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Are We Heading Towards Censorship of OTT Digital Media in India?

Feb 12, 2021 4:25 AM 4 min read

The Over-the-Top (OTT) platforms stand at the very margins of broadcasting freedom and fairness. Their existence has made it necessary to spell out the differences between electronic and digital media as well as between content regulation and censorship. 

The state's efforts to bring them under a controlled regime is about to turn real very soon when the Government brings out new guidelines for their regulation. However, it seems that in a last minute hail mary attempt to preserve their autonomy, a consortium of OTT players has acceded to a self-regulating code of conduct, before the Government guidelines are released. 

This act of voluntarily giving into a regulatory code is surprising for the platforms which have been at odds with the authorities for quite some time, trying to fend off any approach at regulation earlier. 

Let's see what are the latest updates in the process of OTT-regulation and what might have prompted this action at the 11th hour.

OTT Regulation Ready? 

In November 2020, the Ministry of I&B (MIB) brought all online digital content (including OTTs) under its regulatory purview. 

Prior to that, content on OTT platforms were not subject to any regulation or censorship. But with every new piece of content on a show, series or movie that is found offensive by a section of the society, the matter blows up and the debate over censorship of these platforms take precedence. 

For instance, in the latest political drama series Tandav on Amazon Prime Video, FIRs were lodged against the show's producers and actors to retract some of the objectionable content that allegedly hurt religious sentiments. Although this wasn't the first instance of public furore and FIRs against a series, it was the first instance when the makers engaged in "voluntary censorship" to quell the objections raised. 

Following this, actor Anil Kapoor and Netflix India also tendered an apology to the armed forces for "unintentionally hurting their sentiments" in the film AK vs AK

Both these instances show the willingness and rising rush of OTT platforms to self-regulate in their own way and douse the fire before it causes any further smoke. Call it a fear against arrest, boycott or ban, this time, they seem sold on the idea of self-censorship to prevent any impending institutional censorship that may arise from the Government guidelines to be released soon. 


Mode of Proposed Self-Regulation 

Pursuant to the above factors, 17 different platforms have arrived at a common Code of Conduct finalised by the Internet and Mobile Association of India (IAMAI). In time, their numbers are expected to rise to 40 platforms and they wish to implement the Code from August. 

The most striking feature of the Code is the two-stage grievance and complaint redressal structure. It says that if a complainant approaches the regulatory body, they will get an audience with the committee comprising company executives of all the platforms enlisted therein. If the complainant isn't satisfied with the outcome at this stage, they can approach the ombudsman forum which will have two company officials and two independent experts with veto power. 

Of course, in case of unsatisfactory engagement with the second body, the complainant is free to move the Courts. But, the two-pronged system that has been devised in the Code indicates the seriousness and commitment of the OTT platforms to the cause of content regulation, as long as the power to do so lies with them and not the state. 

The Government, on the other hand, isn't too keen on the idea of self-regulation because of two key reasons. 

One, the ideas are too little and too late. Even though the platforms show commitment, they lack clarity when it comes to detailing all manner of regulations involving clauses on decency, morality, respect to the sovereign, religious accord, prohibition of nudity, violence, narcotics etc. 

Two, it is a conflict of interest. No one should be a judge in their own cause. So when a complainant approaches with objections to a content before the executives who authorised its broadcast, chances are, the complaint never receives satisfactory remedy. 


Government's Possible Regulatory Format 

As per reports, the guidelines for OTT regulation will be based on similar lines as prescribed under the Cable TV Network Rules, 1994. Prominent compliances to be outlined are age-verification, content description and access control measures. 

The Cable TV Network Rules focus on the requirement that programmes must adhere to "good taste or decency, prohibit obscenity, defamatory content, false and suggestive innuendos, half truths" etc. It also says that programmes must "refrain from criticism of friendly countries, refrain from attacking religions or communities and not promote communal attitudes". 

Evidently, these are some compelling compliance requirements which, if extended to the OTT world, will drastically curtail artistic freedom and narrow the ambit of expression. No wonder the platforms are racing ahead to showcase their self-instilled regulatory goals before the Government pulls the plug and moves forward with the above rules.


Censorship or Certification? 

The strongest argument against censorship is that content on OTT platforms are Subscription on Demand, where viewers can choose to pay and select what they wish to watch. Even in case of films, with regard to objectionable content, only certification is allowed, not censorship (e.g. Universal, Adult, Parental Guidance). 

If censorship were to be a defining criteria of the Government's guidelines, it could encourage piracy. 

Given this situation, another question that arises is whether self-censorship could work instead? The trick with self-censorship is that it flows from a sense of responsibility and one cannot depend upon the good conscience of a quorum unless it is unanimous (and highly unlikely). 

OTT video consumption grew by 13% YoY in 2020. With a rise in audience this big, it remains crucial that the Government and the platforms devise a mutually beneficial way to administer a regulatory environment that is conducive for all. 


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