Censorship Of OTT Platform - The Conundrum In Regulatory Framework

Author: LawSphereX

Category: Administrative & Regulatory Law

Published: 2026-08-23T18:44:42.607Z

Updated: 2026-08-30T07:07:37.697Z

CENSORSHIP OF OTT PLATFORM: THE CONUNDRUM IN

REGULATORY FRAMEWORK Harshita Tripathi, LLM, Amity Law School, Amity University Dr. Juhi Saxena, Assistant Professor, Amity Law School, Amity University

ABSTRACT

Law is Dynamic. Both the law and society change as a result of new discoveries and inventions. In the 1950s, no one could have foreseen the advent of the internet. However, India has 692 million active internet users at the moment. By 2025, India will have 900 million internet users, as stated in the IAMAI report titled "Internet in India. " The worldwide media outlet has been seeing a steady change over the past few years attributable to the period of digitalisation. This has brought about huge disturbance of the conventional substance conveyance models of papers (first), and presently telecasters are being upset by advanced content providers. The digital sector, television, radio, print, and cinema make up the 1. 82 trillion-dollar Indian entertainment industry.

It is the era of online videos and the over-the-top services, which enable the users to consume content through the use of the internet. While the telecommunication players have been quick to respond to the rapidly changing advancements like the launch of cell phones and the internet, they appear to be battling to keep up with their regulatory mechanism. Through the research conducted for this thesis, the author has sought to evaluate the situation of lack of exclusive regulation on the content available on the video streaming OTT Platforms. This need was felt due to the controversies arising in the nation on various shows streaming over these platforms. The thesis discusses the crucial factors that have adjusted to the shift towards the OTT platforms, especially in the entertainment industry, to emphasize the paternalistic role of the state and the policy vacuum situation.

The Judiciary, Government, and the attitude of the industry have shown a light on the impact of a medium on the viewers.

CHAPTER-

1 INTRODUCTION

Law is Dynamic. Both the law and society change as a result of new discoveries and inventions. In the 1950s, no one could have foreseen the advent of the internet. However, India has 692 million active internet users at the moment. By 2025, India will have 900 million internet users, as stated in the IAMAI report titled "Internet in India. " It is principally utilized for gaming, amusement, and online exchanges. Platforms like Netflix and Amazon have evolved into essential parts of our daily lives and primary sources of entertainment. Platforms like Twitter and WhatsApp interfaces us to the whole world and gives a stage to us to offer our viewpoints. These platforms have become a hotbed of crime and obscenity, affecting the general public, as the saying goes, "everything has two sides.

" On these platforms, the obscenity in shows like Game of Thrones and Mirzapur can have a significant impact on children. Numerous petitions have been filed in courts to impose restrictions on the content that is displayed on these platforms, such as Amazon and Netflix, due to the fact that the content that is displayed on these platforms is not regulated. On OTT platforms, there is currently no such rule or authority for pre-screening content. In the setting of this Ministry of Electronics and Information on 27th February 2021 gave Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These standards were made in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011.

The said rules were given to direct the substance accessible on friendly medias and OTT platforms and to put a beware of the profane substance displayed to the general population. The worldwide media outlet has been seeing a steady change over the past scarcely many years attributable to the period of digitalization. Thorstein Veblen coined the term "Technological Determinism" to describe a societal shift brought about by technological advancement1. As a result, technology is now an essential component of our daily lives. Television and, more 1 Technological determinism is a reductionist theory that assumes that a society's technology determines the development of its social structure and cultural values.

The term is believed to have originated from Thorstein Veblen (1857–1929), an American sociologist and economist recently, the internet2 have replaced motion pictures as the sole means of distribution. The beyond five years have seen a blast in the business with the section of new innovations. This has brought about huge disturbance of the conventional substance conveyance models of papers (first), and presently telecasters are being upset by advanced content providers3. The digital sector, television, radio, print, and cinema make up the 1. 82 trillion-dollar Indian entertainment industry4. The visual media outlet gotten going with TV slots and print media. For just about twenty years, content accessible on television stays sound with a couple of changes to a great extent. This was followed by cell phones and PCs.

After smart phones came into the picture, the major changes started with the disruption of digital content. MEANING OF OTT Over The Top or OTTs are the young, new players in the market of content exhibition and broadcasting. It indicates the services or applications accessible through the web, which does not require the support of any hardware. This refers to Internet based content, applications or services that ride ‘over the top’ of networks and are accessed by the end-users via the internet. OTT platforms provide services to the end- user by bypassing the traditional operator’s network hence, dealing directly with the end-users5. These services are carried over a network that transit and deliver to users without the contribution of a service provider in the selling, provisioning and overhauling viewpoints.

The Telecom Regulatory of India defines OTT Service providers as: “A service provider that offers Information and Communication Technology (ICT) services, but neither operates on a network nor leases network capacity from a network operator. ”6 In simple terms, Tata Consultancy Services defined OTTs as “platforms that deliver film and television content, bypassing the conventional distribution streams of cable and satellite TV, from producer to consumer directly, an exchange driven by Internet. ”7 2 Shubhangi, OTT STREAMING SERVICES - How to Regulate, https://www. readkong. com/page /ottstreamingservices-9919884 3 THE

CHALLENGE

OF MANAGING DIGITAL CONTENT, Paper for the ‘ITU- TRAI Regulatory Roundtable’, 21-22 August 2017, New Delhi, India. 4 FICCI-EY Report, 201

3 THE

CHALLENGE

OF MANAGING DIGITAL CONTENT, Paper for the ‘ITU-TRAI Regulatory Roundtable’, 21-22 August 2017, New Delhi, India.

