OTT Regulation Bill raises concerns about content autonomy

The government’s move to regulate OTT video streaming apps like Netflix, Disney+Hotstar, SonyLiv, etc., under the Broadcasting Services (Regulation) Bill, 2023, could affect content innovation and autonomy, derailing the growth path, experts said. Content on OTTs works on a “pull model”, wherein consumers choose the content. As such, any stringent programme and advertisement codes might lead to content censorship and affect the audience experience.

Another area of concern experts cite is whether the government will bring in a pricing regime for OTT content, much like it has for television channels. The Bill also contains a provision for a Content Evaluation Committee (CEC), a self-certification body that will certify the content of broadcasters.

“While they have brought OTTs under regulation, they have not specified how a self-certification model will work and what role the government will play,” an executive at a media and entertainment company said. He added that once the Bill becomes an Act, the Telecom Regulatory Authority of India (Trai) will be the regulator for these streaming platforms as well.

As per the Bill, the government may prescribe the number of members in the CEC, the quorum required, and such other details to facilitate the formation of CEC and its smooth functioning. Besides, there will also be a government appointed body, the Broadcast Advisory Council, that will have five government members and five government-nominated independent people from media, entertainment, broadcasting, child rights, disability rights, etc., to advise the government on orders to be issued to the broadcaster or the broadcasting network operator.

“In light of increasing scrutiny of streaming platforms such as Netflix, Disney+ Hotstar, powers assigned to the government, specifically with respect to the size, quorum, & operational details of the Content Evaluation Committee, raise censorship concerns,” said policy advocacy group Internet Freedom Foundation (IFF) in a post on X (formerly Twitter).

Currently, the OTT platforms are regulated by the IT Rules, 2021, with guidelines for self-regulation as well as code of ethics for digital content. Such platforms do not require any licence from the government, as they are classified as TV channels and have a different model.

“It looks like a very ambitious project to bring OTT and cable TV under one piecemeal regulation because both the platforms are different and distribute different types of content to consumers,” said Shruti Shreya, senior programme manager – online safety and platform regulation at The Dialogue.

According to Shreya, while there can be basic ratings and guidelines for these OTT streaming apps, the regulation does not need to be similar to that of cable TV. The government should not hinder creativity, but should give freedom to creators as the content is at the discretion of viewers, they can refuse to watch that and have filters.

Once the Bill becomes an Act, it would bring streaming platforms such as Netflix and Hotstar completely within the ambit of the ministry of information and broadcasting (MIB) without having to rely on the Information Technology Rules, 2021, government officials said.

The policy experts however said that first, the Bill should clearly mention if this would supersede the IT Act and second, the government can only amend certain codes of ethics in the IT Act instead of bringing them under a new legislation.

“The requirement for all online content creators to adhere to a ‘programme code’ requires careful consideration. The government will have to ensure that while giving a code of ethics for content, it should not give subjective terms like content should be of ‘good taste’ or ‘decency’ as they did in the IT Rules, as that leads to ambiguous interpretations,” Shreya added.

Nandita Saikia, a tech policy lawyer said, “the Bill missed the opportunity to legally separate broadcast content and carriage”.

“The programme and ad codes currently in force have been notoriously difficult to deal with…also contains provisions which are so subjective that it is often difficult to foretell how they’ll likely be interpreted,” Saikia said in her comments on the Bill on LinkedIn.

Even as experts demanded clarity on codes, they applauded the government on inclusion of content accessibility provision in the Bill. This would pave the way for persons with disabilities to access the content based on their comfort and not based on the current forms, they said. Financial Express