Regulation of OTT Platforms: Need for

a Separate Legislation
Pragya Malik

Abstract

Technological advancement has revolutionized the entertainment industry. With the rise
of digital technology, hand held gadgets have evolved with astonishing capabilities that
create a pleasant and comfortable environment for watching movies. OTT platforms are
the new source of entertainment and there are no rules, regulations or any other
restrictions in this platform. The Covid-19 pandemic adversely affected business in the
service sector, the popularity of the OTT medium soared with its easy accessibility and
unique global content. Given its distinctive structure, OTT content has escaped various
censorship norms and this has led to numerous controversies relating to the nature of
content displayed. Consequently, the judiciary has tried to bridge the gap through
judgments, content providers have committed to self regulation codes and recently the
government passed the Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021. Despite this, regulation of OTT platforms continues to be a
hotly debated topic as these steps are not the conclusion, rather they are the first steps
towards the making of a codified legislation competent in dealing with the unique
challenges posed by this medium.

I. INTRODUCTION

The revolution in the internet facility have created colossal market online, irrespective
of the fields. The new platforms have emerged as an entertainment source for the
masses. The availability of any sort of services on the fingertip have made a greater
impact on the society. Over-the-top (OTT) platforms are video streaming services that
deliver content directly to consumers over the internet without requiring a traditional cable or
satellite TV subscription. OTT platforms have become increasingly popular in recent years

1
due to technological advancements and behavior changes in consumer viewing habits. India
is the world's fastest-growing OTT (over-the-top streaming) industry, on track to overtake
the United States as the world's sixth largest country by 2024. One of the reasons for the
growth in OTT platform subscribers was the Covid-19 pandemic and lockdown. There are no
laws or standards controlling OTT platforms in India because they are a new source of
entertainment. These platforms offer a wide range of material and employ artificial
intelligence to make recommendations based on your previous experiences with the
platform. The majority of fully paid platforms provide some free content in exchange for a
monthly subscription cost to access premium content that is not available elsewhere.

OTT platforms are consumer friendly, convenient and easy to access, but also allow for
entertainment on a personal medium through mobile, computer, tablets, etc. Beyond this,
these platforms provide both diversified international content and customized content based
on geographical and personalized demographic information. It has emerged as an
opportunity and employment source, but it also fascinates and influence the others.

The rise of these platforms has significantly impacted the entertainment industry, disrupting
traditional TV networks and cable providers. Today, OTT platforms are a crucial part of the
entertainment industry, offering viewers a wide diversity of content on demand. The
popularity of OTT platforms is expected to continue to grow in the coming years, with more
companies launching their streaming services and the number of subscribers increasing.

II. CONTROVERCIES IN THE OTT WORLD

In a democracy, a person should have the right to tell his story in the same version from
which point of view he sees it. But this right sometimes has to be curtailed when a person
produces a story by fabricating it. And for that, complaints and controversies raised issues
related to the story of the fiction or content that somehow ruining the etiquettes, goodness,
tact of the society.

2
There is always much controversy regarding its content as it is not controlled and regulated
by any law or body and provided the contents without any filter or screening to the public.
The most recent legal controversy that has been faced by the Amazon Prime video series
‘Tandav’. .Also, The National Commission for the Protection of Child Rights, a child rights
body, issued a legal notice against ‘Bombay Begums’, a web series, featuring on Netflix, to
stop the continuation of the show for its improper depiction of children.

The requirement for OTT guidelines additionally emerges from the way that previous laws
have demonstrated inadequate in managing matters concerning OTT content. OTT platform
qualify as 'intermediaries' (mediators) under 2(1)(w) of the IT Act, 2000. Consequently, on
the off chance that they are managing third-party information, intermediaries do not have the
responsibility for the content published on the stage and are generally subject to the rules set
by the platforms themselves. In any case, in actuality, large numbers of the OTT stages enjoy
making their substance, subsequently getting away from risk under this arrangement.
Furthermore, the increase in the use of abusive and defamatory language against religions in
various web-series like Pataal Lok, Leila, Aashram, Mirzapur, etc. that is freely accessible to
the children made the society realize that there is an immediate need to impose stringent
regulations on such platforms.

