Author: Vivek V. Yadav, Dr. D.Y. Patil, College of Law
Introduction
The fast expansion of Over-the-Top (OTT) platforms in India has transformed the media industry, questioning the significance of conventional broadcasting regulations. The rise of digital platforms such as Netflix, Amazon Prime, and Disney+Hotstar has highlighted the necessity for modernized regulatory frameworks. India’s current legislation, originally created for cable and satellite TV, is finding it challenging to adapt to the advancements in technology and content distribution.
Over the past ten years, there has been a significant change in the media environment in India, transitioning from the prevalence of cable and satellite TV to the sudden growth of OTT platforms. In 2023, India has become one of the top markets for OTT platforms globally due to its large consumer base for digital content and more than 750 million internet users. These services have made entertainment more accessible to everyone, enabling users to watch content whenever they want, however they have also introduced considerable legal and regulatory obstacles.
India’s broadcasting regulations, based on the Cable Television Networks (Regulation) Act of 1995, were created to cater to the requirements of conventional cable and satellite broadcasting. Nevertheless, these laws have found it difficult to keep up with the ever-changing landscape of digital media. OTT platforms work in a mostly unregulated environment, delivering content online instead of using traditional licensed television networks. These developments have sparked inquiries into standards for content, the authority of different jurisdictions, safeguarding consumers, and the extent of government censorship in the digital age.
This article offers an in-depth examination of the changes occurring in India’s broadcasting regulations, especially regarding new events like the 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. This article aims to pinpoint key regulatory gaps and provide guidance on future policy directions by analysing current literature, legal cases, and international frameworks.
Historical Context: Cable TV in India
The television scene in India began to change in the 1990s, coinciding with the increased popularity of cable TV. The Cable Television Networks (Regulation) Act of 1995 was put into place to supervise the airing of programs by cable operators. This law was created to oversee the growth of private broadcasters, uphold content standards, and protect consumers from unsuitable content. Cable TV introduced a variety of international and local programs, expanding choices for audiences and initiating conversations about morals, ethics, and cultural preservation.
The government made several changes to the Act in order to adapt to evolving industry dynamics. For example, the emergence of satellite television brought about additional complexities, necessitating an increase in content regulation. In the early 2000s, the government started enforcing a licensing system for broadcasters to make sure they followed specific content guidelines and maintained high transmission standards.
Nevertheless, as internet-based content delivery became more prevalent, the regulatory model cantered on broadcaster licensing and control began to demonstrate its restrictions. OTT platforms, delivering content through the internet, circumvent traditional infrastructure and regulatory supervision, requiring a completely different regulatory strategy.
Emergence of OTT Platforms
OTT platforms have drastically altered the conventional broadcasting model by delivering content straight to audiences via the internet. OTT platforms do not require investments in infrastructure such as transmission towers or licensed bandwidth, in contrast to cable and satellite broadcasters. The high degree of freedom has allowed global corporations like Netflix, Amazon Prime, and Disney+Hotstar to capture a significant portion of the Indian market.
OTT platforms have expanded thanks to factors like convenient mobile internet access, a digitally aware younger demographic, and an increased demand for varied content available on-demand. Between 2015 and 2021, there was considerable expansion in the Indian OTT sector, as subscription platforms started to replace traditional cable services. The Indian OTT market is projected to surpass $15 billion by 2024, positioning it as one of the most rapidly expanding media sectors worldwide.
Nevertheless, this expansion has also uncovered the lack of regulations under which OTT platforms function. OTT platforms do not have to follow the content rules from the Ministry of Information and Broadcasting or adhere to the licensing system that controls cable and satellite channels, in contrast to traditional broadcasters. This has
sparked worries regarding the absence of supervision in areas like content appropriateness, safeguarding minors, and handling delicate topics.
Regulatory Framework for Cable and Satellite TV
The Cable Television Networks (Regulation) Act, 1995 holds the primary authority over cable and satellite television in India. This law mandates that broadcasters must adhere to specific rules about content, including prohibiting obscene material, encouraging violence, and posing a risk to national security. Moreover, broadcasters must follow the programming rules established by the Ministry of Information and Broadcasting, which oversee the portrayal of delicate topics such as religion, race, and gender.
The law also sets up rules for cable companies, mandating that they must sign up with the Ministry and adhere to signal transmission technical standards. Broadcasters can face penalties for breaking content standards, including fines or losing their licenses through suspension or revocation.
In spite of these regulatory measures, the Act has received backlash for being too limiting and unable to keep up with advances in technology. For example, although the Act was created to oversee cable networks, it fails to effectively tackle the issues presented by satellite television, direct-to-home (DTH) services, or internet-based content distribution.
OTT Platforms: Legal and Regulatory Challenges
In contrast, OTT platforms function independently of the regulations of the Cable Television Networks Act. Lack of oversight in the digital space is a concern because online platforms do not have to follow the same licensing rules or content regulations as cable and satellite broadcasters. The lack of regulations on OTT platforms has resulted in multiple legal issues, especially in regards to content appropriateness, freedom of expression, and safeguarding consumer rights.
In an effort to tackle these issues, the Indian government implemented the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2021. These regulations, developed in accordance with the IT Act, 2000, serve as the initial comprehensive effort to govern digital content platforms, such as OTT services. Nevertheless, the application of these regulations has received varying responses.
2021 IT Rules and Their Impact on OTT
The objective of the IT Rules, 2021, is to govern digital intermediaries such as social media platforms, online news portals, and OTT platforms. Important aspects of the regulations consist of categorizing content according to suitable age ratings, implementing a three-level complaint resolution system, and mandating platforms to designate a chief compliance officer for overseeing compliance with the regulations.
