New law may bring OTT apps under ad, programme codes

LiveMint | 24th September 2023

OTTs which have adopted self-regulation so far to follow stricter standards under new law.

New Delhi: The government is working on a draft broadcasting services regulation bill to bring all formats including linear television, radio and over-the-top (OTT) streaming services under one regulatory umbrella, a move which has raised concerns within the creative community.

Although the draft bill has not been released for public consultations yet, a copy seen by Mint indicates streaming platforms may have to adhere to a programme code and advertisement code. This could prompt OTT services, so far allowed to self-regulate their content, to resist the government’s move.

An executive at a broadcast network expressed apprehension that under the new law, private satellite channels may be asked to share digital streaming rights of sports properties with Prasar Bharti that is planning its own OTT. So far, Prasar Bharati, which runs national broadcaster Doordarshan, can air the feed it gets from private sports broadcasters only on its terrestrial network and its own DTH (direct-to-home) platform, Free Dish.

“The public broadcaster will put sports content out for free on OTT, making any kind of monetization a challenge for other players,” the person added.

Some believe the Telecom Regulatory Authority of India (Trai) will assert its authority to issue economic regulations for broadcasting services.

“This will encourage Trai to get into introducing economic regulation on a same-service-same-rule basis. Also, the most retrograde provision (in the draft Bill) is the programme code and advertising code. While the codes may have different codes for different platforms, it is still worrisome,” said a senior broadcaster, seeking anonymity.

Gaurav Sahay, partner, SNG & Partners, Advocates & Solicitors, said the primary concern of the government regarding OTT revolves around the lack of self-regulation, pre-screening, and certification of content streamed on OTT platforms.

“Challenges may arise if the programme code and the advertising code impose restrictions on the freedom of creative speech and expression of OTT content creators, which is a fundamental aspect of appeal for viewers. If OTT content is evaluated and aligned too closely with other media broadcasting, it may stifle the growth of OTT platforms and assimilate them into conventional mainstream media,” said Sahay.

“The government’s objective is to establish an effective and binding mechanism for digital media, given that the existing rules are more in the form of non-binding guidelines,” he added.

Siddharth Mahajan, partner, Athena Legal, agreed. The codes may apply to OTT under the proposed law and will bring regulation of content on OTT platforms at par with other forms of broadcasting like DTH and linear TV, he said.

“However, it is also being suggested that the government, at its discretion, may propose a different programme code for OTT, which might give some leeway to OTT content. Non-compliance can have serious implications, including stopping of transmission or blocking in case of OTT and revocation of licence,” Mahajan added.

According to the draft bill, all internet broadcasting network operators shall ensure that “the transmission or re-transmission of any broadcasting service provided by him is in conformity with the programme code and advertisement code”.

“However, different programme code and advertisement code may be prescribed…for programmes and advertisements broadcast through linear broadcasting services, on-demand broadcasting services, radio broadcasting services and any other category of broadcasting service as notified by the government,” the draft bill said.

At present, there is no parliamentary Act governing the broadcasting sector. Instead, regulations pertaining to different broadcasting services consist only of guidelines issued by the ministry of information and broadcasting from time to time.

“Hence, a need may have been felt to have a robust law to govern the sector after the attempt to regulate broadcasting services through the Telecom Bill faced resistance from the industry. This move to have a separate Act for broadcasting services, may provide an answer to this issue as well. There is a case pending in the Supreme Court on self-regulation of television channels. This bill will give statutory backing to the broadcasters’ self-regulation as well,” said Gowree Gokhale, a partner at Nishith Desai Associates, leading the intellectual property, technology, media and entertainment law practice.

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