Regulation of OTT Platforms under the Telecom Regulatory Authority of India Act (TRAI Act)

By Saumya Sudarshini

Image Source: https://www.indiatvnews.com/technology/news/telecom-companies-asked-trai-to-recheck-on-ott-law-know-why-2023-02-16-847728

Introduction

In the fast-paced landscape of the modern environment, Over-The-Top (OTT) platforms have merged as trendsetters, reshaping the way we consume media. With only a click, these platforms provide a wide range of entertainment, including everything from exciting thrillers to touching dramas. In addition to changing our viewing choices, the emergence of industry giants like Netflix, Amazon Prime Video, and Disney+ Hotstar has forced regulators to review their current frameworks in order to keep in touch with the rapid advancements in digital technology.

At the center of this change stands the Telecom Regulatory Authority of India (TRAI), which was originally set up to oversee telecom services. However, as technology has blurred the lines between telecom and broadcasting, TRAI’s role has expanded to include monitoring of OTT platforms. This growth is more than just bureaucratic efforts; it is an important attempt to make sure that the boom of digital content doesn’t leave competitors, customers, and creators in darkness. As we delve into the complexities of TRAI’s approach to OTT regulation under the TRAI Act, we start on an expedition through the changing world of digital media, covering the problems, aims, and continuing discussions that define the regulatory landscape. This work reflect the rapid developments in the entertainment landscape and draws attention to the careful balance that TRAI aims to maintain in order to promote innovation, safeguard consumers, and provide an even playing field for all parties involved.

What are Over-The-Top (OTT) Platforms?

Over The Top, or OTT, is a platform that provides internet-based video and audio streaming of content. Any interference from broadcast media, satellite connections, and cable companies has been removed from it. Smartphones, computers, smart TVs, and other audio-visual devices with an internet connection may all easily access these media services.

Anyone who has paid for a subscription may sign up and access all of the media and entertainment sources across the different platforms without restriction. This service is equivalent to video-on-demand services, and it allows users to access digital content on a global scale. OTT platforms experienced a significant surge during the COVID-19 Pandemic, a time when the sector witnessed replication.

OTT Platforms in India

India is one of the largest markets for OTT services worldwide, with initiatives such as Digital India, and other government programs expected to further boost growth. High-speed access to the internet and more fair subscription costs have helped India’s OTT business grow by 20% over past three years. Twelve crore active paid OTT subscriptions are present today, touching over 42 crore viewers. Doordarshan’s shift from DTH to OTT has significantly changed the way Indians consume content. According to the one of the surveys that was conducted by the Eros- Now- KPMG, it was found that an average Indian person spent 70 minutes a day on an average on these platforms.

However, despite having such a large number of users, no permanent authority has yet been designated to oversee OTT sites in India. However, the government decided to take action against the digital content on these online platforms in 2019 in response to a number of complaints and concerns.

There are some Laws in India that regulate these OTT platforms:

1. The TRAI Act of 1997:
2. The TRAI Act was once designed to regulate telecom, but it has since been expanded to include the digital sphere, including OTT platforms.
3. The power of TRAI includes the recommendation of laws and rules for the broadcasting and telecommunications industries.
4. The Information Technology Act of 2000:
5. Intended to address legal issues pertaining to online content and electronic commerce.
6. Focuses on cybercrime and data protection, offering the legal foundation for the digital economy.
7. In 2022, the Central Government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 to regulate OTT platforms. In simple terms, the IT Rules (2021) basically tell social media platforms to be more careful about the stuff people post. They set up a kind of gentle self-regulation system with a Code of Ethics and a three-step process to handle complaints for OTT platforms. Moreover, every content creator has to join a self-regulation group. This group must register with the Ministry of Information and Broadcasting and deal with any complaints people might have.
8. Cinematograph Act 1952:
9. Despite having its roots in the film industry, this Act is still relevant when it comes to OTT services.
10. This act gives the government the authority to approve movies for general release and provides a means of monitoring content.
11. Self-Control of Over-The-Top Platforms:
12. Numerous platforms have set up their own content guidelines, with an emphasis on preventing offensive content, being sensitive to cultural differences, and enhancing user experience.

