INTRODUCTION
The technological advancement in the audiovisual category have occurred at a very fast pace in the last century. The world has moved from films as a sole medium of dissemination of moving pictures to television and now to the internet. In this fast paced world, each one of us sits in front of an electronic gadget to pass time. The evolution of media and visual entertainment has witnessed a drastic change in the current decade due to the era of digitalization. The whole concept of visual entertainment started with few television channels and now it is easily available and accessible through the mobile phone, personal computers and Smart TVs. There is a causal link between the changes in the medium used to disseminate audiovisual content and the changes in society. The effect that a medium has on society forms the basis of its regulation by the state. The ongoing digital disruption in the media landscape changed people’s perceptions of time and space, bringing about new habits of content consumption that were triggered mostly by the increased accessibility, portability and freedom of choice.
The OTT has acquired a major share in the digital media section of Media and Entertainment Industry in the last two years. It constitutes 13% out of the total 29% growth in digital media in 2018 and it is also expected that India will overtake South Korea to become the eighth biggest OTT market in the world by 2023[1].The OTT video market in India will grow from INR 44.64 bn in 2018 to INR 119.76 bn in 2023 at 21.8% CAGR[2]. The major reasons for the popularity and market expansion of OTT platforms in India are growth in the internet penetration, increase in the sales and consumption of smart phones, growth in the average download speed and the cheaper data prices in India. The Average Data consumption per subscriber per month has increased from 62 MB in 2014 to 9.8 GB in June 2019[3].India is on 10th position in the world for using the OTT platforms with overall revenue of more than four thousand crore rupees. It clearly shows that gradually the Indian population especially the urban audience is shifting towards the OTT platforms.
The Indian audiovisual content category has traditionally been very dynamic. With a diverse population in terms of religion, economic status, caste and language, the issue of content regulation has always been important in India. Government in India has been already known for its act in the past to censor content on grounds of public morality, communal harmony or the need to protect history, among various reasons[4].The OTT services created a parallel medium to disseminate such content. That has led to a situation where the same content might be censored in cinemas and on television, but not on streaming platforms as regulation of content on paid OTT services does not exist. But on the other hand it must be noted that the OTT platforms are very private because here, we choose that what we want to see. There are so many people who posted their articles, opinion, videos, on social media without any responsibility of economic pattern of creation, distribution and consumption. And by which they differentiate between the right and wrong. Sometimes the online media raise that kind of question which the newspaper or TV media cannot. India’s government, which traditionally tends to maintain its parental role over the distribution channels, usually has an offhand attitude when it comes to bringing policy up to speed with technology.The OTT regulation is a manual regulation now and it is very challenging to regulate internet manually 24*7 because in the era of globalization where global content with the regional languages are coming on one platform it raise many questions that technically is it possible to regulate. If we talk about the foreign countries regards the internet regulation like USA, Canada, South Africa, they do not regulate the internet content, they have freedom to internet. Therefore through this research the researcher aims to analyse the concept of OTT platforms, what constitute a platform as OTT platform, Is there any law which regulates OTT platforms, if yes, is the law sufficient in itself. The researcher further wants to analyse that is there any need of censorship of OTT platforms and what is the reaction of the society over it.
- Research Problem –
The content of an audiovisual can be censored in cinemas and on television on the grounds mentioned in article 19 (2) as a motion picture has the ability to stir up more emotions deeply than any other product of art. However, there is no such rule of censorship for OTT platforms and the gradual movement of audience towards the OTT platforms makes its more sensible. The researcher through this research aims to analyze the relation of Article 19 with the censorship of the OTT platforms and whether there is a need to censor the items available on the OTT platforms. Further the researcher also aims to analyze the existing laws for regulating the OTT platforms and there effects. The motive of researcher is also to highlight the thoughts and want of the society and viewers over the censorship of OTT platform.
- Statement of Problem –
For the purpose of this study, the following statements of problem have been framed:
- Whether there exist any link between article 19(1) (a) read with 19(2) and OTT platform and what is there scope?
