OTT- Existing Censorship Laws and Recommendations

By:- Divya Samriti and Priyank Sharma

ABSTRACT

India's entertainment industry not only generates maximum income, but also creates vast
amounts of material for films, TV shows, web series, songs, videos, etc. With technological
progress and increasing the participation of individuals in the cyber world. Many people use
different channels, such as Hotstar, Zee5, SonyLiv, Prime, etc. In this paper, we will try to find
out and examine the different current censorship laws with the necessary recommendations from
different platforms from OTT in India, censorship remains primarily an instrument of state
interference, established and controlled by the law's parameters. By enacting and enforcing
public policy, the task of the state is to rule. In a democracy, public policy development is
closely linked to the fulfilment of citizens' needs.

In recent years, the media and entertainment industry has seen a paradigm shift in volume and
demand for diversified content through platforms and there are several divisions in the industry
that merge into a vertical, Movies, Television, Music, Publishing, Radio, Internet, Advertisement
and Gaming segments to access the content, leaving viewers to select. Each segment drives more
trends that differ with sub-verticals, geographies and customer needs, making each vertical
special and at the same time competing, complimenting and merging these sub-verticals to meet
the ever growing demand for entertainment and information worldwide. The media and
entertainment industry aims to reach the organisational quality and benchmark of other
industries' best-in-class organisations. The major changes are consistent with how analysis,
budget determination, content development, clubbing of distribution management with
competent project management are conducted.

Keywords:-Censorship, Policies, OTT, Platform etc.

Electronic copy available at: https://ssrn.com/abstract=3735027

 INTRODUCTION

The Indian media and advertising industry are projected to be growing, at the rate of second
fastest advertising market in Asia after China, presently generating for around 0.38per cent of
India’s gross domestic product.1 Today, everything and anything is done through internet and the
existence of internet helps the consumers to know each and every aspect of related product and
services. As far as the telecom industry started making its existence, the OTTs worth has been
increasing exponentially. People are more tilted towards OTT platforms and thus, OTT Platform
regulation and related issues also came into existence. OTT refers to “Over the Top” which is
defined as applications and services which are accessible over the internet access services such
as search engines’ social media networks, video aggregation sites etc. The major Sources2 of
Internet Traffic in India are Google, YouTube, Amazon, Facebook, Flipkart, Wikipedia, Yahoo,
Hotstar, Zoom, onlinesbi, Indiatimes, Microsoft respectively. Most of the platforms in these top
traffic sources are OTT platforms. The internet Services are available in a very vast broad
category3, which can be categorized into various categories where some new categories which
are increasingly rapidly has been emerged which is OTT platforms. These categories can be seen
in Figure 1 given below:-

Messaging
OTT Communication
Voice/ Video
User Generated
OTT Media Audio/ Video
Gaming

Internet eComerce
Commerce
Financial Services
Cloud Services Platforms/ Services
Web Content
Social Media
Mobile Based
Web Content User Generated

1
https://www.ibef.org/industry/media-entertainment-india.aspx (last visited October 10, 2020).
Figure 1. Internet Classification
2
Alexa Global Traffic Rankings (last visited October 17, 2020)
3
Policy and Regulatory Framework for Governing Internet Application- Detecon Consulting.

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 OTT

Starting over a simple note, OTT or Over-The-Top is referred to as any video streaming platform
that provides access to viewers directly over an internet connection. Some of the major OTT
services in India are Netflix, Amazon prime and Hotstar. OTT was initially named “over the top”
as it provided access to viewers over a cable box. OTT is considered to be a video accessing
platform and even mixed up with but it is just a channel through which video content is accessed
by users. Basically there are three types of OTT applications i) Communication services ii)
Application ecosystems , linked to social media and e-commerce iii) video or audio content.

Year 2020 marked a very important transformation period in the world of OTT. Due to the
pandemic many cinemas were released over OTT as the theatres were non-operational. It was
considered a major drawback to release movies over this platform as its gross earning may have
taken a great setback. In April NBC universal took a great risk and released its movie “Trolls
World Tour” over OTT before exhibiting it in the theatres. The movie surpassed all expectations
and earned over 20 million dollars, giving NBC and many other productions an encouragement
to release their movies over OTT. Several Bollywood movies like gulabositabo, dilbechara etc.
were also released over this platform. But the question that still remains is whether the content
over OTT can be regulated? How can the content be regulated? The issues involved were due the
online spacing of content. It has been half a decade since the research over regulating this
platform has been going on. According to PwC report, India’s video streaming industry is
expected to grow at a compound annual growth rate of 21.82% to reach Rs. 11,977 crores by
20234, given the current situation of lockdown and no reinstatement of theatres yet, this result is
expected to be achieved much earlier.