To support this policy the Supreme Court while stating that some of the shows of OTT
platforms like Netflix, Amazon Prime contained pornography, directed that the rules framed
by the centre be placed before OTT..

III. IMPORTANCE OF CODIFICATION

History has witnessed how entertainment and media have moulded cultures and beliefs. The
content we view has a considerable influence on our thinking patterns and shapes our
perspective. Several psychologists accept this notion and studies have proved that content

3
 viewed does have an impact on behaviour of individuals. As such the ascendancy of the
media itself cannot be classified as positive or negative, but the nature of content featured
plays a crucial role in this consideration.

 Distribution of an uncensored version:

OTT content is not bound by inherent time restrictions and is available at any time as long as
one is equipped with a working internet connection, content over this medium cannot be
regulated by traditional means such as airing certain shows late at night, a technique used on
television. Additionally, these days more and more children are gaining access to gadgets at
a young age thus enabling them access to online and sometimes even mature content which
may be difficult to supervise. Apart from this there is also an issue regarding shows or
movies being displayed on television in their censored form whereas OTT platforms are able
to distribute an uncensored version of the same content.

 Tax Evasion:

OTT content is not bound by inherent time restrictions and is available at any time as long as
one is equipped with a working internet connection, content over this medium cannot be
regulated by traditional means such as airing certain shows late at night, a technique used on
television. Additionally, these days more and more children are gaining access to gadgets at
a young age thus enabling them access to online and sometimes even mature content which
may be difficult to supervise. Apart from this there is also an issue regarding shows or
movies being displayed on television in their censored form whereas OTT platforms are able
to distribute an uncensored version of the same content.

 Self Regulatory Code:

In September 2020, around 15 (fifteen) OTT platforms signed the Universal Self-Regulation
Code for Online Curated Content Providers (Self-Regulation Code). All companies who

4
 signed the code essentially promised to work in good faith and cohesively aim to self-
regulate their content in order to ensure authenticity and display material free from themes
such as nudity, sexual exploitation and hate speech. The code sought to maintain freedom of
speech and expression while also protecting the interests of consumers. The issue here is that
this may just be a way to escape external control and censorship, in an attempt to self-
regulate and by that means further their own interests. The code lacks participation of an
objective third party which can rationally regulate the platforms.

 Indian Jurisdiction:

On December 20, 2020, the Information & Broadcasting Ministry, along with IT Ministry
through their secretaries, filed a transfer petition in the apex court to bring all the pending
cases to the Supreme Court. Already by December, various courts have heard nearly 23
petitions regarding the regulation of OTT Content.

In the case of the Justice for Rights Foundation, the Supreme Court ruled that to deal with
objectionable content already, there are stringent provisions mentioned in the IT Act. Hence,
there is no need for the court to create new guidelines. The Supreme Court rejected to
formulate any guidelines, taking the matter seriously, it urged the government to come up
with something “concrete” to tame the unruly horse of OTT.

IV. OTT PLATFORMS: REGULATORY FRAMEWORK

Regulating over-the-top (OTT) services is undoubtedly necessary, but censorship seems like
a drastic step. Self-censorship and creative freedom may be curtailed if platforms are
controlled by an external agency established under MIB Ministry. Demonstrations,
processions, or violence cannot be used as justification for restricting free speech. "Since
freedom of speech is a right protected against the state, it is the responsibility of the state to
protect it. The hostile audience issue cannot be blamed on the government." Depending on

5
who is regulating, it may entail making sure that no material is illegal, disrespect the national
symbol and flag, supports terrorism, or fosters disrespect for India's sovereignty and integrity

On the other hand, censorship implies something quite different: the blurring or removal of
politically sensitive material, abuse, and nudity, either willingly or in response to external
pressure. Self-censorship and creative freedom may be curtailed if platforms are controlled
by an external agency established under MIB Ministry. Demonstrations, processions, or
violence cannot be used as justification for restricting freedom of speech. Given that freedom
of speech is a constitutional right, the State owes it to its citizens to keep it safe. There is no
way for the government to claim that it cannot deal with the hostile audience issue. That's
why age grading and telling viewers whether the material contains nudity, harsh language,
violence, or any other element is the only appropriate kind of control. It should be up to the
viewer to determine if they're interested in watching or not. Additionally, parental controls
should be included to keep youngsters safe from harmful material.