4 FICCI-EY Report, 2019.

5 Joshi Sujata and others, Impact Of Over The Top (OTT) Services On Telecom Service Providers' (2015), Indian Journal of Science and Technology

6 Frost and Sullivian, Tuning Into OTT 2.0 -Making Digital Video As Good As Tv' (2020)

7 Telecom Regulatory of India, 'Consultation Paper On Regulatory Framework For Over-The-Top (OTT) Services' (2020).

CHAPTER -2

OTT VIS A VIS FREEDOM OF SPEECH AND EXPRESSION- Freedom of expression is the cornerstone of any democratic society. It is a basic human right to express oneself freely whether through words of mouth, literature, art, or any other medium of communication regardless of their cultural, religious, ethical, political, or other circumstances which provide under article 19 (1) (a) of Indian Constitution which is the foundation of modern democracies. The Internet and social media have become an important communication means through which individuals can exercise their right of freedom of expression and exchange ideas and views. The concept of fundamental right under Article 19(1)(a) is dynamic one, which provide that the freedom of communication and right to broadcast or publish one's views through any electronic media is fundamental right.

The term 'censorship' comes from the Latin word 'cernere' which means 'to estimate, rate, assess, or hold an opinion. The Oxford Dictionary defines a censor as 'an official who examines books, films, news, and other materials that are about to be published and suppresses any parts that are deemed obscene, politically unacceptable, or a security threat. 8 Under article 19(2) of the constitution, the state has the ability to impose restrictions on freedom of speech and expression if it is determined that the content exhibited is contrary to morals, public order, or other factors. If it is determined that the contend is against Indian sovereignty, the government has the authority to issue a notice for blocking of the contend under section 69 A of the IT Act.

Thus, the censorship means certain rules, regulations use by organisational authority to control, suppress or prohibit speech, writing that is deemed subversive of the common good. Constitution of India Article 19 1(a) guarantees the right to freedom of speech and expression, with some reasonable restriction mentioned under Article 19 (2) such as morality, decency, and public good and order. Indian Censorship is a combination of ethnicities, races, and religious bodies that have managed to live in peace. Some people said that Censorship hampers the very idea of freedom of speech and expression but as per government such censorship on OTT 8 6 Censorship in the OTT platforms: A close look at the freedom of speech and expression, Available at : https://www. legalserviceindia. com/legal/ article-8387-censorship-in-the-ott-platforms-a-close-look-at-thefreedom-ofspeech-and-expression.

html platform is necessary to combat any undesirable form of activity through media or OTT platform9. The government has published regulations for over-the-top (OTT) streaming, digital news, and social media platforms, including processes for monitoring and blocking unwanted or inappropriate content. The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules2021, which replace the preceding Information Technology (Intermediary Guidelines) Rules2011, went into effect on January1, 2021. A grievance procedure and a self-regulatory body led by a retired Supreme or High Court judge have been established by the government. Presently everything going digital, everyone has a wide range of content just a click away.

So, it becomes easy for any child or a teenager to access any content on OTT platform which is not for kids so to restrict and control such content is necessary. The government is of belief that the creative independence of these platforms needs to be under their purview and they need to tell these platforms what they can stream and cannot streamed on OTT platform. It actually means, content streamed through OTT Platform must be verified through Censorship10.

2.1 CENSORSHIP IS NOT AMOUNT TO INFRINGEMENT OF FREEDOM OF

SPEECH AND EXPRESSION.

In India, the growth of OTT services has changed video consumption in recent years, giving viewers more power over what they watch, when they watch it, and when they watch it at their leisure time. Censorship helps to keep anti-social, hateful, and explicit information out of the public eye, hence maintaining social order. It is critical to ensure that all OTT sites provide accurate information and do not manipulate public opinion in a way that is harmful to society. This is not a violation of free speech because censorship helps society avoid unnecessary conflicts. Indian Constitution provided freedom of speech with certain restrictions, thus through OTT platform creators have freedom to stream their views, opinion but with some restrictions and the tool to restrict unnecessary and immoral content is Censorship. Even

9 ANALYSING THE STATUS OF FREEDOM OF SPEECH VIS, A VIS NEW OTT RULES IN INDIA,

Saundraya Giri , available at https://zenodo.org › record › files

10 Ibid 7

though people make argument against censorship that subscription on Demand content is available on OTT services which allowing viewers to pay for and watch whatever they choose but, easy availability of internet this argument is not worth, thus for regulation of OTT content appropriate hold of authority is required which will be fulfill through censorship. OTT Platforms in India today have a strong foothold and a large fan base, including in rural areas. Censorship is not any kind of restriction but it is regulation which prevents any wrong doing which will maintain the dignity and decorum of digital media industry. But other side of above contention is that, if we increased censorship on digital media, it would have a negative effect on the economy of the country, as India is not only a major user but also a major producer of online video content in today’s world.

It has established itself as a major player in the global market. So, if there OTT regime is tighter by censorship it may hamper the very purpose of fundamental right freedom of speech and expression. CHAPTER-3 JUDICIAL INTERVENTION ON OTT PLATFORMS Because the content provided by OTT service providers is accessible online, it is likely that the censorship regulations governing the online space will apply under India's current legislative position. In the case of Shreya Singhal vs. Union of India11, the Supreme Court ruled that “usergenerated content cannot be censored online, but delegated the question of on-demand video content, as ones provided by OTT services, to the Information Technology Act of 2000. The Act has a content regulation provision that empowers the government to regulate intermediaries, including OTT platforms”12.

