14-05-2025
The ‘who' and the ‘how' of OTT content regulation
Written by Lakshita Handa and Pragya Singh
The Supreme Court, whilst expressing concern regarding the regulation of content on Over the Top (OTT) platforms and social media, urged the Centre to do 'something legislative' about the obscene and indecent nature of content streamed through such platforms. The Supreme Court's observations came in the wake of the recent 'India's Got Latent' controversy, which sparked debate on the need to further align OTT content with laws and ethical guidelines.
This is indeed not the first time that public grievances against obscene content on social media and OTT have been flagged. While the 'what' and 'why' parts of the need for regulation seem clear, the 'who' and 'how' parts of it warrant closer inspection.
Whose problem is it anyway?
Most definitions of OTT describe it as a media service, which is delivered over the existing communication infrastructure, i.e., the internet, at the request of individual consumers. Due to the blended nature of OTT streaming, efforts to regulate the OTT space have resulted in a turf war between the holy trifecta: the Ministry of Information Technology (MeiTY), the Ministry of Information and Broadcasting (MIB) and Telecom Regulatory Authority of India (TRAI).
With the rise of OTT content consumption post-2020, MeiTY notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to regulate intermediaries, OTT platforms and digital news media organisations. The 2021 Rules laid down a Code of Ethics (Code) for such entities, requiring them to fulfil certain due diligence obligations, such as setting up a three-tier structure for regulation. Under the Code, the first tier is self-regulation by the intermediary/publisher; the second tier is regulation by a self-regulating body of the publishers; and the third is regulation by an interdepartmental committee to exercise oversight, hear and examine grievances. The Code prohibits OTT platforms from transmitting unlawful content and mandates age-based classification based on the context, theme, tone, impact and target audience of the content.
Despite this effort to control objectionable content streamed on OTT platforms, the Code has been interpreted as a mere set of guidelines with no consequences for non-compliance. Notably, the Code did not account for the extent of autonomy that the OTT content providers have over their platform and content. This autonomy exists both in terms of infrastructure and finances. It may be contended that the Code demonstrated regulatory creep into the field of the MIB, as well as a complete lack of understanding of the information communication technology frameworks within which OTT content travels. The tools for regulation were thus borrowed from the pre-existing model of social media and internet intermediary regulation.
This issue was attempted to be addressed by the Indian Telecommunications Services Bill, 2023, where telecommunication service providers and OTT platforms were brought under the same loose definition. However, despite some similarities, the internet service providers and the telecommunications service providers cannot be compared to the OTT content providers. Attempts to regulate OTT by regulating telecom providers were met with resistance due to the stark differences between the two. For one, telecommunication service providers are licensed, unlike OTT platforms. OTT platforms also do not sell internet access, since the availability of internet services is a prerequisite for availing OTT content in the first place.
To create a comprehensive legal framework for all broadcast content, MIB, through the Broadcasting Services (Regulation) Bill, 2023, again sought to bring OTT platforms and digital news channels within its ambit. Here, as well, crucial dissimilarities persist. Broadcasting involves control of end-to-end infrastructure as well as the content broadcast on the infrastructure, whereas OTT streaming does not focus on the infrastructure (internet) over which it is shared. Similar to the provider-based regulation model under the IT Rules and the Draft Indian Telecommunications Services Bill, 2022, the Broadcasting Bill was met with resistance.
Interestingly, the Telecom Disputes Settlement and Appellate Tribunal in an October 2024 order held that OTT platforms were outside the purview of the TRAI Act and were to be solely governed by the 2021 Rules.
How can feasible regulations be built?
Support for structured regulation of OTT platforms and content has become pronounced not only by way of judicial endorsement but through internationally recognised practices. Due to the nature of these platforms, they run a risk of propagating harmful content to the public. The common denominator that justifies the need for further regulation is the public, which is able to watch both pull and push media at the same frequency with expanding technological ease.
Difficulty in grasping the subject matter of regulation, as well as the nuances associated with OTT streaming, has inhibited the creation of a sound legal framework. Any attempt to address this must involve cross-cutting expertise spanning areas of information technology, broadcasting as well as telecommunications. A tripartite body that builds upon the jurisprudential understanding of content regulation whilst upholding the dynamism and flexibility of regulating the internet, from the field of information technology, should be developed to draft bespoke regulations for OTT content and service providers. Additionally, the regulatory body, whether it is a government department or a newly constituted authority, must ensure that a higher-degree of co-regulation is accommodated. This may mean retaining a degree of self-regulation with platforms for flexibility.
Further, the similarities and dissimilarities of OTT content streaming vis-a-vis traditional broadcasting or telecommunications should be factored in to ensure that the final legal framework captures this deeper understanding. For instance, registration of service providers may draw on procedures established under the Broadcasting Bill. Whereas, the regulation of infrastructure maintained by OTT platforms may be regulated as per TRAI's recommendations. Finally, the content may be regulated as per the standards developed by MIB.
In the course of formulating such regulations, due care must be taken to ensure that they do not have a chilling effect on freedom of speech and expression. Hence, what constitutes 'harmful' or 'offensive' content should be clearly delineated within the regulation to avoid vague and arbitrary interpretations. For instance, Section 66-A of the IT Act, 2000, which penalised sending 'grossly offensive' or 'menacing information' through a computer device was struck down by the Supreme Court in 2015. The Court found the language of the provision to be overly broad and vague, with the potential for misuse. In similar terms, the importance of protecting free speech and expression in the digital age was underscored.
Provisions that automatically empower authorities to block content without judicial oversight should also be avoided at all costs, since they may promote whimsical censorship at the behest of the State.
Concepts of 'morality' and 'obscenity' are ever-evolving. They vary across place, time and sensibilities of the recipient. Voices of persons from marginalised communities or vulnerable groups should be considered to ensure that critical depictions of societal practices or evils are not silenced through excessive content regulation. Content-based guidelines must incorporate a review clause, which ensures that content regulation undergoes frequent and deliberate reassessments to stay attuned with social realities.
In any case, OTT regulation should aim at striking a balance between freedom of speech and social sensitivities. A key to developing a balanced framework may entail conducting consultations with digital platforms, content creators, government entities, civil society organisations, as well as other stakeholders that may be considered relevant.
There is undoubtedly a need to set up soft-touch regulatory frameworks to regulate the content streamed on OTT platforms. While extending censorship and film certification processes to OTT content may not be feasible, age-based classification should be more strictly enforced. Similarly, the concept of self-regulation should be retained whilst ensuring better operationalisation and enforcement of existing standards, such as those laid down under the 2021 Rules. However, any such fresh legal frameworks should improve upon existing regulations – for instance, publishers have not been provided a right to appeal against decisions of the self-regulating body under the 2021 Rules, whereas those who have a grievance against the publisher have a right to appeal. This leaves publishers with no further legal recourse and must therefore be modified.
Tools such as automated profanity filters and user-report-driven content scanners may be utilised by OTT platforms to facilitate self-regulation of their content. Other methods for better adherence to standards may also be identified based on consultative discussions with concerned stakeholders. In doing so, rights and values enshrined under the Constitution of India should be upheld, and the bespoke nature of OTT should be recognised, i.e., making diverse and creative content available to the general public.
Lakshita and Pragya are Senior Resident Fellows with the Legal Design and Regulation Team at Vidhi Centre for Legal Policy
