Sajai Singh, Partner at J Sagar Associates Shares a Quick Byte on Digital News Portals, Netflix, Amazon Prime, Other OTTs Now Under I&B Ministry

The Ministry of Information and Broadcasting (Ministry of I&B) is a ministerial-level agency of the Government of India responsible for the formulation and administration of rules, regulations and laws in the areas of information, broadcasting, the press and the Cinema of India. Generally, Press and Films enjoy the same constitutional freedom related to expression, with Article 19(1) of the Constitution of India guaranteeing freedom of speech and expression. Such a right is not absolute and has certain limitations, including matters that are against foreign relations, public policy, integrity and sovereignty of the State, decency and morality, public order, etc., as mentioned in the Article 19(2). COVID-19 has come at a time where digitisation was rising in India and the common man was getting greater access to affordable internet. In the last 8 months, OTT or digital media and entertainment platforms, have all but replaced television. Yes, digital content is not subject to censor certification applicable to films and television programs. Other than a Universal Self-Regulation Code for OCCPs, OTT platforms enjoy ample creative freedom. The Self-Regulatory Code is yet to become fully functional (August 15, 2021) and its application is based on a best-effort basis. The Ministry of I&B realised the minimal regulation and uncensored content, being freely made available on OTT platforms, to take this step. Jurisprudence on pre-censorship of films in India has historically been tested on the basis of freedom of speech and expression. The rationale being that such freedom was at the heart of any artistic expression. Censorship of films in India is undertaken by the Central Board of Film Certification (CBFC) set up under the Cinematographic Act, 1952 (Act). The Act along with the Cinematographic (Certification) Rules, 1983 and the Central Government's guidelines dated December 6, 1991, issued pursuant to Section 5B of the Act (Censorship Laws), set out the manner in which films are to be certified for exhibition in India. On the other hand, television networks, television broadcasters and related matters are governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994, which among other things, restrict transmission through a cable service, of any program that is not in conformity with the program code, and of any advertisement that is not in conformity with the advertising code set out in the Cable Television Networks Rules, 1994. There was debate that OTT platforms were intermediaries under the Information Technology (Intermediary Guidelines) Rules, 2011. Thus, they were required to create a due diligence framework with respect to the information being hosted or published by the intermediary. Now with this move, curated content on OTT platforms will also warrant a level of certification, censorship and care that other avenues for content consumption attract. If self-censorship under the Self-Regulatory Code is unacceptable to the Ministry of I&B, then our hope is that the Ministry of I&B will also consider the recommendations made by the expert committee, chaired by Mr. Shyam Benegal, while trying to formulating guidelines and procedure for certification of content on OTT platforms. One key differentiator of this digital medium is the lack of public exhibition of content; rather, a pull factor wherein the consumer decides what content s/he wants to consume, at what time and after paying a transaction value for the same. Thus, the impact risk may be at variance from that of motion pictures which were available in theatres for public exhibition. In any event, it is imperative that the industry is allowed to flourish and grow in a uniform, non–discriminatory and non–discretionary manner