Regulation of Online Curated Content (OCC) in India

OCC Platforms 

Online Curated Content (OCC) Platforms are companies that carry on the business which curates and presents a wide variety of content by means of online video-on-demand platforms. Amazon Prime, Netflix, Hotstar, Zee5, etc are examples of OOC Platforms operating in India. These platforms operate on the basis of a “pull model”[1], whereby customers have the choice of the viewing content as per their own convenience. 

The OCC Industry in India has a significant part to play in the country’s social and economic landscape and has transformed the manner in which content is created and consumed by the public at large. This is done by employing specific technological mechanisms which allows them to provide consumers with the flexibility of viewing content as per their convenience of time, place and device. The OCC industry vis-à-vis other online platforms such as user-generated content providers is distinguishable for the following features[2]: 

• They offer wholly curated content, which is either licensed or owned, in the form of a catalogue; 
• OCC Platforms work on a ‘pull model’ of consumption which allows consumers to choose the content of their choice and access it on the device, time or place of their choice; and  
• They aim at providing technology-enabled solutions for content filtering and access controls.

Regulation of OCC

Although there are no specific laws for regulating and monitoring such OCC platforms[3], the industry recognizes the principles that have been laid in statutory and judicial pronouncements and further tried to incorporate the same in their dealings. Additionally, the basic restrictions on the freedom of speech and expression, as under Article 19 of the Indian Constitution as well as the statutory provisions such as the Indian Penal Code, 1860, Unlawful Practices (Prevention) Act, 1967, Information Technology Act, 2000, Protection of Children from Sexual Offenses Act, 2012, etc are all applicable to online curated contents. Applicability or non-applicability of any statute depends upon various circumstances and the same may be understood as follows:

Pre –Certification Regulation

The existing precertification laws, which include the Cinematograph Act and the Cable Television Networks (Regulation) Act, apply to their specific domains and are not applicable to OCCs. The Cinematograph Act, 1952 applies only to publicly exhibited content which makes it necessary to evaluate whether online content would fall within the ambit of a public or private exhibition of content. Presentation of content in theatres or on the television makes it accessible to the public at large. The OCC platform scenario, however, differs in this regard since they provide viewing on a demand or pull basis, thereby confining the content to the relevant user and a given point in time only. Thus, access to online curated content on such platforms by particular users does not qualify as a public exhibition.

In Mr. Padmanabh Shankar v. Union of India & Ors[4], the court specifically highlighted that the Cinematograph Act, 1952 did not find application upon online curated content. As a reaction, there have been several PILs that have been brought before courts owing to the general perception of non-regulation of such content[5].

Further, the Cable Television Networks (Regulation) Act, 1955 applies specifically to the “cable television network”, which, under the Act, refers to a system comprising a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers[6]. OCC platforms do not fall within the meaning of cable network provider since it involves the distribution of equipment for the operation of a cable television network and therefore, the act would not find applicability in the regulation of content curated on such platforms.  

Content Regulation 

While pre-certification laws are medium-specific with regards to their regulation, there are certain laws that focus on regulation of specific kinds of content. These are based upon the impact that any type of content may have upon its audiences that may affect the safety and security of the country as well as public order and morality. Such content specific laws are applicable to OCCs as well. These include, with regards to categories of content-

• Anti- National Content

1. Section 124A, Indian Penal Code, 1860 penalizes the use of words, either spoken or written, or signs, or visible representations or any other means, which bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection, including disloyalty and all feelings of enmity, towards the Government established by Law in India. 
2. Section 13, The Unlawful Activities (Prevention) Act, 1967 prohibits unlawful activities. It iterates that taking part/committing/abetting/inciting/etc. of any action taken by either an individual or association, whether by committing an act or by words, spoken or written, or by signs or by visible representation or otherwise, which incites or supports any claim to bring about the cessation or secession of a part of the territory of India, or which disclaims, questions or disrupts the sovereignty and territorial integrity of India will be punishable under the Act.
3. Section 69A, Information Technology (Amendment) Act, 2008 empowers the central government to block content where it believes that such content threatens the security of the state or the sovereignty/integrity/integrity/defence of India or friendly relations with foreign states or public order or to prevent incitement for the commission of a cognizable offence relating to any of the above. In furtherance of this, the Blocking Rules[7] lay down the procedures and safeguards that are to be adhered to by the government.

