From Cinemas to OTT: The Shift and the Legal Gap
With technological advancement, the world has shifted from traditional television and cinema to the digital medium of OTT (over-the-top) platforms providing video-on-demand services and publishing online curated content. The increasing access to these platforms by users and their effect on society have compelled the government to enact laws to regulate the activity of these entities.
The existing film release exhibited through cinematographs as stipulated under the Cinematograph Act, 1954, is regulated through the statutory body (CBFC), Central Board of Film Certification. The underlying purpose of the regulation on motion pictures by CBFC is to protect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or to prevent contempt of court, defamation or incitement to an offence.
India’s Cinematograph Act (1952) establishes the CBFC as the statutory board to certify films for public exhibition. Section 5B of that Act explicitly authorizes refusal (or cuts) if a film “undermines the sovereignty or integrity of India; disrupts public order; offends decency or morality; constitutes defamation or contempt of court;” or otherwise threatens state security or friendly relations. In practice this means every film released in theatres must clear the CBFC scrutiny before screening. By contrast, online streaming falls outside the Cinematograph Act’s scope. In Padmanabh Shankar v. Union of India (Karnataka HC, 2019) the court ruled that films transmitted over the internet “do not fall under the definition of [‘cinematograph’]” and thus the Act does not cover OTT content. Likewise, the Delhi HC in Justice for Rights Foundation v. UOI (2018) observed that the IT Act provides sufficient deterrents and that the government has “no power … to regulate the content on the internet” under the Cinematograph Act. In short, while theatrical releases are tightly pre-certified by the CBFC, OTT “web series” and movies are, yet, screened without any statutory certificate, relying instead on each platform’s own “community guidelines”.
The Government’s Response: IT Rules 2021
In February 2021 the government promulgated the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 to plug this gap. These rules apply to “online curated content” (including OTT platforms and digital news). They establish a three-tier self-regulation framework: Level-I requires each publisher (e.g. an OTT service) to adopt a Code of Ethics, classify content by age (U/A 7+, 13+, 16+, A) and implement parental locks, and appoint a grievance officer. Level II requires industry-wide self‑regulatory bodies (e.g. IAMAI’s Digital Media Content Regulatory Council) to adjudicate unresolved complaints. Level III creates a government oversight body (under the I&B Ministry) with power to issue advisories, order removals, or even block content in emergencies. In effect, an OTT provider must self-label all content (e.g. U/A 16+ or A) and offer a three-tier grievance process. Any aggrieved user can first complain to the platform, and if unsatisfied can escalate the complaint to the industry council (the “Digital Media Content Regulatory Council”). The Ministry may then review or direct removal of content under certain conditions.
To comply with the orders, OTT platforms must self-classify content into prescribed age categories and implement parental locks. They must set up a grievance officer and process complaints within 15 days, with an industry appeals stage i.e. Digital Media Content Regulatory Council. Finally, the government’s oversight committee can block or order removal of “unlawful” content if the self‑regulation fails.
The legislator refrained from enacting a separate act for regulating intermediaries and deliberated on not establishing an OTT CBFC similar to the traditional cinema releases, perhaps to project a liberal image over the content published online. These rules substantially rewrite the community guidelines of OTT, which have been used by these platforms before the enactment of these rules. It is also important to note that these rules specifically Rule 3(1)(n) have imported the application of fundamental rights on these platforms, leading to horizontal application of these rights against the traditional state action doctrine used by courts to evaluate the enforcement of rights. This is a delegated piece of legislation; the authority of the executive to enforce fundamental rights against OTT is already standing on sand.
The scope of such regulation is that the IT Rules effectively extended censorship‐style duties to all digital news and AV publishers, even for content that was previously unregulated. The Rules themselves were justified as needed to curb fake news, pornography, hate speech, etc. However, their validity was contested in courts: in several High Courts (Bombay, Kerala, Madras) key provisions are under challenge for being beyond the IT Act’s powers which later were transferred by Supreme Court to Delhi High Court.
