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“Regulation needs to catch up with innovation”
With the advent of technology, the country has witnessed a breeze of ease and convenience. One of the major developments in the technological market has been the emergence of Over-the-Top (‘OTT’) Platforms. ‘Over the top’ platforms are those service providers that enable access to communication, social media and audio and video services via Internet. To put it simply, these are platforms that act as an alternative to the traditional modes of communication and broadcasting. These OTT services are of 3 types, classified on the basis of the services provided, i.e. messaging and voice services, application ecosystems and audio/video content. Online video hosting platforms, playing a significant role under the Audio/Video content services in the OTT Market, are the focal point of the impugned analysis. With a lot of youngsters not finding time to watch television, the demand for these services has increased; thereby resulting in the increase in the viewership of OTT platforms like Hotstar, Netflix, Voot etc. Also, since the entire nation is under lockdown due to the Covid crisis, films too are being released on such platforms.
In 2019, Momagic, an investment platform conducted a survey to compare the viewership on OTT platforms and Direct-to-Home (‘DTH’) operators. The results were astonishing as 55% of the respondents preferred OTT services while only 41% preferred the latter. With the rapid increase in demand for online content, the debated controversy is the need for a regulatory framework for such platforms. Even though OTT platforms enjoy a lot of popularity and viewership in the country, there are millions of viewers (around 57% in India) still stressing on the need for censorship and licenses for the OTT service providers.
VIDEO STREAMING PLATFORMS: NEED FOR REGULATION
The increasing popularity of the video streaming platforms demands the regulation of these platforms. Presently, there is no law in India to regulate them. Several PILs have been filed before various High Courts across the country in this regard; however, these services yet remain unregulated.
To understand the need for regulation of video streaming platforms, it is significant to draw an analogy between films screened on theatres and those on web streaming platforms. The former are regulated under the Cinematograph Act, 1952 and the regulatory body governing certification of films is the Central Board of Film Certification. On the other hand, the latter remain unregulated. A response to an application filed before the Ministry of Information and Broadcasting under the Right to Information Act, 2005 regarding the regulation of video streaming content stated that the Ministry was unaware of the licensing authority. The Ministry in response to a notice issued by the Delhi High Court filed an affidavit and stated that video streaming platforms are not regulated and do not require censorship. They also exhibit similar content as films, for instance Netflix original movies, Amazon original movies etc. However, the standards of certification and censorship for films released on cinema halls are not applicable to video streaming media. This gives an unfair advantage to the producers of films and shows released on video streaming platforms to showcase any content without any test for certification. Naturally so, film makers would prefer video streaming platforms as a medium to release their films.
For instance, the film ‘Unfreedom’, which was banned by the CBFC in 2015 for depicting the story of lesbian romance and religious intolerance with an element of nudity was made available on Netflix in 2018. Also, web series such as “Sacred Games” on Netflix and “Gandii Baat” on ALT Balaji contain elements of obscenity and profanity and touch upon public morality, thus making them capable of hurting the sentiments of viewers. However, under the present laws, the content remains unregulated and thus, uncensored. With respect to above examples, it is pertinent to note that since “Unfreedom” was supposed to be released in theatres, it had to undergo a screening procedure by the CBFC unlike the aforesaid web series that were originally filmed to be screened on ALT Balaji, a video streaming platform that has no such screening procedure.
It is pertinent to note that the demand for video streaming services in India is catching pace. In this regard, it can be presumed that a large number of people are subscribers to the content on video hosting platforms. Therefore, certification is essential because the viewers of online content can be children as well. For films screened in theatres, certification is provided by the CBFC (in the form of A, U/A, U) and persons below the age of 18 years are prohibited from viewing movies certified ‘A’. However, since certification is not mandatory for video streaming platforms, there are high chances that obscene, violent or disturbing content may often be viewed by unsupervised children. The content on video streaming platforms, depicting scenes of smoking, consumption of alcohol etc. do not provide warning signs that read, ‘smoking and consumption of alcohol are injurious to health.’ This is another downside of non-regulation of content exhibited on such platforms, which adversely affects public health and conscience.
The Constitution of India, provides for the freedom of speech and expression under Article 19(1)(a). However, this freedom is not absolute and reasonable restrictions under Article 19(2), in order to protect interests of the sovereignty and integrity of India, public order, decency or morality can be imposed on such freedom. In Odyssey Communications Pvt. Ltd v Lokvidayan Sanghatana, the Apex Court held that the right to exhibit films on Doordarshan constitutes a part of freedom of speech and expression under Article 19(1)(a). This view can also be extended to video streaming platforms, as they serve the same purpose. Therefore, the restrictions under Article 19(2) are very much applicable to them and they too must be regulated, so as to not affect public morality and decency.
