The notification dated 9th November 2020 from Cabinet Secretariat (the Notification) is giving sleepless nights to the creative community of the Country. It is apparent fear that Government shall run its scissor on the OTT platform. Currently, the OTT is solely an unregulated part of the heavily regulated creative domain. The Creative community has taken the maximum utility of the same. Consequently, we came across several experimental, new, and unique content like Secret Games, Mirzapur, Patal Lok, and this list can go on and on. Hence, as a fan of OTT content, I was very disappointed to know that the Government is all set to regulate this. However, my legal mind asked me a question that Do OTT platforms require regulations? I know this question might also have come into your mind after the initial complete denial phase is over. Hence, let us explore this question.

As per the Notification, films and audio-visual programs made available by online content providers and news and current affairs content on the online platform will be under the purview of the Information and Broadcasting Ministry (IBM). However, the Notification does not give any detail regarding how IBM shall regulate the same. There also several unanswered questions that are required to be addressed. Software Freedom Law Centre has compiled few interesting questions. First of all, will the Government follow the detailed public consultation with various stakeholders to formulate the Regulations? Will intermediary like YouTube also come under this Regulation? If yes, how will user-generated content be regulated on platforms like YouTube, Facebook, and others? How will digital news media be defined? Will personal channels like Dhruv Rathi and Akash Banerjee come under digital news media? Will every news organization on the internet will have to register itself? Will there be a cap on subscriptions and memberships or a minimum rate that can be charged? Will content rules for OTT platforms now be the same as the ones for television channels? Will movies that release exclusively on the internet now require a certification from the licensing board? We will be able to get the answer to these questions when the Government shall issue the detailed guidelines.

According to an article in the Indian Express, the OTT market is skyrocketing. With a market size of nearly INR 500 crore at the end of March 2019, the online video streaming platforms may become an INR 4000-crore revenue market by the end of 2025. At the end of 2019, India had as many as 17 crore OTT platform users! Hence, the Regulation cannot be avoided for a long time. However, it should be a smart Regulation. It should not be a weapon by the government to hinder creativity (as feared). It should not be compared to the censorship of film or content regulation of television. The OTT platform is very different from traditional cinema and television. I believe the content can be only regulated at the strict ground like hate speech and child pornography, content that affects children’s physical and mental development or violates obligations in the area of commercial communications, or can be considered as a terrorist.

There can be the creation of a national body having executive, judicial as well as creative members instead of just government-controlled executive members. This body can be given responsibilities to have appropriate measures in place to deal with the types of content. No doubt, it is a meticulous task in a country where people get offended by the Tanishq advertisement of interfaith marriage and smokeless Diwali! Further, this body may look into different aspects like OTT platforms that have appropriate flagging, reporting, and declaring functionalities. It can also look into the implementation of age verification or rating and control systems as well as privacy issues, has established transparent, easy-to-use, and effective procedures to resolve users’ complaints and provide media literacy tools.

In sum, the Regulation must be for the benefits of the customer and maintain fair market practices. It should not be a moral policing tool to interfere the creativity. The creative community should be united and challenge the action of the government in case the government attempts to unreasonably interfere with the creative liberty beyond the reasonable restriction granted under Article 19 of the Indian Constitution.

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