Over the past decade, the usage of Over-The-Top (OTT) platforms has increased drastically in India. OTT platforms refer to online streaming services like Netflix, Amazon Prime and Hotstar which deliver content directly to the viewers over the internet. In this note we have set out a brief overview of current governance structures as far as OTT is concerned and the path forward.
Present Governance Structure in India
At present OTTs are regulated by the Information Technology Act 2000 (IT Act) and The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules) issued by Ministry of Electronics & Information Technology of India. The said Rules lay down general principles for offering safeguards in relation to digital and online media. Part III of the IT Rules, ‘Code of Ethics and Procedure and Safeguards in relation to Digital Media’ regulates publishers of news and current affairs and publishers of online curated content[1] (OTT). The publishers of online curated content shall adhere to the Code of Ethics laid down under the said Rules including general principles, content classification, display of such classification, restriction of access to certain curated content by a child and improve accessibility of online curated content by persons with disabilities. The said IT Rules set out a grievance redressal mechanism in the event of a person having a grievance regarding content published by a publisher of online curated content. Further, the publisher of the online curated content is required to publish a periodic compliance report every month mentioning the details of grievances received and action taken.
Regarding the question whether OTTs are regulated by Telecom Regulatory Authority of India (TRAI), recently, Telecom Disputes Settlement Appellate Tribunal (TDSAT)[2] has ruled in a matter that prima facie OTT platforms are not governed by Telecom Regulatory Authority of India (TRAI), under The Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (TRAI Regulations 2017). It was clarified that the OTT platforms are regulated by IT Rules.
This order was in response to a petition by the All India Digital Cable Federation (AIDCF/ Petitioner) against Star India Pvt Ltd (Star/ Respondent). The Counsel for the Petitioner argued that Star’s decision to stream ICC World Cup matches for free on mobile services through its OTT platform, was discriminatory and violated TRAI Regulations 2017 since the same matches required a paid monthly subscription to watch on the Star Sports channel. The counsel for the Petitioner submitted that the Respondent has to provide TV channels on non-discriminatory basis under Regulation 3(2) TRAI Regulations 2017[3]. It was also submitted by counsel for the Petitioner that though OTT platform is not mentioned in the definition given in Regulation 2(r) of "distribution platform", OTT platforms are using internet and therefore, they are falling within the definition of Telegraph[4] as defined under the Indian Telegraph Act, 1885 and hence, the TDSAT has got jurisdiction, power and authority to hear and decide the matter. It was submitted by the counsels for the Respondent that the definition of ‘distribution platform’ under Regulation 2(r) of TRAI Regulations, 2017 is exhaustive and OTT is not covered under the definition. In light of the same, nothing can be added in the said definition by the TDSAT. It was further submitted by the Respondent that even otherwise basis the overall provisions of the Regulations, 2017 they are meant for regulating the distribution of signals of TV channels etc. and OTT platform is not a TV channel at all.
After hearing both sides, it was held by The TDSAT that OTT platforms do not come under TRAI’s purview as they don’t fall within the definition of “distribution platform” under TRAI Regulations 2017. The said Tribunal further held that prima facie, OTT platform is not a TV channel, nor does it require permission or a license from the Central Government.[5] Consequently, it appears that at present OTT platforms are not governed by TRAI.
OTT & Telecom Regulatory Authority of India (TRAI)
On 24th December, 2023, The Telecommunications Act, 2023 (Telecom Act 2023) was published in the official gazette after the bill was passed by both houses of Parliament and received Presidential assent. The Telecommunication Act, 2023 replaces the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and Telegraph Wires (Unlawful Possession) Act, 1950. It is pertinent to note that under the ‘Draft Indian Telecommunication Bill, 2022’ (Telecom Bill 2022) issued by the Department of Telecommunication (DoT) on September 21, 2022 the definition of ‘Telecommunication Services’ under the said Telecom Bill 2022, in addition to voice, data & internet also included email, interpersonal communication services, over the top communication (OTT), & broadcasting services. Further, the definition of “license”[6] under the said Telecom Bill 2022 referred to ‘license for providing ‘telecommunication services including only such broadcasting services as specified in Schedule 2 of the said Bill or any other broadcasting services as may be notified by Central Government requiring a license’. However, the list of broadcasting services requiring license under Schedule 2 of the said Telecom Bill 2022 did not mention OTT. Since the Telecom Bill 2022 proposed to continue with license for providing “telecommunication services”, the question arose whether the licensing norms apply to OTTs or not under the Telecom Bill 2022. The intention of The Department of Telecommunication was not clear in this regard.
