Content Regulation In The Age Of OTT: Balancing Creative Freedom And Legal Accountability In India

Content Regulation in the Age of OTT: Balancing Creative Freedom and Legal Accountability in India¹

Introduction

India's moviegoer culture has witnessed a complete makeover with the emergence of Over-The-Top (OTT) services like Netflix, Amazon Prime Video, and Disney Hotstar. OTT platforms have given creators the liberty to tell unapologetic stories without prior censorship. Nevertheless, this new freedom is not without its consequences. The lack of explicit regulation meant that eventually, there were controversies about offending content, and the government had to intervene. The question then is: how do we police digital content without squelching creativity or breaking constitutional freedoms?

The OTT Boom and Its Regulatory Gap

OTT growth has made content consumption democratized. Audiences can enjoy a variety of shows and movies in different languages, cultures, and genres anytime and anywhere. But this liberty from classical censorship created considerable anxiety. While the CBFC regulated movies and TV under the Cable Television Networks Act had their self-controls and timetable-bound mods, OTT content was in an open self-regulated zone.

As freedom was celebrated by creators, backlash ensued, following content that included nudity, political content, or religious depictions. Judicial grievances and mass protests generated increased demand for formal regulation.

The 2021 IT Rules: A Turning Point

In an effort to deal with the absence of regulation, the Indian Government has brought the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules were particularly aimed at digital news media and OTT content, establishing a formal three-tier regulatory mechanism:

1. Self-regulation by publishers, with the requirement of grievance redressal officers and transparent content classification.
2. Self-regulatory bodies including industry players and retired judges to resolve pending grievances.
3. An Oversight Body under the Ministry of Information and Broadcasting (MIB) that can issue warnings, insist on apologies, or direct removal of content.

The Rules also mandated platforms to implement content classification (such as U/A 13+, 16+, and A), parental locks, and age verification mechanisms.

Creative Freedom in Jeopardy?

While regulation aims to prevent harm and misuse, many argue that the IT Rules risk curbing artistic expression. Filmmakers and OTT platforms believe the mechanism resembles pre-censorship, which violates the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution.

One significant issue is the dependence of the oversight body on the government, which it is supposed to monitor. This has occasioned suspicions of political censorship of content deemed critical of the state or touching on sensitive social topics. However, it's also necessary to recognize that freedom isn't absolute. Free speech may be reasonably restricted under Article 19(2) in the interest of public order, decency, and morality. The difficulty arises in determining what constitutes a "reasonable" restriction in the age of the internet.

Indian courts have adopted a conservative view. In Justice for Rights Foundation v. Union of India, the Supreme Court rejected a censorship plea for OTT content, highlighting the sufficiency of current laws such as the IPC, POCSO, and IT Act to address offending content.

Yet, other shows such as Tandav or A Suitable Boy have had police complaints and FIRs under section charges of hurting religious sentiments and spurring enmity. This multiplicity of laws and confusion about jurisdiction has left all creators, platforms, and regulators perplexed.

A framework for the Future

For progress, India needs to embrace a complex and participatory model of regulation that harmonizes freedom of expression with responsibility. An important step towards this is robust self-regulation led by autonomous, industry-driven institutions representing civil society. This would enable equitable adjudication of grievances related to content without excessive state intrusion. Simultaneously, making the audience digitally media-literate is crucial so that viewers are able to make well-informed decisions using classifications of content and parental filters. The present three-tier system of grievance redressal also needs to be made more transparent, efficient, and less political to ensure trust in the system. Notably, regulation of content needs to eschew prior restraint in favor of post-publication solutions that do not censor creative work in advance. Finally, OTT platforms and producers need to be incentivized to represent India's cultural diversity and linguistic as well as a great sense of responsibility towards high editorial standards, presenting diverse voices.

Conclusion

OTT platforms have changed the face of Indian entertainment by making possible those stories that were unthinkable in traditional cinema or television. But with the new space, there is a new responsibility, for platforms, for creators, and for the government.

Regulation of digital content is not silencing creativity but making sure the expression is exercised with a conscience of responsibility, especially in a multicultural democracy such as India. The future of content regulation in India thus needs to tread a delicate line: safeguarding constitutional freedoms and sustaining social harmony and enforcing the law. While doing this balancing act, India can be a model for democratic regulation of content in the digital age.

Footnote

1. Shivam Singh, 4^th year Law Student at Dharmashastra National Law University, Jabalpur

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