OTT Regulation in India: The Code of Ethics for Digital Media Platforms

Introduction

Online news portals and over-the-top (OTT) have changed the Indian media system by decentralising the creation and dispensation of content. These services do not use any traditional broadcast structure, but deliver on-demand movies, series, documentaries, live content and news straight to users with the help of the internet. Though offering more connectivity and variety in expression this new found technology has also brought with it regulation questions about obscenity, misinformation, hate speech and the safety of the underage individual.

As a reaction, the Union Government announced rules the Information technology under the Information Technology Act, 2000 namely Information technology Intermediary guidelines and digital media ethics code, 2021 and replacing the 2011 Intermediary guidelines. The Rules present a specific set of Code of Ethics applicable to all publishers of online curated content and publishers of news and current affairs content, thus incorporating the OTT and the online news media into a regulatory framework of set standards that can be adhered to. The Code attempts to balance the constitutional provision for freedom of speech and expression of India Const. art. 19, cl. 1(a)[1] with reasonable restrictions in the interests of sovereignty, civic peace, decency and morality under India Const. art. 19, cl. 2[2].

Legislative and Policy Background

Evolution under the Information Technology Act, 2000

The Information Technology Act, 2000[3] was also enacted with the main purpose of facilitating e-commerce and creating legal guidelines to stay based upon electronic records and electronic signatures, which established intermediary liability guidelines. The same section 79[4] of the Act gives the intermediaries qualified immunity of safe harbour against liability of third-party content in case they observe due diligence and follow the government directions. These obligations were operationalised by the Information Technology (Intermediary Guidelines) Rules, 2011 which stipulated the content related do and don nots, takedown time lines and redressal of grievance systems.

The 2021 Digital Media Ethics Code

In February 2021, the Central Government announced its replacement of the 2011 Rules by Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[5]. The new framework of 2021 has a two-tier framework Part II will revisite the due diligence of intermediaries including social media, and Part III will introduce a self-regulatory and monitor- over framework of the digital media based on a binding Code of Ethics.

Online publishers of curated content will be categorised as broad publishers to encompass OTT content providers that supply a catalogue of curated audio-visual content, whereas online publishers of news and relevant current affairs content will encompass online news websites and news aggregators. The Government declares its regulatory capability over the digital publishers that previously worked under rather voluntary self-regulation by framing the provisions of the Code of Ethics within the provisions of the Information Technology Act, 2000[6].

Architecture of the Code of Ethics

Substantive Content Standards

Three main pillars are established to form the basis of the Code of Ethics of OTT platforms, and they are content classification and access control, compliance with the current broadcasting standards, and regulatory compliance.

To start with, the online curated material should be assigned by the publishers to the definite age-related groups like U, U/A 7+, U/A 13+, U/A 16 + and A and relevant content descriptors should be used in the themes that include the elements of violence, sex, language, substance abuse and horror. OTT platforms must implement effective age-verification systems and parenting controls that would allow minors to access age-restrict content (specifically, content rated as either A or B).

Second, this Code demands that OTT publishers be discretionate in the cases pertaining to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order, which are the rationale of India Const. art. 19, cl. 2[7]. Publishes are supposed to be very wary when covering military activities and law enforcement departments, religious activities or materials that have a prospect of generating communal conflicts.

Thirdly, the Code stipulates that it will not print or release any content that the law would have outlawed and it will honor different sectoral laws sensing obscenity, defamation, child pornography and incitement to offenses. This forms a normative intermediary between general criminal law norms and platform related content regulation requirements.

Three–Tier Regulatory Structure

The Rules establish the three-tier regulatory framework so as to ensure adherence to the Code of Ethics.

Level I: Publishers self-regulating. Every publisher must put in place a grievance redressal system, assign a grievance officer, who is domiciled in India, and be a recognizer of complaints within a given time frame which is a responsibility that must be done within a given period.

Level II: Control self in the body. A retired Supreme Court or High Court judge or a prominent figure in the field of the matter may form one or more self-regulatory bodies, independent at Level 2, to hear complaints that have not been resolved at Level I and give guidance or advice to ensure compliance with the Code of Ethics.

Level III: Government Surveillance. On top of that is a body of oversight that is vested in the Ministry of Information and Broadcasting that has an Inter-Departmental Committee that has the power to hear the referrals, give guidance and in the right cases; may recommend the blocking of the contents under the procedure prescribed in the Information Technology (Procedure and Safeguards of Blocking Access of information by Public ) Rules 2009[8].

This model seeks formally to maintain industry self-regulation on the first two levels and leave residual State oversight to deal with systemic or endemic violations.