Under the Telecom Act 2023, an authorization[7] from the Central Government is required to provide ‘telecommunication services’. Unlike the Telecom Bill 2022, the definition of “telecommunication services” under the Telecom Act 2023 does not specifically include OTTs. However, the definition of “telecommunication services” is very wide under the Telecom Act 2023 since it has been defined as “any telecommunication service[8]” which could arguably include OTTs as well. Hence, it may not be safe to assume that OTTs do not fall within the purview of the Telecom Act 2023. Further, the Telecom Bill 2023 sets out that the Central Government may by notification make rules to carry out the purposes of the Telecommunication Act 2023[9]. In light of the same, one would expect that the Central Government throws light and issues a clarification with respect to applicability of the Telecom Act 2024 to OTTs in the future.
Proposed Governance Structure in India
OTT & Ministry of Information and Broadcasting (MIB), Government of India.
Recently the Ministry of Information and Broadcasting (MIB), Government of India released the draft “Broadcasting Services Regulations Bill, 2023” (Broadcasting Bill) which intends to replace the existing Cable Television Networks (Regulation), 1995. The Broadcasting Bill contemplates regulation of all broadcasting services, including OTTs and digital news providers, through a single legal framework. At present MIB regulates cable TV operators and TV channels through Cable Television Networks (Regulation), 1995 and additionally administers Part III of ‘Code of Ethics and Procedure and Safeguards in relation to Digital Media’ which regulates publishers of news and current affairs and OTT. The broadcasting sector has witnessed significant growth over the years, with advent of new technologies & platforms, various categories of broadcasting services have emerged such as direct-to-home (DTH), internet based services like IPTV, OTT platforms etc. Considering the above, the Government has recognized the need to streamline the regulatory framework and provide a consolidated legal framework for diverse broadcasting services[10]. The Broadcasting Bill proposes a more stringent platform for OTTs, wherein there is self-regulation by the broadcasters (including OTT), self-certification by Content Evaluation Committee (CEC)[11], and stronger control measures for restricted content. Further, the Broadcasting Bill proposes that any person who broadcasts news and current affairs programs through an online paper, news poral, website, social media intermediary, or other similar medium excluding publishers of newspapers shall adhere to Programme Code and Advertisement code under the said Bill. The provisions of the Bill allow the Union government to seize and confiscate equipment of broadcasting networks and services, after providing them with notice in writing informing them of grounds of confiscation and a reasonable opportunity of making a representation in writing, as well as an opportunity to appeal the decision of the authorized officer to the court.
While the MIB believes that the Broadcasting Bill will create a level playing field, foster investment and innovation, adapt to emerging trends, safeguard consumer interests, simplify compliance and encourage growth, the broadcasting industry is concerned about the stringent censorship norms for OTTs under the said Bill, since they believe it will impede creative freedom of OTT, online free speech and journalistic freedom. Critics believe that the unfortunate consequence of such censorship is a negative impact on the fundamental right to freedom of speech and expression. Let us also see the position which is currently being contemplated in UK.
OTT regulation in UK:
There is also a paper issued by Department for Digital, Culture, Media & Sport: Government’s vision for the broadcasting sector (UK), presented to the Parliament by the Secretary of State for Digital, Culture, Media and Sport by Command of Her Majesty in April 2022[12] (White Paper). In relation to content regulation on video-on-demand services such as Netflix and Amazon Prime Video, the White Paper sets out that the UK Government has published a consultation which outlines that the UK Government intends to legislate in a light touch manner to give Ofcom[13] powers to draft and enforce a new video-on-demand Code, similar to the Broadcasting Code of UK, to ensure TV-like content, no matter how audiences choose to watch it, will be subject to similar standards. These changes will mean UK audiences will be better protected from harmful material and better able to complain to Ofcom if they see something they are concerned about. The White Paper further sets out that this world-leading regime will be aimed at the largest, most TV-like video-on-demand services to ensure that major services which engage UK audiences at scale are subject to the same or similar obligations as UK broadcasters. This will also ensure that larger TV-like on-demand providers that are not currently regulated in the UK but who target and profit from UK audiences will now rightly come under Ofcom[14] jurisdiction.