• Obscene Content

1. Section 67, Information Technology Act, 2000 punishes anyone who publishes or transmits, in electronic form, any material which is lascivious or appeals to the prurient interests of a person, which, in effect, depraves or corrupts. 
2. Section 67A, Information Technology Act, 2000 and Section 292, Indian Penal Code prohibit the publication or transmission of materials that contain sexually explicit acts. 
3. Section 15, Protection of Children from Sexual Offences Act, 2012, prohibits the storage of any pornographic material for commercial purposes.

• Defamatory Content: 

1. Section 499, Indian Penal Code, 1860 defines defamation as making or publication of any imputation concerning any person, by words, either spoken or written or by signs or by visible representations,  intending or knowing or believing to harm the reputation of such person.

• Illegal/ Unlawful Content: 

1. The Information Technology Act, 2000 regulates user-generated content, wherein the online platforms that act as intermediaries have been provided conditional immunity. That is not as such the case, however, with platforms that offer curated content. In case of any illegality of content, no similar immunity has been granted to such platforms. 
2. Any user-generated content may be taken down by the intermediary on its own accord or on receipt of any complaint regarding the lawfulness of such content.  In the case of OCCPs, however, it is only through court orders that illegal or unlawful online curated content can be taken down. 

With regards to regulation of content on OCCPs, it has been held by the SC, in Sharat Babu Digumatri v. Government of NCT of Delhi[8], that where the Information Technology Act, 2000 specifically deals with an offence, it would be applicable, irrespective of whether the same offence has been dealt with under any other existing law.

Further, regulation of content under any law must be drawn up in compliance with Article 19, i.e. Right to Freedom of Speech of Expression and any restrictions that may be posed against this right would have to satisfy the parameters laid under Article 19(2). The SC, in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal[9], has observed that “A successful democracy posits an ‘aware’ citizenry.” It highlighted upon the necessity, in order to ensure the right to free speech, that citizens have the benefit of the plurality of views and a range of opinions on all public issues. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at an informed judgment on all issues touching them.

In fact, in Shreya Singhal v. Union of India[10], the SC, while holding Section 66A, IT Act to be unconstitutional, recognized that there cannot be any additional impediments on online speech and thereby stated that “Court order and/or the notification requesting takedown by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2).”

Self Regulation by OCC Platforms

In the absence of any specific regulation, OCC Platforms have come together and have formulated, as a form of mutual understanding, a Self Regulation Code. This Code attempts to incorporate the essential statutory and judicial principles along with addressing specific concerns, in an effort to defend creative freedom and protect consumers’ interests. 

In March 2020, the Ministry of Information and Broadcasting announced that the stakeholders of the OCC industry had 100 days to finalize a uniform code of conduct as well as make provision for age certification, and complaint redressal. Thereafter, 4 OCCPs, namely Hotstar, Voot, Jio, and SonyLiv, came together and entered into the Code of Best Practices for Online Curated Content Providers, 2020, under the aegis of the Internet and Mobile Association of India (IAMAI).

Advantages to self-regulation have been discussed by the Delhi High Court in Indraprastha People & Anr. v. Union of India & Ors[11], as preserving independence of media and its protection from governmental interference, driving up professional standards and enhancing efficiency. 

The Self Regulation Code, 2020, focuses on empowering consumers to make informed choices on age-appropriate content; protecting the interests of consumers with regards to choice of and access to content as per their convenience; safeguarding creative freedom; nurturing creativity and creating an ecosystem to foster innovation. It further seeks to lay down a mechanism for complaints redressal in relation to content made available by respective OCCPs. 

