Freedom of Expression vs. Control of platform: OTT Contents Control under Indian Media Law

Introduction

The rise of the Over-The-Top (OTT) platforms has changed the media and entertainment industry landscape in India in such a way that it has negated the elements of gatekeeping that dominated the cinema and television industry before. However, this disruptive change has also increased regulatory attention to digital content. The constitutional question, which now occupies the legal regulation of OTT platforms, is the one in which the boom of creative freedom in Article 19 (1) (a) of the Constitution is in collision with an ever-widening executive control under Article 19 (2). This article provides a review of the legal framework governing OTT platforms, examines the most important judicial reactions, and evaluates whether the existing regulation protects or undermines the freedom of expression.

Legal Framework against OTT platforms.

Even as opposed to their film and broadcast counterparts, OTT platforms were initially not covered by a sector-specific statute. Theatrically released films are governed by the Cinematograph Act, 1952 in the case of films whereas T.V. content falls within the scope of the Cable Television Networks (Regulation) Act, 1995. OTT platform, therefore, worked under the general information technology legislation.

This has changed with the promulgation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in the context of Sections 69A, 79, and 87 of the Information Technology Act, 2000. These Rules, Part III in particular, explicitly extends to the digital publishers, such as OTT platforms, a three-level regulatory framework, with self-regulation by publishers, review by industry regulators, and finally regulation by an Inter-departmental Committee of the Central Government.

Rule 9 requires compliance with a “Code of Ethics” which incorporates content standards based on the Cable Television Networks Rules, including decency, morality, order in the community, and national security. Although the Rules avoid pre-censorship, the executive still has the post-publication ability to demand a change, removal, or blocking of the content.

Vagueness, Overbreadth, and Executive Discretion.

One of the main legal concerns regarding the OTT regulatory framework is the ambiguity of the standards of content. Such terms like good taste, decency, and public morality have not been defined in statutory terms, hence giving too much discretion to executive authorities. This highlights constitutional issues regarding the doctrine of reasonablitity, as laid out in Maneka Gandhi v/s Union of India, that requires that laws that limit fundamental rights must be precise and closely focused.

Shreya Singh v.  Union of India, overturned Section 66A of the IT Act on the reason that ambiguous and subjective criteria restrain freedom of speech. The argument of Shreya Singhal has direct applicability to the regulation of OTT since the same case applicable to digital entertainment through indeterminate standards is currently applicable. Self-censorship is also necessary where creators do not reasonably foresee what content will earn them regulatory sanctions.

Judicial Solution to Obscenity and Artistic Expression.

Indian courts have always understood that artistic expression could not be evaluated in the prism of hypersensitive morality. In  Aveek  Sarkar v. The state of West Bengal, the Supreme Court took the community standards test and it was decided that nudity or sex should be evaluated on a case by case basis based on the artistic, social or political intent.

Equally, in S. Rangarajan v. P. Jagjivan Ram, the Court stressed that the freedom of expression cannot be silenced just on the basis that it is offensive to the section of the society. The Court stated that the danger to be anticipated should be proximate, factual, and not on far-fetched or hypothetical fears.

Although present in this jurisprudence, the OTT content still has to grapple with FIRs and takedown requests based on so-called hurt feelings. The incongruity of the constitutional values and the regulatory practice highlights a change in which restricting content was achieved through judicial mediation to content control via the executive.

Prior Restraint and the issue of Indirect Censorship.

Prior restraint or pre-censorship is a term used to describe state interference which limits speech before its publication and is considered to be an especially egregious violation of free speech in constitutional law. Although prior restraint is discouraged in Indian constitutional law, OTT regulation has the danger of bringing about indirect censorship. Potential government action as stipulated in the IT Rules is a motivator to platforms to self-filter, edit or block content to prevent legal liability. This anticipatory compliance reflects the existence of prior restraint, although not necessarily in form.

In Brij Bhushan, The Supreme Court confirmed that pre-censorship is a severe violation of the freedom of speech by the Delhi state. In spite of the fact that OTT platforms are not pre-certified, the aggregate effect of regulatory ambiguity, criminal investigation, and executive control creates a similar chilling effect.

