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TRAI should not seek to regulate OTT services: Star India

Regulation of content in the digital space is a hotly debated topic and there is no resolution in sight so far. In May 2019, Supreme Court had directed the centre to regulate content streamed on various OTT platforms. This was done following a public interest litigation (PIL) filed by an NGO, Justice for Rights. Earlier in January 2019, the Internet and Mobile Association of India (IAMAI) had issued a self-regulatory Code of Best Practices for the OTT industry that was signed by major OTT players such as Hotstar, Voot, ZEE5, Arre, SonyLIV, ALT Balaji, Netflix and Eros Now. The Code, which was in the works for over a year, establishes guiding principles for Online Curated Content (OCC) Providers to conduct themselves in a responsible and transparent manner and at the same time ensures that consumer interests are protected. 

The Telecom Regulatory Authority of India (TRAI) sought to address various issues related to the functioning of the OTT industry in India in it consultation paper on ‘Regulatory Framework for Over-The-Top (OTT) communication Services’. Submitting its comments on the paper, Star India said that TRAI should not recommend any further regulation than which already exist, nor should it seek to regulate OTT communication services as they are not telecommunication services. The broadcaster pointed out, “OTTs are not licensees under Section 4 of the Indian Telegraph Act, 1885, and hence TRAI does not have the authority under the Act (Telecom Regulatory Authority Act, 1997) to regulate OTTs.” 

The internet ecosystem, of which OTTs are an integral part, is governed and regulated by the Information Technology Act, 2000 and the rules notified thereunder. In addition, all internet companies are subject to the extant law of the land such as the Competition Act, Consumer Protection Act, intellectual property laws, to name a few. These legislative frameworks set the commercial and technical parameters and the legal boundaries for OTTs to conduct business in a market-based environment. 

Commenting on “Substitutability” as the basis for regulating OTT ecosystem, Star India remarked, “The consultation paper assumes certain applications of OTTs as substitutes to TSP (Telecom Service Provider) services. This assumption appears unfounded and there is no discernible rationale in keeping with any existing legal criteria or technical parameters, such as those outlined in basic competition law on substitutability, for TRAI to have concluded so in the consultation paper.” 

TRAI has also expressed concerns over “Privacy, Security and Interception” in its consultation paper. Addressing this, Star India reiterated that provisions under the Information Technology Act and the rules notified thereunder specifically address these concerns. For instance, ‘lawful interception’ is governed by the provisions of the IT Act (Section 69), the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 and the IT (Intermediaries Guidelines) Rules, 2011. Similarly, provisions to safeguard citizen’s privacy and ensure their security online are governed by the IT Act and the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

Star India further said, “These regulatory frameworks are reinforced by provisions of the Draft Personal Data Protection Bill, 2018 submitted by the Committee of Experts on a Data Protection Framework for India under the chairmanship of Justice B N Srikrishna on July 27, 2018. Therefore, while the concerns may be valid, a framework for dealing with those concerns already exists under other legislations.”

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