By Alok Prasanna Kumar

A few weeks ago, Union Minister for Information and Broadcasting, Prakash Javadekar announced that the Government has invited suggestions for the regulation of online content. He was speaking specifically in the context of over-the-top (OTT) video-on-demand (VOD) services such as Netflix, Amazon Prime, Hotstar, Alt Balaji and others. While no immediate regulations are in the offing, given the periodic recurrence of “public interest litigation” demanding some sort of regulation of VOD services on some pretext or the other, one assumes that it is only a matter of time something concrete is proposed in this context.

This comes after nine service providers in the VOD service providers adopted a self-regulatory Code of Best Practices which they promised to adhere to for the content hosted by them. Drafted under the aegis of the IAMAI the purposes of the code is apparently to:

“To protect consumer interest while offering them a variety of content choices and exercising creative freedom.; the code represents uniform principles and guidelines which will be adhered to by all signatories to the Code, in letter and spirit.”

Whether this is in fact adhered to in letter or spirit remains to be seen, but it cannot be gainsaid which way the wind is blowing.  The question that really remains is — what form should the regulation take place? There are three options available to the government: in order of minimal to maximal intervention they are: post-facto regulation (the status quo),  permit self-regulation, and impose pre-certification requirements. Some variations of these three already exist in India for different forms of media. In this piece I hope to examine these three options and what implications they contain for VOD service providers. In discussing these three options, I am only looking at what the Union Government may lawfully do under the Constitution and the laws as they stand. This is not to say that if any one of these models are chosen, we can rule out intervention by state governments to “sentiments” of communities or courts acting on the behest of busy body litigants.

To start with, it’s important to identify the categories of “who” the regulations are being proposed for and “what” is being regulated. There’s a key difference between the VOD services and general video hosting platforms (such as YouTube, Vimeo and TikTok). In the former, what gets on the platform is dependent on the decision of the platform itself where it is not necessarily so in the latter case. Video hosting platforms allow anyone to upload videos and take them down only upon complaints or reports of illegality after the fact. VOD services host only those videos which they want to and there is no question of users being allowed to upload their videos. In such a context, the concept of intermediary liability under the Information Technology Act is not applicable or relevant. Intermediary liability would be relevant only in the context of the video hosting platforms where, given the volume of the content being uploaded, pre-certification may be impossible.

Does the Cinematograph Act, 1958 mandating certification by the Central Board of Film Certification then apply to VOD service providers? The Karnataka High Court, in dismissing a PIL seeking to apply the Cinematograph Act to VOD service providers held that that this law could not be extended to such providers given that the “exhibition” here took place over the internet and could not fall within the purview of this law.

There is another aspect to this — thanks to VOD services, it’s possible to watch a film that was never intended for public release in India and has no intention of doing so either. Given that VOD service providers are located outside India, it would be absurd if, on the possibility that some film somewhere could be viewed by an Indian, they would have to get it certified by the CBFC. This would give the law an extra-territorial effect that was never intended in the first place and lead to further absurdity if every country extended their censorship regimes in this manner.

In fact, this only shows the absurdity of having any law requiring pre-certification by VOD service providers. It would mean that a film uploaded and watched on YouTube does not require certification but the same film shown on Netflix does. If we accept the jurisdictional issues, a film shown on (say) Alt Balaji would require pre-certification but the same film shown on Netflix does not. These creates needless regulatory arbitrage on the same medium that serves no useful purpose whatsoever.

The present status quo is also unsatisfactory. VOD platform carrying content that would be prohibited under Indian law can only be addressed through the blunt instrument of criminal law or blocking the entire platform under the powers available under the IT Act.

For this reason perhaps, it may be a more realistic and desirable option to adopt a self-regulatory model when it comes to VOD service providers. This model need not necessarily mean the total absence of law and legal institutions in the process. Professionals for instance are self-regulated but within a legal framework (such as the Advocates Act, for lawyers and the Medical Council of India Act for doctors). This has been applied even in the context of television in India in the Cable Television Rules but the problem has been that adjudication and enforcement of these codes has been left purely in the hands of voluntary bodies with little teeth. A law which recognizes such self-regulation and provides an adequate enforcement mechanism for VOD service providers may be the best way to go.