The President of India through a Gazette Notification[1] dated November 09, 2020 ordered that the Ministry of Information and Broadcasting shall regulated the content of over-the-top platforms including film and video programs as well as new portals that are based online. The said notification added that the amendment to the Government of India (Allocation of Business) Rules, 1961 shall come into force at once.
Background
The abundant online news portals and over-the-top platforms such as Netflix, Amazon Prime Video, Disney+ Hostar, Zee5, Alt Balaji have been unregulated since their inception. While the print media is regulated by the Press Council of India (‘PCI’) and television including entertainment as well as news channels, are regulated by the Cable Networks Regulation Act, 2005. The objective of the notification is to maintain a level-playing field for all artists and stakeholders, whether operating online or in offline counterparts.
The notification can be said to be an extension to the Supreme Court’s notice to the Internet and Mobile Association of India seeking to regulate OTT content, on a PIL which was filed to regulate over-the-top platforms. It had further directed the central government to constitute an autonomous body or board for monitoring and regulation of videos on various OTT platforms operating in the country.
However, after due consultation, in September 2020, over 15 large OTT players had signed a self-regulation code to govern content on their platform, which included the mandate to have a Digital Content Complaint Council (DCCC) set up.[2]
According to the notification, the films and audio-visual programs made available by online content providers and news and current affairs content on online platform will be under the purview of the Information and Broadcasting Ministry. This means that digital content providers such as Netflix, Amazon Prime Video, Hotstar, Zee5, etc shall be regulated under the watchful eyes of the Ministry. It read as:
“In the Government of India (Allocation of Business) Rules, 1961 in the Second Schedule under the heading, “Ministry of Information and Broadcasting” after entry 22, the following sub-heading and entries shall be inserted name:-
“VA. Digital/Online Media
22A. Films and Audio-Visual programmers made available by online content providers.
22B. News and current affairs content on online platforms.”.
OTT Regulation around the World
All electronic communication in the US is regulated by the Federal Communications Commission (‘FCC’), which is an independent agency of the government that regulates communications by radio, television, wire, satellite and cable including the OTT services. The US has regulations over the internet.
Singapore has one of the staunchest censorship regimes for OTT content. In March 2018, the Infocomm Media Development Authority (‘IMDA’) issued a code of practices for OTT and video-on-demand services. Among other things, the code requires service providers to display the ratings and the elements in the content, including theme, violence, nudity, sex, language, drug use and horror which led to the rating, to be displayed visually and prominently to the viewer before such viewer chooses to consume the content.
In 2018 in the UK, the Director General of the British Broadcasting Corporation (BBC) called for a regulation on video streaming services such as Netflix and Amazon. The government released a white paper on the threat that unregulated online content posted and sought closed consultation on how it could be dealt with. It is pertinent to note that it is only concerned with ‘user-generated’ content.[3]
In China, streaming websites such as Netflix and Amazon Prime Video are banned. Hence, the digital content creation market is controlled by the country’s main internet companies. Additionally, the National Radio and Television Administration (‘NRTA’) regulates the amount of foreign content that these platforms can stream.
Conclusion
Discussions have been held on the regulation of online content for a very long time now, hence the notification is not a surprise. However, a few peculiarities remain unclear such as if all content will be regulated or if there will be a difference between user-generated content and curated content. Additionally, the roadmap for the regulation has not been given by the mentioned in the notification and there is no autonomous body set up for this purpose so far. If these are put in place within sufficient time, it will be easier for the regulators to regulate content.
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