The Self Regulatory Code of 2020 adopts three Rs, namely Regulation, Rating, Redressal.

 Self Regulation

 The Best Practices Code of 2020 defines, as to what constitutes, as well as prohibits OCC platforms from maliciously and deliberately publishing prohibited content. Such content has been defined to include any content that:

• Represents, in any way or form, sexual parts of a child or a child engaged in real or simulated sexual activities.
• Encourages terrorism and other forms of violence against the State.
• Disrespects the National Anthem or National Flag.
• Intents to outrage religious sentiments of any class, community or section of people.
• Has been banned from exhibiting or distributing itself by applicable laws or courts with competent jurisdiction.

Rating of Content

 In order to enable users to make an informed decision with regards to consumption of contents, the code provides for platforms to classify their content so as to convey the types of content available, themes, age classifications, etc. Thereby, the content has been categorized in the Code into three broad categories:

• General or Universal viewing
• Parental Guidance
• Age-appropriate Audiences
• Mature Audiences 

Every platform which accepts the Code is required to display a guidance message or content descriptor and indicative of nature and age appropriateness of the content.

Redressal Mechanisms

The code sets up a two-tier mechanism for complaint redressal, one at the OCC level, i.e. the Digital Content Complaint Forum (Tier-I), and the other the Industry level, i.e. the Digital Content Complaint Council (Tier-II).

Digital Content Complaint Forum

 The Code requires all signatories to internally constitute a team or department, which is to be dedicated towards the task of redressal of complaints, to be known as the Digital Content Complaint Forum (DCCF). It will be responsible for overseeing and monitoring OCCP’s adherence to the code, providing guidance as to the rating of content and act as a point of contact for complainants as well as the DCCC.

Legal Recognition of Same-Sex Marriage: A Necessity

The DCCF is to ensure that the eligible complainant (anonymous and pseudonymous complaints are not entitled) receives acknowledgement within 3 days. Further, in case of genuine complaints, DCCF must reply to the complainant within 10 days and in case of violation of the code, it must communicate the same to the complainant within 30 days along with information regarding remedial action taken with regards to the complaint.

Digital Content Complaint Council

 Signatories to the 2020 Code introduced a separate body under the IAMAI, the Online Curated Content Providers Governing Council (“OCCP Governing Council”), which is to comprise of one representative from each signatory and be governed by the “OCCP Council Charter”. Further, with regards to the second tier’s everyday functioning, the Digital Content Complaint Council (DCCC) is to be set up, which offers a strong redressal mechanism which allows consumers to file a complaint directly and receive time-bound redressal. The Code regulates the composition and term of the members, jurisdiction, procedure and meetings of the DCCC. This initiative greatly promotes customer confidence, creative creation content and commerce in India.  

Endnotes

1.  Self Regulation For Online Curated Content Providers, Viacom18.com
2.  Self Regulation For Online Curated Content Providers, Medianama.com. 
3.  No Content Regulation on Online Streaming Platforms, RTI Reveals, IndiaToday. 
4.  Mr. Padmanabh Shankar v Union of India & Ors, Writ Petition No.6050/201.
5.  Justice for Rights Foundation v Union of India, W.P.(C). No. 11164 of 2018; Mr. Padmanabh Shankar v Union of India & Ors, Writ Petition No.6050/2019; Divya Gontia v Union of India, PIL No. 127 of 2018.
6.  Sec 2(c), Cable Television Network (Regulation) Act, 1955.
7.  Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
8.  Sharat Babu Digumatri v Government of NCT of Delhi, AIR 2017 SC 150.
9.  Secretary, Ministry of Information and Broadcasting, Govt. of India v Cricket Association of Bengal, AIR 1995 SC 1236.
10.  Shreya Singhal v Union of India, AIR 2015 SC 1523.
11.  Indraprastha People & Anr. v Union of India & Ors, 2015 (1) RCR (Civil) 24.

BY- Abhilasha Bhatia | Amity Law School, Delhi