The Indian Judiciary, through a catena of decisions, has tried to harmoniously construe the Right to Freedom of Speech and Expression guaranteed under Article 19(1)(a) and reasonable restrictions mentioned under Article 19(2) in this regard. The Apex Court, in the case of Ranjit Udeshi observed that it is important to analyze a piece of art as a whole to measure the amount of obscenity in that work. If the art consists of a negligible amount of obscenity, the same can be overlooked. Thus, it is unconditionally important to maintain a balance between the right and the following restriction. The Apex Court, in the case of Bobby Art International v Om Pal Singh Hoon relied on a different stance altogether as it held that if a film depicts a social evil and in view of the same, there are scenes depicting obscenity and nudity, they do not deserve a ban as they only depict the harsh realities of society, It thus concluded that their intent was not to promote obscenity or immorality. The Hicklin test, which was the basis of judging the standards of ‘obscenity’ for a long time, was struck down in the case of Aveek Sarkar v State of West Bengal, in which the Court stated that the ‘community standards test’ works better for the Indian population. Thus, the Courts have constantly tried to draw a balance between the Right to Freedom of Speech and Expression, and Public Decency and Morality.
Sections 67, 67A, 67B of the Information Technology Act, 2000 penalizes publishers and transmitters for depicting sexually explicit acts and children involved in such acts. However, in order for these platforms to be brought under the purview of the Information Technology Act, they have to fall within the definition of ‘intermediaries’ as provided under Section 2(w) of the Act. These platforms can be brought under the purview of ‘intermediaries’ according to the definition of intermediaries provided in the case of Myspace Inc. v Super Cassettes Industries Ltd. The Court stated that ‘intermediaries’ are aggregators of films, TV series and other such content that are delivered to consumers when demanded, and consideration for which is received by such aggregators through a self-designed subscription model. This was reaffirmed in the RTI filed to the Ministry of Information and Broadcasting, in which the Ministry confirmed that the online streaming platforms are intermediaries under Section 2(w) of the IT Act. It can hence be inferred that these video streaming platforms are an ‘intermediary’ under the IT Act, and the above-mentioned provisions are applicable to them. Therefore, there are sufficient provisions in place to bring online streaming platforms under its purview, but the deficiency lies in its scope and applicability.
Despite the non-regulation of these platforms by the government, many video streaming platforms have developed a self-regulatory code that governs them in specific. Major tycoons in the industry such as Netflix, Hotstar, Zee5 etc. have decided to have their own self-regulatory codes. However, this self-regulation is not observed by all video streaming platforms. For instance, ‘Amazon Prime’ has decided to not have a self-regulatory code, as it thinks that the existing laws are sufficient. To have a self-regulatory code is a good practice, but in a scenario where video streaming platforms play a very significant role in the Cyber Space, self-regulation is insufficient. As the company develops a self-regulatory code by itself, the code can be designed according to its whims and fancies thereby defeating the purpose of regulation. Hence, dedicated legislations would be more effective than self-regulatory codes. In light of all the above-mentioned issues, it is the need of the hour to have a law homogeneously regulating all the video streaming platforms.
CONCLUSION AND SUGGESTIONS
During the tough times of COVID-19 when the theatres are shut, the world is witnessing a boom in the usage of video streaming platforms. Considering this rapid boom, there is a stronger need for regulation, in order to eliminate the differences between movies in cinema and videos on online platforms. Countries around the world have considered the idea of establishing a framework for OTT platforms in light of the surge in online viewing, some of them creating regulatory regimes that are similar to those applicable to offline players. In relation to the Indian scenario, the scope of the two consultation papers released by TRAI in 2015 and 2018 respectively was two-folded. Firstly, to frame the issues circumventing the smooth functioning of OTT services and secondly, to deliberate on the suggested solutions for the issues framed. However, due to the absence of an effective mechanism to regulate these platforms, the authors would like to put forward some recommendations for the same:-
- A fresh piece of legislation, like Cinematograph Act, 1952 for films, can be enacted to govern video streaming platforms that have become immensely popular in the country.
- Specific references could be made in the relevant provisions of Indian Penal Code and Indecent Representation of Women (Prohibition) Act, 1986 to cover online content within its purview.
- The Supreme Court could direct the legislature to come up with a statute or regulatory regime on these issues.
A regulatory framework is required expeditiously because the judiciary has been flooded with questions on the need to protect the Freedom of Speech and Expression while also curtailing it. The petitions are still pending for decisions. Thus, considering the rapid rise in the demand for such video streaming platforms, it is imperative that the Legislature enacts a regulatory code to fill the lacunae in the law.
(This post has been authored by Dhruti Lunker and Isiri SD, third year law students at Tamil Nadu National Law University)
Cite as: Dhruti Lunker and Isiri SD , ‘Proxy To Movie Theatres: Regulating Online Streaming Platforms’ (The Contemporary Law Forum, 12 June 2020) <http://tclf.in/2020/06/14/proxy-to-movie-theatres:-regulating-online-streaming-platforms> date of access.