OTT UNDER RADAR

By

Janaki Ramkrishnan, BLS/LLB, from Rizvi Law college.

Change in times have created change in perspectives. These days’ movie dates have swiftly been shifted to Netflix and Chill. The new era of binge watching is capturing our lives. The approach of these OTT platforms has truly turned realistic. These web series and movies express reality and sometimes, in the process, exploit the underline norms of censorship. The content displayed on these streaming platforms differs to a great extent from the content displayed on television or cinema halls.

The rise of OTT platforms in India is more than a decade old. Their on-the-go approach made them more desirable as compared to the regular television shows and cinema. The first OTT platform to be introduced in India was BIGFlix. It was launched by Reliance entertainment in the year 2008. Soon SonyLiv, Amazon Prime and several other streaming platforms joined the race.

In a span of 12 years, India now has about 40 providers streaming on the OTT platform. These over the top platforms enjoy a good running in India. It was worth 2,150cr in the year 2018 and was expected to reach 35 billion in the year 2019. The year 2020 saw the shutdown of every episode which resulted in an increase in the viewers on these streaming platforms. As lockdown was imposed, people diverted their attention and time towards web series and movies on these platforms. As per the FICCI-EY Media and Entertainment report1, a Digital streaming platform overtook film entertainment to be ranked as the 3rd largest Indian media and entertainment sector in 2019.

These OTT platforms had their autonomy. They were vested with the power to decide the content to be displayed and the subscription fee for viewing their content. Simply put, they had no monitoring in any case. They had no codification within themselves too. There were no fixed norms of censorship to be abided by all the streaming platforms. This gave them the liberty to display any content without considering any censorship or morality norms. This liberty had its own repercussions. As there were no abiding laws, the content violated the true sense of our constitution in several instances. There were frequent disputes raised before various courts for content irregularities. Since there was no preventive monitoring, the option left was to cure it through litigation. To fill in this loophole, the Information and Broadcasting Ministry decided to come up with a negative list for all these streaming platforms. Basically, it would contain of the “don’ts” with regards to displaying content on these platforms. The prime intention behind it was to permit creative liberty while restricting the violation of norms of morality.

It was imperative to bring about regularisation on OTT platforms. Such monitoring was mandatory in movies or series which related to children, army or religion. Allowing complete freedom under the guise of creative liberty was creating negative impacts. There were instances where the Indian Army raised objections on a few shows. It was content that those shows portrayed the Indian Army in a negative way. Another instance was when the movie Gunjan Saxena ran into controversy. It was stated that the movie twisted with the true facts under the guise of creative liberty. Negative remarks about the Indian Army on the Internet are against our constitutional value. Therefore, the Defence Ministry wrote a letter to the Central Board of Film Certification suggesting that the production houses should take a NOC from them before displaying any content related to the army, navy or airforce.

Prior to this decision of releasing the negative list, few OTT platforms were urged to come up with a common self-regulation which was readily accepted by some online platforms. Through this they could escape the cuff of government censorship. In September 2018, various OTT platforms decided to come up with their own code of censorship and to create the Digital Content Complaints Council (DCCC). They decided to begin from the scratch and frame and unanimously agreed set of rules. This, however, could not be successful as Amazon backed out of the idea.

It was believed that the paying adults are responsible for what they watch, and this form of censorship could alienate the views. It was also content that since many have already paid for the amazon subscription, which is generally an annual plan, any deviation now would disappoint the viewers. Following this, various other streaming platforms also backed out. As a unanimous decision could not be taken, the self-regulatory code never came up.

With the increase in covid cases, the nation saw a massive lockdown. All outside activates were prohibited and going to cinemas came to a standstill. During such times people started opting for OTT channels even more. The viewing increased tremendously.

There was a rise in rural views as compared to urban viewing. This was when a writ petition was filed before the Hon’ble Supreme Court against these OTT platforms6. The petition emphasised that it was imperative to institute the board to monitor and manage the content available on the internet. It highlighted the already known facts. The new age shows depict more explicit scenes and violent language. Moreover, as these shows and movies are seen at leisure in one’s home, it is impossible to impose an age bar. Though certain platforms give warnings like ‘nudity, violence, drugs’, they don’t serve the required purpose.