When they have concerns regarding the "controversial" content that is available on such platforms, individuals turn to the Judiciary because there is a lack of policy on content regulation issues. A Writ Petition was filed before the Delhi High Court in the case of Justice for Rights Foundation vs. Union of India13, which was one of the first cases about censoring content streaming on OTT platforms. It sought guidelines from the Court (or, alternatively, from the Government) to regulate online content and the platforms that tend to broadcast it.

11 TREAMING SERVICES - How to Regulate - BY SHUBHANGI, https://www.readkong.com/page/

ottstreaming-services-9919884 150

12 W.P.(C) 11164/2018

13 Ibid

The petition sought to regulate the content that was available on platforms like Netflix and Amazon Prime Video, among others, and may have offended some viewers14. A petition was filed in the Delhi High Court against Netflix and Phantom15 in the case of Nikhil Bhalla vs. Union of India16, which was about the controversial show Sacred Games. It claimed that derogatory language had been used against former Prime Minister Rajiv Gandhi and demanded the removal of two "offensive" scenes and three "objectionable remarks" (including subtitles) against the former Prime Minister and his family. The Appeal additionally expressed that the show "mistakenly portrays verifiable occasions of the country which incorporate the Bofors case, instance of Shah Bano, Babri Masjid case and public riots”17 . The petitioner asked the court to set rules for OTT media service providers to follow.

In its response, the Centre humbledly argued that the Preamble of the Indian Constitution, among other things, mentions. A writ petition was filed with the Karnataka High Court in the case of Padmanabh Shanka vs.

Union of India18 to determine whether the transmission or broadcast of any films, cinemas, or serials and other multimedia content through the internet will fall within the definition of "cinematograph" under Clause (c) of Section 2 of the Cinematograph Act, 195219. This came about as a result of the controversy that resulted from the variety of content that was deemed In this petition, OTT services like Netflix, Amazon Prime, and Hotstar were made Respondents. The Petitioner argued that online streaming platforms could not use Section 79 of the Information Technology Act of 2000 to protect intermediaries because Section 79 stipulates that intermediaries will not be held liable if they do not have the authority to select or modify the content they transmit20. The petitioner emphasized that OTT platforms have a contract with 14 Will Sacred Games 2 Be Sanitised?

A Summary Of The Debate , https://www. ikigailaw. com/ willsacredgames2-be-sanitised-a-summary-of-the-debate-on-online-content-regulation-in-india/

15 Phantom Group is the producers of Sacred Games.

16 W.P(C) 7123/2018

17 Delhi HC to hear plea against Netflix show ‘Sacred Games .... https://indianexpress.com/article/india/delhi-hc -tohear-plea-against-netflix-show-sacred-games-forallegedly-defaming-rajiv-gandhi-5255196

18 ibid

KARNATAKA HIGH COURT RULES THAT ONLINE CONTENT CANNOT BE .... https://iprmentlaw.com/2019/09/07/karnataka-high-court-rules-that-online-content-cannot-beregulated-undethecinematograph-act-read-judgement/

20 ibid

content creators and can choose and alter the content they share. What is shown on their online video streaming platform is entirely up to them21. As a result, the Respondents are unable to use the Information Technology Act of 2000's safe harbor to obtain protection. The Petitioner requested that the Court include online content in the scope of the Cinematograph Act of 1952 and establish a governing body to regulate content distributed via these platforms. The Court held that “as far as the guidelines placed on the Code for Self- Regulation of OCCPs are concerned, we must note that the same does not create any enforceable right in favor of citizens and therefore, the same does not prevent the State from considering what safeguards and what regulations within the four corners of law can be provided as regards the grievance made by the Petitioner.

The division bench observed that “the exhibition of films, serial and other content perhaps amount to transfer of files based on a request by the user as per the concept of internet and its operation. The said transfer cannot be brought under the purview of the Cinematographic Act. ” The petitioner sought the establishment of an independent body to pre-screen and regulate the content on the platforms in a similar PIL22 filed before the Bombay High Court regarding the streaming of AltBalaji's show "Gandi Baat," which, according to the petitioner, was offensive to women due to the show's nudity, violence, and vulgar language. It also argued that the Cinematograph Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act, and Information Technology Act all apply to media that broadcast content that is "obscene, nude, and vulgar.

" In light of this plea for the regulation of such web series, the Court sent notice to the MIB following the arguments, asking for their responses. The Maatr foundation23 submitted a second petition to the Madhya Pradesh High Court regarding the regulation of content streaming on OTT platforms. The Solicitor put together its appeal with respect to the view that the substance is 'revolting, unregulated, uncertified, physically unequivocal, indecent and lawfully confined. ' The Solicitor raised a request

21 ibid

22 Divya Ganeshprasad Gontia v. Union of India, Public Interest Litigation No. 127/2018 (High Court of Judicature at Bombay, Nagpur Bench)

23 WP 18801/2019)

stressing that these substance decorations typify ladies and show them in a terrible light and fill the personalities with salacious considerations that are violative of their central right to live with poise. The Petitioner argued that online streaming service providers are intermediaries for violations of the Information Technology Act of 2000's Sections 67, 67A, and 67B. They further claimed that the questionable, profane substance on these stages likewise fall afoul of Areas 292- 294 of the Indian Correctional Code, the Disgusting Portrayal of Ladies (Forbiddance) Act, and Articles 21 and 51A (e) of the Indian Constitution24. The High Court recently sent notices to platforms that want to regulate uncensored, uncertified, or unregulated content. CHAPTER- 4

