Introduction
The online video streaming market in India is now developing at a compound annual growth rate of 22%, due to decreased data costs and increased Smartphone penetration among Indians. Cheaper costs and a lack of regulatory constraints, has led to faster adoption and greater content generation over numerous platforms. Presently, India lacks any law or regulation to filter on-screen content that is shown on these services, and several petitions have been filed before various Courts across the country. For example, Netflix was chastised for running a web series called ‘Sacred Games,’ which had multiple graphic scenes, including frontal nudity similarly, ALT Balaji, another popular video streaming platform, was investigated for running a web series with comparable obscene scenes . The Apex Court has issued a notice to the Central Government regarding a plea seeking regulation of online streaming services.
Meanwhile, streaming providers have proposed a solution to this problem by implementing a self-regulation code in collaboration with the Internet and Mobile Association of India. The ‘Code of Best Practices for Online Curated Content Providers,’ signed by nine streaming providers. As a result, the fundamental problems that will be addressed in this article are whether or not these services must be subjected to censorship, and if so, which sort of regulation, self-regulation or regulation by statutory authorities. A balance needs to be struck between the current framework/regulations related to online streaming services in India and one’s creative freedom guaranteed under Article 19 of the Constitution on the one hand and public sentiment on the other. [1]
Established Model Involving Content Regulation in India
Although there is no formal law in existence for online streaming services, the Hon’ble High Court of Delhi held in Justice for Rights Foundation v. Union of India,[2] that the provisions of the Information Technology Act, 2000 and the rules formed thereunder are applicable in such cases and that the Statutory Authority with power under the Act can take action under Section 69 of the Act when allegations of publishing or sending content in any electronic form,[3] as defined in Sections 67, 67A, 67B, and 68 of the Act,[4] are received. There appears to be a legal vacuum when it comes to the type of content that can be shown on streaming services.
Apart from the laws of the Information Technology Act and the norms outlined therein, the voluntary code of conduct developed by the India Mobile and Internet Association of India, which has obtained endorsement and permission from 9 Over-the-Top providers, is now in force. Part B of the Code broadly provides for three major things:
Prohibited content,
Age inappropriate or sensitive content, and
Internal Complaints Redressal Forums and procedures for filing complaints with them.
The sole drawback to this type of self-regulation is that it does not encompass all OTT service providers, resulting in uneven treatment.
Statuatory Regulation or Self-Regulation? The Way Ahead
There’s a need for steaming services to be governed by laws and this is because films have a significant impact on society in a country like India. Because of their popularity, some political leaders originate from the film business, and other political leaders frequently seek their assistance to attract votes. In the case of S Rangarajan v. P Jagjivan Ram,[5] the Supreme Court of India stated that “the cinema cannot function in a free market area like the newspaper, magazine, or advertisement.” A movie inspires thinking and action while also ensuring a high level of attention and retention. It generates an impression by stimulating both the visual and auditory senses. The use of strong light on a screen in conjunction with the dramatization of facts and opinions enhances the effectiveness of the concepts.
Self-regulation refers to a specific sector, industry, or profession establishing its own set of rules or code of conduct for its operation without interference from the state and establishing its own body to enforce such regulations as laid down by them for any redressals. One of the key justifications advanced by proponents of self-regulation is that participants in such organisations have far superior knowledge than outsiders, making them more efficient, cost-effective, and adaptable. Self-regulation is also seen to be more successful by organisations in a certain industry because these regulations are created by the organisations themselves. Certain sorts of rules, if enacted by the state, may potentially raise constitutional concerns. For example, if cigarette and pan masala ads were prohibited, trade groups would challenge such regulations on the grounds of their right to engage in trade and profession. Such cases can be prevented if the same rule is created as a consequence of self-regulation. If a body such as the CBFC is to regulate the material on streaming platforms, it would place a significant burden on the producers because the cost of certification is expensive, along with time necessary for certification must also be considered, as the Act allows the authority to certify a film for up to 68 days.[6]
The current framework relating to satellite/cable televisions and theatres/cinema halls will not be appropriate to online streaming services, because the former category is showcased to a large audience, i.e. there must be ‘public exhibition’ of ‘cinematograph films’ in the case of theatres/cinema halls, and viewers must watch what the broadcaster airs in the case of satellite/cable televisions.
