Navigating Legal Challenges: Strategies for OTT Platforms to Safeguard Intellectual Property Rights and Address Taboo Content

Over-the-top (OTT) media platforms have witnessed a remarkable surge in popularity, surpassing traditional modes of entertainment. These platforms allow individuals to conveniently subscribe and access a wide range of shows, movies, and videos from the comfort of their homes, at their preferred time and pace. Prominent online streaming services such as Netflix, Amazon, and Hotstar have gained significant traction in the past five years. Renowned for their vast libraries of diverse and unconventional content, these platforms offer unique stories and experiences at affordable membership prices. The Covid-19 pandemic and subsequent lockdown of cinemas further accelerated the growth of OTT services, resulting in a notable 30% increase in subscriber numbers.

Legal Issues Faced By OTT Platforms

OTT platforms have emerged as a convenient and popular trend among the masses. However, these platforms face various legal challenges, including:

• Intellectual Property Rights (IPR) Enforcement: Unauthorized use, storage, and sharing of unsolicited content pose a significant problem for digital platforms. Third parties often evade fees to legally obtain viewership rights, resorting to pirated files available on illegal platforms. Tracing and penalizing offenders becomes challenging for cyber cells due to technical limitations and privacy rights.
• Statutory Challenges: The introduction of IT Rules aimed to establish a fair institutional structure and a code of ethics for news publishers and OTT platforms. However, these rules have led to increased legal scrutiny of content on OTT platforms, creating difficulties for digital media providers.
• Legal Compliance Burden: OTT platforms and content producers bear the burden of compliance, requiring thorough evaluation of content to ensure it does not violate any restrictions. The grievance redressal system, monthly compliance, and excessive content review impose additional compliance obligations on OTT platforms.
• Creative Freedom: OTT content thrives on creativity and innovative ideas. Ambiguous standards for content accessibility, which aim to protect state interests, sovereignty, and public order, can potentially hinder free speech and creative expression.
• Competitive Challenges: Viewers have access to numerous online streaming platforms, each offering a different selection of shows and films. Limited time and budget constraints lead some viewers to subscribe to multiple platforms or share accounts with friends or family, impacting revenue for OTT platforms.

Addressing these legal challenges is crucial for OTT platforms to ensure a smooth and sustainable operation while safeguarding intellectual property rights and promoting creative freedom.

Regulations Governing OTT Platforms

1. Theatrical Releases: The Central Board of Film Certification (CBFC) and the Cinematographic Act, 1952, along with supplementary rules and guidelines, govern issues related to theatrical releases.
2. Meity and IT Act: OTT platforms are governed by the Ministry of Electronics and Information Technology (Meity) and the Information Technology Act, 2000, similar to other online content. These platforms have their own self-regulation and censoring criteria, comparable to Netflix’s self-imposed maturity ratings.
3. Intermediaries Guidance Rules: Rule 3(2)(b), (c), and (e) of the Information Technology (Intermediaries Guidance) Rules, 2011, require intermediaries to exercise due care in displaying, hosting, or publishing obscene, pornographic, or illegal information. They are also prohibited from endangering children, and Rule 3(3) states that intermediaries should not knowingly host or transmit such content.
4. Delhi High Court Petition: In 2016, an NGO named Justice for Rights filed a petition in the Delhi High Court, alleging that Hotstar’s content promoted disrespect for the nation, objectified women, involved children in criminal activities, and potentially encouraged terrorism. The NGO demanded governance, control, licensing of the platforms, and removal of offensive and illegal information. The petition was denied and is currently ongoing in the Supreme Court.
5. Self-Regulatory Code: OTT services like Netflix, Hotstar, and others have voluntarily adopted a self-regulatory code known as the Code of Best Practices for Online Content. This code, developed by providers and released by the Internet and Mobile Association of India (IAMAI), prohibits the display of content prohibited by Indian courts, content that offends religious sentiments, encourages child pornography, incites terrorism or violence against the state, or disrespects the Indian flag. The code aims to strike a balance between control of OTT platforms and the guarantee of freedom of speech under Article 19.
6. Enforcement and Accountability: While self-regulatory rules are not legally enforceable, it is important to maintain accountability to ensure that any transgressions resulting in breaches of the law or individuals’ rights are appropriately addressed. Without accountability, justice can be denied in such instances.