360 DEGREE ON CENSORSHIP AND

CHALLENGES

AROUND IT Censorship is a combination of numerous ideas that are interrelated, the most conspicuous one being free discourse/speech. It is the capacity to freely express or articulate one's ideas without being constrained or interrupted25 The term 'oversight' returns to the office of the edit laid out in Rome in 443 BC. 26 It came from the Latin term 'censere,' and that means 'to offer one's perspective or survey. ' This chapter looks at how India has dealt with censorship over time and how it has changed over time. It also delves into the Constitution's laws and the Cinematograph Act of 1952, with its subsequent amendments. This chapter does not cover print media but rather only the audio-visual medium. THE CINEMATOGRAPH ACT, 1952 On 29 August 1949, a Film Enquiry Board of trustees was made and named by the Public authority of India under the chairmanship of S. K.

Patil was- The board of trustees' guidance was Examining the development of the film industry's organizational structure and providing guidelines for identifying setbacks that must be 24 OTT Regulations: MP HC Seeks Response From Govt, Netflix , https://inc42. com/buzz/ottregulations-mp - hcseeks-response-from-govt-netflix-others/

25 riyanka Ghai, Dr. Arnind P Bhanu, ‘CENSORSHIP IN INDIA VIS-À-VIS FREEDOM OF SPEECH:

COMPARISON OF THE EXTENT OF CENSORSHIP LAWS IN INDIA AND ABROAD’, Journal of Critical Reviews ISSN- 2394-5125 Vol 7, Issue 13 (2020). 26 Someswar Bhowmik, Cinema and Censorship -The politics of Control in India (Orient Black Swan Delhi 2009) addressed27; Inspecting the action for taking on a useful instrument for advancing public culture, healthy diversion, and education28. This Panel prepared for the Cinematograph (Second Revision) Act, 1949, which was made to make an incorporated design of the oversight of cinematographic films, which prompted the introduction of the Focal Leading group of Film Controls (CBFC). In Parliament, the Cinematograph Bill was introduced. The Bill got the President's consent on 21st Walk 1952, in the wake of being passed by both of the Houses. It happened from July 28 195229.

Section 3 of the Cinematograph Act manages the foundation of the Focal Leading group of Film Accreditation, the object being to ensure films that are expressly expected for public exhibition. 30 The subject of understanding concerning this emerges on the grounds that the term 'public display' has not been characterized in the said Act or anyplace in its principles. The Delhi High Court, while dealing with the question in the case of Super Cassettes Industries v. Central Board for Film Certification31, held that: “Even in cases where there is no audience gathered to watch a film in a theatre, but individuals or families are watching films in the confines of their own homes, such viewers would still do it as members of the public and at the point at which they view the film that would be an 'exhibition' of such film.

” Section 4 of the Act accommodates the methodology where movies are to be analyzed. The Board needs to watch and inspect movies and approval their delivery. Every film goes through a predetermined process. After the film is screened and given its certification, the filmmakers must submit an application stating their intention to release the film. After passing through multiple screening stages and undergoing the necessary cuts that the Board mandated, a movie can be released. The assent of the film for 'public display' can be confined to individuals from any calling or any class of people with respect to the nature, content, and subject of the film. 32 Accordingly, the Demonstration approves the Board to adjust the film to suit the crowd and 27 online information from https://www. cinemaazi.

com/industry-information/committee-reportsthe-film-enqiry Indian Cinema: Censorship Laws, Freedom of Speech https://legaldesire. com/wpcontent/uploads/2020/11/LDIJLISSUE-23-VOL-23-84-123. pdf

29 Ibid

30 The Cinematograph Act, No. 37 of 1952, A.I.R. Manual (6th Edition), Section 3.

31 Super Cassettes Industries v. Central Board for Film Certification, (2014) Del. SCC 136.

32 Section 4(iia) of Cinematograph Act,1952

local area rules. The Board likewise can limit motion pictures in light of the crowd's age ('A' rating) or even boycott them. “According to CBFC, the following are certain violations that agitate the minds of the public: a. exhibition of an ‘A’ certificate film to a non-adult; b. exhibition of an ‘S’ certificate film to audience other than those for whom it is intended; c. exhibition of a film in any form other than the one in which it was certified. Such violations are known as interpolations. Interpolations can be described as follows: i. re-insertion of prints in a film for exhibition those portions which the Board deleted before certification of the film; ii. insertion in prints of film portions which were never shown to the Board for certification; iii. exhibition of ‘bits’ unconnected with the certified cinema. d. exhibition of films that was denied a certificate (banned); e.

exhibition of uncensored films with forged or duped certificates of other films; f. exhibition of films without providing certificates by the censor board”. 33

4.1 EVENTS THAT LED TO THE CHANGE IN THE CINEMATOGRAPH ACT

DRAFT CINEMATOGRAPH BILL, 2010 The Ministry of Information and Broadcasting (MIB) prepared a Draft Cinematograph Bill of

2010 to supplant the many years old Cinematograph Act 1952. The following are a few notable

changes that the bill proposes: Þ “It widened the scope of the term ‘cinematograph,’ which defined it as: ‘any apparatus, product or device, analog or digital or any other technology, used for the representation of moving pictures or series of pictures.’

