The Ministry of Information & Broadcasting issued an advisory to the Online Curated Content Publishers (“OTT platforms”) and Self-regulatory Bodies of OTT platforms on 19thFebruary 2025. It aimed to reiterate the Code of Ethics for these OTT platforms in light of the increased spread of obscene content on online platforms. This emerges amid the debate of imbalance between censorship and artistic freedom in online content against the government.
Key Points:
1. Ethical Content Governance: The advisory primarily emphasizes Part III of the Information Technology (Intermediary Guidelines and Digital Media, Ethics Code) Rules, 2021. It prohibits illegal content circulation, advises to demarcate content based on age, especially for ‘A’ rated content and aims to tighten government oversight over age-based classification in online content.
2. Grievance Redressal Mechanism: It highlights a three-level institutional mechanism for grievance redressal if the Code of Ethics is violated. At the first level, platforms must establish an internal grievance redressal mechanism with a designated officer to address complaints. The second tier consists of a self-regulatory body, led by a retired Supreme Court or High Court judge, which reviews unresolved grievances. The third tier is the government's oversight mechanism, where an inter-ministerial committee ensures compliance with the Code of Ethics. Further, the Self-regulatory Bodies of OTT platforms are advised to strictly comply with the laws and take action whenever needed.
3. Legal Implication: It also draws attention to the relevant provisions of Indecent Representation of Women Act, 1986, Bhartiya Nyay Sanhita (BNS), 2023, Protection of Children from Sexual Offences (POCSO) Act, and Information Technology (IT) Act, 2000 to imply regulation of prohibited content as a punishable offence.
How the OTT Platforms work:
Primarily, the prominent players in the field work on the principle of internal grievance redressal system. The existing Self Regulatory Bodies have played a crucial role in shaping content governance, ensuring that OTT platforms comply with ethical guidelines while offering creative freedom. The Indian Broadcasting & Digital Foundation (IBDF) established in 1999, which set up the Indian Digital Media Industry Foundation (IDMIF) in 2021, works under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. It is tasked to ensure compliance towards age-based restrictions, grievance redressal mechanisms and present the interests of OTT platforms.
Critical Overview:
The self-regulatory mechanism for OTT platforms faces several shortcomings, primarily due to its industry-driven nature and limited enforcement powers. Self-regulatory bodies are composed of industry representatives, raising concerns about bias and lack of independence in decision-making. Moreover, grievance redressal timelines are often not strictly enforced, leading to delayed resolutions. The absence of uniform compliance across all OTT platforms weakens the system, due to different perceptions of ‘obscenity’ across platforms.
Additionally, while the Inter-Ministerial Committee provides government oversight, its broad discretionary powers pose risks of censorship and overregulation, potentially undermining freedom of speech and creative expression of the creators.
Censorship vs. Artistic Freedom:
The freedom of speech and expression under Articles 19(1)(a) and 19(2) of the Indian Constitution has been a subject of evolving jurisprudence, particularly in cases concerning artistic freedom and obscenity. The S. Rangarajan v. P. Jagjivan Ram case was one such case where the court upheld the freedom of speech and expression and recognized it as integral to the spirit of democracy. In Ranjit D. Udeshi v. State of Maharashtra, the Supreme Court applied the Hicklin test, which judged obscenity based on whether a work had the tendency to deprave and corrupt vulnerable audiences. This test received criticism as it undermined the overall value of a work.
Later on, the Roth test from Roth v. United States shifted the focus to contemporary community standards and required that the work be devoid of social value to be deemed obscene. The Miller test from Miller v. California further refined this by introducing a three-pronged standard, evaluating whether:
1. the work appeals to prurient interest,
2. It depicts sexual conduct in an offensive way, and
3. it lacks serious literary, artistic, political, or scientific value.
However, in recent cases, the Apex Court tends to balance between the principles, leaving ambiguity.
What’s the way ahead:
One could be to ensure a balanced approach to OTT regulation, where both stakeholders-OTT platforms and regulatory bodies prioritize a consumer-centric model that maintains content diversity while safeguarding public morality. From an economic perspective, OTT platforms contribute significantly to India's growing digital economy, necessitating a regulatory framework that supports innovation and minimizes compliance risks. The context of diversity is accommodated when the conflict between article 19(1) and 19(2) is recognized and balanced through judicial clarity on a case-to-case basis.
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