1. Information Technology Rules, 2021:

“The Information Technology (Guidelines for Intermediaries and Digital Media Ethics
Code) Rules, 2021, was notified under the two-decades-old Information Technology Act,
2000 and will supersede the 2011 guidelines for internet intermediaries.” The rules
introduce a code of ethics to be followed by online curated content and intermediaries
stating that the platform will take due caution while featuring any content.

The people of India basking under the light of Article 19 of Constitution and Supreme
Court's nine-judge bench imprimatur of Right to Privacy in In Puttasawamy Judgement;
eagerly waiting for Data Protection Laws to be framed by their democratically chosen
representatives after a vigorous discussion, due deliberation & clearance by joint parliament
committee. Before this dream of theirs could come true it a fresh debate was brewed when
the Government came with the Information Technology Rules, 2021 on 25th February
declaring them as supersession of the Information Technology (Intermediaries Guidelines)
Rules, 2011.

6
(A) Definitions

 Rule 2 is definition clause providing clear explanation for the terminologies such as

 Rule 2(w) defines 'Social Media Intermediaries' as an intermediary whose prime or sole
objective is to capacitate interaction between two or more users and allows them to
create, upload, share, disseminate, modify or access information using its services.

 Rules 2(v) defines 'Significant Social Media Intermediaries' as an intermediary having

number of registered users in India above such threshold as notified by Central
Government (the user threshold has been set at fifty lakh and above)

(B) Dictates

 Part II of the These new Rules specifically dictates that due diligence to be
undertaken by an intermediary including social media intermediary and significant
social media intermediary. These obligations are inescapable in nature.

 Rule 3(a) dictates that an intermediary will be required to publish its user agreement
and privacy policies or rules and regulations prominently on either its application or
website or both. Some conspicuous examples of information are given under Rule
3(b) which has caused grievance and are unacceptable as per the government are as
follows:

o If the content is pornographic, obscene, pedophilic, defamatory in nature

o If it is invasive of another person's privacy including bodily privacy, insulting

or harassing on the grounds of gender

o If the content being shared is racially or ethnically objectionable or libellous

7
 o It the content relates or encourages money laundering or gambling, or
otherwise inconsistent with or in contradiction to the prevalent laws of India.

o If the content shown by addressee deceives or misleads about the inception

point of the message

o If the addressee intentionally & knowingly communicates any misleading or

patently false information passing it of as fact.

(C) Regulations:

 A Code of Ethics contained that, prescribes the guidelines shall be followed by OTT
platforms and digital media entities.

 A three-tier grievance redressal mechanism has been established distributed in three

different levels, such as:

o Self-regulation by the publishers shall appoint a Redressal Officer who shall be

subject to the redressal of complaints received by it. That shall be decided within 15
days.

o Self-Regulatory Body, this body shall be headed by a retired judge of the

Supreme Court, a High Court or independent eminent person and have not more than
six members. This body will supervise the publisher to the Code of Ethics and
address a grievance that has not to be resolved by the publisher within 15 days.

o Oversight mechanism, this mechanism shall publish a code for self-regulating

bodies, including Codes of Practices. It shall establish an Inter-Departmental
Committee for hearing grievances.

8
 2. OTT & Freedom of Speech and Expression:

Article 19 of the Indian Constitution assures every citizen the Fundamental Right of
Freedom of Speech & Expression i.e.; it gives the free will to individual to form opinions
and to share it. It could be stated that expression of opinions, facts or position could be
considered a facet of speech; but, right guaranteed under Article 19 (1) (a) is not unqualified
and is subject to the reasonable restrictions which is in the interest of public at large;
mentioned under Article 19 (2) on various grounds such as sovereignty and integrity of
India, public order, decency or morality, defamation etc. which implies that free speech
needs to be balanced against the standards which has been set by the community and of
morality. So, basically it calls for responsible freedom and aims to protect from deceptive
information.

The fact that the consumer base of the OTT platforms has been constantly growing is not
hidden from anyone; so as the screens are increasing and more people are engaging
themselves with such platform, so, it becomes quite obvious for the content provided by
them to be regulated in public interest, while this may be one of the arguments, but, the
people on the other side argues that since theatre is a public screen, television is a family
screen and your mobile phone is a private screen, hence nothing displayed in the private
screen should be censored because it becomes the choice of the individual whether or not to
watch it.

