India has become one of the fastest-growing markets for Over-The-Top (OTT) platforms in recent years, with millions of users turning to streaming services like Netflix, Amazon Prime Video, and Hotstar to fulfil their entertainment needs. Unlike traditional media, where there are established regulations and censorship boards, OTT platforms operate in a relatively unregulated space. This has led to concerns about the availability of explicit content, particularly pornography, on these platforms.
Although no specific laws govern online content, several provisions are in place to regulate it. The depiction of any sexually explicit acts or conduct by publishing or sending anything is punishable under Section 67A of the Information Technology Act. The penalty for this offence is up to five years in prison or a fine of up to ten lakh rupees. Furthermore, Section 67B addresses pornographic content involving minors. This includes the distribution or creation of photos or media depicting minors in an obscene or sexually explicit manner.
It is illegal to sell, distribute, circulate, or exhibit obscene objects that are lustful or corrupt to another person under Sections 292 and 293 of the Indian Penal Code, 1860. The punishment for the first conviction is up to 2 years in prison and a fine of up to 2000 rupees, and the punishment for subsequent convictions is up to 5 years in prison and a fine of up to 5000 rupees. Furthermore, the POCSO (Protection of Children from Sexual Offenses) Act makes the sale and distribution of child pornography illegal.
The Government has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 on 25th February,2021, stating that “Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011”.
Highlights of the New Rules -
Code of Ethics for online news, OTT platforms and digital media: This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.
Self-Classification of Content: According to the rules, OTT platforms, referred to as publishers of online curated content, would self-classify the content into five age groups: U (Universal), U/A 7+, U/A 13+, U/A 16+, and A. (Adult). Platforms would be required to implement parental controls for content rated U/A 13+ or higher, as well as reliable age verification mechanisms for "A" content. The publisher of online curated content must prominently display the classification rating specific to each content or programme, as well as a content descriptor informing the user about the nature of the content and advising on viewer description (if applicable) at the beginning of each programme, allowing the user to make an informed decision before watching the programme.
Publishers of news on digital media would be required to follow the Press Council of India's Norms of Journalistic Conduct and the Programme Code under the Cable Television Networks Regulation Act, creating a level playing field between offline (print, TV) and digital media. Under the rules, a three-tiered grievance redressal mechanism with varying levels of self-regulation has been established.
Level-I: Self-regulation by the publishers;
Level-II: Self-regulation by the self-regulating bodies of the publishers;
Level-III: Oversight mechanism.
Self-regulation by the Publisher: The Publisher shall appoint a Grievance Redressal Officer based in India who shall be in charge of resolving grievances received by it. Every grievance received by the officer must be resolved within 15 days.
Self-Regulatory Body: Publishers may have one or more self-regulatory bodies. A retired Supreme Court, High Court, or independent eminent person shall preside over such a body, which shall have no more than six members. A body of this type will be required to register with the Ministry of Information and Broadcasting. This body will monitor the publisher's adherence to the Code of Ethics and address grievances that have not been resolved within 15 days.
Oversight Mechanism: The Ministry of Information and Broadcasting is responsible for developing an oversight mechanism. It will issue a charter for self-regulating bodies, as well as Codes of Practice. It will also form an Inter-Departmental Committee to hear grievances.
It is clear that there is a serious need for rules regulating OTT content, particularly pornographic materials. The existing laws are inadequate to resolve this growing issue. Even the Supreme Court in a recent case, came down heavily on Over The Top (OTT) platforms, saying some kind of screening is needed. "Few OTT platforms are showing some kind of pornographic content. A balance has to be struck as some OTT platforms are also showing pornographic materials on their platforms,” the bench comprising of Justice Ashok Bhushan and Justice R. Subhash Reddy, observed.
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