Not Just Streaming: Why India Needs to Rethink OTT Regulation

The blocking of OTT platforms has brought India’s debate over streaming regulation back into the public eye. It has shifted the debate from “do we need to regulate OTT platforms?” to “what would the appropriate form of regulation for OTT platforms look like?” The root of the problem is that OTTs do not fit neatly into existing legal categories. OTT platforms do not serve as passive intermediaries (i.e., simply hosting content) and are not traditional broadcasters (since streaming is on-demand, user-specific, and typically consumed in private).

The Problem With Existing Labels

Because of this “in-between” nature, India’s regulatory scheme has been inconsistent and scattered. As such, the law must move beyond labels (e.g., passive intermediaries, broadcasters) and focus on the actual manner in which OTT platforms operate. There is no need for an overly burdensome, broadcaster-style, mandated regulatory scheme applied to OTT platforms. Furthermore, OTT platforms can’t continue to be treated as neutral digital spaces with minimal obligations. Instead, what is required is a behaviour-based regulatory framework that acknowledges OTT platforms’ current power over content, viewers, and market dynamics.

Why OTT Platforms Are Not Passive Intermediaries

The manner in which users access content when they visit an OTT platform demonstrates the power that OTTs have over subscribers: when you visit an OTT platform, the content displayed on the screen is not randomly displayed; rather, it has been selected, ranked, promoted, and/or recommended. The platform decides what is displayed on the homepage, which shows will be identified as “trending”, what will be pushed out via banners, and what will be recommended after a user has viewed content. The manner in which these decisions are made directly affects what users are likely to view. Thus, the label of intermediary is insufficient. The previous rationale for providing intermediary protection to a platform was that it is unreasonable to hold a platform responsible for each piece of third-party content it hosts. This rationale was adequate for platforms that only stored or transmitted information. However, today, over-the-top (OTT) platforms are part of the content ecosystem and have become active participants by acquiring exclusive rights, curating content catalogues, designing recommendation systems for users, and using viewer data to inform future content strategy. They are no longer merely hosting third-party content; they are actively producing and distributing original content.

The Risk of Broadcast-Style Regulation

Nonetheless, this does not mean that all OTT platforms should be regulated as broadcasters. There is a major distinction between television (TV) and streaming. In TV, broadcasting is linear, public, and scheduled. In OTT, users can be interactive and personal, and access content on private devices. Users, generally, choose both what and when they watch. Therefore, applying traditional broadcast regulation to OTT platforms would be both improper and excessive.

Furthermore, applying a broadcasting-style regulation could compromise OTT platforms’ creative freedom. OTT platforms are enabling unheralded regional stories, independent content creators, documentaries, political narratives, and socially uncomfortable subjects to reach audiences who would otherwise not have had the opportunity to be heard. If OTT platforms are subject to an adverse regulatory regime, they may opt not to produce content in these categories and, as a result, would not have the same variety of content as they do now.

The Limits of the 2021 IT Rules

Lastly, the 2021 Information Technology Rules established a rudimentary framework for regulating OTT platforms, including age classification, parental controls, a Code of Ethics, and a three-tier grievance redress system. The current framework, however, is significantly incomplete. While the focus of this framework is on classifying and reporting on complaints, it does not fully address important issues such as algorithmic visibility, transparency in moderation decisions, replicated non-compliance, market dominance, or differences between larger and smaller platforms.

Protecting Speech Without Ignoring Harm

All future frameworks must be careful not to censor through regulation. Solutions cannot include screening every title or episode before release, which would turn OTT Platforms into TV by another name. Instead, regulation must hold platforms accountable once they have published material. Examples of these forms of accountability should include: Are users provided with appropriate warnings? How are complaints handled? Are illegal materials removed promptly? Is there transparency regarding the reasons for decisions to remove content? These are far more important than the requirement for pre-publication reviews.

An additional consideration for future frameworks will be differentiating between content that some people might find objectionable and illegal content. Not all controversial content should be considered a regulatory infraction. For example, the depiction of violence, sexual activity, religion, caste, politics, or sexual orientation may offend some viewers; however, lack of comfort cannot serve as an adequate rationale for censorship. Conversely, creative expression cannot be used as a defense in the case of any unlawful content, including obscenity, child sexual exploitation material, non-consensually photographed intimate images, or incitement.

Towards a Behaviour-Based Regulatory Framework

Regulation should take the form of a behaviour-based regulatory framework for OTT platforms in India. In a behaviour-based regulated framework, 1) A separate category ought to be created for online curated content; that is, a new category of digitally distributed content, separate from traditional broadcasters or passive intermediaries. Digital distribution, due to its form, represents a form of curation, but the means of distribution are different from that of a traditional linear television broadcast; and 2) Compliance proceedings will be determined based on the control and/or size of an OTT platform; that is, compliance will be categorically assessed on whether via access to content or overall resources (scale), the OTT platform has a precedent effort of controlling what they curate. Larger streaming services, which produce their own programming, use algorithms based on users’ preferences to suggest new content and have large audiences, should be held to a higher standard than smaller services with limited reach. The more editorial and algorithmic control exercised by a platform, the greater the responsibility of that platform.

Transparency, Algorithms, and Proportionate Remedies

The existing age rating system (U, U/A 7+, U/A 13+, U/A 16+ & A) can be made stronger with clearer content descriptors. Users should be informed if a show has sexual content, graphic violence, substance abuse, self-harm, hateful language, or mature political themes. This empowers users by avoiding blanket censorship.

Grievance redressal should be made more transparent by having platforms publish regular transparency reports. These reports should provide totals for the number of grievances received, the general categories of grievances, the average time to response, the actions taken, and the reasons for any grievance rejections. These steps would enhance the credibility and measurability of the grievance process.

India should adopt basic accountability for algorithms used in OTT services. While platforms do not need to disclose trade secrets or source code, they should disclose, in general terms, how algorithms affect content visibility. If a service continually promotes sensational illicit content to increase engagement, that is not just a content problem; it is also a design problem.

If a service blocks a user’s access, it should only be for illegal activity or repeated non-compliance. Other situations should rely on warnings, correcting classification(s), using more robust age-gating, adding more detailed content descriptors, temporarily reducing visibility, and/or imposing monetary fines. This structure would prevent excessive regulation and government control.

The Market Power Question

OTT services raise additional concerns: they determine which films and television shows are available to view; they determine which creators are given greater prominence for recommendation; and they have substantial data advantages over smaller platforms, which they may use to advantage their own content over third-party content. As such, OTT regulation should include terms related to market power, access to markets, and fair distribution through digital channels, not just to obscenity and morality.

Conclusion: A Middle Path for OTT Regulation

There is no either-or choice between excessive censorship and no regulation. A middle ground should be found. Regulation of OTT providers should be determined by behaviour, not by definition alone. A transparent and proportionate, behaviour-based regulatory system will protect consumers, respect artists’ creative expressions, and hold OTT providers accountable for their behaviour. The question is not whether OTT providers are regulated. They are. The real question is whether India can regulate OTT platforms with enough nuance to ensure that streaming does not become traditional television in a new form.

Author: Devansh Awasthi is a 2nd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow