From taboo topics to IPR: How OTT platforms can avoid and manage potential legal pitfalls

Netflix was recently served a legal notice over certain references made to a popular Bollywood actor in an episode of American sitcom The Big Bang Theory that premiered over a decade ago.

This is just one of the many examples in the recent past where shows and over-the-top (OTT) platforms have borne the brunt of complaints from various quarters of society.

The ease with which such platforms provide access to a wide variety of content from across the world - both old and new - has caused a surge in legal disputes. And as the above cited example highlights, creators and broadcasters of content are even susceptible to future lawsuits and controversies. 

So how do such platforms avoid such situations? What are the regulations governing the field? And what advice do lawyers give their clients?

Risk-assessment and script review

Experts working in this field have identified assessment of possible risks as one of the safeguards to avoid prospective issues that may arise following the release of a film or a show.

Ameet Datta has spent over two decades defending and advising clients in the media and entertainment field. While legal notices may depend on the content’s subject matter, a strategy has to be in place to tackle ensuing legal exposure, he says.

And how does one react to a legal notice?

Datta explains,

“It really depends. So when legal notices are served, every legal notice should be taken seriously. It should not be assumed that a legal notice will not lead to a follow up of legal exposure. The assumption to the contrary should be that there is now legal exposure because obviously claims are covered under third party, under your insurance, projects are in short for precisely these sort of claims."

In such cases, it is the process that often becomes the punishment even though the laws that have developed in the domain of content are more or less liberal. 

A scenario may arise where injunctions are secured in remote towns or processes are issued to important people or well-known celebrities from remote towns that require a different level of expertise.

One can send a lawyer in response to a notice in which civil action is sought, but criminal process requires an accused to present themselves before a court.

With OTTs pushing the creative envelope by showcasing content that would traditionally be considered inflammatory, obscene or vulgar, the State is often prompted to step in, often citing maintenance of law and order as a reason.

“So from that perspective, where content is concerned, it has become an even riskier sort of business, which requires, in my view, assessment at different levels. Some of the levels are at the scripting stage. At the story stage — an assessment of what the story is,” says Datta. 

The quotient of sensitivity and acknowledgement of social and administrative norms seems to be growing lately. In order to minimise any prospective protestations, content is increasingly run through a fine-tooth comb by creators and their legal teams.

To illustrate, a movie or a show depicting incorrect uniforms of security forces or ranking badges may attract objections. To avoid the fallout from these inaccuracies, experts prescribe due diligence on scripts.

Ameet Naik, Managing Partner at Mumbai-based law firm Naik Naik & Company, advises limited correspondence when legal action is sought through a notice after a substantial lapse of time post the release of a show or a movie.

On the other hand, given the wide scope of defamation law and what could perceived to be obscene, a script review could help. 

“So the precaution is that you must do what is known as a script review,” Naik cautions.

He underscored a smarter approach when it comes to litigation, especially in the time of OTTs and social media. Content or the language used in content that may be perceived obscene should be avoided, keeping in mind cultural sensitivities, he added.   

Navigating taboo topics

Many of the objections to online content pertain to historical figures.

In January 2022, a man moved the Supreme Court for a stay on the OTT release of a movie titled Why I Killed Gandhi. The movie, it was contended, defamed and tarnished the image of the Father of the Nation and glorified his killer, Nathuram Godse.

Apart from seeking a stay on the film’s release, the petitioner significantly sought regulation of OTT platforms.

Another controversial element that often strikes a discordant note with many - with even the Delhi High Court recently censuring its usage in a web series - is the use of profanity in shows.

The language used in the show College Romance prompted a trial court to direct the Delhi Police to register a case against the production house TVF, the director and an actor.

When the parties moved a plea before the Delhi High Court, even the judge hearing the plea couldn’t hold back from observing that the show’s language compelled her to “use headphones” in her chamber for it would have elicited a sense of “shock and alarm” among the people in proximity. 

The judge’s order went on to record, 

“Though such web series may portray a certain part of society, the popular culture of this country still identifies with and adopts point of view of civil language.”

In a country that is obsessed with religion, creative interpretations can sometimes rub people the wrong way. For example, the Amazon Prime web-series Tandav faced police action after it allegedly hurt religious sentiments.

An FIR was lodged against its makers and Aparna Purohit, the head of Amazon Prime, which aired it. The accused subsequently moved the Allahabad High Court for anticipatory bail.

It was argued before the Court that the series had depicted Hindu Gods and Goddesses in bad light, with the intention of inciting communal sentiments. The single-judge hearing Purohit’s anticipatory bail plea rejected it and remarked that “the sentiments of majority community have been hurt” through the disrespectful display of the characters of their faith.

Owing to the objections, the makers also had to remove some of the problematic scenes from the show. 

