OTT or Over-the-top, services refer to the content that is streamed/downloaded via the internet without having to subscribe to a traditional cable network [1] like Netflix, Amazon Prime, Voot etc. CBFC(Cinematographic board of Film Certification) which derives its power from the Cinematograph Act, 1952 and Cinematograph Rules, 1983 and the Programme and Advertising Code prescribed under the Cable Television Network Rules, 1994, is responsible for the overall administration of the release of movies and programmes on television and ensuring that they abide the existing censorship morale. This was reaffirmed in the famous case of K.A Abbas v. Union of India [2].

However, content that broadcast through internet services do not fall under its domain. Therefore, OTTPs, that deliver the content through the internet, are governed broadly by the Information Technology Act, 2000 administered by the Ministry of Electronics and Information Technology.

Every fundamental right, except the right of life and human dignity, has certain limitations. Therefore, applying the necessity and proportionality test, Article 19(2) of the Constitution authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression of ideas through communicable and visual representation guaranteed under Article 19(1) (a), when it endangers the state's sovereignty, integrity, security and friendly relations with foreign States and public order, decency, morality, contempt of court, defamation or incitement to an offence.

Further, Rule 3(2)(b), (c), (e), of Information Technology (Intermediaries guidelines) Rules, 2011, states that 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 host, initiate transmission of such content knowingly. Also, 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 (Internet Kill Switch).

In 2019, Justice for Rights Foundation, a non-governmental organisation submitted a writ petition to Delhi HC seeking formulation of government guidelines regulating content streamed on OTTs Justice for Rights Foundations v. Union of India [3].

As a result, in mid January, nine streaming services in India announced a voluntary self-regulation code and a grievance redressal committee to avoid mandatory government-led censorship. Minister of State for Electronics and IT, Sanjay Dhotre also affirmed his support to this self regulatory model government's commitment to freedom of speech and expression and privacy of its citizens. The aim was to protect the creativity of the show makers along with addressing consumer's complaints and interests. This was the stepping stone of online content censorship in India.

The above Code, however, was a hurried step lacking any formal directions on the composition, formation and direction of implementation, taken by the online streaming platforms to prevent Government interference. Therefore, in February 2020, the Internet and Mobile Association of India (IAMAI) released a new set of guidelines, Code for Self Regulation of Online Curated Content Providers[4] to supervise content creation and distribution in the online content streaming space.

The code introduced a two-tier redressal mechanism with greater transparency in its functioning according to which, all the complaints shall first be made to the DCCF (Digital Content Complaint Forum) of the relevant OTT provider and if unresolved, they would be adjudicated by the DCCC (Digital Content Complaint Council). DCCC is a committee of 9 members with one retired Judge of the Supreme Court or High Court as the chairperson. Justice AP Shah was to be the Chairman of the committee, which was being set up as a self regulatory body.

As opposed to the earlier code with 9 signatories, this one only has 5 providers signing it for now, namely, Hotstar, Voot, Jio, SonyLiv & Arre. Over the following months, multiple OTT players opposed the new code, and highlighted the lack of consensus and adequate consultation within the IAMAI. The IAMAI's Governing Council asked its Digital Entertainment Committee to come up with a solution acceptable to all members.

Though this new code is far more comprehensive than the earlier one, it has failed to attract membership of most of the OTTs because of its increasing interference that might restrict the freedom which these platforms otherwise enjoy. In March 2020, Information & Broadcasting minister Prakash Javedkar gave a warning to all the OTTPs to finalise a code and set up an adjudicatory body within 100 days or otherwise the government will be forced to step-in [5].

On Friday, fifteen Indian streaming services and digital companies released the Universal Self-Regulation Code for Online Curated Content Providers.The signatories are Zee5, Viacom18, Disney+ Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre,Hoichoi, Hungama, Shemaroo, Discovery Plus, Flickstree.Notable exceptions include Sony LIV, YouTube Premium, and Apple TV+.

The code differentiates between user-generated content like on YouTube and social media, and curated content, which the signatories to this code provide. The code outlines the business models followed by OTT platforms, namely SVoD (subscription video on demand), AVoD (advertising-supported model), TVoD (transactional model where each title is purchased separately), and hybrid or combination models. The code argues that since OTT platforms are on-demand and subject to user-initiated access controls, presumably passwords and parental controls, they constitute private exhibition that doesn't fall under laws that apply for theatrical movie releases and TV broadcasts.