3. OTT & The Law of Obscenity:

The expression obscenity or what is obscene is not clearly defined under IPC. But as per the
dictionary meaning, the word obscene can be defined as something which is offensive or
disgusting by accepted standard of ethics and decency. Chapter XIV of the IPC,1860 talks
about offences affecting the public health, safety, convenience, decency and morals contains
Section 292, 293 and 294 which deals with sales etc. of obscene books, sales etc. of obscene
object to young person and obscene acts and song in public places respectively. Obscenity
could be in various forms such as by act, written, oral, drawn, painted, etc.

9
Section 67 of the Information Technology Act is quite similar in nature to section 292 of IPC
and it criminalizes the electronic transmission of sexually explicit contents. Section 66A and
67B of the Information Technology Act states the punishment for offenses which includes
sending offensive messages, publishing or transmitting any material which is obscene or
sexually explicit etc. via electronic form. Moreover, Section 3, 4 & 7 of the Indecent
Representation of Women (Prohibition) Act of 1986 lays a provision of penalty for the
person who causes the women to be represented obscene in pubic. In this era of internet,
since the consumer base is increasing rapidly, so is the content providers and their content,
since there was a vacuum in the absence of any regulatory body for them; so they enjoyed a
free hand by serving people the uncensored content which at times were inadequate when
compared to the accepted standard of morality and decency. For this reason, time and again
people in our country have knocked the door of the court citing the obscene content of the
digital content providers. A motion picture may have a deep influence on the minds of the
people and if such

4. OTT & Parental Control

With such rapid advent of online content streaming services children and teenagers have also
been exposed to uncensored content and it is not at all difficult for them to get access of
those contents. And it is becoming more difficult for the parents to track the cyber behaviour
of their child. Now a day, teenagers are very addictive to mobile phones and internet. It is not
possible for the parents to keep their child away from such devices since the education
system has also drifted more towards digital environment and a major portion of a student's
education is dependent on internet, mobile and computer devices. As a result, they are
getting exposed to abusive languages and explicit contents.

5. OTT & Defamation

Defamation in Indian law has been derived from English common law. It can be defined as
an act of harming or lowering down the reputation of a person in the minds of other people.

10
With the growth and proliferation of OTT platforms throughout the world, it has become
extremely popular among the youth. On one hand these platforms are very easy to use, cost
effective and convenient mode of entertainment but on the other hand there are scope for
cyber defamation through these platforms. In general sense defamation can be understood as
an act to portray someone in a false manner and deprive that particular person of his or her
reputation. In India both civil and criminal remedy is available against the person committing
the act of defaming someone. The Indian Penal Code has defined defamation in section 499
of the Act. The section does not only include spoken words but also brings in other acts such
as visible representation, publication, signs, imputation intending to harm someone's repute,
under the ambit of defamation.

6. OTT & Sedition:

The Indian Penal Code in section 124-A defines the offense of sedition as an attempt to bring
contempt or hatred or excite people to revolt against the government by the means of written
or spoken words or use of signs or by any type of visual representation. It is a punishable
offence as stated by the above mentioned Code. This law was added to the Indian Penal
Code by an amendment of it in 1870 under the British rule. The British used this law to
supress various nationalist movements. This law had always been a topic of debate since its
inception. It was held unconstitutional by the Punjab and the Allahabad high court once, but
then the Apex Court of India held it constitutional in the case of Kedar Nath v. State of
Bihar." Mere expression of contempt or being critical of the government will not amount to
sedition. For an act to constitute the offense of sedition it must have the capacity and
capability to cause disturbance in the public order of the country. We have already discussed
that the Freedom of Speech and Expression granted to us as a fundamental right by Article
19 (1) (a) of the Indian Constitution are subject to reasonable restrictions for the purpose of
maintaining peace, public order, integrity, sovereignty and security of the state. In recent
times we have witnessed that some OTT platforms have misused their right of freedom of
speech and expression for framing viewers mind against the government. Some of the
content streamed by the OTT platforms have misrepresented certain historical and political
facts which in turn have affected the sovereignty and integrity of the nation. It must also be

11
 noted that, dissent should be welcomed in a democracy as it is the backbone of it and the
government must refrain from arbitrarily curbing the freedom guaranteed by Article 19 (1)
(a) to the content providers.