OTT Platforms as “Intermediaries” and “Publishers”

Due Diligence and Safe Harbour

OTT platforms often serve both as hybrid bearers in that they can simultaneously act as an intermediary that hosts third-party content and publishers that commission or produce original works. The 2021 Rules impose an enhanced due diligence obligation on intermediaries, particularly those who qualify as so-called significant social media intermediaries, such as the requirement of appointing compliance personnel, the ability of tracing of the original originator of the information in some instances, and the implementation of technology-based processes to detect designated groups of unlawful content. Although pure OTT video-on-demand does not necessarily meet the tangible aspects of a social media intermediary, most of the platforms combine social functionality by providing comment and rating and user-created video-services, and thus, trigger alternative compliance requirements. Safe-harbour the safe-harbour provided by Information technology act of 2000 (sec 79)[9] is subject to the performance of these safe-duty of due diligence and as such, consistent failure to abide by the code of ethics or takedown instruction can lead indirect liability to be applied on intermediaries.

Jurisdiction, Territoriality and Cross–Border Services

The schools are applicable to intermediaries and digital publishers with a substantial number of users in India or with systematic focus in targeting Indian content regard of place of incorporation. OTT services outside of India, but those that serve Indian viewers with Indian-oriented catalogues which take Indian payment instruments or provide Indian-specific promotions can thus be caught in the regulatory net[10].

Such an extraterritorial orientation is explained through the place of harm and the territorial nexus point of content consumption, yet it leads to complicated issues of conflicts of laws, cross-border data transmission as well as the acknowledgment of alien content ratings.

Constitutional and Administrative Law Concerns

Freedom of Expression and Overbreadth

Opponents of the 2021 Rules argue that some of the regulations, especially the ones dealing with the oversight mechanism and blocking authority, can be chilling out on freedom of speech. This risk of content being scrutinized by an administration based on any general criteria like public order or morality, and the existence of blocking orders has the effect of encouraging overcompliance and self-censorship by OTTs.

Simultaneously, the Government, on its side, has always upheld the fact that the Rules are aimed to promote creative autonomy and to prevent patently illegal or harmful material, and that they are based on the constitutionally admissible constraints under India Const. art. 19, cl. 2[11]. The goal is not pre-censorship, but post-publication responsibility by redressing grievances, by classifying and a hierarchy of enforcement institutions stressed in official language.

Judicial Review and Interim Stays

Several petitions questioning the constitutional validity of some of the clauses of the 2021 Rules, and more significantly Part III that concerns digital media have been petitioned in front of several High Courts. There are cases when the courts have given an interim order in restraint of coercive action on digital news media and the OTT platforms pending the final decision on the matter under certain provisions. The issues of proportionality are usually brought up on the basis of arbitrariness and over-delegation, and it is also doubted whether a rule made under the Information Technology Act, 2000[12] can substantially control journalistic matters and audio-visual speech.

The Union Government, in its part, has justified the Rules as a fair regulation reaction to the technological advancements and the intended action aimed at helping the users to avoid illegal contents and Internet harms and the absence of the effective grievance redressing. The result of these cases is more likely to influence the borders of the digital media control and dictate how far the executive may control the content on the OTTs.

Policy Rationale: Balancing Competing Interests

Protection of Minors and Vulnerable Audiences

Probably one of the key policy reasons this Code Ethics was implemented is the need to avoid exposing minors to the content that is explicit or even age inappropriate. Unlike linear broadcasting, OTT services allow on-demand access to massive catalogues, often on personal devices, so the existing watershed-hour paradigm is not quite robust enough in order to protect children. The compulsory age-classification system, along with the parental locks, and the effective age-verification systems, is set to empower the guardians and allow making informed viewing decisions.

The focus on content descriptors and advisories compares the practice of OTT to the current broadcasting standards and film certification principles, nevertheless accepting the on-demand and personalism of the digital streaming[13].

Addressing Obscenity, Violence and Hate Speech

Issues around vulgarity, sexually expressive images and unnecessarily violent content on stream services have been vocal in the mainstream sphere, as well as the parliament. The Code of Ethics ensures that publishers have a greater sense of discretion when handling content that might imply obscene, degrading or needlessly inflammatory material especially when it comes to gender, religion or community affiliations.

Though substantive offences are still currently formally specified in general criminal law, the Code in effect adds an additional level of ex ante editorial accountability of the OTTs, supported by a formalised system of complaints. This is in contrast to reactive content removal which is done solely on the basis of any external notice to a model which requires publishers to internalize the legal and ethical norms as early as commissioning and classification.

Platform Accountability and User Redress

The Rules address long-standing complaints that the most abusive or deceptive digital content had no effective recourse through which a user could defend him or herself. The framework aims to institutionalise the redress of users through the requirements of nominated grievance officials, limited-period complaint remedy, and a further step of self-disciplinary agencies and a government-appointed committee.

This concentration on accountability is not an isolated global move to bring about due-diligence liabilities on online platforms, instead of a laissez-faire model, towards co-regulated content policies.