Defamation, Profanity, Cultural Sensitiveness

OTT platforms have faced numerous lawsuits and criminal proceedings regarding defamation, hurting religious sentiments, and the use of vulgar language in their content.

Defamation

Defamation, as defined in Section 499 of the Indian Penal Code, occurs when someone makes or publishes false statements, accusations, or imputations that harm the reputation of another person. Determining what qualifies as obscene or defamatory can be challenging due to the wide scope of defamation laws.

In a highly sentimental and culturally rooted country like India, it becomes difficult to gauge what may hurt people’s feelings. For example, a man sought a stay on the OTT distribution of the film “Why I Killed Gandhi” from the Supreme Court, claiming that the movie glorified Nathuram Godse, the assassin of Mahatma Gandhi, and tarnished his reputation. The petitioner’s plea included a demand for OTT platform regulation, in addition to a delay in the film’s release.

Profanity

Profanity refers to the socially inappropriate use of language, often known as cursing, swearing, or using vulgar expressions. Language that is considered crude, vulgar, or culturally inappropriate falls under the category of profanity.

In a case involving the online television program “College Romance,” a trial court ordered the Delhi Police to file a complaint against the production company TVF, the director, and an actor due to the use of language that was deemed offensive. The judge handling the appeal remarked that the language used in the show was so explicit that she had to use headphones in her chamber to avoid causing shock or alarm to others nearby. Despite reflecting certain aspects of society, such web series clash with the prevalent cultural norms of polite language that are still widely accepted in the country.

Cultural Sensitivity

Creative interpretations can sometimes offend individuals in a country where religion holds great significance. Content creation should take into account the emotions and beliefs of the general public.

In the case of the online series “Tandav” on Amazon Prime, police were called and an FIR was filed, accusing the creators and the head of Amazon Prime of hurting religious sentiments. It was claimed that the series portrayed Hindu gods and goddesses in a negative light, with the alleged intention of stirring up racial tensions. The court ruled[1] that the religious sentiments of the majority community were indeed hurt due to the derogatory portrayal of their religious values.

Ensuring a balance between creative expression and cultural sensitivity is crucial for OTT platforms to avoid legal pitfalls and maintain a positive reception from their audiences.

Suggestions To Avoid Legal Action Against OTT Content

• Risk Assessment: Conducting a thorough risk assessment is crucial to prevent potential issues that may arise after the release of a movie or show. This assessment should be done at various stages, starting from evaluating the nature of the story. During filming, it is essential to ensure that offensive language is not used. Upon completion, a careful examination of the content should be conducted, ideally censoring any areas that could give rise to legal complications.
• Script Review: With the increasing sensitivity and adherence to societal and organizational standards, it is important to review scripts for potential pitfalls. Depictions of improper security force uniforms or rank badges, for instance, can lead to backlash. Conducting due diligence on scripts can help prevent such errors and their consequences. Considering cultural sensitivities, content or language that may be deemed indecent should be avoided.
• Injunction: In certain cases, obtaining an injunction may be necessary to prevent the release of specific OTT content that could have a negative impact on society. Injunctions can be sought to restrict certain actions or behaviors through a court order. There may be instances where injunctions are obtained in remote towns or served to prominent individuals, requiring specialized legal knowledge.

Implementing these measures can help OTT platforms mitigate legal risks and ensure that their content aligns with societal norms and legal requirements. By conducting risk assessments, reviewing scripts, and resorting to injunctions, when necessary, OTT platforms can minimize the likelihood of facing legal action related to their content.

Conclusion

The evolving nature of OTT platforms requires a proactive approach in addressing legal issues such as defamation, profanity, cultural sensitivities, and more. The implementation of risk assessment measures, script reviews, and the potential use of injunctions can help mitigate legal risks and prevent content that may have negative societal impacts.

In conclusion, a harmonious balance between legal compliance and creative freedom is vital for the sustainable growth of OTT platforms. Through collaboration between industry stakeholders, policymakers, and regulatory bodies, a framework can be established that protects the interests of all parties involved, ensures the quality of content, and provides a safe and enjoyable viewing experience for audiences.

FAQs

[1]Aparna Purohit vs State of UP, [(2021) 3 All LJ 634]

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