V. Salient Features of the Policy

A Grievance Redressal Mechanism will be established, to establish a grievance redressal

mechanism for resolving complaints from the users a grievance officer will be appointed to
deal with such complaints. It will also share the name and contact details of the before-
mentioned officer. The Officer shall approve the complaint within twenty-four hours and
settle it within fifteen days from the date of its receipt.

Appointment of a Chief Compliance Officer, who shall be competent and answerable for
ensuring compliance with the Act and Rules, A Nodal Contact Person for 24x7
coordination with law enforcement agencies, A Resident Grievance Officer, execute the
functions specified under the Grievance Redressal Mechanism, as well as publish a monthly
compliance report declaring the details of complaints received and action taken on the same.

The OTT platforms would contend Self-Classification of content into five age-based
classes, like, U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be
required to implement parental locks for content classified as U/A 13+ or higher, and reliable
age verification mechanisms for content classified as "A".

VI. IDENTIFYING THE GAPS

The fact is that the direct legislation of parliament is not complete, unless it is read with the help
of rules and regulations framed thereunder; otherwise by itself it becomes misleading. Similarly,
the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code)

12
Rules, 2021 is a delegated legislation under the Information Technology Act, 2000 which
purports to make guidelines in order to achieve the provisions of the Act, 2000.

In the 20th century, with the growth of administrative process, delegated legislation gained
tremendous importance so much so that it was regarded as useful, inevitable and indispensable.
However, in Avinder Singh v. State of Punjab, the Supreme Court pointed out that excessive
delegation of power to the executive by the legislature can be subversive of responsible
government and erosive of democratic order. Therefore, if the technique of delegated legislation
is to serve its laudable task it must observe the norms of the jurisprudence of delegation of
legislation power.

Firstly, it is a well settled norm that a delegated legislation must work within the boundaries of
the parent legislation. It cannot under the garb of making rules, legislate on the field covered by
the Parent Act. And, must restrict itself to the mode of implementation of the policy and purpose
of the Act.

The Information Technology Act, 2000 under it Statement of objects and reasons clearly state its
scope is to be restricted to providing legal recognition to transactions carried out by means of
electronic data, recognize means of electronic communication, authenticate and establish
conditions in which electronic data/record could be considered as evidence, and to recognize
offences committed through the use of computer resources.
Therefore, nowhere does the act seek to regulate content by digital news media. This makes the
rules made under Part III ultra vires the Act, 2000.

The Rules under Part III are traced to Section 87(2)(z) of the Information Technology Act, 2000.
Under these provisions of the IT Act, the govt can make rules only for intermediaries and the
definition of intermediaries is not broad enough to cover OTTs and online media. When the
legislature itself has not laid down any policy governing the OTT platforms and online media,
the executive has no authority to legislate on such subject.47 Moreover, regulation of digital or
online news media is an essential legislative function because it is an entire regulatory regime.
And if such a regulation has no express statutory sanction it will run contrary to the parent act

13
hence making it ultra vires. Also, Part III of the Rules, 2021 seeks to classify the content made
by online curated platforms on the basis of nudity, sex, expletive language, substance abuse, etc.
and mandate creation of access control and age verification mechanisms to prevent viewing of
such content. This goes outside the scope of Section 69A which seeks to restrict a content only if
it is against the interests of “sovereignty and integrity of India, defense of India, security of the
state, friendly relations with foreign states or public order or for preventing incitement to the
commission of any cognizable offence relating to above”. Decency and morality are grounds for
restriction of free speech under Article 19(2) of the constitution, but these words are omitted in
Section 69A knowingly making these restrictions ultra vires Section 69A and 87 of the Act,
2000.

Against the Constitutional Principal of Separation of Power

In Ram Jawaya Kapur v. State of Punjab, it was laid down that the state has executive power on
matter over which legislation may be passed. But it was also held that though India does not
follow the Doctrine of Separation of Power in its absolute rigidity, the functions of different
parts or branches of the government have been sufficiently differentiated and consequently it can
very well be said that our constitution does not contemplate assumption, by one organ or part of
the state, of functions that essentially belong to another.

