OTT Censorship – Through the Lens of Freedom of Speech and Expression
Over-the-top (OTT) platforms are those platforms that provide direct content to consumers through the internet. These platforms also provide personalized suggestions to the viewers by using artificial intelligence. The OTT industry is one of the fastest-growing industries in India, both in terms of customer base and finances. But, over the past few years, the demands for the regulation of OTT platforms have gained prominence among the legal and political circles. The primary reason for this is the myriad of controversies that these platforms have landed themselves into. The content on these platforms is often found to be hurting religious sentiments or to be against societal decency and morality. Countries such as Australia, Singapore, and Saudi Arabia already have a regulatory framework for the OTT platforms. Countries such as Turkey require the OTT platforms to obtain a license that is valid for a period of 10 years.
In order to avoid any governmental regulation, the OTT platforms adopted a self-regulation-based code. The code stipulated an age-based classification of the content, displays about the nature of the content, settings up an adequate redressal mechanism and providing customers with control tools.
However, this code, which 15 OTT platforms had agreed to abide by, could not get the approval of the government. Concerned with the growing number of controversies surrounding the content streaming on the OTT platforms and the lackadaisical attitude of these platforms in establishing a regulatory framework for redressing any complaints in a time-bound and effective manner, the government notified that these platforms and their content would be brought within the domain of the Ministry of Information and Broadcasting. Prior to this notification, OTT platforms came under the jurisdiction of the Ministry of Information and Technology.
Several petitions have also been filed before the various Courts, such as the Madhya Pradesh High Court, Delhi High Court, Karnataka High Court, etc., seeking regulation of content on OTT platforms. Concerned with the huge number of litigations surrounding OTT regulation, the government appealed before the Supreme Court to transfer all OTT-related cases to the apex court and the appeal was subsequently permitted by the Court.
The government has also framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which envisage the regulation of the OTT platforms. These rules empower the government to block any such content as it may find harmful or unsuitable. These rules stipulate the creation of a three-tier redressal system and a self-regulatory mechanism. Moreover, the OTT platforms are mandated to provide adequate parental lock features so that children are not able to access adult content. The Ministry of Information and Broadcasting may also suo moto inquire into any inappropriate content through an appointed inter-departmental committee.
Major Problems with OTT and the Need for Censorship
The Constitution guarantees the right to freedom of speech and expression under Article 19 but at the same time imposes reasonable restrictions on this right in the form of Article 19(2). Public decency and morality are some of the grounds on the basis of which free speech can be restricted. Content provided by the OTT platforms has often been accused of violating these restrictions. Furthermore, the content of the OTT platforms contains various degrees of vulgarity, some of which may fall into the category of obscenity prohibited by the Indian Penal Code.
The adult content available on these platforms is often viewed by children. Even though the OTT platforms provide parental control features, these features are often ineffective as several parents, particularly the ones in rural India, do not have the knowledge of using these features.
Another major problem with the lack of regulation is that in the face of any controversy, the OTT platforms end up getting engulfed in litigation. Unlike movies which are regulated and certified by a statutory body, that is, the Central Board of Film Certification, the OTT platforms cannot plead the defense that they had obtained a government-approved certification before uploading their content. At a time when the Indian Judiciary is already inundated with a heavy backlog of cases, the litigations relating to the content on OTT platforms only adds to the existing problem. An ideal way to have dealt with this problem would have been to extend the jurisdiction of the Film Certification Appellate Tribunal to bring the content of OTT platforms within its domain. However, the recent decision of abolishing the Film Certification Appellate Tribunal has only increased the caseload on the already overwhelmed courts.
Arguments against censorship are based on this assumption that the content creators would exercise the wide discretion provided to them, in the event of no censorship, only for the sake of artistic freedom and not to propagate personal agendas or bias. If indeed everyone can be expected to exercise this discretion sensibly, then the makers of the Constitution would have guaranteed absolute freedom of expression and there would have been no need for any restrictions on this fundamental right. Video content is much more influential than other forms of entertainment and hence it has the potential of influencing a large number of people simultaneously.
Another argument that is often stated in favor of non-censorship is that OTT content is meant for a private audience and is not viewed in public like movies in theatres, this argument holds group for permitting wider artistic freedom for OTT content but the same contention cannot be stated for permitting unrestricted freedom to the OTT content creators. Certainly, provocative or explicit content or any such content which disrupts religious or societal harmony needs to be censored as it poses threat to society. Such content cannot be permitted, irrespective of any disclaimer or any age-based classification that the OTT platforms may introduce. In today's highly competitive world, the OTT platforms, in the absence of any censorship, will primarily prioritize their profits and societal welfare will only be secondary. Thus, OTT platforms must be subjected only to partial and limited censorship which would distinguish them from the traditional movie theatre and televisions.
Censorship cannot be opposed merely on the grounds that it could cause potential harm to the pecuniary interests of the OTT platform as there is no formidable reasoning for this argument. The Indian motion business continued to grow and thrive even after "the imposition of a formal system of film censor". Hence, if complete censorship could not affect the growth of the film industry, then partial and limited censorship is unlikely to hurt the future monetary prospects of the OTT industry. Even if censorship is contrary to artistic freedom, it is, to some extent, a "necessary evil" as it aims at protecting the interests of the larger society's even if it comes at the cost of restricting an individual's freedom.
In the event of the government establishing a regulatory body for censoring the content on OTT platforms, such a statutory body is likely to recommend changes only when necessary and in consultation with the concerned stakeholders. Even if any content maker feels that his content has been arbitrarily censored in a manner that curbs artistic freedom, it would be plausible to get legal remedy as the Courts have been very liberal and encouraging towards protecting artistic freedom.
However, in the case of OTT platforms, the Supreme Court has remarked that the government’s OTT regulation guidelines “lacks teeth”. With the markets of the OTT platforms growing at an unprecedented rate and the OTTs replacing theatres and television as the primary source of entertainment, the Courts have started viewing the censorship of the OTT content with a degree of circumspection. Censorship, in itself, cannot be termed to be restrictive and violative of the fundamental freedom of expression. It is rather the manner in which censorship is undertaken that determines its effectiveness or futility. The Supreme Court, in the case of K. A. Abbas v. Union of India, observed that “censorship is universal” and that freedom of expression must not be exploited to permit content creators “to make money by pandering to, and thereby propagating, shoddy and vulgar taste”.
India is a country of diversified beliefs, transitions, customs and sentiments. In a market that is dominated by foreign-based OTT platforms, content is often uploaded without giving due concern to the feelings and sentiments of the Indian people. Furthermore, these platforms host the content generated in foreign countries as well which is made freely accessible to Indian consumers. Such content may, from time to time, require censorship and the censorship norms can be lowered as society progresses.
While stringent censorship might hamper the growth of the OTT industry, partial censorship is likely to stimulate this growth as limited censorship would facilitate family viewing of the OTT content. Family viewing is still very popular in India and government regulation would ensure that the age-based classification of content and the disclaimers regarding the nature of content such as obscenity, nudity, foul or strong language, etc., are adequately displayed.
_______________________________  Bruce Michael Boyd, ‘Film Censorship in India: A "Reasonable Restriction" On Freedom Of Speech And Expression’ (1972) 14(4) Journal of the Indian Law Institute  Shameek Sen, ‘Right to Free Speech and Censorship: A Jurisprudential Analysis’ (2014) 56(2) Journal of the Indian Law Institute
*The author of this post is Gautam Badlani a law-student from Chanakya National Law University, Patna. He can be reached at email@example.com.
Image Source: The Indian Express
Article Number: 2022/LCLR/03B14
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Journal.