Regulation of OTT Platforms under TRAI Act

In India, the Telecom Regulatory Authority of India (TRAI) plays a pivotal role in shaping the regulation of telecommunication services under the TRAI Act.

Understanding the TRAI Act:

The TRAI Act was first passed in 1997 with the intention of regulating telecommunications services. But as communication methods expanded and technology developed, the TRAI Act was amended to reflect these changes. These days, it expands its regulatory jurisdiction to include control of over-the-top platforms as well as other facets of the digital world. The act gives TRAI (Telecom Regulatory Authority of India) the responsibility of not only formulating regulations but also making sure that they are in line with the varied requirements and goals of the Indian people.

Despite this, even today there is no clarity regarding this among the public, nor do government agencies have any clarity regarding this matter, nor has the government been successful in providing any concrete law or agency, which can help these OTT platforms to operate accordingly or meet their needs and requirements.

The most recent developments in India’s Over-the-Top (OTT) platform guidelines show a complex and changing environment. Here is an explanation of the main ideas:

Clarification of Jurisdiction by TDSAT:

In an interim order, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) emphasized that the Telecom Regulatory Authority of India (TRAI) does not have jurisdiction over over-the-top (OTT) services.

TDSAT has stated that these platforms are instead controlled by the Ministry of Information Technology’s supervision under the Information Technology Rules, 2021.

TRAI’s Earlier Stance on Regulatory Framework:

In previous years, TRAI recommended against creating a special regulatory framework for over-the-top (OTT) communication apps like Google Meet, Zoom, and WhatsApp.

This was a hands-off policy from the regulatory authorities, reflecting the notion that market forces should determine how OTT platforms operate.

Revisiting Regulatory Position

In a shift from its earlier position, TRAI has revisited its stance on regulatory intervention for OTT platforms.

In September 2020, TRAI had recommended against regulatory intervention, but the evolving landscape and possibly emerging concerns have prompted a reevaluation.

Consultations Initiated by TRAI

In June 2023, TRAI initiated consultations on how OTT services can be regulated effectively.

The regulator sought input from stakeholders, inviting suggestions on the regulation of these services.

Selective Banning Consideration

TRAI’s consultation paper includes considerations on whether selective banning of specific OTT services could be a viable approach rather than resorting to the extreme measure of entirely shutting down the internet.

Telecom Operators’ Advocacy

Telecom operators have long advocated for a regulatory framework that ensures a level playing field, often echoing the principle of ‘same service, same rules.’

Their demand for regulation stems from concerns about fair competition and a desire to establish consistent rules across the telecom and OTT sectors.

The recent developments underscore the dynamic nature of the regulatory discourse surrounding OTT platforms in India. The jurisdictional clarification by TDSAT, TRAI’s evolving stance, and the initiation of consultations reflect the need to strike a delicate balance between fostering innovation and ensuring responsible governance in the ever-expanding digital ecosystem. The considerations also highlight the importance of engaging stakeholders and the public in shaping regulations that align with the evolving needs and dynamics of the digital landscape.

Conclusion

As we come to a close, it is clear that the TRAI Act, a key piece of telecom regulations, has evolved with the times and gained greater influence over the ever-evolving field of over-the-top platforms.  OTT platforms’ self-regulation initiatives combined with TRAI’s consultative and cooperative approach create a model for the future. It is expected that the legal landscape, which is always changing to meet the requirements of society and innovation, will continue to be updated and amended.

The TRAI Act’s regulation of OTT platforms represents a commitment to balance: balancing traditional broadcasting with the revolutionary potential of digital platforms, balancing national regulatory control with the global reach of the internet, and balancing consumer rights with the creative freedom of content creators. At the end, we recognize that OTT platform regulation is a story that reflects the goals, complexities, and constant evolution of a society navigating the digital horizon. The narrative is still developing, and the regulatory ordeal created by the TRAI Act remains to be a crucial part of this continuous storyline.