Regulating Over-the-Top (OTT) Content Platforms: Legal Challenges

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by Afifa Fatima, a B com LLB 3rd Year at Banasthali Vidyapith

Introduction

Over the last few years, telecom services and applications like Hotstar, Netflix, Amazon Prime videos have emerged as critical regulatory issues in terms of content control, censorship, self-regulation, and jurisdiction. As these platforms are still evolving and bend toward dominance, the legal issues surrounding the regulation of OTT content have come to surface.

Content Censorship

The legal condition of regulating the Over-The-Top (OTT) content platforms is itself a challenge, especially in the aspect of content control. This issue is complicated, which means that it is closely related to freedom of speech and the prevention of content that may harm the viewers or is considered to be inappropriate.

Freedom of Expression : OTT platforms give the global stage to a wide range of individuals and concerning the freedom of speech, it plays a very crucial role. This is particularly so in democratic societies, where information and ideas must always be free to circulate.
Protection from Harm : On the other hand, there is a social expectation that viewers, particularly children, should be protected from content which has potential to fuel hate speech, violence or other negative behaviors. This encompasses content that is likely to be perceived as obscene, defamatory or incite violence.
Cultural Sensitivities and Societal Norms : The criteria distinguished as potentially hurtful or unconstructive can vary significantly depending on the culture and society. Something that is okay in one culture may not be a big deal in the next country or region it is not the same. This variability in cultural practices means that the formation of a universal set of rules for regulation is difficult to achieve.
Currently the role of the regulators is important because there must be set standards and policies on the type of content that is allowed on the internet. These frameworks are commonly developed after lengthy engagements with the stakeholders such as the content producers, industry players, lawyers and representative advocacy organizations. The ideal is to develop sound policies that are conformable to the community standards without infringing on the liberties of every person.
Some of the regulatory authorities used in this process includes the Federal Communications Commission (FCC) of the United States, the Broadcasting Authority of India (BAI), and the Office of Communications (Ofcom) of the United Kingdom.
Technological Solutions and Challenges : OTT platforms bear a tendency for employing algorithms and artificial intelligence in the process of filtering content. These technologies, on the other hand, can work with petabytes or orders of magnitude of data with the highest ease; they are not perfect. Sometimes, algorithms can do mistakes, or lack some perspective and context, which might lead to incorrect actions, such as allowing some dangerous content or censoring useful information.
Case Studies and Precedents : The following shows that different countries have adopted different measures in the regulation of OTT. For instance, the recently enacted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 of India comprises three-tier structure that consists of self-regulation for the provisions to be adhered by the platform, self-regulatory body and third party government intervention mechanism. On the other hand, the European Union’s Audiovisual Media Service Directive (AVMSD) has laid down guidelines which cater the requirement of protection along with the first amendment and free market economy for its membership states.

OTT platform regulation is a complex concept with many and rather very often opposing and/or juxtaposed goals and interests that should be met or addressed. Despite this, regulation should check programs that have negative impacts on the viewership to ensure he or she is protected from situations that might alter his or her life without infringing on the freedom of the people. This requires not only comprehensive legal frameworks, but also the effective application of the proper technology tools and the ongoing communication between the relevant stakeholders as to develop the effective approach to the constantly emerging new challenges in the digital society.

Self-Regulation Mechanisms

Most OTT platforms have adopted a self-regulation mechanism in a bid to resolve content issues on the platforms in advance. These self-regulatory practices are intended to thus ensure that while creators retain liberty in creating content, summarily, the vulnerable audiences especially children are protected from content that can harm them.

Content Ratings

Description : Content ratings serve as a warning for viewers regarding the material that can be considered appropriate for a particular age. These ratings usually differentiate the content by themes, language, violence, sexual representation and substance use.

Effectiveness : To that end, program classifications enable the viewers to make proper decisions about what to watch and aid the parents in regulating their children’s TV watching habits. But again, there is a problem of variation and inconsistency in the rating of sites that may result to differences in classification of contents.

