Streaming platforms may face challenges with children’s data in new Bill

According to the draft bill, which will be tabled in the Parliament in July-August 2023, OTT platforms must not track or carry out behavioural monitoring of children or promote advertising targeted at them.

However, experts said that complying with the new rules might be counter-productive, especially on parental consent, or ensuring that it is not a child masquerading as an adult, and may lead to children accessing inappropriate programming.

“If there is no tracking or monitoring of a child’s behaviour, children may be exposed to all kinds of content and may end up watching programmes or advertising not even meant for them, making the process counter-productive,” Supratim Chakraborty, partner at legal firm Khaitan & Co, said.

Besides, platforms will have to factor in costs related to the IT and security framework and compliance, manpower as well as educating consumers on the safety of personal data. Smaller players will also have to establish robust governance framework, industry insiders said.

Experts have rased red flags on the requirements for processing a child’s personal data, wherein platforms will have to obtain verifiable parental consent, including the consent of lawful guardians.

“It is entirely possible that a child is logging in himself or herself to watch a programme as per their liking,” said Gowree Gokhale, a partner at Nishith Desai Associates, who leads the IP, technology, media and entertainment law practice.

But, considering that a lot of platforms require just a mobile number to log in, it may be difficult to track user behaviour, whether it is a child or not, said Akshay Bardapurkar, founder of Planet Marathi.

Netflix, Prime Video, Amazon and Disney+Hotstar did not respond to Mint’s queries on the possible implications of the proposed law.

The other ambiguity arises from the fact that while there is a financial penalty for non-compliance with the provisions, it doesn’t come with criminal liability, Vinay Butani, partner at Economic Laws Practice, said.

To be fair, the draft bill has also simplified the data protection framework compared to previous iterations up to a certain extent and OTT platforms following global practices, may not find it very challenging to comply with the proposed law, but may increase the compliance requirements for most businesses, Shahana Chatterji, partner, Shardul Amarchand Mangaldas & Co, said.

“OTT platforms may be able to meet obligations without having to significantly alter their internal data protection practices. Those that operate across jurisdictions are likely to already have strong internal data protection practices meeting global standards, including appropriate notice and consent-related mechanisms.”

“OTT platforms may release revised T&C (terms and conditions) on monitoring as well as a redressal response mechanism and establish robust governance framework,” Chandrashekhar Mantha, partner, Deloitte India, said.

However, some key provisions envisage that enterprises will have to create internal processes and a structured framework to ensure compliance.

Basic requirements include, for example, giving a notice to the users on the type of personal data intended to be collected and the purpose of processing such data.