Navigating the Digital Wild West: Social Media and OTT Platforms in India

17th July, 2024 - 7:25 am Categories: Media & Entertainment Law Social Media 0 Comments

INTRODUCTION

The words of Serena Williams – “Everything comes at a cost. Just what are you willing to pay for it?” – seems most appropriate to me whenever I think of talking about social media intermediaries. The internet was set on foot in India by VSNL on August 15, 1995,^[i] which revolutionized the lives of the people and subsequently became a fundamental right under Articles 19(1)(a) (freedom of speech and expression) and 19(1)(g) (freedom to practice any profession) of the Indian constitution duly recognized by the Indian Supreme Court in 2020.^[ii] Thus, creating the internet as a base, various start-ups set up and launched their respective platforms to connect people (known and unknown) from each other. In the early 2000s, different social media apps such as LinkedIn, Facebook, Twitter, YouTube, etc., gained prominence all over the world, thereby creating a considerable consumer base.^[iii] Although these platforms had a good chunk of the population using them, their utilization time was restricted to less than two and a half hours before the outbreak of the COVID-19 pandemic. However, after the outburst, India saw an upsurge of nearly 87%, which means that people started using social media platforms more than four and a half hours a day.^[iv]

The upsurge in the time-consumed on social media platforms gave a push to the cybercriminals resulting in a drastic increase in the statistics of cybercrimes or social media crimes. Initially developed to communicate and nurture personal connections, social media platforms have now become a hub for criminals to commit crimes like disseminating child sexual abuse material,  image morphing, sexting, revenge porn, sharing fake news and slut shaming. As per the data of the National Crime Records Bureau of India (NCRB), cybercrime in the last decade (2010 to 2018) increased drastically from 966 to 27,248, while cybercrime on social media from 2016 to 2017 increased twice in numbers.^[v] The data, if compared with yesteryears, would seem increased exorbitantly, but the reports also state that more than 80% of the cybercrime goes unreported in India.^[vi] Thus, discussion over the issue and debate on the ways to deal with the same become an urgent necessity.

Furthermore, in this evolving world, the realms of entertainment have changed from wired television connections to free or paid wireless audio and video hosting and streaming services. Such services are known as Over The Top (hereinafter referred to as OTT) services that provide users a range of content like short movies, web series, feature films, documentaries, etc., to watch for entertainment purposes. Unlike the content provided by film or television that is managed by CBFC, BCCC, and so on, the OTT platforms have no administrative body over them to control the content streamed and consequently enjoy their freedom. These services reach their targeted audience through the internet on the platforms like Netflix, Amazon Prime, Hotstar, etc., which might be accessed through any digital source or gadget. As per the reports, amidst the pandemic, these OTT platforms gained immense popularity. For instance, in India, there was a 30 percent rise in paid subscribers from 22.2 million to 29 million in just five months in 2020.^[vii] Platforms like Netflix, Amazon Prime Video, Hotstar are some of the biggest gainers whose paid subscribers base surged drastically.

However, with an unprecedented surge in the popularity of OTT platforms, new challenges and controversies also mushroomed. The controversy to have a streamline balance between the artistic freedoms and reasonable restrictions with further compliance on the same. The controversy not only involved Indian shows, but the foreign streaming content was also inciting violence, hurting religious sentiments, and disseminating obscenity without abiding by the Indian laws.^[viii]

[Image Sources: Shutterstock]

The Indian Government, in an attempt to resolve issues arising as a result of social media and OTT platforms, processed the complaints within the pre-existing legal framework i.e., Information Technology Act, 2000 (IT Act),^[ix] Indian Penal Code, 1860 (IPC),^[x] etc. However, the same was felt insufficient, thereby in order to shut the opened floodgate of litigations; Indian Executive got compelled to enact these unprecedented regulations. The regulations were notified on February 25, 2020, in the form of rules as Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021^[xi] (popularly known as ‘IT Rules 2021’) under Section 87 of the IT Act.^[xii] The rules are enacted to regulate internet streaming content, social media intermediaries, online news, and current affairs websites.^[xiii]

