DAILY NEWS ANALYSIS

OTT Regulation and the Draft Indian Telecommunications Bill

The Draft Indian Telecommunication Bill, 2022, has become available to the public.

Major Points

• Background: OTT platforms do not currently require a licence to provide services, but telecom firms do.
• The Department of Telecommunications suggested regulating over-the-top (OTT) platforms' voice, video, and data communication services as telecom services.

Consolidation of 3 Acts governing Telecom Sector:

• The Indian Telegraph Act, 1885,
• Indian Wireless Telegraphy Act, 1933, and
• The Telegraph Wires (Unlawful Protection) Act, 1950.
• This adjustment was made in order to respond to a long-standing demand by telecom operators, who have repeatedly demanded for an equal playing field.

Major Clause of the Bill

• A licence would be needed to provide services for OTTs and internet-based communications if OTTs were included in the definition of telecom services.
• OTT Platforms, like other telecom operators, must apply for a licence from the government.
• Dilution of TRAI's Authority: The Telecom Regulatory Authority of India (TRAI) was given less authority when it came to giving new licences to service providers.
• Information interception: Information sent or received over telecommunication services may be intercepted by a government official with authorization if doing so will protect India's sovereignty, integrity, or security, its friendly relations with other nations, its public order, or its ability to deter crime.

Updates to the TRAI Act:

• Currently, the TRAI Act mandates that the government consult with the regulator before granting service providers licenses.
• Additionally, it permits the TRAI to ask the government for any information or documents required in order to make recommendations. In the latest draught Bill, it has been suggested that these powers be eliminated.
• In order to protect the general health of the telecom industry, competition, long-term development, and fair market mechanisms, the TRAI may order carriers to "abstain from predatory pricing."
• The new draught Bill also proposes to repeal a clause in the TRAI Act that now forbids the appointment of a government employee as TRAI's chairperson if such individual has not previously held the positions of secretary or additional secretary.

TDF: TDF stands for Telecommunication Development Fund.

• It suggests substituting the Telecommunication Development Fund (TDF) for the Universal Service Obligation Fund (USOF) (TDF).
• The Universal Service Obligation Fund (USOF) is a collection of monies made possible by a 5% Universal Service Levy on telecom firms' adjusted gross revenue.
• With the TDF, the goal is to increase connectivity in underserved urban areas, R&D, skill development, etc. It has primarily been utilized to support rural connectivity.
• Authority of Government: If a telecom company with spectrum declares bankruptcy or becomes insolvent, the assigned spectrum reverts to the central government's control.

Challenges

• End-to-end encryption: It is unclear how these clauses would affect WhatsApp calls, which are normally end-to-end encrypted, meaning that the service provider does not have access to the data sent through such calls.
• Regulation of content: The digital contents offered on these OTT platforms are made available to the general public without any filtering or screening because there is no law or independent body to watch over and govern them.
• Power Must Be Increased: The OTT platform manages video data in high resolution. As a result, more power will be needed to run these systems. The increased use of electricity, energy, and fibre capacity is the cause of the rising demand for storage capacity.
• Video piracy has been a problem ever since broadcast television first appeared. Video piracy negatively impacts a company's bottom line as well as its user base and brand. When OTT platforms are compromised, both user data and content leakage are at risk. About 21% of Americans watch television that has been pirated.

The OTT Platforms

• OTT, or over-the-top platforms, are services that host and broadcast music and video.
• Services: OTT began as content hosting platforms but quickly expanded into producing and releasing their own web series, feature films, documentaries, and short films.
• These platforms provide a variety of content and using artificial intelligence to recommend to users the material they are most likely to watch based on their prior platform usage.
• Charges: The majority of OTT platforms typically charge a monthly subscription price for premium material that is typically not available elsewhere while offering certain content for free.
• In most cases, the OTT platform itself produces and markets the premium content in collaboration with reputable production companies.