An illustrative case study is an outburst that happened to the Indian television series Tandav (2021). Following the release of its episode, a series of First Information Reports (FIRs) were filed in various jurisdictions, alleging the show to have offended religious sensibilities, thus leading to police inception and summons of the producers and executives of the platform. The subsequent legal backlash meant that, although there was no pre-screening requirement of the programme, the resultant legal action forced Amazon Prime Video to place a public apology, deleted some scenes, and established internal content-review procedures. Similarly, several of the over-the-top (OTT) platforms have been said to have increased their internal vetting and legal-clearance measures to curb a similar risk of exposure.

This episode shows how regulatory indeterminacy and the threat of criminal liability encourage a certain anticipatory self-censorship, which in effect recreates the functional impacts of prior restraint where there is indeed no actual legal restraint.

Section 69A and Content-Blocking Powers.

Section 69A of IT Act enables the Central Government to ban online content on the ground of sovereignty, security or order. Although this provision was affirmed in Shreya Singhal due to the presence of procedural safeguards, its extension of the provision on entertainment content is a matter of concern.

Blocking functions were initially considered to be used in case of extreme measures of national security or incitement to cruelty. They are prone to being extended to fictional or artistic OTT material, the content of which would dissolve the proportionality provision governing restrictions under Article 19(2).

Cultural Sensitivity versus Constitutional Morality.

In India, content regulation often appeals to the defence of cultural and religious feelings. However, constitutional morality requires the State to protect pluralism and dissent but not the majoritarian sensibilities.

In Navtej  Singh  Johar, The Supreme Court stressed that the moral of the society had to take a back seat to the constitutional morality. Using this argument to media regulation, the legislation should not be used to threaten creative expression despite its offending other mainstream cultural accounts.

Marginalised identities and uncomfortable truths have been enabled in OTT platforms. Over regulation will destroy these voices in the name of ensuring that there is social harmony.

Comparative Regulatory Perspective.

On an international level, the regulation of digital content has increasingly shifted off of direct state censorship to age -classifications, user-controlled systems and post-hoc systems of accountability. An example is that in the United Kingdom, the regulator Ofcom oversees the case of Over-the-top (OTT) platforms and anticipates the use of age-ratings, content-descriptors and parental-controls instead of the advance approval of content. Similarly, the European Union Audiovisual Media Services Directive (AVMSD) requires such platforms to protect minors with age-based classification and user-empowering instruments but leaves editorial judgement to a foremost degree to the platforms themselves. Such arrangements recognise the voluntary, on-demand and tailored nature of OTT consumption, thus controlling the possible harm without having to use pre-censorship by the state.

Indian regulation, in its turn, brings to a digital space broadcast-era moral controls, which creates regulatory overreach and constitutional tension. A misunderstanding of differentiating passive broadcast viewers and active online consumers is a blow to the legitimacy of regulators.

Recommendations

The implementation of OTT regulation in India requires the shift to the rights-based regulatory paradigm with the basis on Article19(1)(a). The dependence on nebulous predicates like the idea of decency and the notion of public morality ought to be replaced with specific and harm-focused rules limiting executive discretion and reducing legal uncertainty. The directives of takedown/modification under the Information Technology Rules should be made to go through a compulsory judicial review particularly in cases involving artistic expression.

Further, it should regulate in advance user- empowerment structures such as age-based classification systems, content descriptors, and parental controls instead of state-based content regulation and thus recognize the on-demand, voluntary nature of OTT consumption. The greater consistency between the policy and the autonomy of users will improve the alignment of libertarianism with societal demands.

Lastly, the tendency of creative expression to become habitualized by the criminalisation process should be circumscribed to prevent the chilling effects on the artistic effort. These reforms are absolutely necessary to retain the liberty of creativity and at the same time, to support valid regulatory interests.

Conclusion

One of the most important modern issues in the Indian media and entertainment law is the regulation of OTT platforms. Although the State has a valid interest in eliminating harm, the existing regulatory strategies are currently skewed in favor of the executive branch to the detriment of creative liberty.

The judicial precedent has also been continuously supporting the contextual interpretation, proportionality, and tolerance towards dissenting expression. In order to balance OTT regulation with these principles, it is necessary to have better statutory definitions, less executive discretion and increased judicial checks and balances.

In the event that digital entertainment remains the place of the innovations, criticism, and cultural discourse, media law should transform into a rights-based regulation, rather than ethical policing. This realignment is the key to the future of freedom of expression in the digital age in India.

Authored by - Divija Manaktala, 2nd year student at Maharashtra National Law University, Mumbai

Edited by - Anushree Anushree Srivastava