Need for regulating intermediaries and ott platforms

Though the question of regulation of social media is debatable, it is said that the cons of social media clearly outweigh the pros. For instance, the role of Facebook and other functioning intermediaries in Delhi riots,^[xiv] role of Twitter and other platforms in US elections,^[xv] etc. are evident enough to bolster the fact that social media can play a major role in sensitizing/instigating an individual or a group of individuals to perform something. Further, an increase in Child Sexual Abuse Material Content streaming on social media platforms without any check is also a crucial factor urging the government to determine the rules to regulate such intermediaries.^[xvi]

Furthermore, after the commencement of the internet and subsequently OTT platforms equipped with ‘unregulated content’ in name of entertainment, compelled various sections of the society to raise their voices for censorship or regulation. Moreover, due to the narrower definition of ‘cinematograph,’^[xvii] ‘cable service’^[xviii], and ‘cable television network’^[xix], the pre-existing laws applicable to films and cable television broadcasts are ill-equipped to deal with OTT platforms. Therefore, there was an urgent need for a better framework to regulate OTT platforms.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] Deepali Moray, 20 years of Internet in India: On August 15, 1995 public internet access was launched in India (August 15, 2015, 07:48 AM), News 18 India, https://www.news18.com/news/tech/20-years-of-internet-in-india-on-august-15-1995-public-internet-access-was-launched-in-india-1039859.html.

[ii] Anuradha Bhasin vs. Union of India (2020) 3 SCC 637.

[iii] Drew Hendriks, The Complete History of Social Media: Then And Now (January 22, 2021), Small Business Trends, https://smallbiztrends.com/2013/05/the-complete-history-of-social-media-infographic.html.

[iv] Coronavirus: 87% increase in social media usage amid lockdown; Indians spend 4 hours on Facebook, WhatsApp (March 30, 2020, 09:28 AM), Business Today. In, https://www.businesstoday.in/technology/news/story/coronavirus-87-percent-increase-in-social-media-usage-amid-lockdown-indians-spend-4-hours-on-facebook-whatsapp-253431-2020-03-30.

[v] Utpal Bhaskar, Cyber-crime cases in India almost doubled in 2017 (October 22, 2019, 02:51 PM), Live Mint, https://www.livemint.com/companies/news/cyber-crime-cases-in-india-almost-doubled-in-2017-11571735243602.html

[vi] 80% of cybercrime unreported, complaints up after note ban (January 10, 2017, 10:56 AM), The Times of India, https://timesofindia.indiatimes.com/city/hyderabad/80-of-cybercrime-unreported-complaints-up-after-note-ban/articleshow/56432504.cms

[vii] Venkata Susmita Biswas, 2020: Rise of paid subscribers (January 18, 2021, 07:18 AM), Financial Express, https://www.financialexpress.com/brandwagon/2020-rise-of-paid-subscribers/2172942/.

[viii] Netflix’s 15 most controversial movies, shows and documentaries (September 04, 2020, 07:45:40 AM), The Indian Express, https://indianexpress.com/photos/entertainment-gallery/netflix-most-controversial-series-movies-documentaries-6580238/.

[ix] The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).

[x] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[xi] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Ministry of Electronics and Information Technology, Government of India.

[xii] The Information Technology Act, 2000, § 87.

[xiii] Supra note 12.

[xiv] Sourav Roy Barman, Delhi Assembly panel links riots to social media messages (September 01, 2020, 10:24:48 AM), The Indian Express, https://indianexpress.com/article/cities/delhi/delhi-assembly-panel-links-riots-to-social-media-messages-6578101/.

[xv] Scott Nover, 2020 Was The Twitter Election (November 09, 2020), Adweek, https://www.adweek.com/media/2020-was-the-twitter-election/

[xvi] Ramesh Babu, Sharp rise in child pornography cases worry experts (January 24, 2021, 08:47 AM), Hindustan Times, https://www.hindustantimes.com/india-news/sharp-rise-in-child-pornography-cases-worry-experts-101611457879318.html.

[xvii] The Cinematograph Act, 1952, § 2(c).

[xviii] The Cable Television Networks (Regulation) Act, 1995, § 2(b).

[xix] The Cable Television Networks (Regulation) Act, 1995, § 2(c)