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Beyond Censorship, Govt Move on OTTs May Lead to Much Needed Refresh of India’s Tech Laws

In what can potentially be a decision with far reaching implications in future, the Union government issued a notification on Wednesday, November 11, bringing online streaming platforms and digital news services under the Ministry of Information and Broadcasting (MoIB). So far, the unregulated sector had what may essentially be labelled a free rein, which in turn saw traditional platforms such as film distribution houses, and broadcast and print media, protest against the apparently unfair playing grounds. However, ever since the Gazette notification was circulated, speculation has been rife around whether over-the-top (OTT) content streaming services such as Netflix, Amazon Prime Video, Hotstar and others would face any form of arbitrary laws and regulations that are detrimental towards their freedom and democratisation.

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Why the restrictive concern

Apar Gupta, executive director of the Internet Freedom Foundation, states that while the notification itself does not substantiate any apparent censorship, the precedent that India has with new technologies is what’s fuelling the concern. “There is a degree of concern, because India has conventionally looked at any kind of entertainment media in a different manner in comparison to other developed democracies. This difference lies in terms of content rating and user information collecting mechanisms being assigned a very low threshold, and the central objective (of moderation) being mandatory certification, prevention of obscenity and political content,” he says.

The real concern right now, though, is not censorship and moderation. As Virag Gupta, a lawyer at the Supreme Court of India, explains, the real element that is highlighted thanks to this notification is how India lags very far behind leading developed nations across the world, when it comes to establishing a sound legislative framework for technology and related services. “Think of technology as being at a doctorate level in India, while the government’s legal efforts for this sector has only entered the play school stage. More importantly, the particulars of this notification needs to be understood – since the government says that this sector will now be handled by the I&B (information and broadcast) ministry, who was handling it so far?”, he adds.

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Clear lack of laws

Virag Gupta notes that this can be a significant problem, since it highlights the lack of clear regulation and legislation, as well as which ministry was assigned the task of monitoring these sectors. “The notification does not mention key technology sectors such as e-commerce, cryptocurrency and a lot of other subjects, and there is a lack of clarity in terms of who is handling these sectors. As a result, I find this order rather strange – in fact, it marks a failure of bureaucracy, where the union government chose to allocate a sector without clearly stating further regulatory details. However, on the flip side, this can open the entire pandora’s box of issues with technology law, policy and regulation in India,” he states.

In essence, the notification is a stepping stone that the government may use to understand the sector better, and establish legislations to impose on these platforms. These laws can swing either way – for or against censorship. As IFF’s Apar Gupta tells us, “There’s a lack of power by itself within the I&B Ministry to directly regulate these platforms, because there is no legislation at present. However, issues may crop up in two instances. Firstly, with a self-regulatory course – the ministry may now start directing complaints from the public to the OTT platforms, acting as a gatekeeper. Secondly, for PILs filed against these platforms – the MoIB may now take steps pursuant to court directions.”

He also adds that this may be a precursor to legislative measures or policies, which may be devised in future. “This further beckons a need for greater scrutiny, vigilance and transparency in any regulation that is devised,” adds Apar Gupta.

A barrage of questions

While that is an effect for the longer term, Virag Gupta states that the issue may reflect on answering key questions in the way technology legislation works right now. Some of the key questions, as Virag Gupta states, that this notification has raised include, “Who has the government been interacting with in these companies so far, in case of conflicts? Are they Indian representatives with decisive power, or is the latter still with the owners that base all administrative efforts in their foreign home lands?”

“There needs to be registration of these companies in India. There has to be one person who is held responsible with the company’s actions. There also needs to be a regulator for all these services, and finally, there has to be a framework to guide all this regulation, and suggest how the guidelines are to be laid out,” underlines Virag Gupta, marking the long, long road for which the Cabinet Secretariat notification from about a week ago has just been a starting note. As of now, the Prakash Javadekar-led I&B Ministry does not have inflictive power on OTT and online news platforms to censor their content. The same, however, may or may not hold true, depending on how legislations for this sector are established in the long run.

Questions and requests for comments sent to a Disney+ Hotstar spokesperson, a leading Indian OTT platform, remained unanswered at the time of publishing the report. A Netflix spokesperson whom News18 reached out to on the matter declined to make any immediate comment.

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