The Rules under Part III imposes a three tier complaints and adjudication structure upon
publishers, which makes the executive both the complainant and the judge of vital free speech
questions involving blocking and take down of online material. The self-regulatory body under
this level is headed by a retired judge with no representatives for publishers or streaming
platforms themselves. Hence self-regulatory is a misnomer. The Inter-departmental committee
has a chairman who should not be below the rank of joint secretary and has no representative for
the publishers. Moreover, there is no provision for the aggrieved publishers to appeal against the
decision of the Inter-departmental committee. Hence the state has unsanctioned power which can
go against the basic structure of the constitution.

Against the Freedom of Speech and Expression

14
Freedom of press is the heart and soul of social and political intercourse as stated in Express
Newspapers v. Union of India. But unlike the Press, digital news media platforms have become a
powerful medium of disseminating information, which is easily accessible, has a wide reach and
available free off cost. It empowers the people of a democratic society to make decisions and
form opinions on matters that affect them. This is protected under Article 19(1)(a) of the
Constitution. The Rules, 2021, sought to govern the digital news media platforms by Press
council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 and restrains it
from publishing any content which is prohibited under any law for the time being in force.

The Three tier regulatory mechanism as stated earlier has an Inter departmental committee as its
last stage, which has no representations from the publishing society of news and current affairs,
only executive members as its representatives. Further, the review committee formed under Rule
419A of the Indian Telegraph Rules, 1951 also solely consists of officials belonging to executive
branch. This goes against the constitutional due process. Moreover, there is no provision for the
aggrieved publisher to present his side of the story.
Since there is no judicial determination of the content published by these publishers, this forces
them to publish things which is palatable to the Ministry of Information and broadcasting or the
executive. Eventually, causing chilling effect on their speech and expression. This violates their
right under 19(1)(A) and such a provision is not even protected under sub clause b of the
aforesaid clause and article. Hence, defeating the very purpose for which such news media
platforms are constituted.

Under Rule 18(3), the publisher of news and current affairs & online curated content will have to
furnish monthly compliance reports wherein the publisher has to mention details of the
grievances and their responses to that. This report shall be made available to the government on
its request. Eventually creating a chilling effect as this report is going to be examined by the
central government.

15
Under Rule 16, the Authorized Officer is given a non-discretionary power to block any
information “in case of emergency”, providing nothing describing the term emergency.
Therefore, causing vagueness and providing a leeway to people to use this with malicious
intentions. All these obstacles infringe the publisher's right to carry on trade under Article 19(1)
(g) and his right to free speech and expression under Article 19(1)(a).

VII. SUGESSTIONS

In 2021, Information Technology (Intermediary Guidelines and Digital Media Ethics Codes)
Rules, 2021, also called IT Rules,2021. The IT Rules,2021 were notified under Section 87 of
the Information Technology Act. Part III of the guidelines highlights the ethics code and
procedure for digital news media and OTT platforms. The guidelines entail some code of
ethics to be practiced by the Over The Top platforms, such as self-classification of content,
into five categories, parental locks for U/A 13+ content, age verification mechanism for 'A'
content and three tier redressal mechanism but the guidelines also entails provisions for
social media and digital news.
Guidelines for regulating OTT media platforms may have certainly come up with the IT
Rules,2021 but it also has provisions for Digital News and Social Media. OTT platforms are
growing at an exponential rate with the boost that the pandemic has provided to these
platforms. Thus, the need, in the nearby future, is of a dedicated and separate codified
legislation that is exhaustive and comprehensive in nature and entails within itself all the
provisions pertaining to the matter, only and only OTT platforms.

16
It shouldn't be just some soft regulatory guidelines and concurrently, it should address the
concerns of the expressed in these guidelines. The guidelines doesn't even incorporate the
term 'Over the Top'.

