By Ablaz Mohammed Schemnad and Apoorva Ramachandra
Over-the-top (OTT) platforms have gained prominence among the Indian audience in recent years. According to the latest ORMAX OTT Audience report, India has 54.73 crore OTT users, a growth of 13.8% compared to 2023 and a 55% rise since 2021. India’s OTT penetration stands at 38% of the country’s population. As per IBEF, the revenue for the Indian OTT market by players like Amazon, Netflix, and Hotstar is projected to grow from $1.8 billion in 2022 to $3.5 billion by 2027. OTT platforms allow users to broadcast various media content over the internet, like movies, web series, documentaries, and reality TV, through various devices by merely being connected to the internet and circumventing traditional cable and satellite television providers.
The web series Tandav released on Amazon Prime in 2021 sparked controversy for hurting religious sentiments, and the incident emphasised the demand for censoring content released on OTT platforms. Due to the growing popularity of these platforms, concerns about showing inappropriate content combined with the lack of regulation within the existing broadcasting-specific laws, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“OTTRules”) were introduced in 2021. These rules fell within the Information Technology Act of 2020.
The Ministry of Information and Broadcasting (MIB) introduced a Draft Broadcasting Services (Regulations) Bill, 2023, but it was withdrawn following public criticism of government overreach and a lack of need for a new law, as reported by The Financial Express. The bill attempted to implement a single consolidated framework and replace the existing Cable Television Networks (Regulation) Act, 1995, and other policy guidelines governing the broadcasting sector. There has been a notable transition in the landscape of mass consumption of entertainment options from a traditional television phase to a digitised OTT culture. Telecom Regulatory Authority of India (TRAI) has reported that the subscription base of the cable TV Industry has been declining steadily, from 98.5 million (in 2018) to 64 million (in 2023).
The Draft Bill, as explained by the MIB, was “introduced to streamline the regulatory framework and provide a cohesive legal framework for the diverse broadcasting networks, including OTTs.” The platforms would have to inform the Ministry when their subscription base crosses a certain threshold and adhere to a programme code, which is yet to be defined by the Ministry. Due to the lack of defined guidelines for content regulation, experts worry that broadcasters would start self-censoring. As the Draft Bill puts OTT platforms under “broadcasters,” internal content evaluation committees need to be established to certify each piece of content before it is uploaded. The rest of the guidelines overlap with the existing IT Rules 2021, requiring OTT platforms to classify content by age brackets, initiate a three-tier system for grievance redressal, and establish regulatory mechanisms, including self-regulating bodies.
At present, IT rules mandate several guidelines for OTT platforms. Some of them are publishing rules and regulations and privacy policy. Regarding content, publishers must make efforts not to display, upload, modify, publish, transmit, store, update or share any information that is harmful to a child, invades any intellectual property rights, is obscene, pornographic, pedophilic, invasive of another person’s privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence. However, these guidelines on content are not specific enough and can be misused by authorities.
As mentioned above, to ensure adherence to the code of ethics, the rules recommend three-tier structure for regulating these publishers: (i) self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii) oversight by the central government. With respect to grievances, complaints can be filed with the publisher and must be resolved within 15 days. If the complaint remains unresolved, the complaint can be escalated to the publisher’s association.
With the increment in the number of consumers over a relatively short period, following an exponential push during the Cov-19 lockdown, regulatory framework was observed to be inadequate according to the circumstances. As media content can influence people’s behaviour both positively and negatively, regulating OTT platforms is important. Regulations are needed for protection, safeguarding both viewers and listeners from being harmed and against misleading information. However, it is important to create a space for individuals to express themselves and ensure creative freedom. Freedom of speech and expression allows individuals to express themselves and contribute ideas that allow them to challenge norms, question authority, and explore different perspectives. The freedom to express diverse opinions artistically and verbally encourages the growth of an inclusive and diverse society.
Considering the expanding internet penetration, growing number of users and creators, and more time spent on consuming digital content, the platforms will look at publishing more content and even in regional languages. So, there is a need for a balanced regulatory framework to ensure responsible content is being put out. The IT guidelines that have been introduced to reflect India’s efforts to regulate this space. However, certain guidelines on the type of content that can be published are broad and subjective, which can be counter-productive for ensuring protection of constitutional rights such as freedom of speech and expression.
Ablaz Mohammed Schemnad is a Research Associate at the Centre for Development Policy and Practice (CDPP). He has a master’s in Development Studies from Tata Institute of Social Sciences, Hyderabad with a semester from Sciences Po Lille.
Apoorva Ramachandra is a Research Associate at the Centre for Development Policy and Practice. She has a Master’s degree in Economics from the Jindal School of Government and Public Policy. Her areas of research include development economics, urban development, environment and gender.
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