In the case of internet streaming services, the audience has the option of seeing the type of material he or she wants to watch, as in, it is his or her prerogative to view a certain programme from the list of curated content that the streaming services supply. Given that OTT content is available over the internet, it is likely that online censorship regulations will apply to the content offered by OTT service providers. In Shreya Singhal vs. Union of India[7], the Supreme Court ruled that user-generated content (UGC) cannot be censored online, but delegated the question of on-demand video content, such as that provided by OTT services, to the Information Technology Act of 2000,[8] which contains a content regulation provision empowering the government to regulate intermediaries, such as OTT platforms. Self-Regulatory Guidelines for Online Curated Content Providers: On 5 February 2020, the Internet and Mobile Association of India (IAMAI) announced the establishment of the Digital Content Complaint Council (DCCC) to supervise the development and distribution of content in the online content streaming market. As a result, the level of inspection that must be applied must be smaller than that placed on other transmission channels. As an enhancement, the new code contemplates a two-tiered complaint redress procedure. According to this provision, all complaints must first be submitted to the Digital Content Complaint Forum (DCCF) of the relevant OTT provider, and if they are not addressed, they are brought before the DCCC. DCCC, on the other hand, is mandated to consist of nine members, led by a retired judge from the Supreme Court or High Court. It is more extensive than its predecessor, but it has failed to gain membership from the majority of OTTPs.
Another argument in favour of self-regulation is that internet streaming services were already subject to self-regulation prior to the implementation of this rule. Amazon Prime, one of India’s streaming services, broadcasts a show called ‘The Grand Tour,’ which concentrates on automobiles. In one episode, the automobiles were built from animal flesh and skeletons. In India, the show was cut to about half its original length. Similarly, another show, ‘American Gods,’ was sanitised in the Indian version and had blurred nudity. As previously said, all streaming services in India are changing and adhering to their own code since their brand and goodwill are at stake, and they must adapt to public feelings and morals in order to thrive in the Indian market. Netflix started streaming in 2007, launched its first international market in 2010, and started producing its own programming in 2012. In 2015, Netflix produced 48 original shows and specials all over the world and by early 2017, Netflix expects to be available in over 200 countries. This rapid growth is both a byproduct and necessity of the framework for Internet TV networks that Netflix has laid out, based on a subscriber-centric business model[9]. By listening to its consumers and defending their right to access the exact content they want, when they want to watch it, however they want to watch – through net neutrality regulation and restructuring windowing strategies[10] – Netflix replaces old models with an international-friendly method of content production and distribution. It has a connection with the subscribers for its business so these platforms aim to minimize the viewer dissatisfaction and aims towards a prosperous growth through symbiotic relation between the content and what consumer wants.
This provides even another compelling justification for enabling self-regulation, as these streaming services now have more responsibilities to the public. This argument is strengthened by the approval of the Self-regulation Code by online streaming services. Although Amazon Prime refused to join the Code, claiming that existing Indian laws were enough for dealing with rejected content, it nonetheless guarantees that self-regulation is done on its own terms for the above reason alone, namely to preserve its existence. As a result, even though certain OTTs are not signatories to the Code, they end up self-regulating. This phenomena has occurred not only in the internet streaming area, but also in other industries, such as the fast food business. McDonald’s, Burger King, and others have all refused to sell beef on their menus, highlighting and strengthening the claim that corporations prioritise cultural norms and feelings. The meaning of censorship also depends on the case to which it is applied. The construction of its meaning and purpose relies on three factors: the reasons for censorship, the medium or parties subjected to it and the means used for enforcing it. Hence, in most cases, censorship either involves state actors prescribing laws and rules for content exhibition, or, in some cases, it becomes self-censorship wherein content providers themselves put limitations on the circulation of their own content, depending on certain factors. Another form of censorship is societal censorship, the case where societal norms prescribe the nature of the content being disseminated. However, this reasoning may be ineffective in defending the cultural values and attitudes of minorities.
