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OTT Platforms: The balancing act between consumer empowerment and artistic expression

The new Code attempts to impose responsibility as well as accountability on the OTT providers.

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The rising prevalence and user base of OTT platforms propelled the Information & Broadcasting Ministry to promulgate a light touch regulatory regime bringing print, television, radio, film and digital media under the media and entertainment industry. For the lack of appropriate legislation, OTT services operating in India were exempt from regulation; in other words, traditional policy levers that are applied to licensed broadcasters did not apply to OTT providers. This meant that OTT services deployed other means to address community standards, largely through self-regulation. 

While OTT service providers may be self-regulating, its younger audiences are not. The ubiquitous nature of such platforms and a one-stop-shop entertainment solution for people across age groups at competitive rates, were some of the factors for its rising popularity across the globe. In such a scenario, parents are required to be vigilant in their knowledge and awareness about content screening and supporting tools like filters, most OTT services have developed at least some level of self-regulation for community standards – however the gaps remain evident. With the increasing number of OTT subscribers, the marketplace is likely to increase going forward and resultantly the OTT space shall continue to provide an array of unregulated content.

In India, previous versions of codes of best practices and self-regulation, published in January 2019 and February 2020, were met with mixed acceptance by OTT service providers amid grave differences pertaining to the stringent restrictions on content, grievance redressal mechanism, etc. While the 2019 Code laid down a framework for a transparent disclosure by (1) classifying the content through relevant disclaimers (ii) defining prohibited content and age sensitive content; (iii) provide for a complaints redressal mechanism, the February, 2020 Code added a second layer of self-regulation for the OTT space making it overly restrictive, yet ambiguous. 

Since the above previous Codes were signed by only five IAMAI member platforms and the axe of government regulation dangling above OTT service providers, the introduction of an updated “Universal Self-Regulation Code” was long overdue. Pursuant to this Code, about 15 OTT service providers agreed to a slew of updated measures such as a modified grievance redressal mechanism, elimination of stifling ‘prohibited content’ list as well as of penalties for violation of the code, etc. to preempt government interference and keep censorship at bay. This Code enables consumers to make informed viewing decisions for themselves and their families through features like Age Classification, Content Descriptions and parental controls. 

Spurred by the existing COVID-19 pandemic, its unfettered and unregulated streaming across platforms has attracted the attention of the government, consumers and legal advisors. 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 objective. Thus, with the immediate applicability of the code, OTT platforms will be required to adhere to disclosures such as specifying maturity ratings and content descriptors including language, violence, nudity, etc. thereby effectively demarcating content for different viewer base. Fur artists, regulation is better than censorship and so such demarcation of content it is a double whammy providing complete creative freedom to the artists while equipping consumer grievances through an individual grievance redressal body. 

However, the government’s move could be construed to mean that these platforms would have to apply for certification and approval of the content they wish to stream, which is likely to give rise to many conflicts as most OTT platforms have content that could otherwise be censored by the certification boards in India. If this were true, the present Code would serve as censorship in disguise and as a result may invite flak from across the media and entertainment industry. 

With OTT platforms at a nascent stage in India, the providers in conjoined efforts with the government should work towards the setup of an unbiased regulatory body to protect the audience and bridge the regulatory gap. The rising prevalence and viewer base of OTT platforms necessitated some kind of regulation similar to that in place for the print and electronic media. The new Code attempts to impose responsibility as well as accountability on the OTT providers. While the proposed move is indicative of the right mindset, its proper implementation may pose as a grave challenge under such a single regulatory framework, as it varies from country to country. 

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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Sonam Chandwani

The author is the Managing Partner at KS Legal & Associates and heads the firm's Corporate Litigation Practice. She specializes in commercial structures, commercial litigation, mergers & acquisitions generally, with an emphasis on large scale and complex commercial litigation including contract law, trade practices, real estate disputes and finance issues across a range of industry sectors.

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