4
PwC report, LiveMint, june 6 , 2019, available at https://www.livemint.com/industry/media/india-s-video-
streaming.html

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 EXISTING LAWS

Voluntary Codes of Self Regulation

Voluntary codes of self-regulation are gradually being implemented by OTT operators in relation
to content posted on their platforms. OTT players including Netflix, Hotstar, Alt Balaji, along
with others, signed a Code of Best Practises for Online Curated Content Providers in January
2019. The aim of this code is to encourage consumers to make informed choices about age-
appropriate content and to protect consumers interests in selecting and viewing, at their own time
and convenience, the content they want to watch.

Content shown in India is regulated by several codes like Program Code , the Advertising Board
etc. and all the content viewer are strictly required to follow it. But owners of content viewed on
OTT still remains excluded of these codes or of censorship laws. This position was confirmed by
the Ministry of Information and Broadcasting in a response to a query filed under the RTI Act,
2005, wherein it stated the Central Board of Film Certification solely certifies films for theatrical
release and has no control over online content.5

Still the content over digital platform is regulated by many acts which are applicable to all the
contents where it is on digital platform or not. Some of these acts are IT act, 2000, Indian Penal
code, Cinematography Act 1952, etc. Referring to provisions of IT Act, section 67A, 67B and
67C provide for penalty and imprisonment for publishing or transmission of obscene material,
sexually explicit material or any content relating to any scene viewing children in explicit acts.
Moreover, section 69A of IT Act also empowers the central government to issue directions to
block public access of any information. Some intermediary guidelines were also passed in 2011
in The Information Technology Rules for the intermediaries in respect of the information being
hosted or published on any computer resource of the intermediary. These set of guidelines are
also may be applicable to OTT content service providers, which are also considered as
intermediaries under IT Act.

5
RTI application dated October 25, 2016, received online vide registration number MOIAB/R/2016/50541 and
MIB’s response dated December 2, 2016.

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 CENSORSHIP GUIDELINES IN INDIA
On 29 August, 1949, a Film Enquiry Committee was created and named by the Government of
India under the chairmanship of S.K. Patil, a constituent Assembly member. The committee’s
instruction was:
● Examining the film industry’s organizational growth and to give directives for
indicating the setbacks on which further development needs to be directed;
● Examining the measure for adopting an effective instrument, for promoting national
culture, healthy entertainment and education.
The committee, appointed, supported the scheme of centralizing the censorship, coming to the
Cinematograph (Second Amendment) Act, 1949. The main purpose of the amendment, is to
create a centralized structure for cinematographic films censorship. Another achievement was
setting up the Central Board of Film Censors (CBFC) to provide a centralized film censorship
system and have it regulated under central government control. With effect from 15 January,
1951, it was made to abolish the sovereignty of the Regional Boards. Next change conferred on
central government was appellate jurisdiction. The central government was empowered to lay
down rules on the conditions under which censorship powers were to be exercised by the
authority and the reserve power to overrule the decisions of the Board. The Government or local
authorities have been empowered to suspend the exhibition of a film if they are satisfied that the
film is likely to cause a breach of peace.
On 26 January 1950, an exclusive development was adopted which declared India as a
democratic, republic and sovereign granting fundamental rights to Indian citizens. The rights are
mentioned as provided for in Article 19(1). The Right to freedom of Speech and Expression was
at the top of this list as defined in Article 19(1)(a) and all citizens have the right to freedom of
speech and expression. Exceptions to any legal, fair limitations, exception were also given
pursuant to Article 19(2) “Nothing in sub-clause (a) of clause (1) shall have effect on the
operation of any established law in so far as it relates to, or forbids, the state from making any
law relating to, libel, slander, defamation, contempt of the court or any matter offending against
dignity or morality or undermining the Constitution. “6 The existence of the term ‘reasonable
restriction’ under sub-clause (2) of Article 19 envisages the judiciary for connoting the
limitations being delivered on a citizen.