The Double-Edged Sword of Self-Regulation
The shift from CBFC pre-screening to OTT self-regulation has pros and cons. On one hand, platforms now enjoy far greater creative freedom: they bypass the CBFC scrutiny altogether. For filmmakers, this means no government body cuts or bans their work before release. On the other hand, author argues perpetuation of a chilling effect on the content. The IT Rules impose broad “content codes” (e.g. to avoid anything hostile to public order, national integration, or religious sensitivities). In practice, many OTT services now self-censor out of caution. They employ internal review committees and community guidelines that function like a “shadow CBFC” removing or altering content so as not to offend authorities. As one analysis notes, some fear the new regime resembles pre-censorship: requiring platforms to police their own content in advance may “unduly infringe” speech.
Moreover, the incentives are skewed. OTT companies are for-profit, global firms; their priority is to avoid legal troubles or public backlash. If a show triggers complaints (e.g. FIRs under IPC sections for “hurting religious sentiments”), the platform faces lawsuits, boycotts, or even bans. Recent examples include police complaints against Netflix’s Tandav and A Suitable Boy, and Maharashtra’s blocking of India’s Burning series on Amazon Prime. In short, an OTT producer is “penalized twice”: it self-trims content to dodge trouble, and if something slips through it can be prosecuted. Critics argue this risk drives OTTs to over-censor, ironically undermining free expression.
The courts so far have been wary of broad new censorship. In October 2024 the Supreme Court dismissed a public-interest petition demanding a new CBFC-like regulator for OTT, calling it a “policy matter” for government. The Court noted that existing laws (IPC, POCSO, etc.) already penalize unlawful online content. Petitioners had alleged inequality (OTT vs cinema) and urged pre-vetting, but the SC held that remedies like takedown orders and prosecutions can address any harm. In other words, until a law is passed, India relies on ex-post enforcement (complaints and penalties after publication), rather than upfront censorship.
It is settled law that once the board has cleared the film for public viewing, screening of the same cannot be prohibited, citing law and order. It is the duty of the State to maintain law and order. The process followed by CBFC is uniform, visible and appealable. In the absence of statutory pre-censorship, OTTs rely on an internal censor board creating what the author argues is a “Shadow CBFC” serving as a form of ‘gatekeeping’, driven by their apprehension of potential liabilities. Till the time the aggrieved reach the Level-III oversight mechanism with their grievances, the content is already released following the approved pre-censorship of the internal censor board of the OTT.
The Road Ahead: One Framework or None
When it comes to regulating online content, India is standing at a crossroads. One option is to move towards a uniform censorship framework. The draft Broadcasting Services Regulation Bill, 2023, aims to replace the old Cable Act and bring OTT platforms under a stricter regime. Under this proposal, streaming services would need to register with the government and set up Content Evaluation Committees to clear shows and films before release; essentially acting as private in-house film boards. While this would put OTT on the same footing as television, the model raises concerns about political interference, the absence of appeal mechanisms, and the unfair treatment of identical content across different media.
The other option is a more liberal path- scaling back censorship. Many argue that pre-release checks should go, and unlawful content can be tackled under existing laws like defamation, obscenity, or hate speech. This approach gained judicial backing in Justice for Rights Foundation v. UOI, where the Supreme Court made it clear that the IPC and IT Act already provide enough safeguards. Even legislative moves reflect this thinking: the 2023 amendments to the Cinematograph Act allow theatrical certificates to cover OTT and TV release as well, signalling that the government sees all platforms as part of the same public space.
What is becoming unsustainable is the current dual system- heavy-handed pre-censorship for films, and a quiet, opaque review process for OTT. The real question now is whether India should adopt a transparent, age-based certification model for all media, or lean toward post-publication enforcement.
(This post has been co-authored by Isharth Kumar and Priyanshu Kasliwa, fourth-year students at National Law Institute University, Bhopal.)
Isharth Kumar and Priyanshu Kasliwal, ‘Shadow CBFC: The Double-Edged Sword of OTT Self-Regulation’ (The Contemporary Law Forum, 10 November 2025) <https://tclf.in/2025/11/09/shadow-cbfc-the-double-edged-sword-of-ott-self-regulation/>date of access.