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Rohit Andley

The author is Associate at Trust Legal

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Much Required Regulations of the Digital Content Arrives

The content posted by the online news portals and the OTT platforms in India are not regulated to the extent they should be as there was no provision to regulate them.

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In our Country which is the largest democracy on this planet, the media is considered to be the fourth pillar of the democracy and thus, it has immense responsibility and power for exchange, expression of and to mould ideas. Earlier television and print media were the only sources of news and entertainment. With the unprecedented evolution of technology, it was only but natural to see birth of new segments of media like - online news portals and over the top (OTT) platforms such as Netflix, Amazon Prime and Hotstar. The emergence of these online media platforms has made it easier for people to use the online content and has also created a much wider opportunity for actors. It is of no surprise that the ease of accessibility to these online platforms has brought along a wide array of challenges in regulating fake information, disinformation, propaganda and obscene material available online.

Based on the directions of the Hon’ble Supreme Court of India to regulate the content posted online, the Government of India on 9th November, 2020 notified amendment to the Government of India (Allocation of Business) Rules, 1961 by adding Online/ Digital Media in The Second Schedule of the Rules, under the heading “Ministry of Information and Broadcasting (Soochna Aur Prasaran Mantralaya) as entry 22A and 22B”. 

Currently, the content posted by the online news portals and the OTT platforms in India are not regulated to the extent they should be as there was no provision to regulate them. These formats fell under the purview of Information Technology Act, 2000. In contrast, other forms of media- print, radio, television and film are regulated by its respective boards. The lack of a dedicated regulatory law or regulatory authority had opened the gates for the content creators in the form of creative freedom to generate content as per the taste of a wider audience and to publish content without any clearances from the censor board.  

However, some had opined that the quality and authenticity of the content available online is not suited for everyone or was problematic for other reasons, ultimately which has led to a growing demand for regulating the content available online and on streaming platforms. This gives rise to an important argument in this debate i.e., violation of human rights vis-a-vis censorship over the creative expression. The creative expression is a fundamental right of a content creator and the media. Not only will regulation limit the creation of new content being produced but may also allow the government to use its right of censorship to exclude speeches and information opposed to the powers that be.

This Notification from the Government of India is a welcome step and is a step in the positive direction. There was a dire need for regulating the content posted in cyberspace. However, with the implications discussed above, it will be important to see how the Ministry of Information & Broadcasting frames the guidelines in regulating the online content and balances the expression of the content with creative freedom of the content creators.

Sudhir Mishra, the Managing Partner of the law firm, Trust Legal advocates & Consultants based in New Delhi who has a major practice in Media Law, says that “the government is committed to freedom of speech and expression as enshrined in the Constitution of India which gives right to every individual to make a decision on what they want to watch. The contents need not be censored and certified like by the Central Board of Film Certification, however, it should be regulated in view of the sexually explicit, vulgar, defamatory, false and unsuitable content which is easily accessible for viewers especially under the age of 18 years.”                                    

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