Conclusion
The present market for internet streaming services is still in its infancy, and a few isolated occurrences have sparked public outrage and a lack of legislation to govern their behaviour. It is critical to recognise that internet streaming services are not the same as traditional entertainment mediums like satellite/cable television or movie theatres. History indicates that when a technological tipping point is reached, the government will seek to enact laws broadening its content control scope. This would imply that even while industry attempts at self-regulation can be in the appropriate direction, the government will eventually develop the legislation.
In the case of Stanley v Georgia, Justice Thurgood Marshall stated that “a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch,” and this case was cited by the Supreme Court of India in the case of District Register & Collector, Hyderabad v. Canara Bank.[11] This should be considered as a word of caution before going into controlling such streaming platforms, as an individual’s decision, as well as a creator’s right to express his freely, is affected. The government should view the Internet as a marketplace for ideas that transcends geopolitical issues and, as a result, should establish laws that are rooted in and adhere to the logic of technical advancement. The government should also consider the future of India’s free speech system, which will have a significant impact on the effects of content restriction.
If the court precedents on why the medium of motion pictures (audio-visual) has greater appeal and hence requires more restriction than any other form of communication are analysed, a convincing argument does emerge in favour of censorship and certification of the material online. The limits under the Cinematograph Act and its recommendations were challenged under Article 19(1)(a) of the Constitution in the case of KA Abbas v. Union of India. The ruling, written by the then-Chief Justice of India, Justice Hidayatullah, held that only films, not books or other print media, were required to be reviewed by a censor board before publication. The reasoning behind this is that films have a greater appeal than other forms of art or expression because they are more realistic to life and capable of arousing deeper emotions than any other medium. However, the fact that these internet streaming services are on-demand must be considered while developing a framework. Any regulation of material on OTT video platforms is expected to have a direct impact on the ability of states to control other types of online content and to have a snowball effect on other OTT services. It might be an opportunity for the government to create a regulatory paradigm based on convergence that aligns policy with technology advancement.
To summarise, self-regulation among internet streaming services would be appropriate at this time, and with corporations facing fierce rivalry from their competitors, it would not be a sensible option for them to face public anger by streaming content that offends society’s sensibilities. Although the Supreme Court of India has sent a notice to the government in response to a petition about this subject, the administration’s position can be seen plainly from its previous comments; it is leaning toward self-regulation. Therefore, it is anticipated that a multi-stakeholder strategy to self-regulation will be the most suitable for India. Such a model should be established by stakeholder dialogue and industry consensus, with no government intervention.
[1] The Constitution of India, 1950, Art. 19.
[2] Justice for Rights Foundation v Union of India, 2019 SCC OnLine Del 11902.
[3] The Information Technology Act, 2000, § 69.
[4] The Information Technology Act, 2000, § 67, 67A, 67B & 68.
[5] S Rangarajan v P Jagjivan Ram, 1989 SCC (2) 574.
[6] The Cinematograph Act, 1952, Rule 41.
[7] Singhal v. Union of India, (2013) 12 S.C.C. 73
[8] Government of India, Information Technology Act, 2000
[9] Spangler, T. (2008b, Nov. 3). Netflix gets TiVo’d.
[10] Edwards, C. & Sherman, A. (2013, Sept. 26). Netflix seeks presence on US cable-TV systems to
expand.
[11] District Register & Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496.
This article has been authored by Aanjul Dalela, a law student at Jindal Global Law School, O.P. Jindal Global University. This blog is a part of RSRR’s Blog Series on “Emerging Technologies: Addressing Issues of Law and Policy”, in collaboration with Ikigai Law.