CYBER LAW

SEMESTER VII

A RESEARCH PAPER ON:

Cyber Law and the Content on OTT Platforms

SUBMITTED TO:

Asst. Prof. Sristy Ghosh

Assistant Professor,

Cyber Law,

NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Name: Prakshal Bhargatiya

Roll No.: A018

BA LLB (Hons) Division A

(2019-24)
Table of Contents
Introduction.........................................................................................................................................2

Analysis................................................................................................................................................4

Ekta Kapoor v. State of Madhya Pradesh.....................................................................................4

Facts of the Case..........................................................................................................................4

Contentions Raised......................................................................................................................4

Decision........................................................................................................................................5

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021 ("IT Rules 2021")...................................................................................................................5

Conclusion............................................................................................................................................8
Introduction
The Indian film industry and the online streaming industry is the fastest growing industry in
India. The dependence of the mass on online platforms has increased a lot. Almost every
Indian has Hotstar, Netflix, Amazon Prime etc. OTT platforms on their smartphones, laptops,
PC etc. comparing to the other Asian countries the Indian media and advertising agency is the
second largest after China. The Indian film Industry is one of the biggest incomes earning
industry in the country and a lot of people are involved and are part of that Industry. But a
major shift is seen which is people rather than ging to the theatres to watch movies prefer to
watch movies or web series online at their home1.

The full form of OTT is over the top which means that various applications and amenities
which are available on the online platform like movies, audios, e-commerce platforms etc.
Digitalization has truly changed the structure for many markets and industries. Nowadays
everything is available on online platforms and it is way cheaper than going to a theatre and
watching a movie. The year 2020 has been totally for the OTT platforms due to the pandemic
all the theatres and various other platforms were closed and OTT remained the only source of
entertainment for the people. Many production houses were scared that how would they able
earn large profits through Online platforms2. But various movies have been released on
Online platforms like the Trolls, gulabo sitabo, dil bechhara etc. the major problems which is
being faced by the OTT industry is the regulation of them. we all know that a film prior to the
release has to get a certificate from the Central boards of film censors. Central boards of film
censors is the primary body under central government which provides film censorship at a
regularized level. The rules and regulations have been drafted and only on that basis a film
can be censored3.

1
Nikhil Rohtagi, Do We Need to Worry About OTT Media Censorship? Not Just Yet, THE QUINT, (September
26,
2022 1:45 PM) https://www.thequint.com/voices/opinion/ott-platform-digital-media-censorship-not-yet-
concernafter-iandb-ministry-notification#read-morehttps://www.thequint.com/voices/opinion/ott-platform-
digitalmedia-censorship-not-yet-concern-after-iandb-ministry-notification#read-more
2
Internet Freedom Foundation, Explainer: Why India’s new rules for social media, news sites are anti-
democratic,
unconstitutional, SCROLL.IN, (September 28, 2022 2:43 PM) https://scroll.in/article/988105/explainer-how-
indiasnew-digital-media-rules-are-anti-democratic-and-unconstitutionalhttps://scroll.in/article/988105/
explainer-howindias-new-digital-media-rules-are-anti-democratic-and-unconstitutional
3
Sanjeev K Kumar, How far is the censorship of entertainment platforms justified, FINANCIAL EXPRESS,
(September 29, 2022 12:18 PM) https://www.financialexpress.com/brandwagon/writers-alley/how-far-is-
thecensorship-of-entertainment-platforms-justified/2221119/
To understand this first thing to understand is what is censorship. It means suppression of
ideas or supervising and prohibiting of ideas and artistic work by any government authority
or due to pressure groups, religious groups etc is considered as censorship. There are various
laws which talk about censorship in India e.g., cinematographic act, Indian Penal Code, civil
procedure code, IT act etc. The primary law which censorship for films in the country is the
cinematographic act. the cat clearly states that a film will not receive the license for
publication if any part of the film is against the interest of the society. The central board for
film censors laid down certain guidelines which need to be followed and taken into account
by the CBFC while granting license to the film.

They divided films into four categories for certification and those are: ‘U’ any age group can
watch, ‘U/A’ all above the age of 12 can watch, ‘A’ all above the age of 18 are allowed to
watch and ‘S’ only applicable for a selected group 4 . There are various other laws also which
talks about the regulation and censorship of OTT platforms like the section 95 of the civil
procedure or the certain sections of IT act like the section 67A, 67B talks about punishment
on publication of obscene and sexual material etc.

The problem is that in the current era of globalisation where the availability of global content
is so easy and affordable. So, the government trying to regularize them is very difficult
because the issue is that there are movies which are of Indian origin and are controlled by the
Indian censor board, then these apps are showing movies of other country which are licensed
by their country therefore will it possible to censor those movies which are of other origin
because the central government don’t have jurisdiction on the censorship of those particular
movies or series.