33 Online information from https://www.cbfcindia.gov.in/main/certification.html

Þ It provided a new definition for ‘exhibition’ was defined as ‘display of a cinematograph film or making available a cinematograph film to persons not directly connected with the production, distribution, promotion or certification of the film. ’ Þ Regarding the structure of the CBFC, the draft proposed that women constitute at least onethird of its members and the advisory panels. It also offered the introduction of professional credentials for the appointment of the Chairperson, members of the board, and advisory panels. Þ Further, the draft bill suggested two new certification categories, ‘twelve and older’ and ‘fifteen and older,’ to replace the UA certificate following the British Board of Film Certification (BBFC).

” MUDGAL COMMITTEE REPORT, 2013 In 2012, the discussion over the restriction on 'Vishwaroopam' by the Tamil Nadu Government brought up many issues on the ramifications with the expectation of complimentary speech discourse. The Focal Government thought the time had come to refresh the Cinematograph Act, 1952. A Board was initiated under the capable authority of Equity Mukul Mudgal, resigned Boss Equity of the Great Court of Punjab and Haryana. Lalit Bhasin, Leela Samson (the former Chairperson of the CBFC), and film personalities Sharmila Tagore and Javed Akhtar were also members34. In a report that was sent to the Ministry of Information and Broadcasting, the Committee suggested a model Cinematograph Bill.

Additionally, it had suggested establishing advisory panels to develop guidelines for "certification and issues such as the portrayal of women, obscenity, and communal disharmony;" grouping of movies; treatment of theft; what's more, purview of the Appellate Court35. SHYAM BENEGAL COMMITTEE REPORT, 2016 The Shyam Benegal committee was established on January 1, 2016, to establish guidelines for film certification and provide sufficient space for artistic and creative expression. The 34 93 Online information from https://www. thehindu. com/news/national/mudgal-panel-submits-reportongoverningcinema/article5218032/

35 Film Certification Appellate Tribunal (FCAT)

Committee was established to address the growing concern that the then-head of the CBFC, Pahlaj Nihalani, had gone beyond his authority by censoring films rather than certifying them. The Report says that the Focal Agency of Film Affirmation (CFBC) ought to basically give certification to the movies relying upon their substance. It drills down the conditions under which the body ought to be permitted to drop affirmation, i. e. , when any satisfied repudiates the arrangements of Area 5 (B) 1 of the Cinematograph Act. The Council requested correction of a few segments of the 'old' Cinematograph Demonstration of 1952. 36 It likewise suggested "change of Sections 5A, 5C, 5E and 6 of the Act which discusses film confirmation classifications, requests, suspension, and renouncement of movies and the powers of the focal government to individually modify a film.

They proposed that the reexamining board of trustees draws from a Focal Warning Board, which has 'various models for determination' against the Territorial Warning Boards. STANDING COMMITTEE REPORT, 2019 The Administrator of the Board was Dr. Shashi Tharoor. The Board considered and took on the Report at their sitting on 13 Walk 2020, in the two houses. The Cinematograph (amendment) Bill, 2019, as presented in Rajya Sabha on 12. 02. 2019, was alluded by the Hon'ble Speaker37 to the Standing Panel on Data Innovation on 22. 02. 2019 for assessment. The Board of trustees, heard the perspectives on the I&B Service on the proposed revision, considered entanglements of the said Bill and they wanted to have an inside and out assessment of the Bill. The Board of trustees recorded proof of numerous partners.

The Board was chiefly worried about robbery truly hurting the entertainment world in India. It was not stressed over issues of film accreditation since the Secretary of the I&B Service recommended isolating them and guaranteed the board of trustees that the last option would be managed independently. The Board of trustees suggested recommending a base discipline for the offense of robbery (punishment as long as three years or a fine up to ₹10 lakh) to give some prevention. It looks to acquaint new segments with the 1952 Demonstration to preclude the

36 ‘Archaic’ Cinematograph Act of 1952 likely to be amended after Shyam Benegal headed committee's

recommendations”, Daily News & Analysis (DNA), May, 2016, available online at http://www.dnaindia.com/india/ report-archaic-cinematograph-act-of-1952-likely-to-beamendedaftershyambenegal-headed-committee-s-recommendations-2208104 (last accessed 30 August 2021).

37 Smt.Sumitra Mahajan (16th Lok Sabha)

recording of movies in theaters. It additionally proposed characterizing the term 'purposely' to forestall misapplication of the law. This prompted the Cinematograph (Correction) Bill, 2019. CINEMATOGRAPH AMENDMENT ACT, 2021 The I&B Ministry invited public feedback on the Cinematograph (Amendment) Bill, 2021, which aims to amend the Cinematograph Act of 1952, on June 18, 2021. The Bill entomb alia expects to present age-based subcategories of U/A certificate, deny and punish unapproved accounts or transmission of a duplicate of a film during its show, and award the Focal Government revisional controls over a film previously ensured for public display by the CBFC38.

A portion of the ideas made by this board of trustees tracked down its direction into the Data Innovation (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, for managing the substance accessible on OTT advanced stages. “The proposed amendments are as follows: i. The category U/A will be subdivided based on age into U/A 7+, U/A 13+ and U/A 16+; ii. Empowering the Centre to direct the CBFC to reconsider its certificate to a film if they are of the view that it does not conform to the ‘Guiding Principles’ under Section 5B(1)39; iii. The Centre has also recommended adding Section 6AA targeting piracy. A minimum punishment of 3 months (can go up to 3 years) was accepted by the Government, after accepting the judgments of the Committee. A fine of 3 lakhs was also introduced while removing the 10 lakh cap.

