Antitrust Laws In The OTT Regime – Old Wine In A New Bottle

With digital technology being ubiquitous it has become core of modern economics especially in this pandemic ridden world. Digital networking once a luxury has established itself into an existential necessity. Owing to government efforts for making India digitally able and ever increasing data user base, in 2021 alone India recorded 624 million with the rate of hourly increment.

One of the most used essential applications of digital technology in India is OTT platforms. Over – the – Top (OTT) services refer to any type of video or media streaming that allows a viewer to access movies or TV shows by sending the media directly to the Internet. Some of the more popular OTT providers include Netflix, Amazon Prime Video, and Disney + Hotstar. A typical Over the Top service provider requires the user to have an internet connection in order to stream their videos and media content. Most of the OTT services are accessed through the online websites and apps of the OTT provider which requires a subscription for their use against a fee. India has 353 million OTT users and 96 million active paid subscriptions2, which translates into a penetration of 25.3%. The OTT market is segmented into video on demand advertising (AVOD), video on demand subscription (SVOD) and freemium and transactional video on demand (TVOD). However, the subscription market (SVOD) continues to grow significantly. In 2019, Netflix announced a mobile and tablet-only plan for just INR 199 per month to acquire new subscribers.

OTT – a platform in need of major revamping and regulations

Although OTT platforms have made entertainment as simple as clicking a button it is still in the row for acceptance by some sections of public due to the complexity of its contents concerning sentimental values of people.

In terms of legal validity unfortunately there is no specific legislation dedicated to regulation of media in OTT platforms earlier it came under the ambit of IT Rules of 2000, Sections 67A, 67B and 67C make it illegal to post or distribute pornographic or sexually explicit material, as well as material depicting children in sexually explicit acts, in electronic format. The Indian Penal Code is formulated to prosecute anyone who has been involved in the sale or distribution of obscene literature (section 293). Anyone who posts defamatory comments (Section 499) is intended to intentionally and maliciously promote religious sentiments (Section 295A). The sale and distribution of child pornography is illegal under the POCSO (Protection of Children from Sexual Offences Act). According to the Constitution of India, the rights under Article 19  can be curtailed by applying fair restrictions if the content harms the welfare of the state, disrupts public order or foreign relations, or incites criminal conduct. Information Brokerage guidelines  may also apply to OTT platforms that qualify as “brokers” under the Information Technology Act. The Indian Film Act of 1952 introduced censorship as a means of protecting the public from immorality. Despite the absence of legislation, many OTT platforms have signed the Self-Regulatory Code “Code of Practice for Provided Content organized in line “prepared by the Internet and Mobile Association of India (IAMAI).

The aforementioned laws briefly touched the colossal spectrum of OTT platforms but that was until recently. In 2019 a Special leave Petition was filed before Supreme Court by NGO Justice for rights foundation claiming that these platforms not only display unlicensed, unregulated and uncertified content, but also operate without being governed by any guidelines. The plea further claimed that due to the lack or absence of guidelines to govern online platforms, government agencies create a special class of broadcasters and discriminate against the consumers TV manufacturers by cable and D2H operators. This PIL changed the stance of Government and regulatory authorities on jurisprudence of OTT platforms in India. New guidelines were issued and mandated by Ministry of Information and Broadcasting on 25th February, 2021 for all OTT platforms operating in India. These guidelines were named Intermediary Rules 2021,

(Guidelines for Intermediaries and Digital Media Ethics Code)1 which came under amended section 87(2) IT Act, 2000.

HIGHLIGHTS OF THE NEW RULES

  • These new rules mandated OTT platforms to have a comprehensive three-tier complaints Redressal system. The first level of regulation will be carried out by the OTT platform itself, via a compliance officer. The second level will be a self-regulatory institution made up of content publishers and their associations. An inter-ministerial committee set up by the third level MIB will supervise and hear appeals against decisions taken at the second level or even if the MIB refers a complaint to the transversal
  • Rule 4 of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 cast a responsibility of care and scrutiny upon the intermediaries and OTT platforms followed by the intermediaries. The Rules also act in consonance with the provisions enunciated under section 79 of the Information Technology Act ,2000, which pertain to the mandate of prima-facie establishing the credibility of the information or data being presented by the Rule 3 of the Intermediary Guidelines,2021 specifies that the data intermediary should perform certain due diligence activities such as publish and visibly display the privacy policy , product use terms and conditions and user agreement on the website or the application . It should also be deliberated by the intermediary that the privacy policy or user agreement so published shall not contain any information , term or condition which is detrimental , derogatory ,unfair or discriminatory to the user or any other beneficiary of the service.
  • The Rules establish a criterion for classifying content based on the age, themes, content, character and effect of the viewer, and also require that OTT platforms take into account the sovereignty, stability and friendly ties of the viewer. Content rating categories are “U” (suitable for all ages), U / A 7+ (suitable for ages 7 and up), U / A 13+ (suitable for ages 13 and over), U / A 16 + (suitable for people over 16) and “A” (suitable for people 16 and over) (limited to adults). For content classified U / A 13+ or higher, OTT platforms must implement access control
  • Subsequently, additional due diligence by significant social intermediaries must be observed under Rule 5 of the Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021. List the aspect of the appointment of the Compliance Officer, Nodal Contact Person and Resident Complaints . Mandatorily, a monthly compliance report must be published. This report should contain details of complaints received and actions taken following such complaints, as well as details of content removed proactively. The physical presence of this official is highly imperative.
  • One of the intrinsic provisions introduced in the IT Rules, 2021 is the ‘Voluntary User Verification’. It provides the service users an appropriate means to verify and identify their account from potential misuse by third parties .

Conclusion:

The need for calling of regulation and censorship is not new to the industry, taking into account the increase in number of complaints and FIRs against explicit content available on OTT platforms which is uncensored. In the present environment , where both free media and censorship are present simultaneously , it becomes essential that necessary measures should be taken by the government to regulate the content of these independent media outlets, while at the same time ensuring that freedom of speech is not being curbed.

Author: Akshit Gupta  – a  Student of Bharti Vidyapeeth , New Law College (Pune), in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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