Parental Controls

Description : These include features that enable a user to limit access to some content based on ratings or any other features that he may deem fit. Most of these can be applied at the account level to allow parents to block their children from accessing such content.
Effectiveness : Parental controls therefore, if properly implemented, are one of the strongest ways of shielding children. But their effectiveness, relies on users awareness and correct adoption by the parents. For these controls to be effective, they should also be easily usable and accessible.

Content Moderation Policies

Description : Content moderation is a process of examining different content posted by users of social media and other online platforms for compliance with set guidelines and legal requirements. This can be done through automated solutions with human oversight, including moderation.
Effectiveness : Programmable environments, including artificial intelligence and machine learning frameworks, can effectively screen content based on quantity. Still, they are not perfect and might fail when facing context-sensitive decisions. While human moderators are able to handle such cases, they are capable of lacking in efficiency due to the large amount of materials on some platforms.

Self-regulation as a concept seems to have its fair share of controversy when it comes to determination of the extent of its utility.

Compliance with Legal Standards

Support : Some have pointed out that self-regulation is beneficial as it enables platforms to come up with more efficient and unique strategies that suit the consumer and legal standards. It can also lessen the pressure on regulatory agencies and potentially enhance the variety of content produced.
Criticism : Opponents argue that self-regulation can result in loopholes in the application of the standards, and potentially insufficient measures are taken to protect the viewers. Samaritans are afraid that without supervision, these platforms may follow corporate goals at the expense of people’s safety and moral principles

Adherence to Community Guidelines

Support : Self-regulation mechanisms allow sites to set up rules that govern their user conduct and serve as a reference to the targets of their content. This may be the case because this approach is possibly more adaptable to trends and issues in society.
Criticism : Some of the issues associated with self-regulation include the lack of openness and responsibility for self-regulation approach. Lack of guidelines on policing derogatory material and lack of a clear mechanism for users to appeal the decisions made can weaken the confidence in the platform’s ability to handle content appropriately.

Stakeholder Perspectives

Regulators : Some of the regulators have recommended a combination of self-regulation and external regulation because they believe that it covers all grounds to qualify for regulation. They assert that self-regulation could be inadequate to attend to all the issues.
Content Creators : Professionals in content creation provide support for self-regulation because it grants more liberty in the process, as well as less interference from beaurocracy. They do not think that the regulation of content will stifle innovation because they believe that self-regulatory systems can adequately control content.
Advocacy Groups : These organizations include those that fight for consumer rights, children, and other digital rights organizations which have varying opinions. As such, while they acknowledge its merits, they have demanded higher standards of protection and increased monitoring for sensitive groups.

The measures are content classifications, the ability to filter content by age, and content moderation policies are the key factors in the management of content and its protection for viewers on OTT platforms. Despite the benefits provided by these mechanisms, there is still a debate about their efficiency. It can be suggested that combining self regulation along with the regulation may be the most advantageous in order to address the content related issues on the OTT platforms successfully, while safeguarding the rights of the viewers as well as the freedom of speech.

Jurisdictional Issues

There are several legal concerns with jurisdictional aspects in every effort to regulate OTT platforms. As content is delivered to users on various geographical locations, it becomes quite a challenge to determine the right jurisdiction where the regulation and enforcement of the rules apply. This is especially due to the fact that OTT platforms are often global, meaning that they may have to adhere to contradicting regulation of different territories. Therefore, it is imperative that there is an increased collaboration between the countries of the world and the standardization of laws regarding such jurisdictional issues.

OTT platforms are spread cross-boarder, which make it difficult to regulate the content due to the issue of jurisdiction. It poses a particular challenge on the identification of the country laws to be applicable in cases where content is posted on OTT platforms across borders. Jurisdictional questions remain an ongoing problem that regulators have to work on and they also suffer from a lack of consistency in regulation across different regions.