One of the most contentious parts of the IT Rules is the stipulation for OTT platforms to independently enforce content guidelines via a “Code of Ethics.” This code, based
on traditional broadcaster programming codes, mandates OTT platforms to refrain from featuring obscene, violent, or national security-threatening content. Platforms should also include age-verification tools for adult content and offer disclaimers for sensitive material.
The IT Rules have generated discussion regarding their possible effects on freedom of speech and artistic creativity. Critics claim that the regulations give the government too much power over online material and may result in censorship. Numerous legal disputes have been raised against the regulations, as petitioners claim they breach the freedom of speech protected by the Indian Constitution.
However, supporters of the IT Rules claim that they are essential for safeguarding consumers, especially children, from harmful material. They also emphasize that the regulations introduce necessary responsibility to the online realm, where platforms have functioned with minimal oversight.
Comparison with International Regulatory Models
Other countries besides India are also encountering regulatory challenges posed by OTT platforms. Various approaches are being used worldwide to control digital content, ranging from government supervision to industry self-regulation.
In the European Union, the AVMSD provides a comprehensive framework for regulating both traditional broadcasters and OTT platforms. OTT platforms are obliged to adhere to content guidelines concerning hate speech, violence, and safeguarding minors as per the AVMSD. It also requires that platforms offer consumers transparent details about the content they are watching, such as age ratings and alerts about potentially dangerous material.
In the US, OTT platforms face minimal regulation with the FCC having limited control over digital content. The emphasis is on safeguarding consumers and their data privacy, with platforms obligated to follow privacy guidelines set by the Federal Trade Commission (FTC) and other regulatory agencies.
India’s regulations for OTT platforms are situated somewhere in the middle of these two extremes. Though the IT Rules incorporate some government supervision, they do not go as far as setting up a structured licensing system for digital content platforms. This has resulted in demands for the establishment of an independent regulatory organization, akin to the FCC or the European Audio-visual Regulators, to supervise the digital media environment.
Jurisdictional Complexities in Digital Broadcasting
Jurisdiction is one of the most intricate legal matters linked to OTT platforms. In contrast to traditional broadcasters confined by national borders, OTT platforms are worldwide services providing content internationally. This has resulted in difficulties with jurisdiction, especially in regards to regulating content and collecting taxes.
In India, OTT platforms must follow Indian laws as per the IT Rules, regardless of their headquarters’ location. Nevertheless, implementing these regulations on worldwide platforms comes with considerable difficulties. For example, material
that is permissible in one location may be prohibited in another, leading to debates about which nation’s regulations should be enforced.
The ambiguity in jurisdiction is also relevant in the area of taxation. Several streaming platforms from other countries make a lot of money from Indian customers, but have their main offices in countries with better tax regulations. This has resulted in calls for the Indian government to impose a tax on digital services requiring platforms to pay taxes on revenue earned from Indian users.
Content Regulation and Free Speech Concerns
The debate surrounding OTT platforms revolves around the central issue of content regulation. While it is important to shield consumers, especially minors, from dangerous content, there is a possibility that too much regulation could hinder freedom of speech and artistic creativity.
In the last few years, a number of prominent cases have prompted debate on the relationship between content regulation and freedom of speech. For example, the debut of specific web series on OTT platforms has caused debate about how they depict religion, politics, and societal issues. Critics have alleged that the government is using content regulation as an excuse to censor opposing viewpoints.
Simultaneously, there is an increasing call from the public for more rigid content control, especially following the rise of the #MeToo campaign and rising apprehensions regarding the representation of women and minorities in online content. Regulators face the task of finding a middle ground between enabling creative expression and safeguarding at-risk viewers.
Consumer Protection and Data Privacy
Aside from overseeing content, there are worries regarding safeguarding consumers and protecting data privacy. OTT platforms gather extensive data on user preferences, viewing behaviours, and personal details. Many times this information is utilized for specific advertising purposes, causing worries regarding its collection, storage, and utilization.
The Data Protection Bill in India, currently being reviewed by Parliament, aims to tackle these issues by setting up rules for gathering and managing personal information. If passed, the law would mandate OTT platforms to seek permission from users before gathering their information and to establish strong data protection protocols.
Nonetheless, worries exist that the legislation might not sufficiently safeguard consumers. Critics contend that the legislation has inadequate punishments for data breaches and does not afford users adequate authority over their personal data.
The Future of Broadcasting Laws in India
With the ongoing evolution of India’s media landscape, there is an urgent requirement for thorough reforms to the country’s broadcasting laws. The emergence of OTT platforms has revealed major deficiencies in the current regulatory system, which was originally created for the cable and satellite age. While the IT Rules aim to regulate digital content, they do not address all the complex issues arising from the OTT revolution.
In the future, India should adopt a more thorough approach to regulating media, taking into account the unique aspects of digital content distribution. This might include establishing a separate regulatory organization to monitor OTT platforms, comparable to the FCC in the US or the Audio-visual Regulators in the EU.
More clarity is required on jurisdictional matters, especially regarding cross-border content and taxation. India needs to collaborate with global partners to establish a unified strategy for regulating international digital platforms.
Conclusion
India’s broadcasting regulations are currently undergoing changes due to the fast-growing popularity of OTT platforms. Although the current regulatory framework was created for the cable and satellite era, it is becoming less compatible with the digital age. The implementation of IT Rules is a positive move, yet more effort is needed to update India’s media laws for the modern era.
As the media environment changes, India needs to find a way to support creativity while also safeguarding consumers. This will necessitate a thorough examination of the country’s broadcasting regulations, along with a dedication to supporting the values of freedom of speech and artistic creativity.
India’s broadcasting laws in the future will rely on its capability to adjust to evolving technological and consumer trends. India can ensure that its broadcasting laws stay current in the digital age by adopting a more adaptable and forward-thinking strategy for media regulation.