- Whether there exist any law to regulate OTT platforms, if yes, is that law is sufficient enough to tackle the emerging issues related to the censorship of OTT platforms?
- Is there any need of censorship of OTT platforms?
- Whether non censorship of OTT platforms and censorship of content in cinemas and on television lead to violation of article 14?
- Hypothesis –
For the purpose of this study, the following hypotheses have been framed:
- There is a link between article 19(1)(a) read with 19(2) and OTT platform and reasonable restrictions can be imposed on OTT platforms through 19(2).
- There is no law to regulate the OTT platforms. However, they can be regulated through the restrictions in article 19(2).
- There is no need of censorship of OTT platforms as there can be reasonable restrictions on them through article 19(2) as well as OTT platforms are very private because here, we choose that what we want to see.
- The non censorship of OTT platforms and censorship of content in cinema and television are two different concept and they cannot be kept as a same pair of shoes. Therefore, there is no violation of law when there is no censorship of OTT platform and there is censorship of content in cinema and television.
- Objective of the Study-
The objective of this study is to establish a link between article 19(1) (a) read with 19(2) and OTT platforms and check whether the reasonable restriction given under 19(2) can be applied on the content of OTT platforms. The objective of this study is also to analyse whether there is any need for separate legislation to regulate the content of OTT platforms. The objective of this study is also to analyse where there is any breach of law when there is no legislation for regulating the content of OTT platform and on other hand a strict law to censor the content of cinema and television.
- Nature and Scope of the Study –
As there is no much work done with respect to OTT platform but the object of study is to build a connection between article 19(1) (a) read with 19(2) which can only be accomplished when research is carried out on legal proposition by way of analyzing the statutory provisions and case by applying the reasoning power. Therefore the researcher has opted for doctrinal method of research. However it is to be noted that the objective of this research is also to analyze whether there is any need of separate legislation for regulating the content of OTT platform and this can only be achieved when there is some data collection with respect to the research. Therefore the researcher is opting for doctrinal as well as non – doctrinal type of research.
1.6. Chapterisation–
- INTRODUCTION
- Need for Regulation of OTT platforms.
- Requirement of the society
- Need for Regulation of OTT platforms.
The viewers of the contents on the OTT/Streaming Platform have drastically increased during the time of pandemic. There is need of the establishment of a proper board/institution/association for the monitoring and management of content on different OTT/Streaming and digital media platform. The self – regulation code give the right to the viewer to choose their choice but they don’t restrict the content or don’t restrict to the director. OTT/Streaming and different digital media platforms have surely given a way-out for filmmakers and artists to release their content without being worried about getting clearance certificates for their films and series from the censor board. At the end of 2019, India had as many as 17 cr. OTT platforms users. In India every platform has their own body .for example:
- Press council of India looks after the print Media.
- News broadcasters association (NBA) regulates TV news channels
- The advertising standards council of India (ASCI) regulates the content of the advertisements.
- Central board of film certification (CBFC) monitors audiovisual content in cinemas and televisions and is also known as censor board.
OTT platforms’ aren’t regulated. Internet and mobile Association of India (IAMAI), a representative body of the OTT platforms had proposed a self-regulatory model .In 2020 OTT platforms signed self-regulation code in India[5]. Here self-regulation means the platforms will regulate themselves by their own regulation and take care of the contents also. The self regulation code contains that “with the framework for age classification, content description and parental controls in combination with a grievance redressal system, we have made it easier for consumers to make the right viewing decision for themselves and their families.” After this signing this code it gives the complete power to consumer/ viewer to take decision about their viewing material. By using the parental control the parents could also decides the viewing material for their child.
Self-regulation code is nothing but a mockery to Indian Judicial system. They have made themselves a judge in their own cause, clearly violating the doctrine of “Nemo judex in causa sua”. Moreover the audiovisual content in cinemas is regulated differently. There are two types of certificate for cinemas in audiovisual content. If a content gets “U” certificate then it is open for all but if a content gets “A” certificate it is only open for adults and before entering into the cinema hall one needs to show his/her age proof. The condition is not same on OTT platforms. They only provide a description that this content contain sexual, abusive and violence. There is no age bar.
