FREE SPEECH VIS-À-VIS SELF-REGULATION: THE CURIOUS CASE OF OTT PLATFORMS IN INDIA

PRANOY GOSWAMI | The COVID-19 pandemic has changed human lives galore. In consonance with this statement, the standstill which the entertainment industry has experienced might have sounded the death knell for conventional movie-making tropes. With a rapid boom in technological innovations, the demand for OTT (Over the Top) platforms has seen a manifold increase. Coupled with the severity and duration of the lockdown imposed on account of the pandemic, these platforms have received a shot in the arm. Definition wise, OTT is not just confined to streaming services, but extends to a host of other services such as voice calls, text and pictorial messaging, and other internet-based services which include one-on-one video calling, video streaming and conference calls. In a country like India, the growth recorded by Amazon Prime (67 per cent increase) and Netflix (65 per cent increase), along with a wave of other content-based platforms like Zee5, MX Player, Disney+Hotstar has been exhilarating. Currently, Netflix and Amazon Prime boast of a sturdy and expansive user base of 300 million people.

In the midst of such growing popularity, the Information and Broadcasting Ministry’s call for the streaming platforms to set up a regulatory authority within 100 days casts an indirect shadow on the millennial consumer’s digital rights in India. The paper seeks to analyze the stance of the Indian society towards the preservation of freedom of speech and expression, and how it indiscriminately finds itself at loggerheads with the exercise of digital rights, the OTT platforms being a case in point.

PRACTICING THE ART OF SELF-REGULATION

In February, 2020, Disney+Hotstar led a pack of other key OTT players like SonyLIV, Eros Now and Jio to set up the Digital Content Complaint Council (DCCC) to help moderate the content put up on their respective platforms. The notable absentees from the list, Netflix and Amazon Prime, feared a potential clampdown on their right to freedom of expression and bailed out of the list. The Internet and Mobile Association of India has helped formulate the code of self-regulation. The move was however defended by the proponents of DCCC, citing a 2019 study by YouGov which showed that 57 percent of Indian citizens felt that online streaming platforms needed to censor their content to suit the domestic sensibilities.

In sync with the art of self-regulation, Hotstar banned an episode of “John Olivier on Last Week Tonight”, where he was critical of Mr. Narendra Modi, the Indian Prime Minister along with the imposition of the Citizenship Amendment Act in the country. ALT Balaji also had to remove an episode from its mini-series “Gandi Baat “for allegedly portraying the army in poor light.

THE SUPREME COURT’S INVOLVEMENT

The prime accusations leveled against online content platforms are the explicit depiction of sex, drugs, violence and the brusque realities of the society. Furthermore, the depiction of the offences against women and children is deemed to be brutal and inappropriate by many NGOs and human rights circles.

Such concerns were raised in Justice for Rights Foundation vs. Union of India, wherein the petitioner wanted the Court to frame legal regulations or guidelines that would help to regulate online content. The Court, feeling satisfied with the Ministry of Information and Broadcasting’s clarification that the Information Technology Act, 2000 (the IT Act) contained adequate provisions for taking cognizance of obscenity (under Section 67) and content that disseminates sexually explicit material (under Section 67-A), concluded that there were sizeable safeguards in the IT Act to deal with objectionable content.

The Constitution of India guarantees the preservation of the freedom of speech and expression under Article 19 (1), subject to reasonable and rational constraints to be placed on the right. ‘The Code of Self-Regulation for Online Curated Service Providers’ launched by the IAMAI on February 5 helped pacify the circles calling for a more stringent set of regulations to govern online content. However, the regulation seems to sidetrack the aforementioned constitutional provision, since such a codified structure would only etch out avenues for the government to hurtle online content highlighting the importance of dissent and satire in a democracy.

INSTANCES OF ONLINE CONTENT REGULATION BY OTHER COUNTRIES

Shifting a cursive glance towards Saudi Arabia’s Anti-Cyber Crime Law shall put even the Indian legislations to shame. Even though the visibly short piece of legislation has no express mention about OTT platforms, it invoked Article 6 of the ACCL to request Netflix to remove an episode of Hasan Minhaj’s ‘Patriot Act’, where the comedian had been critical of Crown Prince Mohammed Bin Salman.

In Indonesia, the Indonesian Broadcasting Commission (KPI) announced last August that they were planning to lay down a clear set of rules that the online streaming platforms would have to abide by if they were to air their content in the territory of the country.

In the United Kingdom, the British Board of Film Certification had announced a partnership with Netflix, which permitted the streaming giant to establish a unique system of rating its originals, films add programmes. However, the UK government later issued a white paper to highlight the perils of online content and how the situation called for a round of consultations and legislation. The suggestions provided in the paper talk about a new regulator and a regulatory framework to preserve the online safety and digital rights of the British citizens.

In Australia, the Australian Classification Board is tasked with the classification of offline and online content. Last year, Netflix obtained permission to self-regulate its content for the Australian viewers using its ingenious systems, on the back of a two-year pilot. The system adopted by Netflix helps it issue advisories and parental guidance warnings to premier adult content in Australia.

LAXITY OF INTERNATIONAL AGENCIES TO PRESERVE THE DIGITAL RIGHTS

The Universal Declaration of Human Rights (UDHR) clearly mentions in Article 19, “everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”

The UN’s International Telecommunication Union (ITU) in its consultation paper, ‘ Regulatory Challenges and Opportunities in the new ICT Ecosystem’ sought to present the growing need for its stakeholders to adapt a dynamic piece of legislation to help promote the era of the internet, and to preserve the digital rights of the consumers and the industrial rights of the OTT service providers. Furthermore, the UN Secretary General’s Report on Digital Cooperation highlights the increased responsibility of the government bodies and the private sector to “apply existing human rights instruments in the digital age” through processes that are avant-garde, dynamic and transparent. The Report borrowed largely from the Special Rapporteur’s Report to the United Nations Human Rights Council, which had laid down a series of recommendations for States and companies to preserve the sanctity of free speech, and ensure that it does not juxtapose itself with democratic principles and national interests.

However, there has been a glaring absence of a model piece of legislation on the part of the United Nations, one which could have given due inspiration to its member States to work in tandem with OTT players to legitimize the digital rights of consumers further. India too, like a lot of other developing nations, finds itself in an imbroglio owing to the absence of a concrete international instrument which could have served as a guideline to set up smart, rights-inclusive regulatory frameworks.

CONCLUSION

The idea of self-regulation is a precarious one, since there are no riders attached to it. The idea of government interference, on the other hand, reeks of tyranny and acts as a serious threat to the nascent field of OTT platforms, and more importantly, to the very idea of free speech. Beside the IT Act, 2000, the government may very well invoke penal provisions under the Indian Penal Code, 1860 (IPC) to deal with the problems of gross obscenity and defamatory, inflammatory content (under Sections 499 and 500, respectively). In case the content ends up violating the religious sentiments of an individual or a community, Section 295 A of the IPC may be invoked. However, the Courts and the government must be reasonable enough to determine the fine balance between regulation and censorship. In order to preserve the essence of free speech, the regulations must be more cautious and reflective, not forced bureaucratic mandates.

Pranoy Goswami is fourth-year student of National Law University and Judicial Academy, Assam. He can be reached at pranoy140@nluassam.ac.in.

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