Regulation of OTT Platforms in India: Between Free Speech and State Control
Introduction
OTT platforms like Netflix, Amazon Prime Video, Disney+ Hotstar, and JioCinema have completely altered the media landscape in India, thus resulting in the disappearance of scheduled broadcasting and the rise of on-demand and personalized viewing. They have been lightly regulated for a long time, mainly through criminal laws addressing obscenity, hate speech, defamation, and the Information Technology Act, 2000.
At some point, controversies surrounding a show like Tandav, complaints of obscene or anti-national content, and the concern of children watching explicit material put so much pressure on the union government to establish a specific regulatory framework. Consequently, this has resulted in a complex system: the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) and the Draft Broadcasting Services (Regulation) Bill, 2023, which currently await approval; however, both are deemed contradictory with Article 19(1)(a) and the free speech jurisprudence in India.
Evolution of OTT and the Turn to Regulation
OTT platforms are the providers of audiovisual content over the internet without the need for going through traditional licensed broadcasters and cable networks. At first, they were just niche players, but the Indian media and entertainment industry has witnessed their rapid mainstreaming. Their shorter-form content business model comprises politically expressive themes, the use of strong language, and sexual content, things that traditional television, which is regulated under the Cable Television Networks (Regulation) Act and the CBFC, hardly ever shows.
Political outrage as well as lawsuits came in the wake of the rise in the number of subscriptions. On the basis of a few scenes, FIRs have been lodged against the producers and the executives, who are accused of accommodating content that is offensive to the religious sentiments of the people, outrage of modesty, and promotion of enmity. These developments have painted the OTT as a regulatory wild west, and, consequently, the union government has stipulated that while creative freedom must be preserved, there shall also be strong safeguards against harmful content.
Statutory Basis: IT Act and IT Rules 2021
OTT regulation’s foremost legal source is the Information Technology Act, 2000, complemented by the IT Rules, 2021, which were released on 25 February 2021.
Part III is focused on online curated content (OCC) publishers, a group that also includes OTT platforms. The section requires them to follow a Code of Ethics and implement a comprehensive grievance redressal mechanism.
The Code extends past broadcast standards to OTT, therefore, demanding platforms to comply with the content standards laid down by the Programme Code under the Cable TV law and other such restrictions and, at the same time, prohibiting unlawful content. The platforms are required to categorize the content into five age-based categories (U, U/A 7+, U/A 13+, U/A 16+, A), use content warning labels such as violence, sex, substance abuse, etc., and put a parental lock or age verification for adult content.
Otherwise, safe harbor protection under Section 79 of the IT Act removal may be the result, meaning the platforms would be responsible for the content accessed by the users, and therefore the stakes for compliance have been raised.
Three-Tier Oversight and “Co-Regulation”
The IT Rules introduce a three-tier system: Level I, self-regulation by the publisher; Level II, by an independent body of publishers; and Level III, by the central government’s oversight mechanism.
At Level I, platforms identify a chief compliance officer, nodal contact person, and resident grievance officer in India, who handle complaints within tight timelines. If users are not satisfied with a complaint redressal, they may move to Level II self-regulating bodies (SRBs), which are led by retired judges or eminent persons. They can warn, issue advisories, or give directions for content change. At Level III, an interdepartmental committee reviews the papers, calls for explanations, and makes recommendations for blocking or modification under section 69A, thus leaving the executive the final decision on the disputed content. Proponents call this “co-regulation,” where editorial freedom and accountability are balanced. Nevertheless, opponents argue that the government-controlled upper tier, which is a post-facto regulator, is a prior censor.
Unclear standards (decency, morality, public order) mixed with safe harbor liabilities put the actors in a position where they self-censor and overcomply.
The Drafts Broadcasting Bill: Moving Towards Convergence
The draft Broadcasting Services (Regulation) Bill, 2023, prepared by the Ministry of Information and Broadcasting, aims to bring a single set of rules for television, radio, OTT, and digital news. In the bill, OTT is treated as “broadcasting services”; hence, platforms that have subscribers/viewers beyond the threshold are required to notify the government and adhere to the central Programme Code and Advertisement Code. Moreover, they need to form Content Evaluation Committees (CECs), which will carry out pre-screening, provide content certificates, and thus codify ex ante content vetting into release procedures. The 2024 draft was rumored to have included the regulation of large digital creators and YouTubers, which led to its withdrawal after resistance. PRS India analyses point out that the government’s broad, unregulated power to interpret the meaning of a violation of the Programme Code article without independent appeals greatly limits the freedom to express dissenting views.
Constitutional Concerns: Free Speech Vs. State Control
The legitimacy of the IT Rules 2021, more specifically the Ethics Code and the 3-tier mechanism, is being questioned in several high courts through petitions that allege these rules to be overly broad, vague, excessively delegative, and violations of Articles 14, 19(1)(a), and 21. By interim orders, the Bombay and Madras High Courts have issued a partial stay of Rule 9 for digital news publishers, citing free speech issues in the enforcement of a nonstatutory code through executive rules.