The Defence Ministry had officially written to the Central Board of Film Certification (CBFC) urging that production houses of audiovisual content should be advised to obtain an Non Objection Certificate from Defence Ministry before the telecast of any film, documentary or web series on Army theme in public domain “It has been bought to the notice of this Ministry that some production houses, making films on Army theme are using contents which are distorting the image of the Indian Army. Therefore, the producers of movies/web series etc. based on Army theme may be advised the ‘NOC’ from Ministry of Defence Before the telecast of any movie documentary on Army theme in public domain. They may also be advised to ensure that any incident which distorts the image of Defence Forces or hurts their sentiment may be prevented”[6].
Defence Institutions are important pillar of India and disrespecting such institution shall be in violation to our constitution and pounder adverse affect on the moral of the defence forces and their families. Obtaining no objection certificate from Ministry of Defence for producing the movies related to Defence Forces viz. Arm, Marine, Air forces and other security forces is necessary to protect the integrity of India.
In the month of October a writ petition[7] was filed in the SC that digital content on these platforms is made available to the public at large without any filter or screening. Then SC issues notice to center on PIL to regulate OTT platforms. In result the central government issue the notification where it has been clearly mentioned that “in the government of India (Allocation business) Rules , 1961 , in Second Schedule , under the heading “ Ministry of Broadcasting (Soochana aur Prasaran Mantralay )” after entry 22 , the following sub headings and entries shall be inserted , namely:
DIGITAL/ONLINE MEDIA
- Films and audio – visual content programs made available by online content providers
- News and current affairs content on online platform[8]”.
2.1. Instances when the content on OTT platform was in question –
Recently released movie “Gunjan Saxena: The Kargil Girl” negatively portrayed the Indian Air Force by pedalling lies by taking the shelter of creative liberty. The IAF has written to the Central Board of Film Certification complaining against its “undue negative portrayal” in the movie, which was released on OTT/Streaming platform i.e. Netflix. The letter written by the IAF and accessed by ANI, read: “In the aim to glorify the screen character of ‘Ex-Fit Lt Gunjan Saxena’, M/s Dharma Productions presented some situations that are misleading and portray an inappropriate work culture especially against women in the IAF.” IAF in its letter stated that: “that the organisation is gender neutral and has always provided an equal opportunity to both male and women personnel”[9].
There are numerous instances and example wherein these Platforms have taken the liberty to stream derogatory and negative content which disturbs the harmony amongst the people of India. Even the Indian series and movies like Mirzapur and Paatal Lok on Amazon, Sacred Games on Netflix, Coffee with Karan on Hotstar are full of inappropriate contents for common households including obscene language, violence, sex, crime and adult talks and are not having any moderation by any government body which is harmful for society at large.
In a case filed by Mehul Chowksi seeking postponement and preview of docuseries ‘Bad Boy Billioners’ before release, Delhi High Court while dismissing the plea refused to grant him a preview stating that there are no regulations to control the content on OTT platforms. It must be noted that it is a complete abuse of liberty granted to the content creator.
That OTT/platforms have became a hub of Hindu phobic shows by disrespecting Hindus, its customs, rituals and other things which form the majority of the nation. The Netflix aired Krishna & his Leela showing Krishna has sexual affairs with many women & one of them names as Radha. This audacity to openly target Hinduism with lies, deceit, propaganda and insult to Hindu Gods and divines is dangerous for society.
The movies, series, etc. and their trailers and teasers are also releasing on video streaming platforms like YouTube which is directly available to every household due to OTT/Streaming Platforms and internet facilities.
- Requirement of the society
Web series and documentaries have often been made on a lot of political and economic issues which have seldom been covered by the mainstream films and TV due to the censorship in place. For example: Jamtara, criminal justice, inside edge, Delhi crime, special ops etc. However this content can also be presented without using sexual content, abusive language and violence.