Hence, different players such as the governments, stakeholders in the industry and other personnel & organizations have been involved in the regulatory discussions persistently. Some governments have attempted to enact new legislation to categorize OTT platforms as separate entities that warrant their own set of regulations, while others have tried to retrofit existing laws in an attempt to encompass OTT content. Companies have also been forward thinking in their approach when it comes to contacting the authorities in establishing set standards and measures when it comes to regulation of content.

Regulatory Frameworks

No one size fits all regulation of OTT platforms creates an additional layer of challenge in regulation. Some countries may have strict legal provisions on the kind of content that is allowed to be distributed, licensing requirements, taxes and consumer protection laws. One of the most significant questions is to find common sense and consistence in the regulation of OTT platforms that would meet the legal requirements but would not seriously interfere with their specifics.

To this end, policymakers need to counterbalance themselves in a scenario where these OTT platforms continue their operations in various jurisdictions having distinct sets of regulations. This comprises of balancing national laws with international standards and developing structures that are flexible enough to deal with the fluidity of digitized media. The analysis of OTT regulation indicates that the key area of focus should be the protection of consumer rights without hampering the innovation of more OTT platforms that will promote their continued growth and compliance to industrial standards.

Enforcement and Compliance

Forcing content standards and imposing regulation compliance on OTT platforms pose problems to regulators. Supervising a huge amount of materials, responding to users’ complains, and penalizing the platforms for infringements cannot exist without efficient mechanisms and collaboration with the key players.

This requires the formulation of enhanced monitoring tools and mechanisms for the massive content uploaded and shared by the social media platforms. For this reason, authorities need to set up rules and norms concerning legal compliance and make sure that OTT platforms implement the necessary procedures for compliance with these norms. This usually calls for the adoption of prevention measures such as the use of artificial intelligence algorithms in moderating content and availing of reporting mechanisms for users. Moreover, cooperation between the international bodies and the industry players is highly important while implementing an integrated approach towards enforcement across national jurisdictions.

Stakeholder Engagement

In order to develop suitable regulation strategies for OTT platforms, it is crucial to involve a wide variety of counterparts, such as content makers, service providers, authorities, and customers. It is also important in the regulation discourses to mediate amongst stakeholder’s interests and views while working within the law and protecting the public.

Stakeholder management happens through communication with the stakeholders in order to make sure that the rules and regulations are satisfactory. On the one hand, content creators require guarantees that their claims and creative liberties will be safeguarded, while on the other hand, platforms’ operators require certainty and practicality in regards to the compliance demands. Policies need to be kept in check to safeguard the interests of innocent consumers and the public at large without hindering innovation. There are some concerns of the consumers as well such as quality, safety and privacy of content. This balance can only be achieved if there is delegation of powers, openness in policy formulation and implementation and flexibility in the formulation of laws as they seek to capture the ever dynamic features of the digital environment.

In addition, the advocacy groups have been very effective in raising awareness on how regulation should be harmonized with free speech and innovation. Their engagement continues to inform the debate about the correct model of regulation in relation to OTT content with a call for the development of a more holistic framework to engage the various stakeholders.

Thus, advocacy groups support creative freedom and content diversification to guarantee that regulation has no negative impact on the development of new technologies or the availability of content for consumers. They offer important information on the proposed regulations, defend the interests of creators, and focus on the possible effects on creativity. Their involvement also guarantees that the established laws are relevant in dealing with legal issues and protecting consumers besides fostering the growth of a rich and diverse digital content economy.

Conclusion

In conclusion, the legal issues related to regulation of Over-the-Top content platforms are complex and nuanced and have multiple dimensions including censorship, self regulation, and issues of jurisdiction. While OTT platforms remain subject to existing regulation, it is essential that the stakeholders be involved in positive discussion and work together to ensure the formulation of proper and appropriate OTT regulation that considers the peculiarities of OTT platforms and the cardinal principles of freedom of speech and consumer protection.

Reference Material