The Supreme Court has not yet decided on the final OTT case, but, in other matters, it has observed that prior restraint and vague regulation have to be in line with proportionality requirements and cannot be just for administrative convenience. According to experts, the concurrent application of IT rules and a broadcasting act, both having vague criteria, leads to overlapping liabilities, which eventually drive the platforms to the production of low-risk content, and, therefore, the creative storytelling of OTTs is compromised.
Recent Court Decisions Shaping OTT and Digital Regulation
- SC Dismissing Pre-IT Rules Petitions (2022)
On 20 July 2022, the Supreme Court in a collection of cases commonly known as the “IT Rules 1” case referred to the dismissal of petitions that had sought court intervention to regulate OC and digital content through notification regulations, stating the petitions were futile after the issuance of the IT Rules 2021. The bench observed that the executive, in fact, had already formulated a scheme under the IT Act, so the earlier petitions asking the court for directions to regulate that no longer existed, thus the court leaving the matter to the policy decision that the legislation by delegation.
- SC Transferring IT Rules Challenges to Delhi High Court (2024)
On 22 March 2024, a bench comprising Justice Hrishikesh Roy at its head ordered the transfer to the Delhi High Court of 14 petitions challenging the IT Rules 2021 that were filed in the Bombay, Madras, Kerala, and Karnataka High Courts. The Court considered that addressing all the cases in one forum would eliminate the risk of different courts issuing conflicting judgments on the validity of the rules, which are applicable to social media intermediaries, digital news outlets, and OTT publishers all over the country. This is a procedural step to designate the Delhi High Court as the lead court for the constitutional discussion concerning India’s regulations for online speech.
- Bombay HC Striking Down Fact-Check Unit Amendment (Kunal Kamra Case, 2024)
Last September 2024, a Reference Bench of the Bombay High Court ruled in the Kunal Kamra v. Union of India case and other related petitions that the 2023 amendment to Rule 3(1)(b)(v) of the IT Rules is illegal. The amendment had permitted a government fact-check unit (FCU) to identify online content related to central government business as fake, false, or misleading. The Court held the amendment beyond the power of the IT Act and a breach of Articles 14, 19(1)(a), and 19(1)(g). Further, the Court considered the amendment to be so vague, disproportionate, and likely to have a chilling effect as it confers on the government the role of “judge in its own case” when it comes to criticism and information about itself.
Although the judgment was directed mainly at social and media intermediaries, its powerful rationale for free speech is bound to influence the judiciary’s approach to vague content, lawfully dictated powers for OTTs, and a potential Broadcasting Act.
- SC Rejecting Plea for Government-Controlled OTT Body (2024)
In October 2024, the Supreme Court decided against a public interest petition that requested the establishment of a central authority similar to the CBFC to monitor and preapprove OTT content. The Court stated that the creation of such regulatory institutions is an executive policy matter, especially since the IT Rules framework already exists.
In making the decision not to impose a further layer of state control through judicial means, the Court indicated a conservative attitude towards the proliferation of censorship mechanisms by judicial decisions. It, however, left the option open for Parliament and the executive to adjust the OTT regulation by means of legislation.
Conclusion
The OTT regulation in India has managed to strike a balance between the state’s interests as per Article 19(2) of the Constitution on the one hand and the freedom of speech on the other hand, which is practically a thriving phenomenon.
The IT Rules 2021 and the Draft Broadcasting Bill are a push for state-supervised co-regulation, involving obligations, classifications, and oversight that, if kept narrow and transparent, can effectively address harms without resorting to censorship.
But the absence of definite standards, a lack of executive review, and overlaps may still hinder the expression and the ability to resist the major narratives. In a sense, the judiciary serves as a check on state power by delivering judgments such as the Tandav corrections and the strike down of the Fact Check Unit. However, at the same time, it is lending its approval to the institutional framework.
The rulings of the Delhi High Court and the Supreme Court in respect of the IT Rules and the Broadcasting Act shall decide the fate of OTT, whether it will become plural or similar to mainstream censorship, which has frequently been the subject of criticism.
Author:– Cjathrapathi, in case of any queries please contact/write back to us atsupport@ipandlegalfilings.com or IP & Legal Filing.
References
- Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Gazette of India, pt. II, § 3(i), at 143 (Feb. 25, 2021).
- Kunal Kamra v. Union of India, 2024 SCC Online Bom 1
- PRS Legislative Research, Legislative Brief on the Draft Broadcasting Services (Regulation) Bill, 2023 (Nov. 2023), Available at: https://prsindia.org/billtrack/draft-broadcasting-services-regulation-bill-2023.
- Anirudh Burman & Aditya Sinha, Regulation of OTT Platforms in India: The Case of Information Technology Rules, 2021, Indian Inst. Mgmt. Ahmedabad Working Paper No. 2024-06/13 (June 13, 2024), Available at: https://www.iima.ac.in/publicationregulation-ott-video-streaming-platforms-india-case-information-technology-rules-2021.