The content watched on television or in cinema halls go through a long process of regularization and any content which could cause prejudice to the viewers or hurt any religious feeling are deleted. The content displayed in a cinema receives a certification from the censor board certifying them as either universal or adult. On basis of this certificate, the viewers are decided.

For a long time, there was a tussle between the OTT platforms and the Government with regards to censoring the former. Unfortunately, till date nothing constructive came out of it. As the OTT platforms could not unanimously set standards for the regulation, the Parliament amended the Government of India (Allocation of Business Rules) 1961. With this amendment it introduced two clauses under entry 227. This amendment brings movies, audio visual and news available on online platforms under the amid of the Information and Broadcasting Ministry.

Prior to this, the OTT platform was regulated by the Ministry of Electronics and Information Technology. Under MeitY these OTT platforms, they were given liberty with regards the contents they offered or subscription they charged. With this new change, the OTT platforms would also be liable for clearance and approval of their content firm, the certification board.

This move is not taken well by the film fraternity. They believe this movement would constrain their creative liberty. Certain shows require to be brought forth in their raw form. Everything cannot be censors or regularised. Bringing forth true reality with some cinematographic effect is enjoyed by the audience.

Bringing these OTT platforms on par with other platforms such as Television and Cinema didn’t seem like a justified move. This is because both these platforms provide the viewers different controls. As the later doesn’t leave the audience with much option, they are forced to watch the available content. In case OTT, the audience hold a greater control as they decide what to watch from a plethora of options. Since the approach differs and the rules of scrutiny being the same, it doesn’t seem to be a justified option as per these OTT platforms. Though the OTT platforms are now under the control of the Information and Broadcasting Ministry, they require a different set of guidelines with regards to their content regulation. They cannot be regulated on the same grounds as television shows are done.

Imposing of directive for the OTT platforms is not new.

Various developed countries have established guidelines which have to be followed by the streaming platforms. In Singapore the Infocomm Media Development Authority is the media regulatory body. It has set guidelines which are to be abided by these platforms. Similarly, Australia has made it mandatory for the streaming platforms to abide by The Broadcasting Services Act, 1992.

This was a long awaited step. Tampering with the morality and constitutional principles in the name of creative liberty was not acceptable. Though as of now the Government has brought the OTT platforms under the Information and Broadcasting Ministry, a framework is yet to be established. There are no guidelines set for these platforms. It is for time to show what extend this movement would change the content displayed on the streaming platforms. Content shown should connect to realty while preserving the integrity and morality of the nation. The Information and Broadcasting is vested with great responsibility of maintaining the constitutional values and at the same time not tampering with the new age reality essense source.

Endnotes

1. FICCI-EY Media and Entertainment report - http://ficci.in/spdocument/23200/FICCI-EY-Report-media-and-entertainment-2020.pdf

2. The Hindu (16th October 2019)- https://www.thehindu.com/news/national/centre-to-issue-negative-list-to-streaming-sites/article29711622.ece

3. Gunjan Saxena- The Print -https://theprint.in/opinion/newsmaker-of-the-week/gunjan-saxena-on-netflix-was-bharat-ki-beti-until-facts-came-tumbling-out/486932/

4. The Indian express- https://www.newindianexpress.com/nation/2020/aug/01/noc-from-ministry-of-defence-must-before-releasing-filmdocumentaryweb-series-on-army-theme-2177478.html

5. Amazon says no to self-censorship- https://inc42.com/buzz/amazon-india-says-no-to-self-censorship-urges-other-ott-players-to-follow/

6. Writ petition filed before Supreme Court of India - https://www.livelaw.in/pdf_upload/pdf_upload-382891.pdf

7. Amendment to the Government of India (Allocation of Business Rules) 1961 https://cabsec.gov.in/writereaddata/allocationbusinessrule/amendment/english/1_Upload_2604.pdf