There were also talks that like these OTT platforms doesn’t have a regulatory body whether
they should be doing self-regulation or central regulation authority is required for regulation.
According to the current scenario there is no regulation for OTT platforms but seeing the
growth of the industry and its effect on general people the central government are trying to
regulate them like the Film industry. But the current government has announced recently
announced new rules called as “Guidelines for Intermediaries and Digital Media Ethics
Code”5.
https://www.financialexpress.com/brandwagon/writers-alley/how-far-is-the-censorship-of-
entertainmentplatforms-justified/2221119/
4
Guidelines, CENTRAL BOARD OF FILM CERTIFICATION, (September 29, 2022 1:12 PM)
https://www.cbfcindia.gov.in/main/guidelines.html
5
Hi Tech, India's new rules for social media, OTT platforms: 7 important things to know, HI TECH, (September
29,
Analysis
Ekta Kapoor v. State of Madhya Pradesh6

Facts of the Case

The FIR was filed under Sections 294, 298 and 34 of the IPC, Sections 67 and 67-A of the
I.T. Act, and Section 3 of the State Emblem Act, according to the petition filed under Section
482 of the Cr.P.C. The petitioner claimed to have published/transmitted, or caused to have
been published/transmitted, the incriminated episode, which is episode 1 of season 2 of XXX
uncensored, which is presented on ALT Balaji platform. According to the complainant, the
aforementioned incident was obscene, infuriated him, damaged his religious sensibilities, and
demonstrated the dishonesty of the National Emblem.

Contentions Raised
 Because she is not the director or producer of the episode and her name is not listed in
the credits, the petitioner was unaware of the contents of the programme.
 In light of the reference in the case of Aneeta Hada vs. Godfather Travels and Tours
Private Limited stated in 2012(5) SCC Page 661, it is apparent that the petitioner
cannot be tried in isolation without arguing the organisation ALT Balaji as a co-
accused.
 That there are no obscenities in the episode
 That only adults are permitted to see the in question material.
 The freedom of speech and expression, as protected by Article 19(1)(a) of the Indian
Constitution, would be violated by these unwarranted restrictions.

Decision
 The programme was made available on the ALT Balaji website, where the petitioner
served as the managing director. She is assumed to be aware of the details of the
incident involving Ranjit D. Udeshi v. State of Maharashtra, which was reported in
AIR 1965 SC 881.

2022 1:19 PM) https://tech.hindustantimes.com/tech/news/indias-new-rules-for-social-media-ott-platforms-7-

important-things-to-know71614260212306.html#:~:text=As%20per%20the%20new%20rules,parental%20lock
%20in%20their%20servic
es.&text=3. -
71614260212306.html#:~:text=As%20per%20the%20new%20rules,parental%20lock%20in%20their%20servic
es.&text=3
6
M.Cr.C. No.28386/2020
  The submission is premature because the case is distinct from Aneeta Hada's case
(above), the investigation is ongoing, and the chargesheet has not yet been submitted.
ALT Balaji may be named as an accused in the charge sheet, and the complainant has
requested action against him in his FIR (Paras 55 to 59).
 It is impossible to categorically say that the episode's depiction of simulated
copulation is not obscene. It is necessary to analyse the content objectively in order to
decide if it is obscene or not. Evidence would need to be recorded in order to exclude
the possibility of a judge's personal preferences influencing his judgement.
 It makes no difference how old a subscriber is if the content is offensive.
 Freedom is subject to reasonable restrictions, and under Article 19(2) of the
Constitution, freedom may be curtailed if the disputed content violates public decency
and morals and is obscene as defined by Section 292 of the IPC. Udeshi, Ranjit D.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code)

Rules, 2021 ("IT Rules 2021").
The entities that store or transfer data on behalf of other people fall into one of two categories
under the IT Rules 2021. Online marketplaces, social media platforms, and internet or
telecom service providers are examples of intermediaries. The two groups fall into two
categories:

I. An intermediary that primarily or only facilitates online communication between two

or more users and permits them to create, upload, share, disseminate, edit, or access
content using its services is referred to as a social media middleman.
II. A significant social media intermediary is one that has more registered users in India
than the minimum number specified by the Central Government.

Due diligence required of intermediaries: The due diligence required of intermediaries (both
social media intermediaries and significant social media intermediaries) includes, among
other things: I informing users about rules and regulations, publishing its privacy policy and
user agreement for access or usage of its computer resource, (ii) informing the intermediary's
users, at least once a year, that in case of non-compliance with / changes in the rules and
regulat (v) provide information under its control or possession, or assistance to the
government agency that is legally authorised for investigative or protective or cyber security
activities, as soon as possible but no later than 72 hours of receiving an order, in order to
verify identity or for the prevention, detection, investigation, or prosecution of offences under
any laws currently in effect, or for cyber security incidents, (vi) retain information under its
control or possession. The Indian Computer Emergency Response Team must receive reports
of cybersecurity incidents from intermediaries, as well as information relevant to those
reports (CERT).

Grievance resolution: The name of the Grievance Officer and his/her contact information, as
well as the mechanism by which a user or victim may make a complaint against a violation of
this rule or any other matters pertaining to the computer resources made available by it, shall
be prominently published on the intermediary's website, mobile-based application, or both, as
the case may be. The Grievance Officer shall - I acknowledge the complaint within 24 hours
and dispose off such co

For large social media intermediaries, additional due diligence: A significant social media
intermediary must perform the additional due diligence listed below while performing its
duties within three (3) months of the date on which it was notified that it had reached the
threshold: I appointing a chief compliance officer to ensure compliance with the IT Act and
the Rules, (ii) appointing a nodal contact person for round-the-clock coordination with law
enforcement agencies and officers to ensure compliance with the law.