Emerging Challenges and Unresolved Issues

Vagueness and Discretionary Enforcement

One of the recurring criticisms of the Code of Ethics is that some of its operational standards are open-textured, like the standard of good taste and decency or the likely disturbance of the peace of the population. The extensiveness of these formulations could provide broad discretion to both the self-regulatory bodies and the executive mechanism of oversight, and side effects of inconsistent practice.

The question of the supposed self-regulatory nature of the levels I and II and the potential governmental instruction and control in the judgements of the editorial rooms at Level III is also not resolved. The commitment of ensuring that the enforcement is relative to a certain extent will be of much importance to the validity of the scheme in as far as it becomes transparent and aligned to natural justice principles.

Technological Feasibility and Compliance Costs

The Rules propose automated tools usage on a best-efforts basis in the detection of identified types of prohibited content, especially with major intermediaries. The introduction of effective age- checking systems, content- filtering models and automatic filters would lead to significant technological expenditure and would provoke accuracy and bias issues.

Smaller OTTs and independent publishers can experience unfair compliance requirements that might impact market entry and innovation. A restrained strategy, such as varying obligations and regulatory sandboxes, can be demanded to prevent that compliance is transformed into a structural barrier to entry.

Interplay with Sectoral and Self–Regulatory Codes

Before the 2021 Rules a number of OTT providers had been voluntarily adopting self-regulatory codes such as content rating and age-gating. These industry initiatives have become consistent with the statutory Code of Ethics, and questions of harmonisation and remaining of voluntary standards come up.

Furthermore, OTT content has a tendency to overlap with the jurisdiction of sectoral regulations, including the Telecom Regulatory Authority of India and the Central Board of Film Certification (theaterical launches of films made with OTT content), resulting in a complicated mosaic of regulations. There will be a need to lay down the jurisdiction very clearly and avoid overlapping compliance conditions to guarantee regulatory certainty.

Comparative and Forward–Looking Perspectives

Comparative Trends

The jurisdictions all over the world are struggling with the control of streaming services and digital platforms. The Audiovisual Media services Directive of the European Union is a legal enforcement of some of the broadcasting-like restrictions that impose on video on demand services in one of its aspects, is protecting the minor, forming hatred and encouraging European works. Co-regulatory or self-regulatory models have been used in other jurisdictions with statutory backstops in place.

The Code of Ethics in India fits into such an international trend, unlike other jurisdictions that require the separation of intermediary due-diligence issues, which the Code of Ethics encompasses, a graduated self-regulatory regime as well as direct executive regulation, and is addressed in one general information technologies statute.

Directions for Reform

In the future, a number of tools may enhance the effectiveness and validity of OTT regulation. Complicating the Code of Ethics by adding important expressions and explaining comments may narrow the interpretation gap and limit the broad use. Institutional mechanisms: transparency and trust would be improved through institutional mechanisms like the publication of reasoned orders, the presence of civil society and industry representatives in checks and balances bodies and the presence of appeal avenues.

In addition, consultation with the stakeholders such as creators, user communities, child-rights groups and digital-rights policy groups, can help in narrowing the age-rating standards, descriptions and complaisance procedures. The amendments in the future will have to strike a delicate balance between competing interests: the safety of the users and public interest, the independence of the editorial, and the possibilities to innovate in the fast-changing digital media landscape in India.

Conclusion

Coded Ethics of digital media sites within the Rules under Information Technology (Intermediary Guidelines and Digital Media Ethics Code)[14] in 2021 that provide such rules is one of the major normative and institutional interventions in the context of OTT and digital news in India. It tries to convert the constitutional tradeoff of liberty of expression and sensible restrictions to in place of organization of content categorization, grievance remedy and co-rule.

Meanwhile, the issue of remaining over-extensive, unclear, and at the discretion of the executive and increasing compliance costs bring the importance of judicial relational review and legislative fine-tuning. This structure will be sustainable based on how it will offer the protection and accountability of its users without unreasonably restricting the artistic, cultural and journalistic freedom of digital age.

Reference(S):

[1] India Const. art. 19, cl. 1(a).

[2] India Const. art. 19, cl. 2.

[3] The Information Technology Act, 2000.

[4] The Information Technology Act, 2000, § 79 (India).

[5] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

[6] The Information Technology Act, 2000.

[7] India Const. art. 19, cl. 2.

[8] Information Technology (Procedure and Safeguards of Blocking Access of information by Public ) Rules 2009.

[9] The Information Technology Act, 2000, § 79 (India).

[10] Ministry of Electronics & Information Technology, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Notification G.S.R. ___(E) (Notified on Feb. 25, 2021) (India).

[11] India Const. art. 19, cl. 2.

[12] The Information Technology Act, 2000.

[13] Ministry of Information & Broadcasting, Press Note, “Government Notifies New Guidelines for Social Media and OTT Platforms” (Feb. 25, 2021) (India).

[14] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021