6
Article 19(2), Constitution of India, 1950.

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 JUDICIAL STANCE

One of the first cases filed regarding the regulations OTT was in Delhi HC in October 2018 7. It
was filed by the Justice for Rights Foundation seeking formulation of guidelines for content
created by OTT platforms like Netflix, Amazon Prime, Zee etc. The Delhi HC then served a
notice to the central government seeking a reply over the laws binding OTT platforms. Soon a
reply was filed by the MIB sating that no regulations have been created regarding the viewer
content of the OTT. It was also stated in the reply that the platforms did not require any kind of
license from it to for any display of content. However, it was stated that no content can be
viewed which violated any law stated in IT act.

Thus, a partial approach was seen for the regulation of the content. In its judgement Delhi HC
stated that that the IT act provided enough procedural safeguard for taking action in the event
any prohibited act is undertaken by the broadcasters or organizations on the inline platform and
dismissed the petition.
Another petition was filed in Karnataka High Court by Padmanabh Shankar in the case of
Padmanabh Shankar vs Union of India8. The petition contended and prayed that:
i) As there is a lack of statutory framework for regulation of online content the court
should set up an authority to keep check on content displayed.
ii) As long as no authority is being set up the content should be regulated by the norms
of Cinematography Act, 1952 and its content be certified Central Board of Film
Certification.
iii) Whenever any question is raise upon the authenticity of any content uploaded on
online platform, OTT avail the safe harbour protection under section 79 of the IT
Act,20009, which should not be allowed as OTT platforms heave control all over the
content uploaded and streamed in their site.

7
Justice for Rights Foundation vs Union of India, W.P. © No. 11164/2018
8
Padmanabh Shankar vs Union of India, W.P. No. 6050/2019
9
Section 79 of IT Act, 2000:Exemption from liability of intermediary in certain cases

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 iv) Another question raised by the petitioner was whether watching the content over
internet within the four walls of the house or office would amount to public exhibition
under the Cinematography Act, 1952.

Emphasizing over the prayer and questions by the petitioner court took an interpretation of
the case Super Cassettes Ltd. V Board of film Certification10, in which it was held that even
if a person is watching content within the four walls of his house then also content needs to
be certified by CBFC.

10
Super Cassette Ltd. Vs Board of Film Certificate, W.P. © No. 10552/2009

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 360 VIEW OF CENSORSHIP

Society can develop only by free exchange of ideas.11 The statement hold a deep truth in itself
stating that for the free flow of Information, ideas, views etc. It is Freedom of Speech and
Expression which plays a integral role in democracy. In Union of India V Naveen Jindal, the
court also stated that Maintenance of a system of free expression is necessary as it is assuring
individual self-fulfillment, means of attaining the truth, method of securing participation by the
members of the society socially and politically, decision-making, and maintaining the balance
between stability and change in society.12

Many Major Guardians of Individual’s rights such as UDHR, ECHR and Constitution of India
provides special attention for the protection of Freedom of Speech. Universal Declaration of
Human rights13 states that everyone has the right to freedom of opinion and expression and it
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media. Similarly the European Convention on Human Rights
in 195014 states the same. Constitution of India guarantees that every citizen has the fundamental
right to freedom of speech and expression15. In famous case, Sakal Papers (P) Ltd. v. Union of
India16, a Constitution Bench stated that freedom of speech and expression of opinion is of
paramount importance under a democratic constitution which envisages changes in the
composition of legislation and governance which must be preserved. Section66A of IT Act 2000
was also held unconstitutional as it was against the Freedom of Speech and Expression in Shreya
Singhal v. Union of India17.

Social Media and Cinema played a very important role in the implementation of freedom of
Speech and Expression as it helped to not only know the views of individuals but also to make
your own view point as people are highly influenced by media these days. Cinema Industry these
days is acting as a medium of knowing our history, culture and current affairs too. Various

11
John Stuart Mill, On Liberty (1947) 61.
12
Appeal (civil) 2920 of 1996
13
Part 3, Article 19
14
Article 10(1)
15
Part 3, Article 19(1)(a)
16
(1962) 3 SCR 842.
17
(2013) 12 SCC 73

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movies have become inspiration for people and at the same time films created a sense of hatred
among society with regards to particular community, stereotype, individual etc. Thus, Screening
of Films plays a very important role and became necessary aspect for society. Various cases can
be seen these days when the movie’s release are prohibited and due to this prohibition or for not
prohibiting increases the chance of revolt in the society.

