OTT players apprehensive as Govt tightens rules on curated content

Legal experts say notifying rules for OTTs under IT Act may not be tenable; industry players seek clarity on oversight mechanism

The dream run for online curated content is over. The government today announced a three-stage regulatory regime for co­n­trolling over-the-top (OTT) content.

The regulations include a two-stage, self-regulatory mechanism — one at the company and the other at industry level — followed by a government controlled oversight system under the information and broadcasting (I&B) ministry. This will include an inter-departmental committee (consisting of various ministries) that will be the highest call for redressal of any grievance if a com­plainant is dissatisfied with the dec­isions of the self-regulatory bodies.  

The government has only partially accepted the plan, which was hurriedly signed by 17 OTT players just a few weeks ago and sent to it after more than two years of contentious debate.

The government has accepted the first stage of redressal mechanism suggested by the industry at the company level. It has directed OTTs to appoint a grievances redressal officer to address the complaint within 15 days. But it has rejected the suggestion made through the Internet and Mobile Association of India (IAMAI) that each OTT also set up an advisory body of three members, as the second level of redressal of complaints, one of whom could be selected from an empaneled group of independent members.

Instead, the government has directed the OTT players to set up an independent body (rather than a company body) akin to the Broadcasting Content Complaints Council (BCCC), which is an independent redressal body set up by the Indian Broadcasting Federation (IBF). This self-regulatory body will be chaired by a retired Supreme Court or high court judge (see box). It will have the powers of warning, censure, asking for apology, reclassify ratings, making appropriate modification in the content descriptor, amongst others.    

There will also be a third stage of oversight mechanism under the I&B ministry. This will publish charters for self-regulating bodies and also set up an inter-departmental committee to hear grievances arising out of the self-regulating mechanism. The committee can delete or modify content for preventing incitement towards the commission of a cognisable offence relating to public order.

The rules are part of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The rules related to social media will be administered by the Ministry of Electronics and Information Technology, while those for OTTs and digital media will be administered by the Ministry of Information and Broadcasting.

Legal experts point out that notifying rules for OTTs under the IT Act might not be tenable. "The rules with respect to OTTs and digital media, which are not intermediaries, is totally unsustainable under the IT Act and more specifically under the two provisions invoked, ie Section 79 and 69(A) of the Act," said N S Nappinai, Supreme Court advocate and founder, Cyber Saathi. “Section 79 is for intermediaries, and 69A is for blocking content by the intermediaries. Therefore, you can't frame rules for non-intermediaries under intermediary rules.”

Senior executives of OTT platforms said that even in broadcasting, there is an inter-departmental committee, but not a single company against the decision of the BCCC has come to them. Requesting anonymity, a senior executive of an OTT platform said, “The wording of oversight mechanism is new and one needs clarity whether this means they will also oversee the industry self-regulatory body. After all, the committee has sweeping powers to modify or delete any content.”  

The executive added that currently only broadcasters who are not members of the IBF are overseen by the government committee. “In OTT also there are over 40 players and everyone is not a member of IAMAI. But it is not clear if the government will only regulate them or everyone through the committee.”

Broadcasters who have OTT platforms said they, too, had earlier made a suggestion for a self-regulatory body, but other OTT players had rejected it. “In February 2020, five players — Disney+ Hotstar, Voot, SonyLIV, Eros Now and Reliance Jio — asked for setting an industry-led Digital Content Complaints committee under former high court judge, Justice A P Shah, to hear complaints in the second stage,” said an official with a global broadcasting company that also has OTT platforms. “But the plan was rejected by others, as they thought broadcasters were using it to scuttle independent OTT players’ freedom over content.”