OTT Self-Regulation Code | A balancing act between artistic expression and consumer protection

In a slew of changes witnessed during COVID-19, about 40 over-the-top (OTT) platforms such as Amazon, Netflix, and Disney Hotstar have become frontrunners in providing high quality entertainment for a user base who has transitioned to a home-bound lifestyle.

The rising prevalence and user base of OTT platforms has propelled the information and broadcast ministry to promulgate an overarching statute which provides for self-regulation of OTT platforms. For instance, films are governed by the Central Board of Film Certification (CBFC), television channels are broadly regulated under the Cable Television Networks Regulation Act, and the print media has the Press Council of India (PCI); however, the digital media space has been unregulated till now in India. These bodies, however, lack the necessary tooth and nail in terms of review, enforcement and penalisation powers for violation of their guidelines.

Admittedly, such self-regulation brings the television, print, radio, film and digital media on a level playing field; however, a heavily regulated structure may hamper the industry’s ease of doing business, thereby affecting the existence and effectiveness of such regime in attaining its primary objectives. However, such regulation is necessary in times where sensitive video content and fake news travel far and wide quickly.

The I&B ministry has received numerous complaints regarding foul language, violence, adult content shown in OTT platforms, which is inappropriate for audience below the age of 18. Moreover, complaints against single-shop digital new websites have also risen in regards to the circulation of fake news without retraction or clarification. These complaints were largely dealt by the communications and IT ministry with provisions under the Information Technology Act and the Indian Penal Code as an armour and/or sword. However, the proposed regulation is likely to accord a higher degree of protection to its viewers in a previously unregulated domain.

Moreover, this regulation is likely to address and provide redress of consumer complaints on OTT content. Currently, the existing gatekeepers such as the PCI lack the necessary teeth to govern the media because of the absence of powers enforcement and penalisation if guidelines are violated.

Thus, the proposed move is indicative of the right approach; however, the government must be wary of an overly regulated regime, which may prove to be counterintuitive to the sustainable development and regulation of different media platforms under a single regulatory framework.

The Self-Regulating Code is a positive step taken on the part of content providers to regulate their platforms. Such a code would provide creative freedom to content creators while imposing ‘reasonable curbs’ on OTT platforms to regulate the domain.

The code is likely to address peripheral and core issues through such self-regulation, subject to an adequate and honest implementation by digital platforms. Although OTT platforms are at a nascent stage in India, the conjoined efforts of the government and content providers will adequately balance creative freedom with regulation.

Sonam Chandwani, Managing Partner at KS Legal & Associates. Views are personal.