Regulation of over-the-top platforms in Nepal

Over-The-Top (OTT) has become one of the most popular means of entertainment with the use of the internet. The internet has made accessibility of all the content through various platforms and websites. The Covid 19 pandemic has mandated remote working and remote communication and as a result mass entertainment platforms, such as theatres were closed, and people have been forced to opt for isolated means of entertainment which further boosted the use of OTT. OTT is a modern way of delivering content to end consumers. It differs from the traditional way of content delivery through broadcast, cable and satellite and is solely web centric. This advancement in content distribution has, by large, facilitated consumers as they have multiple choices of content to choose and watch as per their convenience and feasibility. With its increasing use and variety of content available on the various platforms, there have been several formal and informal discussions on regulating OTT around several jurisdictions, Nepal came up with an amendment to the National Broadcasting Rule 1995 (the National Broadcasting Rule) to regulate OTT. Through the 11th amendment to the National Broadcasting Rule dated March 3, 2022 (Falgun 19, 2078 BS), the Ministry of Communications and Information Technology (the Ministry) has introduced the licensing requirements to operate OTT services in Nepal. The National Broadcasting Rule mandates obtaining a licence by OTT service providers to render its services in Nepal. As OTT and traditional broadcasting services are completely different modules of content delivery, the regulation of such advanced services through almost a three-decade-old regulation, i.e., the National Broadcasting Rule will not give the desired outcome. By the application of amendments to the National Broadcasting Rule, several issues including definitions of OTT, registration and local presence, content rating, etc, have been raised by concerned stakeholders, which have been open-ended with ambiguity. The Ministry, through various news reports, has further informed that it will come with a directive/procedure to clarify the issues raised. However, it has not issued any procedural manual or guidelines on this matter so far. One very interesting fact is neither the National Broadcasting Act 1993 nor National Broadcasting Rule provides any statutory rights to issue any procedure/directive by the Ministry, hence it is yet to evaluate and analyse on what aspect the government will come up with the directives/procedure. Given the scenario, it is worthwhile to note that the regulation of OTT through the National Broadcasting Rule has not been effective, and it has further signalled the requirement of a separate legal as well as regulatory regime for the effective operation of OTT. The pragmatic view on this might be that open-ended issues of OTT can be provisioned in the Information Technology Bill 2019, which has already been tabled for discussion in the parliament. The issues relating to licensing, content regulations, data privacy, and data storage/transfer are some notable issues to be addressed in Nepal. In the context of licensing of OTT service providers in Nepal, one of the views of the existing broadcasting service providers has been to mandate licensing requirements for OTT service providers as they have an upper hand and unfair advantage as they are not required to pay any regulatory licence fees or other taxes to provide their services. Further, they are not required to comply with other regulatory issues that traditional broadcasters must comply with. However, the investment made by OTT providers in internet services, hosting and bandwidth, internet infrastructure, etc should not be ignored as this will also boost internet connectivity structure. Moreover, it should also be evaluated and structured from a global perspective as OTT service is beyond borders and the national market should also be taken into consideration while formulating national laws which in turn could be a hindrance/challenge to the growth of OTT services in this era of technological advancement. The content of the OTT is one among various issues widely discussed around the world. However, OTT content is not regulated in Nepal yet. Nepal Telecommunications Authority (NTA) has issued the Online Child Safety Guideline 2019 (2076) which puts various obligations on the service providers including (a) minimising access of children to unlawful and harmful content, and (b) categorising products or services availed through internet based on the age groups for its access in case the products are age sensitive and not applicable to all age groups, amongst others. Further, the Central Motion Picture Censor Committee (CMPCC), the regulatory authority, assigns the age rating to the movies for censorship certification before their release in movie theatres. Regulating OTT content cannot be practicable like movie theatres as there are numerous contents on the platform and certification/censorship of every content (like each episode in the series) from the regulatory authority will be near impossible. The government can, however, formulate directives/regulations segregating the content which can be accessible/restricted to children. We could also learn from Singapore. The Info-communications Media Development Authority of Singapore has issued a Content Code for ‘Over-The-Top’, ‘Video-On-Demand’, and ‘Niche Services’. The said code has categorised the scheme of the content which is restricted to adults as well as children along with complete restrictions on certain kinds of content. Lastly, the issue of data privacy has always been a matter of concern in Nepal. There have been numerous instances where unauthorised access to the user’s data has occurred in Nepal where none of the incidents was referred to the court or any significant action has been taken forward. As the consumer is also largely dependent on online transactions including digital payment systems, it is high time the regulator come up with a strict privacy regime that addresses issues of consent, data localisations, procedures for the transfer of data, and notification requirements in case of a data breach, appointment of data protection officer, among others. These issues must be considered to ensure the privacy of data subjects. Though some of these issues are included in the Information Technology Bill 2019, they should be revisited in several aspects, as the given provisions are not sufficient. For instance, the issues of security and appointment of data protection officers which are envisaged in the Information Technology Bill 2019, should also be extended to the private sectors which have been primarily dealing with the personal data of the users. READ ALSO:

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