India's regulation of OTT platforms

• Because OTT platforms are a relatively new kind of entertainment, there are no laws or regulations governing them in India.
• In November 2022, the government changed the "allocation of Business Rules" as the first step toward regulation, bringing all online platforms under the control of the I&B Ministry and instructing all platforms to register with the Ministry.

Self-control model:

• Since there has been much discussion and controversy regarding the regulation of such platforms, the Internet and Mobile Association of India (IAMAI), an organisation that represents OTT platforms, has created a self-regulatory mechanism.
• Issues: Upon closer inspection, it was shown that the process suggested by IAMAI did not adequately take into account content that was illegal under the law, and there were conflicts of interest that were reported to IAMAI in September 2020.
• As part of their proposed two-tier structure, the Online Curated Content Providers, or OCCPs, had also suggested a Digital Curated Content Complaints Council in addition to the self-regulatory mechanism.
• The Ministry of Information and Broadcasting, which will now be in charge of these sites, however, rejected the suggestion.

Way Forward

• Create a thorough, three-tier framework for handling complaints.
• The OTT Platform itself will provide the first level of oversight via a grievance officer.
• A self-regulatory organisation made up of content publishers and their associations will serve as the second level.
• The MIB will oversee and consider appeals for judgments made at level two, or even if the MIB submits a complaint to the inter-department committee, through a third-level inter-department committee.

Live-Streaming of the Supreme Court’s Proceedings

• The Supreme Court (SC) recently made the decision to stream live its proceedings in significant Constitution Bench matters starting on September 27, 2022.
• The broadcast of judicial sessions has made positive systemic improvements possible.

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What is the History?

• In the case of Swapnil Tripathi v. Supreme Court of India (2018), the Supreme Court had decided in favour of live-streaming the proceedings at the top court.
• It was decided that the right to access justice under Article 21 (Protection of Life and Personal Liberty) of the Constitution includes the live streaming of court hearings.
• The Karnataka High Court followed the Gujarat High Court in being the first high court to broadcast court proceedings.
• The high courts in Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna currently broadcast their proceedings live.
• The Allahabad High Court is thinking about using the same authority.

What were the Attorney-General of India's recommendations?

• Only in Constitution Bench matters should live streaming be implemented as a pilot project in the Chief Justice of India (CJI) court.
• If this project is a success, it will be decided whether or not live broadcasting should be used in all courts, including the Supreme Court and all courts throughout India.
• The Attorney General (AG) provided evidence in support of his recommendation, including the decongestion of courts and increased physical access to courts for litigants who must otherwise travel great distances to the SC.

The SC gave its approval to a series of recommendations made by the A-G. However, the A-G argued that the court must continue to have the authority to prohibit broadcasting and must do so in situations involving:

• Marriage-related issues
• issues pertaining to young people's interests or the defence and safety of the private lives of young offenders
• issues relating to national security
• to make sure that defendants, witnesses, or victims can testify honestly and without fear.
• Vulnerable or frightened witnesses need to be given special protection.
• If the witness agrees to the broadcast being made anonymously, it can allow for facial distortion of the witness.
• to safeguard all topics pertaining to rape and sexual assault, including any secret or sensitive material
• Instances where disclosure would interfere with the administration of justice,
• Cases that could elicit strong feelings, ignite passion, or incite hostility between populations.

What is the situation like in other nations?

• United States: Oral arguments may be recorded and their transcripts may be published since 1955.
• Australia: Live or delayed broadcasting is permitted, but different courts have different customs and standards.
• Brazil: Since 2002, it has been legal to broadcast live court hearings in both audio and video, including the judges' discussions and votes.
• Canada: Live coverage of proceedings is provided on the Cable Parliamentary Affairs Channel, along with explanations of each case and the court's general procedures and authority.
• South Africa: As an expansion of the right to free expression, the Supreme Court of South Africa has since 2017 permitted the media to broadcast court proceedings in criminal cases.
• United Kingdom: Starting in 2005, proceedings are streamed live on the court's website with a one-minute delay; however, in delicate appeals, coverage may be withdrawn.