Recently, Supreme Court also dealt with the same issue for prohibition of the
film Padmaavat18which was ordered by the state governments of Gujarat and Rajasthan. The
Supreme Court in this case reiterated its position in the case concerning the film Aarakshan19,
staying the orders of the state governments of Gujarat and Rajasthan and restrained other states
from issuing any orders prohibiting the exhibition of the film. The Supreme Court held that "if
intellectual prowess and natural or cultivated power of creation is interfered without the
permissible facet of law, the concept of creativity paves the path of extinction and when
creativity dies, values of civilization corrode." Thus, it is the duty of the state to maintain law
and order with proper police protection to the people who are coming to watch movie. K.
Ganeshanv. Film Certification Appellate Tribunal20, is the landmark case where court provided a
concrete depiction on how the censorship has to be done. It was held that “censorship of a film
has to be on a case to case basis and there cannot be a uniform policy for deciding as to whether
a film is fit for public exhibition”.

The right to freedom of speech and Expression is always contradicted with the Restrictions
provided in The constitution of India21as this right is not absolute right. It became nearly
impossible to demarcate a concrete line between what will come under restriction and what will
under right to freedom of Speech and Expression. As per The Constitution of India, The speech
or expression which harms sovereignty, integrity, security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to contempt of court, defamation

18
Viacom 18 Media Private Limited & Ors. v. Union of India & Ors, Writ Petition (Civil) No.36/2018, Order dated
January 1, 2018.
19
M/s Prakash Jha Productions &Anr V Union of India, WRIT PETITION (CIVIL) NO(s). 345 OF 2011, Order
Dated August 19,2011
20
W.P.No. 32478 of 2015, M.P.No. 1 of 2015 &O.A.No. 1306 of 2015 in C.S.No. 971 of 2015
21
Part3, Article 19(2).

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or incitement to an offence22 is restricted but to categorize a speech in these categories is really a
very tough. Therefore, film’s screening becomes difficult as many of the films which are
depicting social evils such as “Udta Punjab”, “Haider”, “My name is Khan” etc. faces challenges
as they might affect sovereignty and public order. Thus, formation of Censor Board is kind of
relief with respect to such issues.

Many cases like Bobby Art International v. Om Pal Singh Hoon23, where Supreme Court held
that a film illustrating the consequences of a social evil necessarily must show that social evil.
Film that depicts the social evil or encourages it is permissible, but only if a film that carries the
message that the social evil is a evil and should be removed from the society. The court also held
that “a film was required to be viewed as a whole, and in the context of the message that the
filmmaker desired to communicate”. Similarly, Sanskar Marathe v. The State of
Maharashtra24was the case where the Bombay High Court held that “Censorship is permitted
mainly on social interest specified under Article 19(2) of the Constitution with emphasis on
maintenance of values and standards of society. Therefore, the censorship by prior restraint must
necessarily be reasonable that could be saved by the well accepted principles of judicial review.”

As, the movies are being screened by censor board and being granted various certificates
depending upon the content of the film. It is important for screening the web series, web shows
and movies which are released on OTT platforms such as Hotstar, Netflix, Prime, Zee5, Sony
live, MX Player etc. Netflix has been made the India’s most expensive OTT Platform starting
from Rs 500 per month. In a country with an average annual per capita income of $1,670 25,
Netflix is out of reach for many people still they are eager to subscribe for it and watch
their favorite series. Global leader of online streaming content Netflix was being dragged
to the court for its famous Indian web series “Sacred GamesSeason-1”. The petition was
filed for offensive scenes and derogatory remarks about former Indian Prime Minister -
Rajeev Gandhi. The case was further dismissed. This, shows that the content regulation
and censorship of OTT platforms is totally a new concept these days.

22
Constitution of India
23
(1996) 4 SCC 1
24
(2015) SCC Online Bom 587
25
https://time.com/5339495/sacred-games-netflix-india-court/ (last visited October 21, 2020).

