By Madiha Pagarkar, & Riya Barve 
Over The Top platforms or OTT platforms have seen massive growth in India in recent years. With an ever-increasing user base, these platforms have been pushing out content non-stop to meet the rising demand while remaining almost entirely unregulated. On the 25th of February, the Indian Government introduced the new Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, or the IT Rules, 2021, to replace the previous Information Technology (Intermediary Guidelines) Rules, 2011 under the IT Act, 2000. These rules have been enacted with the intention of providing a single regulatory framework to combat the increasing amount of child pornography and hate speech seen on these platforms.
While there has been a need to regulate and apply at least some degree of censorship, the way the IT Rules have been enacted, with no consultation with existing OTT players, may hinder one of the fastest-growing industries in the country. Factors such as costly penalties, a very small compliance window, vague and arbitrary guidelines, etc., may deter international companies from investing.
Additionally, online news platforms and social media sites also come under the purview of the new IT Rules, 2021. While including as many areas as possible under a single regulatory framework may seem like a good idea, it raises an important question. Should these three vastly different mediums really be under the same guidelines?
CODE OF ETHICS
The rules and regulations provided by the government for governing the OTT platforms include a code of ethics which prescribes news and current affairs to follow the Norms of the Journalistic Conduct of Press Council Act and the Programme Code of the Cable Television Act. Streaming platforms like Netflix and Amazon Prime Video have to make sure that their content does not affect the integrity and sovereignty of India. It also suggests that the platforms exercise discretion and due caution while dealing with the content related to multi-religious and multi-racial identities.
All content curated online has to be classified according to the age-based content category, restriction of access to a child, measures to improve accessibility for persons with disabilities.
SO, WHAT DOES ALL THIS MEAN?
Foreign as well as Indian shows were prosecuted by the public as well as the media for being obscene, offensive to certain religions, or slanderous. The new laws compel OTT platforms to have a comprehensive three-tiered grievance redressal procedure to address customer complaints. The first level will consist of regulation by the OTT Platform itself, which will be carried out through the use of a grievance officer. The second level will consist of an institutional self- regulatory organisation that will be formed by content publishers and their groups. It will be chaired by a retired Supreme Court/High Court judge or other notable personality in the appropriate profession, and it will be composed of industry specialists. The MIB has established an inter-departmental committee at the third level, which will offer supervision and hear appeals for decisions made at the second level, as well as any complaints that have been submitted to the inter-departmental committee by the MIB. It also prescribes the content to be bifurcated based on not only age but themes, tones, impact, and audience.
However, it also raises some questions: Can someone who watched the content despite the warnings made available by the OTT platforms complain to the grievance officers? There is no clarity on this subject, as content warnings warn the viewers about what to expect in the upcoming art. However, they do not, nor can, control whether the viewer can view it or their reaction to said content. So, when a viewer reads the content and proceeds to consume the content, does he have ground to file a grievance? Do content warnings absolve the OTT platforms of their responsibility to the viewer? Are content warnings the new ‘conditions apply’ of the content producing world? The rules provided are subjective, vague and do not give grounds for registering grievances.
Now, we need to monitor the impact of these rules because, as we have previously seen, harmful and offensive content floats around various platforms despite there being regulations and categorisations for the same. Content is fairly easily and widely available on the internet, and enforcing laws against it is nearly impossible unless the government is willing to spend billions of dollars every year just to keep an updated web content filtering system up and running.
By using proxy servers, you can gain access to all websites located outside of India that have been blocked. Is it true that blocking orders serve as a catalyst for increased traffic? The answer to this can be seen with the consequences of banning porn websites; India remains the world’s 3rd largestconsumer of porn. It will not be a successful initiative because you are increasing people’s curiosity about it. So even if the government exercises its powers through the new amendment and regulates or blocks certain content on the OTT platforms, an uncensored version will always be available to people through different means. In this Internet Age, absolutely nothing is ever lost.
THE TANDAV CONTROVERSY: A CASE STUDY
To examine the effect the IT Rules, 2021 have on free speech and creative freedom; we explore a TV series released on January 15, just a month before the IT rules notification. Tandav, a web series released on Amazon Prime Video, an OTT Platform, was subjected to controversy immediately after release. Multiple Hindu groups from all parts of the country claimed that the series hurt the religious sentiments of the Hindu community. Since before the IT Rules, OTT content was not subject to censorship before release by the Indian censor board, the Ministry of Information & Broadcasting presented these concerns to the creators of the show. Multiple FIRs were filed throughout the country against the directors, producers, and actors of the show. After being summoned by the I&B ministry, Amazon Prime Video issued a formal apology and agreed to remove or edit the objectionable parts that were brought to their attention. In a statement issued subsequently, the makers thanked the ministry for “guidance and support” and apologised for “unintentionally hurting anybody’s sentiments.”
Television broadcasts and movie theatres are vastly different from over-the-top (OTT) platforms. Instead of being forced to view a certain type of information, in the latter case, the audience can choose what they want to see in the privacy of their own home.
