OTT platforms and TRAI jurisdiction

Context

Recently, The Telecom Regulatory Authority of India (TRAI) and the Department of Telecommunications (DoT) are attempting to regulate OTT services, which have been challenged by the IT Ministry.

Background

The DoT had released a draft telecom Bill under which it wanted to classify OTT platforms as telecommunication services and regulate them like telecom operators.
The TRAI, separately, has issued a consultation paper on how to regulate OTT platforms.
The IT Ministry, however, believes that under the Allocation of Business Rules, internet-based communication services are not part of DoT’s jurisdiction.

About

About the information:

As per the India’s telecom appellate panel, over the top (OTT) streaming platforms do not fall under the jurisdiction of the Telecom Regulatory Authority of India (TRAI) and are governed under the Information Technology Rules, 2021, as notified by the IT Ministry.
In an order passed, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) said OTT platforms such as Disney+Hotstar are outside the purview of the TRAI Act since they do not require any permission or a licence from the Union government.
This is a significant position given that the TRAI and the Department of Telecommunications (DoT) are attempting to regulate OTT services, something that has been challenged by the IT Ministry.

What is Online Curated Content (OCC) Platforms?

OCC Platforms are companies that carry on the business which curates and presents a wide variety of content by means of online video-on-demand
Amazon Prime, Netflix, Hotstar, Zee5, etc., are examples of OCC Platforms operating in India.
These platforms operate on the basis of a “pull model”, whereby customers have the choice of viewing content as per their own convenience.

Intermediary Guidelines and Digital Media Ethics Code Rules, 2021:

Recently, the government has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
These new rules broadly deal with social media and over-the-top (OTT) platforms.
These rules have been framed in exercise of powers under Section 87 (2) of the Information Technology (IT) Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

Rules for OTT Platforms:

Self-Classification of Content: The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
Parental Lock: Platforms would be required to implement parental locks for content classified as U/A 13+ or higher and reliable age verification mechanisms for content classified as “A”.
Display Rating: Shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme.
For Publishers of News on Digital Media : They would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act 1995thereby providing a level playing field between the offline (Print, TV) and digital media.
Grievance Redressal Mechanism: A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
- Level-I: Self-regulation by the publishers;
- Level-II: Self-regulation by the self-regulating bodies of the publishers;
- Level-III: Oversight mechanism.
Self-regulation by the Publisher: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it.
- The officer shall take decision on every grievance received by it within 15 days.
Self-Regulatory Body:
- There may be one or more self-regulatory bodies of publishers.
- Such a body shall be headed by a retired judge of the SC, a High Court or independent eminent person and have not more than six members.
- Such a body will have to register with the Ministry of Information and Broadcasting.
- This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
Oversight Mechanism:
- Ministry of Information and Broadcasting shall formulate an oversight mechanism.
- It shall publish a charter for self-regulating bodies, including Codes of Practices.
- It shall establish an Inter-Departmental Committee for hearing grievances.

Telecom Regulatory Authority of India (TRAI):

It is a statutory body and regulates the telecommunications sector in the country.
The Telecom Regulatory Authority of India (TRAI) was established with effect from February 20, 1997, by an Act of Parliament, called the Telecom Regulatory Authority of India Act, 1997.
TRAI's mission is to ensure that the interests of consumers are protected and at the same time nurture conditions for growth of telecommunications, broadcasting and cable services in a manner and at a pace which will enable India to play a leading role in emerging global information society.