Although the Supreme Court later granted interim relief to Purohit, it underlined the need for screening of such shows on OTT platforms.

Advocate Anuuj Taandon had appeared for the makers of Tandav and Amazon Prime before the Supreme Court. He recalled the filing of over a dozen FIRs in different states over a single issue in that case.

Another issue was the invocation of the offence of “cyber terrorism” under the Information Technology Act. All other offences alleged were punishable with maximum of two years of jail or fine.

“Cyber terrorism for a OTT platform, a simple show, web series? You may disagree with some of the content of that web series, but it will not amount to cyber terrorism by any stretch of imagination. They invoked it because it was punishable with imprisonment for life,” says Taandon. 

Regulation through the IT Rules, 2021

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 released by the Central government sought to address the issue of regulation of online content.

This was perhaps the first time that “online curated content” was defined to regulate “the context, theme, tone, impact and target audience of such content”.

However, various stakeholders have criticised these Rules, citing the threat they pose to creative freedom.

During the hearing of Purohit's plea in the apex court, Solicitor General Tushar Mehta mentioned that the IT Rules, 2021 were meant for regulating content on OTT platforms.

The Supreme Court, however, found "no teeth" in the Rules, saying that these were merely guidelines.

"Without legislation you cannot control it," the Court remarked.

Mehta then submitted that the government would prepare a draft law and submit it before court for consideration.

Little to no clarity on the legal framework within which the OTT industry can function also seems to have added to the confusion.

OTT, IP and Copyright

Issues surrounding intellectual property (IP) of content on OTT platforms are increasingly cropping up.

Most recently, a copyright infringement suit filed in the Delhi High Court claimed that the Ranbir Kapoor-starrer Shamshera was based on the petitioner's literary work Kabu Na Chhadein Khet. The Court allowed its release on an OTT platform subject to its producer, Yash Raj Films Private Limited, depositing a sum of ₹1 crore with the Registry.

Some months before that, an IP issue over Ranveer Singh-starrer 83 cropped up before the Bombay High Court. The tussle was over the broadcast of the film on streaming sites Netflix and Disney Hotstar.

The plaintiff company had claimed the film’s IP rights, arguing that the exploitation rights was vested in it for the first 10 years after release of the film. 

The Bombay High Court held that Netflix and Hotstar already had antecedent rights, both digital and satellite, and that the plaintiff could not claim IP rights.

Some years ago, a suit was moved before Bombay High Court claiming that after viewing the trailer of a series named Betaal, it could be discerned that the show was a copy of the plaintiff’s copyrighted Vetaal, with a minimum of 13 similarities. 

The suit, therefore, contented that Netflix had infringed the plaintiff's registered copyright work. The High Court, however, refused to grant any stay on the OTT release of the show. 

In that case, Senior Advocate Sharan Jagtiani, appearing for Netflix, argued that the similarities highlighted by the screenwriters were mere ideas, that too generic, without any copyrightable elements.

Siddharth Kanakia’s firm Lexicon Law Partners was instrumental in a recent licensing transaction between the Bengaluru-based producers of the film Kantara and streaming platforms Netflix and Amazon.

The OTT rights for the film in languages such as Kannada, Telugu, Tamil and Malayalam were licensed to Amazon, whereas the OTT rights for Hindi and English were licensed to Netflix.

Kanakia says that given the growth of the OTT space, IP and copyright issues are burgeoning. 

“With IT Rules 2021 regulating intermediaries and OTT platforms, OTTs have had to classify the content themselves and a three-tier grievance mechanism has also been set up. While the ever-adapting concept of intellectual property laws and the Copyright Act 1957 does protect OTT content for 60 years, the expansion of this online content space has made it even more susceptible to cyber-attacks, piracy and infringement,” he explains. 

While “cease and desist” notices often ensure immediate removal of infringing content, the need of the hour is a robust mechanism for striking a balance between creativity and regulation, adds Kanakia.

Creative freedom versus avoiding conflict: A balancing act

A lawyer who engages in daily troubleshooting of various legal issues as counsel to one of the premier OTT platforms says that religion seems to be the most sensitive subject in the country.  

 “And then obviously historical figures, maps, like all those become points where I think the larger question for any OTT platform in today's world,” the counsel said on the condition of anonymity.

But the essential question that he faces is whether to go through the rigmarole or question if it is even worth the issue.

“My fundamental point of view comes from a different mindset. I’d say while there is a balance towards obviously ensuring that one doesn’t fall foul of anything legally, my position would be to let the artist create." 

He opined that scripts were to be reviewed till the end product was balanced with the least amount of intrusion, allowing creative freedom to shape an artist’s work. 

The counsel feels that the outrage on social media against so-called contentious content is "immensely driven” by trolls and bots. Therefore, one needs to “distill the truth from the chaff” and not get perturbed by it.