The code believes that the Information Technology Act, 2000 is the primary governing statute for online content and that the Indian Constitution guarantees freedom of expression with the restrictions under Article 19(2) and nothing more. The signatories of this Code agree to take up reasonable efforts in good faith to implement its principles and invest in parental controls and content descriptors that provide viewers with information on mature content.

The stated objectives of this Code are empowering consumers to make informed viewing choices for themselves and their families, nurturing creativity and abiding by freedom of speech and expression, preserving the creative economy's independence, encouraging members to abide by the guiding principles and add predictability to the sectoral environment, elevating professional standards regarding self-regulation and providing consumers a grievance redressal mechanism.

This code details the age ratings that members are required to implement in more detail than before, based on increasing intensity of violence, sex, nudity, drug use, and profanity. There are five categories: All Ages, 7+, 13+, 16+, and 18+, with special disclaimer requirements for some of these categories.

There is a two-tier internal complaints system, unlike an industry-wide body like in the last code. Signatories are required to create a Consumer Complaints Department (CCD), an Internal (or Appellate) Committee, and an Advisory Panel. If a signatory creates a CCD, then the second level will be an Appellate Committee.

If not satisfied, complaints go directly to an Internal Committee, staffed with the streaming service's own employees, and the Advisory Panel, which deals with escalations, will have a minimum of two executives from the OTT platform, and one independent advisor. Complaints must be disposed of within 15-30 days. If an OTT platform voluntarily makes any changes, the complaint is voided, but without any admission of wrongdoing.

If a complaint is valid and where complainant has expressly provided the violation of the code:
then the code specifies only a few following remedies within India i.e. change the age rating of the content; add a warning or content descriptor; and/or edit the content's synopsis. OTT platforms must share details of complaints received in the past year if requested by the Ministry of Information & Broadcasting, or by the Ministry of Electronics & Information Technology, within thirty days of receiving such a request, once a year and not more. The code is effective starting August 15, though passed in September. However, signatories are only expected to be fully compliant one year after the code's signing, i.e., on August 15, 2021.

The demand of OTTs has risen to its peaks owing to the lockdown of the country because of the Corona virus crisis, specifically by shutting down the theaters, release of mainstream movies on OTTs, postponement of new releases etc. 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 and as per their time convenience.

There are a large number of artists who don't have enough money for mainstream movies and portray their creative thoughts through OTTs. 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, various socio-political issues which due to one or the other reason is not included in mainstream cinema. Also, piracy can be controlled to some extent.

However, countries like Singapore, UK have regulatory bodies to keep scrutiny on the OTT content. The service providers have to provide disclaimers of the elements such as nudity, drugs, sex, violence, etc. in the content. In the UK, the OTT platforms face the same censorship as any public service broadcaster. Australia has a separate principal legislation namely, Broadcasting Services Act , 1992 that governs the OTT sector.

While in Turkey, there is a licensing regime under which the OTT platforms are given a revokable license for 10 years. Indonesia, Turkey and Saudi Arabia have strict autocratic Government regulations. Many OTT platforms including Netflix has been blocked.

A five-poll survey was conducted by community platform LocalCircles to check citizen perception of the OTT (over the top) platforms available in India, which received more than 40,000 responses from across India. One of the findings was that 63 per cent respondents said OTT platforms like Netflix, Amazon Prime, Hotstar, Zee5 and so on in India should be subjected to mandatory Government censorship guidelines[6]. Thus, censorship regime of OTTs is just in its babysteps and only time will decide its direction in coming times.

End-Notes:

1. Purva Dua, Censorship of Netflix, Hotstar- Will this ship sail? Legal Service India, http://www.legalserviceindia.com/legal/article-806-censorship-of-netflix-hotstar-will-this-ship-sail.html/
2. K.A Abbas v. Union of India, 1970, 1971 AIR 481
3. Justice for Rights Foundations v. Union of India, W.P. (C) No. 11164 of 2018.
4. Self Regulation for Online Curated Content providers, https://www.medianama.com/wp-content/uploads/IAMAI-Digital-Content-Complaint-Council-NEW.pdf/
5. Aroon Deep, I&B Ministry gives OTT industry 100 days to create adjudicatory authority, Medianama, https://www.medianama.com/2020/03/223-ib-ministry-gives-ott-industry-100-days-to-create-adjudicatory-authority/
6. Neha Alawadhi, Majority Indians support partial censorship for online streaming: Survey,https://www.business-standard.com/article/companies/majority-indians-support-partial-censorship-for-online-streaming-survey-120022400068_1.html
   
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