Conclusion
While there has been feedback from certain section of the broadcasting industry that strict codes under the Broadcasting Bill can lead to content censorship, impede the creative freedom and impact the audience experience, it is also true that censorship can help protect minors from harmful and inappropriate content and help prevent spread of hate speech and incorrect information. It is important for the Regulator to strike the correct balance by taking into account these concerns along with the need to protect freedom of speech & expression of individuals. The Broadcasting Bill will be relevant for the coming decade, so it will need very careful approach and meaningful discussions on part of the Government.
The contents of the article are for informational purposes only for the reader’s personal non commercial use. The views expressed are not the professional views of Wadia Ghandy & Co. and do not constitute legal advice.
[1] In accordance with IT Rules, “online curated content” means any curated catalogue of audio visual content other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and such other content.
[2] Telecom Disputes Settlement & Appellate Tribunal, New Delhi Dated 4.10.2023. Broadcasting Petition/217/2023 with Misc Application/ 236/ 2023. All India Digital Cable Federation Versus Star India Pvt Ltd. Please note that the final hearing for this petition is pending.
[3]In accordance with Regulation 3 (2) of TRAI Regulations 2017, every broadcaster shall, within sixty days of receipt of written request from a distributor of television channels for obtaining signals of television channel or within thirty days of signing of interconnection agreement with the distributor, as the case may be, provide, on non-discriminatory basis, the signals of television channel to the distributor or convey the reasons in writing for rejection of the request if the signals of television channel are denied to such distributor:
Provided that imposition of any term or condition by the broadcaster, which is unreasonable, shall be deemed to constitute a denial of request:
Provided further that this sub-regulation shall not apply to a distributor of television channels, who requests signals of a particular television channel from a broadcaster while at the same time demands carriage fee for distribution of that television channel or who is in default of payment to the broadcaster and continues to be in such default
[4] "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means; Explanation:-"Radio waves" or "Hertzian waves" means electro magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide.
[5] Telecom Disputes Settlement & Appellate Tribunal, New Delhi Dated 4.10.2023. Broadcasting Petition/217/2023 with Misc Application/ 236/ 2023. All India Digital Cable Federation Versus Star India Pvt Ltd. Please note that the final hearing for this petition is pending.
[6] “license” means a license, approval, authorization, permission by whatever name called, granted under this Act for providing:
(a) telecommunication services (including only such broadcasting services as specified under sub-clause (c) below);
(b) telecommunication network; and
(c) broadcasting services in Schedule 2 and any other broadcasting services as may be notified by the Central Government as requiring a license;
[7] In accordance with Telecom Bill 2023, “authorization” means a permission by whatever name called, granted under this Act for (i) providing telecommunication services; (ii) establishing, operating, maintaining or expanding telecommunication networks; or (iii) possessing radio equipment;
[8] In accordance with Telecom Bill 2023, “telecommunication services” means any service for telecommunication.
[9] Section 56 of the Telecom Bill 2023
[10] Explanatory Note on Draft Broadcasting Services Regulation Bill, 2023
[11] In accordance with Regulation 24 (2) of Broadcasting Bill, Every broadcaster or broadcasting network operator shall constitute one or more CEC consisting of members of who are eminent individuals representing different social groups, including but not limited to women, child welfare, scheduled castes, scheduled tribes, minorities etc with such other relevant criteria as may be prescribed.
[12]https://assets.publishing.service.gov.uk/media/626a4e7e8fa8f57a40cf7e9c/E02740713_CP_671_Broadcasting_White_Paper_Accessible__1_.pdf
[13] Ofcom is the regulator and competition authority for the UK communications industries.
[14] Ofcom is the regulator and competition authority for the UK communications industries.