Law Relating to Obscenity on OTT Platforms: An In-Depth Analysis

Introduction

In an all-of-a-sudden rush, the OTT platforms, such as Netflix, Amazon Prime, and Disney+, have taken the world into their arena of entertainment with marvelous ease of access to a plethora of content. On the other hand, this surge in digital content has also resulted in many questions related to the nature of some content, particularly concerning obscenity. Given these concerns, the Government of India is now bringing in regulations through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to ensure that content is shared responsibly.

Overview of the OTT Regulations

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, have framed an all-encompassing regime concerning the regulation of digital content, including content on OTT platforms. Therefore, the rules are treading the intimate. Fine line of safeguarding public morality and decency while not becoming constrictive to creative expression. Under these rules, the categorization of content into different age categories is explicitly outlined so that viewers can make an informed choice and to protect the younger audiences from potentially harmful material. These categories include:

U (Universal): Suitable for all ages.

U/7+: Recommended for children above 7 years with parental guidance.

U/A 13+: Parental discretion is required for children below 13 years of age.

U/A 16+: The viewer should be above 16 with parental guidance.

A (Adult): Suitable for 18 years and above.

It mandatorily requires the implementation of parental controls by OTT platforms and the use of content descriptors to inform viewers of the nature of the content, be it violence, nudity, or strong language.

Obscenity and Content Moderation

Obscenity is one of the central features of the new regulations and the need to ensure that the content must accord with the norms of morality and decency laid down by Indian law. Section 292 of the Indian Penal Code forms the bedrock for such norms. Materials shall be considered obscene if they are inappropriate or appeal to prurient interest, or if such material has the effect of depraving and corrupting persons likely in the circumstances to read, see, or hear the matter contained therein. The dissemination, sale, or exhibition of the same is strictly prohibited and punishable under the law.

It is the duty and responsibility of the OTT platforms to make sure that their content does not break these standards. That would include a strong mechanism for content moderation, where the material is reviewed before it goes live. But in implementing such standards, balancing artistic freedom and innovation is always a challenge.

Grievance Redressal Mechanism

The IT Rules, 2021, provide for a grievances redressal mechanism wherein viewers can complainpertaining to obscene or inappropriate content. Now, every OTT platform has to have a Grievance Officer who is entrusted with the receipt and resolution of complaints within a stipulated timeframe. The redressal mechanism is divided into three tiers.

The Grievance Officer is required to acknowledge the complaints within 24 hours of the receipt of the complaint and attempt to resolve the same within 15 days. Wherever a complainant isn't satisfied with the resolution of his/her complaint, in such a case, such complaint can be escalated to a Self-regulatory Body followed by the Inter-Departmental Committee appointed by Ministry of Information and Broadcasting.

Self-Regulation and Oversight

The IT Rules, 2021, encourage self-regulation through a tiered structure on the OTT platforms. First would be through the platform itself, by the appointment of a Grievance Officer and provisions for content classification and parental control. The second tier involves the establishment of a self-regulatory body with a retired judge or an eminent person as head to monitor compliance with the guidelines and handle escalated complaints. At the third tier is the government-appointed IDC with powers to review and recommend actions on such content which can be in violation of the rules.

The self-regulation tier plays a very significant role in balancing artistic freedom vis-à-vis adherence to norms and values of society. It provides an independent review mechanism that holds content creators and platforms responsible, all while saving their right of free expression.

Content Creation Impact

The introduction of IT Rules, 2021, has huge ramifications on content creation over OTT platforms. Content creators have to follow these guidelines very cautiously to avoide legal issues while not giving up on turning out engaging and innovative material. This requires a very subtle understanding of the definition of obscenity in Indian law and compliance of the content with societal norms and values.

While many people believe that these regulations are broadly interpreted and tend to harm creative expression, on the other side, some others have felt it necessary for the maintenance of public decency and the protection of vulnerable audiences. Here, what becomes obvious is the challenge of treading between competing interests. Developers of materials and OTT platforms have to bond together to develop contents that will appeal to tastes while avoiding the pitfalls of offending these regulations.

Legal Framework and Precedents

Obscenity in India has found its footing in some principal statutes and judicial precedents. Besides Section 292 of the Indian Penal Code, the Indecent Representation of Women (Prohibition) Act, 1986, and the Information Technology Act, 2000, come into play on matters that define and control obscene content.

The judiciary has done much in the realms of interpretation of these laws and laying down of precedents. The most celebrated case of Ranjit D. Udeshi v. State of Maharashtra (1964)[1]laid the foundation of the obscenity test in India, while taking help from "The Hicklin test[2]" of English law, wherein material is considered obscene if it tends to debase and corrupt those whose minds are open to such immoral influences.

However, over the years, Indian courts have veered increasingly toward a more liberal interpretation considering community standards and the general context in which the material is displayed. The landmark judgment of the Supreme Court in Aveek Sarkar v State of West Bengal[3]in 2014 brought about a radical change in considering not the reaction of the most vulnerable members of society but of society as a whole, that will be impacted by the material.

Challenges in Implementation

The IT Rules, 2021, are also fraught with certain failings in implementation. First, it is this very subjectivity in devising 'obscene content' that makes such a provision quite difficult to work with. Cultural and social norms differ across India;therefore, no universal rule can be applied. What is appropriate in one place might be offensive in the other.

Even more, the fast pace at which technology is advancing and the bulk of content created through these OTT platforms would make it cumbersome in terms of following the material and regulating them. Review and appropriate classification of all these contents require huge resources and coordination.

Though the existence of a grievance redressal setup would ensure methodical complaining, that could also present issues in managing the flood of complaints and redressing those in time. In this regard, the role of the self-regulatory body and the IDC would be very crucial, provided these would be given all respect to ensure their independent working and remain genetically neutral in their decisions.

International Perspectives of OTT Content Regulation

The issue of regulating OTT content is not new in India. Similar to India's concerns, many countries have brought in frameworks that regulate such content. For instance, AVMSD under the European Union has emphasized a code for video-on-demand services, detailing provisions concerning the classification of content and the protection of minors. In the case of the United Kingdom, Ofcom keeps an eye on content across OTT platforms to make sure that they fall in line with standards on harm and offense.

In the US, for example, there is regulation of broadcast content by the Federal Communications Commission and movie ratings by the Motion Picture Association of America. Most OTT platforms in the US take these ratings to help viewers decide.

In that sense, even if the methodologies are different, the principles are the same—those of protection of public decency and circulation of responsible content. Thereafter, it can borrow from international best practices to fine-tune its regulatory framework.

Conclusion

The IT Rules, 2021, are a giant step toward the regulation of OTT content in India. These rules attempt to fashion out a safer, more responsible digital environment by answering issues related to obscenity and laying down a structured framework for content moderation. This openness of dialogue and continuous adaptation will be very necessary so that the balance between creative freedom and societal norms can be appropriately maintained.

The future of content regulation will come down to balancing the protection of public decency and creating an environment in which creativity and innovation can thrive. It is a call to collaboration among all stakeholders that will keep the digital entertainment land open for business while remaining vibrant with respect toward cultural and social values.

That said, just as the digital world will continue to change, so will the laws and rules that govern it.

This article is written and presented by Vaidehi Sharma, a BALLB student at Mohanlal Sukhadia University.

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[1]1965 AIR  881

[2]https://blog.ipleaders.in/obscenity-and-the-law-in-india-moving-from-hicklin-test-to-community-standards/

[3]CRIMINAL APPEAL NO.902 OF 2004