In other words, content streamed on OTT platforms is not broadcast, meaning that it is not intended for public exhibition; rather, it is intended for private viewing. As a result, it cannot be regulated under the Cinematographic Act, 1952, and it cannot be treated in the same way as television or cinema content. The third tier of the inter-ministerial committee is going to be following the guidelines of BCCC (Broadcasting Content Complaints Council), which was made for addressing the grievances of the public with regards to non-news general entertainment channels. The government came up with these new regulations because they realised that OTT could not be treated as Films or TV channels, yet they went ahead with treating it the same way. As a result, the formation of an IMC in accordance with the guidelines outlined above is not the best course of action.
As a statutory entity under the MIB Ministry, the Central Board of Film Certification (CBFC) may find itself involved in the censorship and filtering of OTT content, now that OTT services have been brought within the ministry’s jurisdiction. If the CBFC is given the authority to regulate and censor OTT content, it will suffer the same fate as cinema and television broadcast. It will be censored on the basis of “obscenity,” “immorality,” and “religious sentiments,” all of which are vague and open-ended terms, limiting the ability of creators to express themselves freely. The CBFC is well-known for misusing and overreaching the authority entrusted in it, as evidenced by the arbitrary censorship of films such as Udta Punjab and NH10.
A POTENTIALLY PROBLEMATIC SECTION
Section 3(2) the IT Rules lays out the specifics of the Grievance Redressal Mechanism and poses a serious threat to the right of freedom of speech and expression as any person can file a complaint at any time against content published on an OTT platform. This complaint must then be handled by a three-tier grievance redressal mechanism described in the rules as follows:
Tier One – self-regulation by publishers: A Grievance officer must be appointed, and their contact details, along with a mechanism by which a complaint can be filed, must be made available on the platform’s website. The Grievance Officer must acknowledge the complaint within twenty-four hours and deal with it within fifteen days from the date the receipt was issued.
Tier Two – self-regulation by the self-regulating body: A body of six members must be formed by the publishers to deal with complaints that have been dealt with unsatisfactorily by the Grievance Officer. This body can consist of people from different fields or organisations such as media, child rights, human rights, entertainment, or even retired judges. While this is supposed to be a “self- regulating” tier, government involvement can be seen from this level itself, as this self-regulating body must first be approved by the Ministry of Information & Broadcasting.
Tier Three – oversight by central government: if the self-regulatory bodies cannot satisfactorily deal with the complaint, an appeal can be filed, after which the issue passes on to the Ministry of Information and Broadcasting. The Ministry of Information and Broadcasting must form an Inter- Departmental committee to oversee compliance to the code of ethics and deal with any complaints.
To understand why direct government oversight is a bad idea, we must only look at recent history. From police raiding Twitter’s offices to oppositions’ accounts being suspended, free speech has not seen many liberties in this country since 2014. The raiding of offices is something independent media outlets have been subjected to for years. There have been systemic attacks on individuals’ and organisations’ right to free speech. We must finally learn to stop prioritising the adamant conservatives because it is convenient and find a way to balance values important to the conservative section of society with the non-infringement of basic rights such as the fundamental right to Freedom of Speech and Expression.
OTT platforms previously enjoyed a lot more freedom than their offline counterparts. Creators had the freedom to go to any length to put their story across to the audience. As a result, a great variety of perspectives and stories that the big screen may have previously neglected were being brought forward. However, with the recent atmosphere, OTT platforms, even before the IT Rules, were growing extremely cautious so as not to antagonise the government. These rules loom over the content creators threatening to bring an end to this onslaught of diversity and creativity as OTT platforms may choose the safer non-experimental route to prevent monetary losses. The clause that can be held culpable for the same is:
Clause II(A)(c) of the Code of Ethics made applicable to OTT platforms under the Intermediaries Rules, 2021, that states: “A publisher shall take into consideration India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.”
It is precisely this “multi-racial and multi-religious” background that make the IT Rules almost impossible to implement and highly impractical. While one of the goals of the said rules is to protect religious sentiments, prioritising religious sentiments of specific communities yet again over fundamental rights such as freedom of speech in a supposedly secular country is arguably misguided. Practising and propagating religion is a fundamental right but imposing it as morals and ethics to be abided by society is not.
These ambiguous IT rules give rise to a series of questions. Will the government give OTT platforms enough independence or be stringent? The guidelines claim to be ‘self-regulatory,’ but they are part of a regulatory system that has the potential to expand the government’s ability to censor content significantly. This is accomplished by linking the guidelines to Section 69A of the IT Act, which requires that content be blocked. As a result of the regulations, the government has the authority to intervene at any time. Following the implementation of the guidelines, content providers and OTT platforms may need to rethink their content development plans and concepts. The government justifies this by stating that these guidelines will help curtail harmful content and, with the right implementation, arm the users with the knowledge to make informed choices and create a level playing field between various mediums. However, only time will tell how effective these guidelines are and whether this compromise on creative liberties is justified.
 3rd Semester, BA LLB (Hons.), Kirit P. Mehta School of Law, Mumbai.