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CODE OF BEST PRACTICES FOR ONLINE CURATED CONTENT PROVIDERS

The code of Best Practices for online Curated Content Providers is a code whose signatories are
leading nine OTT content Providers These are Netflix, Disney-Hotstar, ALT Balaji, Reliance-
Jio, Viacom18, SonyLIV, Arre and Zee5. The main motive of signing this code is self regulation
of the Online content. The Preamble of the code itself stated that Organizations that sign on to
this Code, commit to making reasonable efforts and acting in good faith to ensure that content
offered on their respective services in India is in line with the principles laid out in the code.
The need of the code arises due to following reasons:-

 Authenticity: All the platforms want to make sure that the content people are seeing is
authentic, As it is important to make sure that authentic content must be shared on all the
OTT platforms which should not affect the views of the people in such a way that it will
affect the society.

 Self-injury:- Many contents encourages suicide or self-injury, including certain graphic

images and depictions that might lead others to engage in similar behaviour. Self-injury is
defined as the intentional and direct injuring of the body, including self-mutilation and
eating disorders.

 Child nudity and sexual exploitation of children:-The content that sexually exploits
children. As we can see that child pornography is a major concern these days for society.
Many children are being exploited for making this kind of obscene material all over the
world.

 Sexual exploitation of adults:-To prevent the sexual abuse of adults such as

cyberstalking, defamation, pornography etc. The platforms need to prevent sexually
explicit content to be banned and to identify this kind of content is the main challenge.

 Bullying and harassment:- Cyber Bullying and harassment happen in many places and
come in many different forms, from making threats to releasing personally identifiable

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 information, to sending threatening messages and making unwanted malicious contact.
Prevention of bullying and Harassment is also one of the main challenges these days for
Platforms.

 Hate Speech:- It is a direct attack on people based on race, ethnicity, national origin,
religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious
disease or disability. This challenge is totally against morality and humanity. It prevents
people from being discriminated on various factors. it can also be considered as ethically
wrong.

 Intellectual property:- The intellectual property rights of the owner must be respected in
all the aspects of society. Intellectual property provides exclusive rights to the property
owner and should not be violated to protect IP Laws.

Thus, to get out of these challenges the self-regulation code is framed with the following
objectives26:-

 Age:- The main objective of the code it to empower consumers to make aware about the
age appropriation content and allow them to choose the content accordingly.

 Interest:-the code also aims to provide protection with regard to the interests of
consumers in choosing and accessing the content they want to watch, at their own time
and convenience.
 Freedom of creation of content:-It aims at safeguarding and respecting the creativity of
freedom of content creators and artists and let them produce the content which could
protect their freedom of speech and expression.

 Complaint RedressalForum:-it will enable its consumers to provide a mechanism for

complaints redressal in relation to content made available.

26
https://amielegal.com/tag/code-of-best-practices-for-online-curated-content-providers/((last visited October 21,
2020)

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The Nature of the content which is prohibited under this code can be explained as:-

Maliciously disrespects the national emblem or national flag.

Child engaged in sexual activities or any representation of the sexual parts

of a child.

Outraging religious sentiments of any class, section or community.

Promotion of terrorism and other forms of violence against the State

Banned by any court with competent jurisdiction.

Figure 2. Content Prohibited in accordance with code

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 RECOMMENDATIONS

The survey was taken forward to answer for the question whether India is ready for handling
such platforms in a better way and whether India is aware about these platforms and related
regulations or not. The survey included students, faculties and advocates of various universities
and places. The sample audience where requested to answer certain basic question total of
50student, teachers and advocates were considered in this activity which was conducted online
via google form. The focus was to collect data from different regions of India.

The Survey contained following questions:

1. Are You aware of OTT Platforms (Netflix, Prime......?)
2. Are you Using Personal Connection or Shared Connection?
3. Do you check the certificate before watching anything on OTT?
4. Do you think that we have appropriate Laws for OTT?
5. What more you will Prefer from the given below options: - TV or OTT?
6. What is the impact of OTT in your day to day life?
7. Do you think that we need some changes with respect to the laws of OTT platforms?
8. Are you Aware about the auto renewal policy of subscription?
9. Are you Satisfied with the Auto renewal policy of Subscription?
10. Do you have any Security and Data Privacy Concerns with respect to OTT Services?
11. Recommendations

The conclusion from the survey is that almost everyone is aware about OTT Platforms and
81% will prefer OTT upon TV, whereas 23.8% people uses personal connection and 76.2%
uses shared connection. 61.9% verifies the censor certificate before watching whereas the
remaining one does not. 59.5% of the audience was of the view that existing laws for OTT
are not appropriate and thus, they need certain changes with respect to Auto renewal policy
of subscription too.