Understanding the current scenario and in view of the upcoming rising OTT industry, some
of the suggestions that could be incorporated in the legislation are as follows: "

1. Separate Legislation: The current guidelines borrow heavily from the

Information Technology Act,2000. They are actually a part of the of Act only,
Part III. Thus, we suggest, as contemplated in the paper, that the first and
foremost thing is to enact a separate legislation. Unlike the present guidelines it
shouldn't include Social Media apps such as Twitter, WhatsApp, only to name a
few.

It is also argued that the Information Technology Act,2000 was introduced to provided legal
recognition data and establish the broad parameters in which it could be used as an evidence.
It is not at all the scheme of the Act to regulate the intermediaries. Thus, highlighting the
need of separate codified legislation.

2. Content Classifying Body: All the OTT media content should be screened by an
independent body comprising members from the industry, government and other
members as deemed fit by the policy makers. Just like, all the theatrical released
go through a classifying content screening by Central Board of Film Certification,
all the OTT media content, especially web shows and movies, should go
classifying content screening with a designated body.

Although the guidelines have made provisions for screening, but they are self-classification
of content, which the authors think as a loose end, and such provisions could be used by the
producers for meeting their goals.

17
 3. Presence of Independent Judicial stance: The guidelines have excessively
delegated powers to the executive organ of the State, or it can said there is
presence of 'Executive Judiciary'. In the grievance redressal mechanism of the
guidelines, there must be a 'selfregulating' body and such body should have been
scaled satisfactorily on its constitution by MI&B. Even the oversight mechanism,
in tier 3, will comprise of representatives from different committee such as
MI&B, Ministry of Women and Child Development, Ministry of Law and Justice
among others. Apparently, there is executive exercise of the judicial powers.

Thus, there should be an establishment of an independent judicial body that can carry out the
true functions of the judiciary. Even establishment of a special court should be taken into
consideration.

4. Absence of absolute government control: It is evident in the redressal

mechanism that, what has been enacted is not less than a government control over
the OTT media content. It is true that regulation is needed but complete
censorship is not the kind of regulation the industry needs.
Thus, a system that doesn't paramount the government with absolute hidden authorities
should be constructed.

5. Shouldn't curb Right to Speech: it has been debated that the guidelines will have
adverse effects on speech, as it has given formal validation to the concerns
expressed by some of the sections of the society against the artistic content, by
inclusion of cautious notice pertaining to multi-racial and multi-religious groups
in India.

Also, the Code of Ethics gives undue power to MI&B of blocking the content on emergency
grounds without even granting a chance of hearing. Such a provision it definitely a strike on
the freedom of speech as well as expression of the producers of the online content.

18
The OTT industry is the most important industry in the current times, impacting the
economy as well in significant way and therefore it is essential that it is nurtured in the best
possible way.

6. Presence of articulate Code: There is a need of an articulate piece of legislation

and not an ambiguous Code. For instance, there is no mention or definition of the
word 'OTT'
in the release guidelines. There should be specific and articulate provisions in the matter
concerning to the Indian Armed Forces and the State.
Small cautious provisions that prohibit content against integrity and sovereignty of India and
relations of India with other countries isn't just enough. OTT is the new and emerging field
that requires some dedicated legislation and these suggestions are in line with the expected
legislation. The separate codified legislation should aim to address the prevalent concerns
while simultaneously bring new additions keeping in mind the rising industry.

VIII. Conclusion:

Our society has been evolving in each and every field and the entertainment industry is no
such exception. Society has experimented and is experimenting a lot in the entertainment
industry. The industry has moved from the massive screen experience to the OTT platform
released entertainment. This platform has been providing entertainment from the comfort of
one's home and no doubt the industry is rising exponentially. Although, the OTT world has
revolutionized the industry but it has also brought the concern of unregulated content to the
forefront. Unregulated content that often exposes the audience to obscene and condemned
scenes, has been the concerned aspect for the industry, especially in India, where
entertainment is a highly debated topic. Attempts have been made by the judiciary,
government and content producers to regulate the content but the various judgements, rules
and codes have been somewhere unsuccessful in regulating the content in a way that
addresses all the concerns. OTT has a widereaching impact on the society and this rising
industry demands a separate codified legislation for addressing the concerns of the society. It
should be such that it neither hurts the sentiments of the society nor does it curb the right to

19
speech and expression. The codified legislation should solely be concerned regarding OTT
platforms, dealing with the minute details of the industry.

20