Increased scrutiny of OTT platforms may benefit unorganised adult content sector

The recent arrest of entrepreneur Raj Kundra has put the spotlight on India’s adult content sector which has existed for years but is likely to see rapid growth as the new IT Rules scan mainstream over-the-top (OTT) platforms more closely, according to several legal and media industry experts.

Worth Rs. 3,000-4,000 crore, the industry carries out hushed operations creating cheap films and short videos that can be uploaded on platforms mainly hosting user-generated content that are hard to track and find takers easily. Further, while laws exist for its production and distribution, what may be classified as erotic content is often a grey area. Porn viewing had seen a rise of 95% in India during the beginning of the pandemic last year, according to adult video company Pornhub.

“More curbs on formal or prominent platforms have to lead to a rise in the unorganised sector that will see an opportunity for itself,” Pranav Srivastava, partner at legal firm Phoenix Legal said. Production of pornographic content in India happens completely under the radar, Srivastava added, not under a formal studio or company banner but by individuals who could either produce for private clients or upload on OTT platforms that fall outside the jurisdiction of India besides selling the content offline in local markets through DVDs or flash drives.

The government tightened its control over OTT platforms by introducing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 this February that directs them to categorize content according to age, among other things.

A senior executive at a streaming platform said government scrutiny on ‘organised’ OTTs is like any other industry where big registered entities have to comply with all the laws while others get away with non-compliance. Mainstream video streaming services rue the fact that while even their legitimate content under proper age-appropriate classification is scanned, the unorganised sector goes scot-free despite highly objectionable content.

The person quoted above said OTTs have begun to check narratives for anything that could get them into trouble. “The unorganised sector has already achieved large scale. Videos on top porn sites viewed in India, are all professionally shot and are not even soft porn. Unorganised sleazy content creators are flourishing. There is always going to be a large audience for erotic or adult content. It comes with low cost, high shelf life and assured future demand,” the person said.

Another executive at a streaming platform said that all streaming services have seen traction from adult content in the past. For instance, MX Player had notched up the highest single-day streams (11 million) for its adult comedy Mastram last July.

Multiple laws may be applicable to pornographic content, said Ranjana Adhikari, partner, media, entertainment and gaming with the TMT Practice group of IndusLaw. These may include but are not limited to the Indian Penal Code that deals with obscene objects and their sale, distribution, public exhibition and circulation, sections of the Information Technology Act, 2000 which penalise publication and transmission of obscene and sexually explicit content in electronic form and the Indecent Representation of Women (Prohibition) Act, 1986.

Niharika Karanjawala, senior associate at legal firm Karanjawala & Co. pointed out that while the Supreme Court had banned porn websites in 2015, and distribution services such as Google Play Store periodically take these apps down, they can work their way around by slightly modifying how they spell their names to launch a seemingly new platform and converting all their subscribers to continue streaming.

Nishit Dhruva, managing partner at MDP & Partners, Advocates & Solicitors said that in the past URLs of certain pictures have resurfaced in other places even after being taken down by intermediaries like Google and Facebook.

Legal experts said, given that porn is pretty much an inescapable truth of society, laws that have not kept up with time should focus on regulation rather than prohibition.

“The bigger challenge is that such industries can serve as vehicles for crimes like human trafficking and the only way to tackle it is through regulation that brings transparency,” Karanjawala said. Live Mint