INTRODUCTION
In the previous article, we attempted to discuss on the legal requirements to be ensured by the Over the Top (“OTT”) platforms for the protection of its users in India. However, the enforcement and implementation of these regulations is a challenge in India.
In this article we attempt to discuss varied challenges faced by OTT Platforms in India and Judiciary’s take on the same.
CHALLENGES FACED BY OTT PLATFORMS
The OTT platforms face a number of both legal and competitive challenges which requires an extra edge from these streaming platforms to be able to compete amongst each other and earn suitable profits.
(a) IPR and Enforcement
- One of the biggest challenges that are faced by the digital platforms, is the unauthorised usage, storage, and sharing of such unsolicited content, which has become the standard practice in the digital ecosystem, who are not willing to pay a certain sum for obtaining viewership rights legally, especially when a pirated file with the same content is available on other illegal platforms for free. One example of such unauthorised content platform is uTorrent, which is one of the world’s largest pirated content software, which allows the user to download pirated content illegally.
- The cyber cell does not possess sufficient resources and technical infrastructure to be able to track every digital device in their jurisdiction which is involved in the usage, storage, and sharing of pirated content and book the offenders under relevant laws. Moreover, no authority has the right to infringe an individual’s privacy by invading any user’s device without sufficient evidence or tracking the user activity of any person, as the same has been enshrined as a fundamental right of every individual. The statutory rights and procedural obstructions become one of the major challenges for the regulatory authorities to tackle the issue of piracy.
(b) Statutory Challenges
The objective of the IT Rules was to establish a soft-touch progressive institutional mechanism with a level playing field featuring a Code of Ethics and a three-tier grievance redressal framework for news publishers and OTT platforms. But the IT Rules have led to certain challenges to the digital media and OTT platforms in India.
- Financial and Legal Compliance
One of the major issues is the compliance burden on both the OTT platforms and the online content creator. As the publishers have a responsibility to analyze the content and see whether the content endangers the sovereignty of India, the security of the state, etc., they might put the burden on the content creator to evaluate the conditions that their content doesn’t violate any of the rules. Thus, the content creator also has to evaluate all the factors enumerated in the Code. The establishment of the grievance redressal mechanism, the right to file complaints by anyone who thinks the content is in violation of the Code, excessive evaluation of the content, monthly compliance, etc. create unnecessary compliance burdens on the OTT platforms.
- Creative Expression
The criteria for evaluating the content on the basis that it shouldn’t affect the State’s interest, endanger India’s sovereignty, hamper public order, etc., are broad and vague and can have restrictive effects on creative expression and speech.
- Inter-Departmental Committee
The inter-departmental committee is constituted by the MIB and it acts as an adjudicating authority due to the broad power given in Rule 14 of the IT Rules. Thus, the utmost power in the IT Rules has been given to a non-judiciary and controlled governmental body.
- Grievance Officer
The Grievance Officer (tier 1) has been given a short period to redress the complaint and on the other hand, an appeal can be filed before the inter-departmental committee. Thus, the committee will have direct regulatory power over OTT platforms which might result in an excessive burden on the publisher and creators.
(c) Competitive Challenges
Today, in India, there are more than a dozen online streaming platforms available for the viewers to subscribe to, with each platform providing unique shows and movies to choose from. A viewer only has a limited time and a limited budget which he is willing to pay to subscribe and watch the shows and movies of his interest. Following are the few challenges that arise for the OTT Platform –
- There are consumers who purchase multiple subscriptions to possess a wide area of content available to view. On the other hand, there are consumers who are willing to subscribe to individual OTT platform and utilizes them on a share-and-receive base with their family or friends, as a method of saving cost.
- The popularity of the content and the relevance of the show or a movie in the present/historical context, which drives an excitement into the viewer to watch the show.
- The amount of revenue generated by the OTT platforms has raised a matter of concern since the OTT platforms act as a broadcasting authority for a majority of content releases, which does not provide high revenue as compared to the expenditure in terms of respecting fees and maintenance of the platform unless they enter into a co-production agreement for content creation.
CASE STUDY: CONTENT ON OTT PLATFORM
One of the recent OTT platform controversies is pertaining to the series Tandav on Amazon Prime. FIRs had been filed in UP and several other states against the makers of the series and the head of the content department of Amazon Prime India. The reason of the FIR was that the series disrespected the Hindu religion and Gods and showed them in an objectionable way. The name of the series also stirred controversy as Tandav is an act of Lord Shiva and allegedly, the same was used in a bad light. In light of the events makers of the show gave an apology and removed certain scenes from the series.
In case of Aparna Purohit vs State of UP, [(2021) 3 All LJ 634], an application for Anticipatory Bail was filed before Allahabad High Court. The High Court denied the anticipatory bail and observed that the religious sentiments of Hindus were hurt as the deity was shown in an objectionable way, and thus the accused cannot be absolved by just removing the scenes and apologizing. The Supreme Court also denied any protection but later on granted interim protection to the plaintiff. However, the Supreme Court observed that screening of the content on OTT platforms is necessary. The Supreme Court stated that “the Rules related to digital media are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violate the guidelines”.
Other controversies which have stirred the debate of regulation and challenges faced by OTT platforms are movies and series like Mirzapur, Patal Lok, Leila, etc. FIR was filed against the makers of Leila and Netflix as some politicians contended that it defames India and shows it in a bad light. There are various scenarios where an FIR or criminal prosecution has been initiated against the head of the content producer of the OTT Websites and the content creators. Many OTT platforms are reluctant to produce any web series or films that have subjects related to religion or politics. This has led to the infringement of the creative freedom of content creators and self-censorship. Even the content creators are suffering due to the criminal proceedings and litigation costs. Thus, one of the challenges the OTT platforms and creators are facing is legal uncertainty post-publication of content.
AMLEGALS REMARKS
The piracy of content is a serious concern for regulatory agencies, and digital platforms are increasingly focusing their attention on it. However, the cyber unit lacks the necessary resources and technical infrastructure to trace every digital device within its authority that is involved in the use, storage, or exchange of pirated content.
Thereafter, there are more than a dozen internet streaming services in India to which viewers can subscribe. Some customers buy numerous memberships in order to have access to a wide range of materials. The quantity of income earned by OTT platforms has created concerns, as they serve as a broadcasting authority for the majority of releases.
The objective of the IT Rules was to create a fair playing field for news publishers and OTT platforms by instituting a Code of Ethics and a three-tier grievance redressal mechanism. However, the restrictions have created certain difficulties for digital media and online content creators in India. On a concluding note, it can be observed that the IT Rules have their pros and cons.
Currently, a wide range of discussions and altercations are going on pertaining to the IT Rules and how it has affected the social media and OTT platforms. Furthermore, the controversy with respect to its regulations and challenges faced by the OTT platforms has always been in debate. The Rules are beneficial in some aspects but have created various challenges for the OTT platforms, news publishers, and online curators.
-Team AMLEGALS
For any queries or feedback, please feel free to get in touch with tanmay.banthia@amlegals.com or siddharth.kakka@amlegals.com
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