It may now be extended to 5% of the audited gross production cost or with both40.

4.1 CHALLENGES

AROUND THE OTT ENVIRONMENT The developing prominence of OTT administrations overall is representing a significant challenge to the TSPs. However, this development to a great extent relies upon the accessibility of existing telecom foundation in a specific region and market elements, for example on the off chance that framework (admittance to transfer speed) improves, there will be a further 38Online information from https://iprmentlaw. com/2021/07/01/ controlling-piracy-or-expression-ananalysis-ofthecinematograph-amendment-bill/ 39 Online information https://www. deccanchronicle. com/nation/currentaffairs/080721/ explainercinematographact-amendment-all-that-you-need-to-know. htm/ Explainer | What is the Cinematograph Act amendment? https://www. deccanchronicle. com/ nation/currentaffairs/080721/explainer-cinematograph-actamendment-all-that-you-need-to-know.

ht development of OTT applications. The fast get in OTT development can be ascribed to the accompanying five arrangements of drivers41: REGULATORY IMBALANCES The technological contrasts among OTTs and TSPs have prompted a circumstance where both TSPs and OTT specialist organizations become equipped for offering comparable types of assistance to clients. The correspondence OTT players are really contending with conventional TSPs. The TSPs bear the costs for the framework, range the board and furthermore pay permit expenses for utilization of range. Simultaneously, they need to meet Widespread Administrations Commitments and carry out commitments and conform to different guidelines. The partner OTT specialist organizations, in any case, are not obliged to stick to any administrative commitments and need to bear no such expenses.

The TSPs fall under an administrative system while OTT players are just bypassing such a system. IMPACT ON ECONOMY Traditional businesses and localized organizations are finding it increasingly challenging to compete with the new global market players due to the widespread availability of the internet. These kinds of players are slowly taking over brick-and-mortar stores. One illustration of how these OTT players directly compete with and take over the market share of local businesses is the phenomenal growth of various e-commerce applications. An OTT media player is another example from the media industry that benefits from lower storage and hosting costs per megabyte due to its global presence. They are able to negotiate better content deals with providers than small, specialized local players42, making domestic players irrelevant.

These OTT apps have a direct effect on TSPs' existing business models for communication services. Their traditional voice, messaging, and data billing models are seriously threatened by OTT players' offers of comparable services at significantly lower prices or for free. The growth of voice, messaging, and media apps that rely on other business models to earn their revenues (advertising, in-app purchases, subscription based services, stickers, per unit pricing, 41The future of Mobile Messaging by McKinsey, 2011

42 Ibid

etc. ) affects the TSPs' subscription revenues from these services. Various Government revenues will also decrease as a result of the TSPs' revenue losses. It will likewise bring about lower gathering of Widespread Help Commitment Asset (USOF) for the public authority, which is a level of the incomes procured by the TSPs. The TSPs will also see a lower return on their network investments as a result of the revenue loss, which could significantly hamper their investment capability. This will prompt less interest in the foundation. SECURITY ISSUES Because they don't have to follow the same rules as traditional voice and messaging services offered by TSPs, internet-based communication services like VoIP and instant messaging pose a threat to security.

Telephone number management, public safety, emergency number access, and national security are all affected by the differences in VoIP and conventional voice service regulations. They pose a number of cyber security risks if they do not have secure connections through TSPs. Privacy may also be endangered by OTT communications and media, in addition to national security concerns. Because of the internet's "open" architecture, it is extremely risky to transfer personal information online. It has the potential to lead to cybercrime, compromised cyber security, and the loss of content privacy. Users of mobile phones are at risk from cybercrime because they are always online. The majority of applications can track the user's location for underlying functions (such as GPS apps that locate nearby restaurants and other establishments).

It is possible that either the location itself or this information will be used to commit a crime. These threats have the potential to have an effect on the financial and security of the nation. Cracking43, phishing, piracy, identity theft44, child pornography, and cyberextortion45 are new forms of cybercrime that have grown in popularity in recent years. There are connected issues of loss of security when secret data is lost or captured, legitimately etc. The LEAs, on the other hand, may benefit from making use of these OTT apps to crowd source

43 A crack is a methodology for breaking into a secured computer system

44 Identity theft is a form of stealing someone's identity in which someone pretends to be someone else by assuming that person's identity, usually as a method to gain access to resources or obtain credit and other benefits in that person's name. 45 Cyber extortion is a crime involving an attack or threat of attack against an enterprise, coupled with a demand for money to avert or stop the attack. information that could affect the country's security and help them control and monitor antinational elements. CHAPTER- 5

5.1 ANALYZING THE PRESENT LEGAL MANDATE IN INDIA

The primary piece of legislation governing India's cyberspace is the Information Technology Act of 2000 (IT Act). There is a presumption that this law only applies to the OTT industry because it streams a wide range of content online. However, not all aspects of the video streaming OTT platforms discussed below are covered by the IT Act. In contrast to the CBFC and IBF, it only applies to statutory offenses and does not regulate content.