The recommendations with respect to the Over the top platforms can be seen as: -

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1. Interpretation of OTT: - Presently, we do not have any globally accepted definition which
could define OTT, or could clarify the area under which OTT falls. OTT, over-the-top. To
look at literal meaning, any broadcasting channel which could be audio, video, or other
media content deliverer over the platform of Internet, and not traditional one. Generally, OTT
applications and services provide voice calls, messaging, digital entertainment content, and
other services. Many government agencies, organizations, technical centre, government,
legal compliant, and other technical companies try to adopt different definitions of the OTT
according to the context before them. In its 2015 consultation paper, on the OTT Services
Regulatory Framework, TRAI described the “OTT provider” as a service provider providing
Information and Communication Technology (ICT) services but not operating a network or
leasing network capacity from a network operator. But all this does not impact to solve the
emergence of problem as to what an OTT includes and, precisely, how to define OTT.

We recommend constructing a definition of OTT, which would be accepted legally under IT

act, stating what should include and specifically different type of services under OTT. From
present sources available, definition of OTT must construct with following factors:
 The type of services provided by the provider under the ambit of OTT applications or
services.
 The services provided through OTT would be excluding the interference from network
operators, like leasing the network access or network capacity from network provider.
 Defining the services to be under personal exhibition while communicating the content at
personal exchange.

It can be recommended that definition of OTT should be included under the Intermediary
Guidelines (Amendment) Rules, 2018, and to include the scope of intermediaries to the OTT
services and applications. In context to the above recommendation, there needs to be the revised
definitions of Intermediaries which has been defined under section 2(w) of Information
Technology Act, 2000.

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2. Unclear scope of term ‘Unlawful’:- In the Intermediate Guidelines, the meaning of the term
‘unlawful’ is not specified and is used incoherently in the Rules and can therefore be
interpreted in a general way. In conjunction with many other words, the first in Rule 3(2)(b)
is used as part of the intermediary’s due diligence duties, which means that the intermediary
is obliged not to accommodate on his/her site.

Some of the definitions seem to stretch beyond Article 19(2) of the constitutional
requirement. The word ‘illegal’ often tends to take on a similar overreaching meaning,
extending the concept of harmonious internal coherence within statutes. Rule 3(8) gives the
next place for the word. In this context, the intermediary has the duty to delete contents
related to ‘unlawful actions relating to Article 19(2) after receipt of’ real information. In Rule
3(9), the third use of the term refers once more to the middleman’s obligation to use
automated technology to delete ‘illegal’ contents.

Both uses make it impossible to read the rules correctly and harmoniously. In two of the
three cases where it happened, not only is the word “illegally” not specified in the Rules or
parent Act over consuming. Although it was not expressly stated in the Shreya Singhal
judgement that the term ‘unlawful’ was in force in connection with Rule 3(2)(b), it was not
meant to mean that actions listed in the statute, rather than openly placed in the decision,
remains constitutionally legitimate. However, except for Rule 3(8), the word interpretation in
contravention of the Shreya Singhal judgment providing for criminal actions beyond Article
19(2) to be beyond section 79. The interpretation does not constitute a breach of the dictum.
This does not describe what illegal material is intended. There is no general description of
‘contracted materials’ under the Indian Penal Code and many other criminal statutes.

➢ We suggest that either an act of the parent or guidelines should specify what
content should be identified for the intermediary to filter using this technology. In
other words, definition and interpretation of the word “unlawful” should be
included. There should be clear interpretation as to what content related to
unlawful act, as per article 19(2), or as per interpretation of Intermediary
guidelines, or under any other law in India. The roles of intermediaries in relation

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 to their users and the government, therefore, are vague without any interpretation
or restricting guidelines to the term.

The Shreya Singhal decision upheld the legal argument that any limitations not emanated from
Article 19(2) could not be included in Section 79 of the Act and should also refrain from being
impregnated with the rules of the guiding principle as an extension. The clarification that
freedom of expression requires three components: discourse, advocacy and incitement, and the
latter may require a limit, however impossible the first two might be. It was understood that our
constitution did not authorize the State to restrict freedom of expression in order to protest the
general public interest.

