The New Law of Streaming: India’s OTT Conflicts

Introduction

India’s OTT (Over-The-Top) streaming market has revolutionised our content consumption behaviour. The meteoric rise of platforms such as Netflix, Jiohotstar, and Amazon Prime Video has created a billion-dollar industry while introducing a complex new ecosystem of litigation disputes. As commerce, media, and information technology increasingly converge, stakeholders face a new and intricate dispute resolution landscape that zips well beyond any traditional notion of litigation. This blog examines the core dispute frameworks and resolution mechanisms in the Indian OTT sector, including AGR regulatory grievance settlements and IP disputes, as well as the new frontiers of data privacy and competition law that shape legal disputes in the emerging digital landscape.

Recently, the most remarkable advancement in OTT dispute settlement has been the Information Technology Rules, 2021. When there was no law in operation, OTT content was largely self-regulating, and hence there were various Public Interest Litigations (PILs) in various High Courts and the Supreme Court to censor and regulate. The 2021 Rules deal with this by making it mandatory for publishers of online curated content to have a formal three-tier grievance redressal mechanism. This involves Level I (self-regulation by the publisher), Level II (self-regulatory institution of publishers), and Level III (oversight mechanism by the MoIB). Whilst its implementation and constitutional issues continue to be an active topic of academic discussion, overall, the creation of a separate and exclusive administrative arm abstracts dispute resolution into the Court, away from judicial considerations. Content is the main asset of OTT platforms, so this poses a key commercial risk of intellectual property (IP) conflicts. Piracy is portrayed as a digital phenomenon where rogue websites can be replicated at the click of a button, and traditional injunctions are ineffective against it. Cognizant of this change, the Delhi High Court has recently devised an effective and new instrument, the “Dynamic+ Injunction.” Expanding upon the “dynamic injunction” theory, an injunction under this new theory can be served not only on current infringers but also on entities that will arise in the future. As was the case recently for live sports events, such a solution enables the platform to proactively send alerts to ISPs to require that new infringing links be blocked at the point of indexing, rather than having to revisit court with each new link. This is a much-needed commercial-level evolution to IP dispute resolution.

OTT is a sophisticated industry that operates on a complex set of high-value transactions for content licensing, talent, and technology. When these commercial relationships have failed, arbitration has become the primary dispute resolution tool. Public litigation is not favoured because it is too slow and confidential. Arbitration, in turn, is quicker and more discreet (Fanconi 2009) (protecting reputations and trade secrets) and affords parties the liberty to choose expert arbitrators who distinguish the nuances of the M&E environment. With, again, India’s continued orientation towards modernising its framework for arbitration, this phenomenon would only gain more stability. The legal arena is also reaching new fields of battle, most notably competition and data privacy. As platforms become the centre of power, the Competition Commission of India (CCI) is analysing the market behaviour of these platforms very closely. Recent decisions have shed light on the important intersection between competition law and data privacy, and the CCI has been examining how powerful entities can use user data to suppress competition, a concept that can also be applied to OTT platforms. Furthermore, new laws such as the Digital Personal Data Protection (DPDP) Act, 2023, have paved a new arena for compliance and settlement of disputes. OTT platforms, as “data fiduciaries,” have tightly regulated responsibilities in terms of consent to users, reporting of breaches, and limitation of purposes, which will inevitably result in conflicts before the Data Protection Board of India and high-value litigation.

Another highly controversial issue is content liability, especially in areas like defamation, obscenity, and speech that “offends religion.” For years, platforms relied on the “safe harbour” exception in section 79 of the IT Act, 2000, claiming to be mere “intermediaries” whose liability did not apply to third-party content. This defence is now being challenged consistently. A series of high-profile criminal complaints and civil defamation suits (e.g., against shows like Tandav and Mirzapur) have directly questioned this position. The main issue under debate in several high courts and the Supreme Court is whether a platform that actively commissions, curates, and streams content is a “passive” intermediary or a “publisher.” By labelling these platforms as “publishers of online curated content,” the IT Rules, 2021, have effectively weakened the “safe harbour” protection, leading to new rounds of legal battles and pre-publication takedown disputes.

Another, much more controversial source of controversy is the much-denied “black box” issue of profit-sharing and royalty. As the industry becomes more mature, record labels, artists, and writers alike are taking issue with the opaque bookkeeping practices of the biggest platforms. Contractual definitions of “net profits” and “gross receipts” are often vague, and the parties are also frequently stuck in disagreements over whether or not new revenue streams, such as bundled subscriptions and “digital premiere” fees, are being proportionately allocated to the royalty pool for the underlying content, all of which are actionable in arbitration. This directly overlaps with the Copyright Act, 1957, when we see the inalienable right of royalty to the authors and composers (through the 2012 amendment of the Act). As a result, a whole new generation of complex litigation and arbitration is starting to emerge, one that demands full transparency, audits, and an honest and fair accounting from platforms that have long operated with little financial disclosure.

Conclusion

The distinction between entertainment and sophisticated legal issues is becoming thinner than ever. In India, OTT dispute resolution is no longer a staple litigation process in the courts. It is a dynamic and multifaceted subject area that encompasses everything from administrative grievance redressal and real-time policing of IP and confidential commercial arbitration to the recent and extremely high-profile frontier areas of competition law and data privacy law. From a legal perspective, this is a sector with a high level of innovation, where the legal approach is constantly evolving and should adapt to technological advancements at all times.

Author:– Krishna Pratap Patel,  in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

References

• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
• The Digital Personal Data Protection Act, 2023 (Act No. 22 of 2023).
• The Information Technology Act, 2000, s. 79.
• The Copyright Act, 1957 (as amended by The Copyright (Amendment) Act, 2012).
• Fanconi, A. (2009). ‘Confidentiality and Arbitration: Theoretical and Philosophical Reflections.’ ICC Dispute Resolution Library.