5.2 REGULATION OF DIGITAL CONTENT AVAILABLE ON OTT PLATFORMS

Before starting with anything and everything, understanding the IT Act's concept of intermediaries is essential for comprehending the statute's application to digital content. According to the IT Act's Section 2(1)(w), “Intermediary, with respect to electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places, and cyber cafes46.” In general, Section 79 of the IT Act allows these intermediaries to be held liable for many crimes committed through them47. Section 79 stipulates that an intermediary is exempt from

46 THE INFORMATION TECHNOLOGY ACT, 2000

https://www. indiacode. nic. in/bitstream/123456789/1999/3/A2000-21.

pd 47 0 Section 79: Exemption from liability of intermediary in certain cases – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him (2) The provisions of sub-section (1) shall apply if– (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) The intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe on this behalf.

(3) The provisions of sub-section (1) shall not apply if– (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in liability for any third-party data, links, or information hosted on its website. The general exemption from liability granted by Section 79(1) is further qualified by Sections 79(2) and 79(3), which specify the specific conditions upon which they claim protection.

The middle person is absolved under Section 79(2)(a), in the event that it just gives admittance to the outsider or any transitory stockpiling or facilitating of the data. According to Section 79(3), an active platform or forum that contributes to the commission of activities that are prohibited by law will not be eligible for the exemption outlined in Clause 1. Thus Section 79 limits the exclusion conceded to just such mediators who don't help, abet or initiate the exercises disallowed under the law. This statutory provision appears to be a safe harbor clause based on European directives48. This provision is also similar to that of US laws49 intermediaries, which states that intermediaries who provide a forum are not responsible for what users post, but they must respond quickly to a notice of a violation and remove the violating file to be exempt from liability.

These rules have changed a lot since they were put in place, partly because the underlying Act and Rules have been changed and partly because the judiciary has interpreted them. The protected harbor insurance under Indian regulation is accessible just to 'latent delegates'; individuals who "act as passive transmitters or conduits of the records or information”50. According to the Delhi High Court's explanation in the case of MySpace Inc. v. Super Cassettes Industries Ltd. 51 OTT platforms would be considered "intermediaries" because they are aggregators of video content, web series, and other films that are provided to customers when they demand them and are compensated by aggregators through a self-operated and selfdesigned subscription model52 .

The result of these Rules was that any individual aggrieved by any form of content displayed on an intermediary platform could simply send a written request to them to take down such content as it was unlawful. Intermediaries must inform their users not to host, display, upload, or modify the information that is specifically listed in the Rules 53and must take down such information upon actual knowledge of such content within 36 any manner. Explanation. –For the purposes of this section, the expression ―third party informationǁ means any information dealt with by an intermediary in his capacity as an intermediary.

48 EU Directive 2000/31.

49 The Digital Millennium Copyright Act, 1998

50 Christian Louboutin SAS vs Nakul Bajaj and Ors (2014 SCC OnLine Del 4932) para 43

51 MySpace Inc. v. Super Cassettes Industries Ltd, (2016) Del. SCC 6382

(2017) 236 DLT 478 (DB).

52 Ibid

53 Rule 3 (2), The Information Technology (Intermediary Guidelines) Rules, 2011

hours54. The intermediary would need to use its judgment to determine whether the content was illegal within the next 36 hours. Sections 67A55, 67B56, and 6757 of the IT Act ensure that publishing or transmitting obscene, sexually explicit, or material depicting children in sexually explicit acts in electronic form is punishable by imprisonment. The IT Act also applies to content on OTT platforms. In the Indian Penal Code, the terms "obscenity" and "obscene" are not defined. In the case of Regina v. Hicklin58, English law established the first obscenity test. A publication's isolated section taken out of context can be used to determine whether or not it contains obscenity. When using Hicklin's test, the result is separated from the entire work to see if that "portion" is influencing susceptible readers, such as children or naive adults, in any way. In Roth v.

United States59, a new criterion for determining obscenity was created in 1957. It was decided that "only sex-related materials that have the tendency to induce lustful thoughts were found to be obscene, and this has to be judged from the perspective of an average person by applying contemporary community standards. " This was the conclusion that was reached. This test is less specific than Hicklin's because it focuses on the dominant theme of the entire material rather than the "alleged content. " If the material is taken as a whole, it also looks for any positive social value. In the landmark case Ranjit D. Udeshi v. State of Maharashtra60, the Indian judiciary dealt with obscenity-related issues.

“The test of obscenity is to check whether the tendency of the alleged material that is charged as obscene is to deprave those whose minds are open to immoral influences,” the Supreme Court stated. This trial of indecency should concur with the limitations gave under Article 19 of our Constitution. Therefore, the concepts of sex and nudity in literature and art cannot be considered obscenity without additional evidence. “The Apex Court observed that obscenity has to be understood in the following terms:

54 Rule 4, The Information Technology (Intermediary Guidelines) Rules, 2011

55 Section 67 A of IT Act 2000

56 Section 67 B of IT Act 2000

57 Section 67 C of IT Act 2000

58 LR 3 QB 360

59 354 U.S. 476

60 AIR 1965 SC 881

ü That which corrupts those whose minds are open to such immoral influences; ü That which induces thoughts of a most impure and libidinous character; ü That which is hard-core pornography; ü That which has a substantial tendency to deprave by arousing lustful desires; ü That which tends to arouse sexual thoughts; ü That which passes permissive limits judged of from our community standards”61. The Supreme Court confirmed the precensorship of content as an exception to the right under Article 19 in the case, K. A. Abbas v. Union of India62. Notwithstanding, that's what the Court saw "the ones who edit need to think about the worth of workmanship while pursuing any choice. An episode loses its vulgarity, harm, and socially beneficial qualities due to its artistic appeal. Bobby Art International & Ors. 's case. v.