3. Self- Censorship: - Self- censorship can be defined as an act of voluntarily and intentionally
suppressing or prohibiting any information which may be indecent, obscene, or threat to
security of nation, where there is an absence of formal impediments.
Recently, Internet and Mobile Association of India (IAMAI) has proposed “Code of Best
Practices for Online Curated Content Providers”. The code included the provision of self-
censorship to online private platforms. The idea or objective of including this idea is always
to empower online platforms so that they could censor the content on their convenience and
appropriation. The established code by IAMAI included the list of certain prohibited content,
which had been discussed in the previous chapter. Although, there were certain loopholes
which need to be taken care of while implementing the self-censorship code for OTT’s.

➢ We recommend implementing self-censorship provision for private platform

members, since it would create member’s conscious decisions to protect, improve
and safeguard the working of OTT’s. The recommended implementation of code
envisages a pre-censorship model having well defined categorization, not
depending upon the practices of online streaming video players.

➢ The recommended way to make self-regulation more transparent and accountable

includes, publishing of intricate details of the content regulations, including

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 policies and process followed to censor the content. The platform should include
the information of hierarchies included in decision making process followed;
other substantive parameters to be followed throughout the process.

4. Grievance redressal exhibits: -The need to have a mechanism for grievance redressal
should be included as a part of operational systems.
➢ We recommend constituting a team/ department or dedicated person to receive
and handles such complaints. The complaints or concern, in relation to the
content of the respective provider, should be addresses and dedicated to that
department.
➢ Each signatory shall provide information on the Department’s name, designation
and email address to the respective service(s)/application(s), and to its corporate
website (as applicable).
➢ The policies and working of the department should be in adherence to the code,
further providing guidance and assistance to the classification of intermediaries,
as discussed above, and addressing of complaints.

5. Registration: -We recommend that all OTT apps desirous of providing their services in
India and all operating systems (Android, iOS, Windows, etc.) should be mandatorily
registered in India and should be easily accessible by the government. Operating systems and
apps come in varied forms, and with various tweaks and updates for various devices.
Keeping track of all operating systems and apps would be a futile exercise, especially as open
source apps and operating systems can be modified and re-deployed by anyone.

6. Technical Expertise:- According to Rule 3(9) OF Intermediary guidelines, The Intermediary

shall deploy technology based automated tools or appropriate mechanisms, with appropriate
controls, for proactively identifying and removing or disabling public access to unlawful
information or content.

Looking at the technology based automated tools or operative measures, with appropriate
control; we have certain ambiguities, including precision of digital technologies, such as big

Electronic copy available at: https://ssrn.com/abstract=3735027

 data analysis and Artificial Intelligence, and transparency and regulation of digital
technology decision-making. While balancing the need to censor the data and to protect
fundamental right of freedom of speech and expression, there is a need to introduce
technological advancement in this space.

➢ This paper suggests that service providers provide the creation of the
Algorithm Programming Interface (APIs) that collect the related inputs and
output of the network and make their data available easily. The paper also
suggested that the services include an algorithm for programming.
An algorithm is like a recipe describing how to combine various inputs to produce the
desired output.

It becomes possible to build public interest algorithms to monitor and report on the effects of
social media algorithms. A public interest algorithm can do just what the social media
algorithms assess at computer speed the information coming in and where it is going. Openly
available to all. A public interest algorithm can provide awareness of and access to the
information behind any posting. Such sunlight will not only expose any propaganda, but also
will help independent evaluation of the veracity of the information being delivered.
Secondly, the algorithm can help to technically censor the data, specifically based on some
particular words, letters, voice, etc.27

7. Jurisdiction:- OTT systems in another country or country buy, control and transfer data
belonging to individuals or businesses. They normally collect data for user details and
demographic information. This data transfer across national boundaries leads to
problems. First, confusion is created with respect to the territorial implementation of
data protections standards. Second, the technology has made the investigation or
collection of evidence in criminal and fiscal affairs complicated for law enforcement
officials, because investigations can take place within a separate jurisdiction than the one
in which the crime has occurred. OTTs located in other jurisdictions may deny the
application for cooperation or the exchange of knowledge.

