By Anamika Jha & Tanya Mehta

In the past few years, India has seen tremendous growth in the Information & Technology sector. The Internet has reached the remotest corners of the country. It is a strong force connecting the world one megabit per second! Today we can stay connected to each other from the comforts of our own houses. The COVID- 19 pandemic has forced us to stay locked inside but, the world still moves on because of the Internet.

The low internet charges and easy and affordable access to mobile handsets have led to a revolution in the way the world works. Big names in Over the Top (OTT) platforms like Netflix and Amazon Prime have entered and exponentially grew in the Indian market. Even traditional Indian television broadcasting services like Zee, Star Plus, Sony India, etc. have started online streaming. We have seen tremendous growth in startups coming up with various regional OTT platforms. Platforms like Viu, Niri9, Hoichoi, Ullu, Maorama Max, etc., are a few names that have content in regional languages. New media and entertainment companies are emerging each day for creating local content.

However, the legal landscape governing the online OTT business is also changing sharply. Hence, if you are planning to enter into OTT startups, you must make yourself legally literate first. In this article, we are providing you with the basics of the current legal regime governing OTT platforms.

Generally, there is common confusion about whether streaming over OTT platforms comes under broadcasting. Should laws related to broadcasting apply to OTT content? The term “broadcasting” is defined under Section 2(dd) of the Copyright Act, 1957 (Act). It simply means communication to the public in form of signs, sounds, or visual images via wireless diffusion (including re-broadcasting.) However, the Act does not cover online streaming platforms. Therefore, unlike TV broadcasters, OTT startup does come under broadcasting and does not need any license under the Telecom Regulatory Authority of India Act, 1997.

OTT platforms (like all digital content) get regulated under Information Technology Act, 2005. Before 2021, there was just a namesake regulation in this space. The content creators/aggregators could start their platform without several regulatory compliances. However, the position drastically changed when the Ministry of Electronics and Information Technology by Notification dated 25th February 2021 issued in the Official Gazette of India has come up with new rules ‘The Intermediary Guidelines and Digital Media Ethics Code Rules 2021′. These regulations have dramatically increased the compliance requirements. These regulations have made it mandatory that every OTT platform needs to have user terms and conditions along with a privacy policy on its website.

According to these rules, social media and OTT platforms shall carry due diligence and consider India’s multi-racial and multi-religious context while streaming the content. Hence, if you want to venture into a kind of controversial content, it is always wise to get the legal review of your content done before streaming the same on your platform. The Rules also have mandated that each OTT Platform needs to appoint a grievance officer. If any person makes any complaint against content, the grievance officer shall address that the complaint in a time-bound manner. The grievance Officer is the first-tier grievance redressal mechanism. Further, an OTT platform to be a member of the self-regulatory body for the second tier mechanisms. If a complaint remains undissolved at the 1st and 2nd tier, then there is an ‘oversight mechanism’ by the government’s inter-ministerial committee (IMC) on the 3rd tier.

Another important compliance required under new rules is adding a content descriptor to all content streaming on a platform. You need to give a full description of the content in the beginning if the content has any element of sexually explicit content, drug abuse, violence, abusive languages, etc. Further, an OTT platform has to do proper content categorization based on its theme, tone, impact, etc, and brand the content into different age group suitability. The new regulations have also made it mandatory to have a technology-driven strict parental lock system for adult content.

Whether these regulations are good or bad that is outside the scope of this article. Our main focus is to make you aware of the legal mandates if you have decided to land up into OTT business. These are the mandatory compliances that you have to do. This article is generic, in case, you have any specific query please reach us at attorneyforcreators@gmail.com

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