How should Bangladesh go about regulating the OTT sector?
On July 15, 2020, the honourable High Court division directed to remove objectionable scenes from all web series on “over-the-top” (OTT) platforms. The High Court division gave such an order against a writ petition which was filed by an advocate as public interest litigation.
In the past five years, web series and content grew in popularity among people worldwide, and after the Covid-19 outbreak, they have only become more popular. Several international and local OTT platforms are now streaming and creating their web series and content in Bangladesh.
It has been claimed that web series containing objectionable scenes will have an adverse impact on our culture. Some feel that the content accessible on OTT platforms is not always appropriate for every person who has access to it or discovers it.
This matter has led to a rising demand for constituting regulations for OTT platforms. Unfortunately, specific guidelines or regulations for regulating the content of OTT platforms have not been made yet.
There are some existing laws in Bangladesh, such as the Cable Television Network Operations Act 2006, Pornography Control Act 2012, and Digital Security Act 2018, which can protect viewers from obscene and pornographic media content.
It will be a very tough job for the government to control or censor the content of OTT platforms with these existing laws because these laws do not have any dedicated provision to control or censor the content of such platforms.
This discussion, in fact, triggers three pertinent questions -- do we need to set up a dedicated law or regulation for controlling or censoring the content of OTT platforms? How is it regulated in other parts of the world?
And if our government creates laws or rules for controlling or censoring the obscenity on OTT platforms, does it produce a barrier to the fundamental right to freedom of speech and expression?
Before answering the first one, let’s find out how other countries deal with this matter. Singapore puts direct regulation on OTT content through its media regulatory body “Infocomm Media Development Authority” (IMDA). IMDA creates a content code (code of practice) for OTT services. According to this code, service providers are obligated to classify their content or web series.
In Australia, the Broadcasting Services Act 1992 is the primary legislation for governing OTT platforms. The co-regulatory scheme was introduced through this Act on January 1, 2000, which is a complaints-based method to regulate the OTT services.
This Broadcasting Services Act (BSA) put down comprehensive guidelines on the type of content which may be streamed online. So far, the Australian Classification Board (ACB) has been doing its job well by classifying both online and offline content. And BSA guidelines cover both content which has been classified and that which has not been classified by ACB.
In Turkey, the “Radio and Television Supreme Council” notified a regulation to regulate the OTT services. This regulation brings all OTT service providers under a licensing regime, which is quite an exceptional method of ruling.
The good thing is, as a global OTT service provider, Netflix is trying to comply with this regulation and has already applied for the streaming license.
The Indonesian Broadcasting Commission is a state body in Indonesia which regulates all broadcasting content. This authority announced that they would introduce rules and regulations for OTT platforms in Indonesia.
Now, let’s discuss the third question: If our country adds restrictions or censorship regarding obscenity in OTT services, does it generate a barrier to the fundamental right of freedom of speech and expression?
No doubt, article 39 of the constitution of Bangladesh guarantees complete freedom of speech and expression, but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality.
According to the case of Roth v United States , an obscene publication is outside the realm of constitutionally protected freedom of expression.
And in the same case, the US Supreme Court defined obscenity as something which is, “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”
It is relevant to mention that, in the case of Ajay Goswami v Union of India , the Apex Court of India stated that, “the definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions.”
Consequently, censoring OTT content to dispel obscenity does not stimulate impairment on the fundamental right to freedom of speech and expression.
So, what is the answer to the first question we asked above? As we know, in the global arena, the OTT service market is now in an extremely augmentative stage.
Most countries are observing an unexpected spike regarding the number of customers in OTT services or apps. A number of countries either already have regulations, or are now acutely considering laws to regulate the whole OTT sector.
The pressure is growing on the government in Bangladesh to censor or regulate this sector. Considering all the circumstances, Bangladesh will have to very cautiously study the exact requirement for the laws or regulations prior to drafts.
It is also essential to comprehend how to best acknowledge the needs of the general people of our country before presenting any sort of laws or regulations.
Md Siddiqur Rahman is Advocate & Head of the Chambers, Siddique Law Assign, Dhaka, Bangladesh. Fahad Bin Siddique is Associate Lawyer, Siddique Law Assign, Dhaka, Bangladesh.