self-regulatory body. The body shall distinguish responsible content for regulation. The OTT platforms and the Government shall work together on this and end this issue once and for all. At this point of time OTT platform is at a nascent stage across the globe. India needs to make sure that they cope up with the needs of the people while making a legislation.

The basic purpose behind the law shall be clear; whether it is made to protect the audience or to bridge the regulatory gap.The Intermediary Rules, 2011 shall also be kept in mind as violation of the Rules shall lead to cancellation of their license. Total censorship on the platform will transform it into nothing more than a television show or mainstream cinema. Also, it would lead to increasing cases of piracy.

The public today is looking for content that brings out the truth of the society, deals with socio-political issues, provides us regional varieties and utmost importantly doesn't hurt the sentiments of a single class of people. Hence, these regulatory gaps and grey areas are alarming.