Ompal Singh63 the High Court managed the issue of vulgarity in the film Desperado Sovereign and decided that the scenes portraying should not be found in separation. According to this viewpoint, "the so-called objectionable scenes in the film have to be considered in the context of the whole film and the context that the film is seeking to transmit in society" were included in the film. The Hicklin's test was rejected by the Supreme Court in Aveek Sarkar v. State of West Bengal64, and the Roth test was used instead. The controversy was centered on a picture that was said to be inappropriate. "The question of obscenity should be viewed in the context in which the photograph appears and the message it intends to communicate," the Court stated. The Court additionally said that the right test to decide indecency would be the Local area Guidelines Test (for example Roth test).

The Court noted that "the material in question must be taken as a whole in every case related to a check on obscenity. "

61 Ibid

62 1971 AIR 481

63 (1996) 4 SCC 1

64 (2014) 4 SCC 257

At the point when the matter is taken overall and it is lustful and will in general deny the individual who runs over that material, then it very well may be supposed to be vulgar. It was thought that the community standards test is better able to adapt to any society that was changing. In addition, the Central Government has the authority to issue directions preventing the public from accessing any information65. In 2015, the Department of Telecommunications (DoT) instructed the intermediaries to disable over 800 websites that contained pornographic content. It was later clarified, however, that intermediaries that did not host child pornographic content were exempt from the requirement to disable such websites. As a result, it is safe to conclude that India lacks an explicit statutory authority to effectively govern, regulate, or censor OTT content.

However, Online Curated Content Providers (OCCPs) have discussed introducing a Self-Regulation Code numerous times. The "Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021" are a new set of comprehensive guidelines that the Central Government has issued to regulate digital news media and video streaming platforms. They acquire vigorously from the current guidelines and the TV media structure, including the substance codes and the complaint redressal construction, and will be analyzed in additional parts.

CHAPTER-6

CONCLUSION

AND SUGGESTION – Through the research conducted for this thesis, the author has sought to evaluate the situation of lack of exclusive regulation on the content available on the video streaming OTT Platforms. This need was felt due to the controversies arising in the nation on various shows streaming over these platforms. The thesis discusses the crucial factors that have adjusted to the shift towards the OTT platforms, especially in the entertainment industry, to emphasize the paternalistic role of the state and the policy vacuum situation. The Judiciary, Government, and the attitude of the industry have shown a light on the impact of a medium on the viewers. The advent of OTTs has brought a significant shift in the viewing habits of individuals; however, the most significant issue is the infrastructure within which these platforms function.

65 Section 69 A of IT Act 2000

The open internet infrastructure makes it challenging for the legislature to have regulations. The internet has enabled anyone with access to a digital gadget to have access to content. Hence, the accessibility and portability provided by the technology have made similar content available on different mediums, the only difference being possible censorship over it. Netflix has created its brand as ‘TV got better,’ which is being proved correct to an extent. With the current policy vacuum created through the venture of OTT platforms, the Judiciary is recommending the Government to address the issue of censorship over such platforms. While the Telecom Regulatory Authority of India (TRAI) has framed a consultation paper and committees were set up to look into the issue of online content regulation, the Government has no final measures yet.

The industry has attempted to have a draft code of ethics in the form of Self Regulation Code, followed by a new set of IT Rules. Initially, the objective of the IT Rules 2021 was to regulate social media content. However, the guidelines currently cover OTT platforms that are “publishers of original content, including news networks. ” It may be convenient for regulators and lawmakers to extend the scope of the domain under one set of rules, as it is exceptionally confusing and prohibitive for both OTT players and their respective consumers. The new rules are only applicable to those platforms with over 50 lakh users. Generally, OTT Platforms cater to a vast audience even though they are relatively small, which clearly shows that a large consumer base does not ensure the company can afford higher expenses.

Regional level OTT players like Manorama Max, Hoichoi, Sun NXT, Planet Marathi, and their consumers will face the brunt. From a jurisprudential perspective, Professor Michael C. Douglas posited a theory under which he established conditions that might uphold the concept of ‘selfregulation’ over ‘control by any government or federal agencies66. First, the theory emphasizes “special knowledge of the industry members” to introduce the self regulatory codes. It is more effective for the Government to depend on the collective expertise from the industry than to try and replicate it at the agency level. In an Indian context, this position of expertise can be provided by bodies such as FTII (‘Film and Television Institute of India’) and CINTA 66 Vishwajeet Deshmukh and Mustafa Rajkotwala, Self-Regulation of Over-The-Top (OTT) Content under the Indian Regime: A Missed Opportunity? , https://www.

jurist. org/commentary/2021/03 /%E2%80%8Bdeshmukhrajkotwala-self-regulation-ofott-content/ (‘Cine And TV Artistes’ Association’)67. While the code of ethics adopted by some OTT players was a great start towards private censorship, it directly puts their policies affecting the audience in India. The commercial content streaming VoD platforms like Amazon Prime Video, Netflix, Hulu, etc. , have a detailed term of use policy that enlists the scope of the subscription. The subscribing audience has complete control over viewership, and thus, the viewer himself makes a well-informed choice. The maturity ratings and the disclaimers provided by these platforms inform the viewers about the type of content, thus helping the viewer decide whether to watch the content. India is rapidly developing into a technology-friendly nation, and any governmentregulated censorship will only hamper its growth.

67 Ibid