What are Related Issues and the Next Steps?

• Concerns: Existing video clips of Indian court sessions on YouTube and other social media platforms with spectacular titles and few context are fueling the public's propagation of false information, as has been the case in recent years.
• The commercial contracts with broadcasters are also a cause for concern.
• Another issue to be concerned about is the unauthorized usage of live streaming videos because it will be very challenging for the government to regulate it.

Way Forwards

• Transparency and improved access to the justice system are advanced through the broadcasting of court sessions. Technology exists to make subjects of constitutional and societal importance available for public viewing, and citizens have a right to information.
• In the event that a live webcast of the Supreme Court's hearings is not feasible, video recording of the proceedings need to be permitted instead.
• The contracts with the broadcasters ought to be non-commercial in nature. The deal shouldn't benefit anyone.
• To make sure that the video names and descriptions only provide factual information, a set of rules must be established.

Hate Speech in the Media

The "visual media" has recently been referred to as the "primary medium of hate speech" by the Supreme Court.

Details about the news

• The bench was hearing a number of petitions over alleged hate speech on several TV programs.
• The petitioners have asked the court to order the Center to take action to reduce instances of such speech.
• The SC stated that it will take into account establishing some rules to level the playing field till the legislature creates a statute on the subject.

Hate speech: What Is It?

• The notion of what constitutes "hate speech" is debatable and contentious, and there is no international legal definition of it.
• The term "hate speech" refers to any language used in speech, writing, or behaviour that disparages or uses pejorative terminology with regard to an individual or a group of individuals based on their religion, ethnicity, nationality, race, colour, descent, gender, or other identity-related characteristics.

The various reasons behind hate speech:

Hate speech undermines social equality by reinforcing historical oppression and marginalisation.

• It is used to provoke violence and injure its victims physically and psychologically.
• It is employed to incite people or entire societies to carry out terrorist attacks, genocides, ethnic cleansing, etc.
• As the court correctly noted, TV networks broadcast hate speech to increase their TRPs and financial success.
• It is a tool for spreading false rumours about certain individuals in order to spread terror.

The Indian Constitution and hate speech: Expression and Free Speech

According to Article 19(1)(a) of the Indian Constitution, which declares that all citizens have the right to freedom of speech and expression, it is safeguarded as a basic right.

Section 19(2):

The Indian constitution has proposed a reasonable restriction, where the term reasonable should strike a balance between the proper and improper uses of this right.

Additional guidelines for hate speech:

• Promotion of hostility between different groups on the basis of religion, race, place of birth, residence, language, etc., as well as actions detrimental to the maintenance of harmony, are both punishable under Section 153A IPC.
• Imputations and declarations that are harmful to national integration are punishable under Section 153B IPC.
• "Deliberate and malicious acts, intended to offend religious emotions of any class by insulting its religion or religious beliefs" are punishable under Section 295A of the Indian Penal Code.
• "Uttering, remarks, etc., with malicious intent to damage the religious sensibilities of any person" is punishable under Section 298 of the IPC.
• The publication or dissemination of any comment, rumour, or report that incites animosity, hostility, or ill will between classes is punishable under Section 505 of the IPC.
• Hate speech is classified into two categories under Part VII of the Representation of People Act, 1951: electoral offences and corrupt practises. Sections 8, 8A, 123(3), 123(3A), and 125 of the RPA are the sections that apply to hate speech

Way Forward

• Hate speech is frequently rooted in intolerance and hatred and breeds it. In some situations, it can also be degrading and polarising.
• It poses a threat to societal harmony, democratic values, and peace. The government must always respond to hate speech as a matter of principle.
• Hate speech has been addressed in ways other than through the existing legal system.
• In order to curb hate speech and expression, particularly during elections, the government should also introduce broad reforms to criminal laws.