Over-the-top (OTT) platforms have transformed the way audiences in India consume content, providing instant access to a diverse array of global and regional entertainment. Services such as Netflix, Amazon Prime Video, Disney+ Hotstar, and Indian platforms like Zee5 and SonyLIV have seen exponential growth in their user base, especially during and after the COVID-19 pandemic. However, this rapid expansion has also sparked important discussions around legal, ethical, and policy issues, particularly in the areas of censorship, regulation, and data privacy.
The Rise of OTT Platforms in India
India is one of the fastest-growing OTT markets in the world. With increasing smartphone penetration, affordable data rates, and a young, internet-savvy population, digital streaming services have become mainstream. Unlike traditional television, OTT platforms are not bound by rigid programming schedules or geographic limitations. They allow users to watch content anytime, anywhere.
However, the same freedom and flexibility have sparked concerns regarding the nature of content being made available. From profanity and nudity to politically sensitive narratives, the unregulated space of OTT content has caught the attention of both lawmakers and the general public.
Censorship and Regulation: The Legal Framework
Initially, OTT platforms operated in a regulatory grey zone. Unlike films, which fall under the Cinematograph Act, 1952, or television content, which is governed by the Cable Television Networks (Regulation) Act, 1995, OTT content was not subject to any specific statutory censorship or certification process.
This changed with the introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which brought digital content platforms under the purview of government regulation. Key provisions include:
- A three-tier grievance redressal mechanism
- Classification of content based on age (U, U/A 7+, U/A 13+, U/A 16+, A)
- Display of content descriptors (violence, sex, language, substance abuse, etc.)
- Appointment of a Grievance Officer and compliance reports
These rules aim to strike a balance between creative freedom and consumer protection. However, critics argue that they give excessive discretionary powers to the government and can stifle artistic expression.
Self-Regulation vs Government Oversight: Where is the Line?
The core debate lies in finding the equilibrium between self-regulation and state intervention. Initially, OTT players formed self-regulatory bodies like the Internet and Mobile Association of India (IAMAI) and drafted voluntary codes of ethics. However, the government’s dissatisfaction with their effectiveness led to the imposition of the IT Rules, 2021.
Supporters of self-regulation argue that creative professionals understand the nuances of storytelling better and that self-regulatory codes allow for diversity in content while respecting cultural sensitivities. Moreover, pre-censorship or bureaucratic scrutiny can lead to creative stagnation.
On the other hand, advocates of government regulation emphasize the need for accountability. With millions of minors accessing OTT platforms, unfiltered content can have far-reaching consequences. They argue that a standardized, government-backed framework ensures uniformity and protects the public interest.
The ideal solution likely lies in a hybrid model, where content creators have the freedom to innovate but also operate within a transparent, accountable framework that prioritizes user rights and societal standards.
Data Privacy Concerns for OTT Subscribers
As OTT platforms collect massive amounts of user data—including viewing habits, preferences, location, and payment information—concerns around data privacy have intensified. The absence of robust data protection laws in India until recently made users vulnerable to breaches, unauthorized sharing, and profiling.
The Digital Personal Data Protection Act, 2023, aims to address these gaps. It mandates platforms to:
- Obtain explicit consent for data collection and processing
- Allow users to withdraw consent
- Ensure data minimization and purpose limitation
- Report data breaches to the Data Protection Board
While this is a step in the right direction, OTT platforms still face challenges in implementing these requirements, especially when dealing with third-party advertisers and cross-border data flows.
Jurisdictional Issues in Global OTT Content
OTT content is inherently borderless. A show produced in the U.S. can be streamed simultaneously in India, the U.K., and Australia. However, this raises complex jurisdictional questions:
- Whose laws apply? A piece of content legal in one country may be deemed obscene or blasphemous in another.
- Can a country block global content? India has, on multiple occasions, requested OTT platforms to take down content deemed offensive to local sentiments.
- What about cross-border litigation? Creators and platforms face the risk of being sued in jurisdictions they did not anticipate.
These issues highlight the need for international cooperation and possibly a harmonized legal framework that addresses content regulation while respecting sovereign concerns.
Key Steps Toward a Balanced Regulatory Framework
As India continues to be a hotspot for digital entertainment, striking a delicate balance between regulation and freedom becomes paramount. Here are some potential steps forward:
- Strengthening self-regulatory bodies with more independence and industry representation
- Promoting media literacy among users to make informed content choices
- Ensuring transparency in content takedown requests and grievance redressal
- Investing in age-verification technology to protect minors
- Creating international alliances to navigate jurisdictional complexities
Conclusion
OTT platforms have democratized storytelling and broadened the spectrum of narratives available to Indian audiences. While regulation is necessary to prevent misuse and protect vulnerable groups, it should not come at the cost of creative freedom. A mature, multi-stakeholder approach involving the industry, government, and civil society is essential to ensure that the digital content ecosystem thrives while being responsible and inclusive. The coming years will play a pivotal role in defining the landscape of entertainment law in the digital era. As technology continues to advance, our legal frameworks must evolve accordingly—remaining adaptable, equitable, and future-ready.
Contributed By Kajal Rawat (Intern)