27
https://www.brookings.edu/blog/techtank/2017/11/01/using-public-interest-algorithms-to-tackle-the-problems-
created-by-social-media-algorithms/

Electronic copy available at: https://ssrn.com/abstract=3735027

Finally, last and most important recommendation is constructing the regulations for jurisdiction
of service provider, while empowering the consumers and legal authorities to resume issues,
raised from digital platform, at greater ease. The service providers should be specifically
governed and held responsible under the jurisdiction of Indian courts, or arbitration.

Electronic copy available at: https://ssrn.com/abstract=3735027

 CONCLUSION

Looking, at the statistics, we have a tendency to found the massive range of users being attached
conversion and to on-line content. Since, Republic of India is facing on-line revolution and
there's got to defend customers and viewers World Health Organization had become a section of
this on-line conversion. any to its analysis, whole statistics created the requirement of immediate
intention towards the legislation that has been governing it, till now, and to bring new legislation
that might fill the gaps and loophole within the gift one. Since the vital judgment of Shreya
Singhal came, there had been a wind of the protection of the rights of knowledge privacy, on-line
censorship, role of state authorities, and far a lot of. the full dialogue, distinctively contributed
the burden with numerous alternative laws, rules, policies and pointers. However, all of them
miserably didn't gift the effective regulation, during this context.

This all brings to curb the requirement to balance the requirement of censoring platforms
whereas maintaining the integrity, confidentiality and therefore the rights of customers want. We
need to, effectively, regulate censorship of digital content whereas maintain the at the most basic
right of protection of freedom of speech and expression. Since, all the recommendations,
provided in many chapters, has been developed whereas maintain the wants of customers,
protective the integrity of on-line platforms, holding the correct of protection of speech and
expression, government answerability, and technical advancements. Concluding to the present,
integrity of the platforms ought to be protected, or otherwise it'll have an effect on the lifetime of
on-line customers. Government authorities ought to attempt to pace with technical advancements
and effectively implement the rules. Since, on-line revolution is coming back and that we all got
to defend this on-line community otherwise it'll be harmful to society.

Electronic copy available at: https://ssrn.com/abstract=3735027

 BIBLIOGRAPHY

Statues

● Information Technology Act, 2008

● Indian Penal Code, 1860
● Copyright Act, 1957
● The Cinematography Act, 1952
● Press Act, 1910
● The Code of Criminal Procedure, 1953
● Cinematograph (Amendment) Bill, 2018
● The Indian Evidence Act, 1872
● Constitution of India, 1949

Guidelines and Rules

● Central Board of Film Censor guidelines

● Information Technology (Intermediaries guidelines) Rules, 2011

Books

● Censorship and Literature: Nicole Moore

● Censorship in India: Girja Kumar
● Internet Censorship: Protecting Citizens or Trampling Freedom? :ChristineZuchora-
Walske
● Censorship and Intolerance in India: Rajeev Dhavan

Journals:

● Pittsburgh journal of Technology law: Internet Control or Internet Censorship?

● SAGE JOURNAL: Rethinking Internet Censorship

Electronic copy available at: https://ssrn.com/abstract=3735027

 ● Oxford Journal: Censorship and Surveillance in Digital Age
● Yale Law Journal
● Princeton University Journal: A Taxonomy of Internet Censorship and Anti-
Censorship

Website:

● https://www.ohchr.org/Documents/Issues/DigitalAge/ReportPrivacyinDigitalAge/Pira
tePartiesInternational.pdf
● https://dash.harvard.edu/bitstream/handle/1/33084425/The%20Shifting%20Landscap
e%20of%20Global%20Internet%20Censorship-
%20Internet%20Monitor%202017.pdf
● https://ncac.org/resource/the-first-amendment-in-schools-censorship
● https://www.politico.eu/article/google-facebook-twitter-censorship-europe-
commission-hate-speech-propaganda-terrorist/
● https://www.eff.org/deeplinks/2018/10/eu-internet-censorship-will-censor-whole-
worlds-internet
● https://www.theguardian.com/technology/internet+world/censorship
● https://www.thoughtworks.com/insights/blog/information-technology-act-and-
internet-censorship-india

Electronic copy available at: https://ssrn.com/abstract=3735027