The following intermediaries offer messaging as their main service: In this situation,
intermediaries must make it possible to identify the information's original creator on their
platform. If a court or government order specifies it, this originator must be disclosed. Such
an order will be made for a specific reason, such as the investigation of crimes against the
state's sovereignty and security, public peace, or sexual assault. If less intrusive methods are
successful in locating the information's source, no such order will be made. The intermediary
will not be obligated to reveal any communication's contents. The first originator of the
material within India shall be considered to be the first originator if the first originator is
located outside of India.

Three-tiered grievance procedure: A three-tier grievance redressal procedure will be in place

for digital media companies (news and OTT) to handle concerns over content: I Self-
regulation by the publishers; (ii) Self-regulation by the self-regulating bodies of the
publishers, each of which is presided over by a retired Supreme Court, High Court, or
independent eminent person from the media, broadcasting, entertainment, child rights, human
rights, or such other relevant field, with a maximum of six additional members who are
experts in those fields.
The publisher will designate a grievance redressal officer based in India, and make sure that
the Complaints Officer resolves each grievance it receives within fifteen (15) days and
notifies the complainant of the result within the allotted period. The Ministry of Information
and Broadcasting ("MIB") will set up an Inter-Departmental Committee as part of the
oversight mechanism to hear complaints that self-regulatory organisations are unable to
resolve and to monitor adherence to the code of ethics.

Code of Ethics for Publishers of Digital Media: The IT Rules 2021 outline the code of ethics
that publishers of digital media, such as those who supply news and current affairs content
and online curators of content, must adhere to (also known as OTT platforms). The following
current codes will apply to news and current affairs: Content that is illegal under any
currently in effect law shall not be published or transmitted, in accordance with I the
standards of journalistic conduct established by the Press Council of India, (ii) the
programme code under Section 5 of the Cable Television Networks Regulation Act, 1995,
and (iii) the programme code. For OTT platforms, the requirements include, among other
things: I categorising content in age-appropriate categories as prescribed; (ii) implementing
an age verification mechanism for access to adult content; (iii) restricting access to certain
curated content by children; and (iv) improving the accessibility of content for people with
disabilities.

Content blocking in an emergency: The Authorised Officer must review the pertinent content
in any situation of an urgent nature for which there can be no room for delay, determine
whether the circumstances fall under the purview of section 69A(1) of the IT Act, and
determine whether it is necessary or expedient and justified to block the information in
question or a portion of it. The Authorised Officer must then provide a specific
recommendation in writing to the Secretary, MIB. In addition, the Secretary, MIB may, after
recording reasons in writing, issue any interim directions he/she deems necessary to such
identified or identifiable persons, publishers, or intermediaries in control of such computer
resource hosting such information or part thereof if the Secretary, MIB determines that it is
necessary, expedient, and justifiable to block for public access any information or part
thereof7.

7
Aditi Agrawal, Censorship or Certification: How should OTT platforms be regulated? FORBES INDIA, (April 29,
2021 2:09 PM) https://www.forbesindia.com/article/special/censorship-or-certification-how-shouldott-
platforms-be-regulated/66285
Norms for curating content: Any curated content must be categorised in accordance with the
following sets of rules: I basic rules for classifying movies and other entertainment
programmes, including web-based serials; and (ii) issue-related rules. The issue-related
guidelines include the issues and concerns that apply to all categories of classification to
varying degrees and elaborate the general approach that may be taken in this regard to the
same, whereas the general guidelines are general factors that may influence a classification
decision at any level.

Conclusion
The regulation of online posts and content is a challenging issue. It's becoming more difficult
as the internet's user base and reach grow. The largest social media businesses now generate
revenue that exceeds the reserves of several nations.

Via their platforms, these businesses control a significant chunk of the economics of
practically every nation, and through their misdeeds, they have amassed so much personal
user data that they are able to cripple the world's most important economies. Additionally,
there have been many cases where social media corporations have blocked neutral content as
a result of prejudices and even refused to follow court rulings. This has always happened
since there aren't any laws or norms in place to control how these internet companies behave.

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code)
Rules, 2021, however, are a good step in the right direction. With its three-level grievance
redressal process, soft-touch self-regulatory mechanism, and ability to regulate itself, it can
undoubtedly be effective in policing these platforms. The Code of Ethics makes an effort to
control how movies and other content are categorised on OTT platforms. However, if this
freedom is restricted for the sake of national integrity and sovereignty, then the rules are
wholly justifiable. These regulations are also criticised for violating the right to free speech
and expression.

To establish a balance between the defence and preservation of the rights of social media
victims and the right of an individual to free expression, the government must take a strong
stance. These regulations would increase openness and guarantee adherence to users' rights
while screening their material or collecting their personal information.