An online survey was conducted by the researcher through Google forms. The survey Contain Following questions
- Do you know what an OTT platform is?
- Do you know what censorship of audiovisual content is?
- Do you know how audiovisual content in cinemas and television is censored?
- What are your views on censorship of audiovisual content in cinemas and television?
- Do you check the certificate before watching anything on OTT?
- Do you think the content on OTT Platforms should also be censored?
The conclusion from the survey is that almost everyone who knows how internet works is aware of OTT platforms and almost 80% knows about the censorship of audiovisual content. Those who don’t know were explained about it. However none of them checks the certificate before watching any content on OTT. This include person from every age group. Further 72.5% of people thinks that the content on OTT platforms should be censored.
A young advocate of Delhi High Court while addressing the question of researcher during the non-doctrinal research has said that “In my opinion, censorship should be done for OTT platforms. In a country like India which has so many diversities it is quite easy to hurt the religious sentiments of a particular community so the censorship will keep a check upon that what is being shown in the movies and televisions. The other reason is the adult content, as the majority of Indians live in a joint family so they have the right to know that what kind of contents they are watching so there won’t be any uncomfortable situation among the family members”.
A Senior Software Engineer in Samsung Co. while addressing the question of researcher during the non-doctrinal research has said that “Indeed there should be censorship for such contents keeping in view their reach to the mass audience, but such censorship should only be limited to the extent which doesn’t affect the realistic factor of the content of the show”.
While an another person being a HOD of Physics department in Jaypee University is of the view that “OTT platforms should not be censored because one always has a choice with respect to, what to watch and what not to. OTT platforms give us a choice. Therefore censorship of OTT platform is not necessary.”
The researcher received different opinions from every different person and after analyzing them all, the researcher reached at following conclusion.
- CONCLUSION
There is a lack of legislation governing OTT/Streaming Platforms and this issue is becoming evident with each passing day and every new case that is being filed on these grounds only. The government is under pressure to fill this lacuna with regulations from both the public and as well as Judiciary; still the relevant government departments have not done anything significant to regularize these OTT/Streaming Platforms. In the time of corona pandemic as the whole country was under lockdown, the population consuming the contents on these OTT/Streaming Platforms has significantly increased and there is an urgent need for regularization and management of contents on these Platforms.
The another reasons for regulation is that no censoring allows exploitation of creative liberty and pushes for more ideas to get incorporated which in turn let writers, directors, and producers to experiment limitless due to which there have been more violence, sex scenes, obscene languages & even characters smoking on screen- that would normally be cut or displayed alongside health warnings. The age group watching OTT/Platforms are from no significant age and includes people from all age group, which makes it even important for the contents to be monitored and regularized and, it is for the first time that the internet users in rural India have crossed that of urban India. In such a scenario, it is even more important to monitor such contents so to keep the value system intact.
OTT platforms are likely to resist any plans to censor the content being provided and streamed by them as these platforms have often chosen to produce movies and documentaries on politically sensitive but relevant topics. It will also have to be seen as to what guidelines, if any, does the I&B ministry put in place for regulating these OTT platforms.
[1]Data usage in India to 10,96,58,793 million MB in 2022, ASSOCHAM, available at:Assocham India (Visited on Jan 05, 2021).
[2]Data usage in India to 10,96,58,793 million MB in 2022, ASSOCHAM, available at:Assocham India (Visited on Jan 05, 2021).
[3] Government of India, Economic Survey of India 2019
[4]SubradiptaSarkar, “Right to Free Speech in a Censored Democracy” University of Denver Sports and Entertainment Law Journal62–90 (2009).
[5]Hindustan times, OTT platform sign self regulation code in India: here’s what the platform and experts have to say about it, Sep 07,2020
[6]News report of The Tribune dated 01.08.2020
[7]Shashank shekhar jha v/s union of India 2020, writ petition 1080.
[8]Cabinet secretariat ,The gazette of India : extraordinary , notification, new Delhi , 9 November ,2020
[9]News report of ANI news dated 12.08.2020
