With the government amending the National Broadcasting Regulation 1995 recently, a key question has arisen - will foreign companies providing broadcasting services including OTT and VOD through the internet comply with the Regulation?
For a very long time we have been hearing the government’s intention to regulate the Over the Top (OTT) and internet content program services in Nepal. Well, the wait is over as the government recently came up with an amendment to the National Broadcasting Regulation 1995 (2052).
The 11th amendment to the Regulation has included OTT, Video on Demand (VOD), and internet television with the definition of Other Means of Communications. With the said inclusion, the Regulation now requires OTT and internet television to provide its service in Nepal. The term OTT has been defined as the service of displaying the programs as per the demand of the consumer through the internet without using the means of a DTH cable or a satellite and such term shall also include the media streaming services through other platforms by the means of internet. Further, Internet Television (Internet TV) has included the regular act of transmission of the self-produced audio-visual program through the internet.
This definition will require popular streaming service providers like YouTube, Netflix, amazon prime, etc. to obtain approval from the Ministry of Communication and Technology, Government of Nepal. The Regulation has further provisioned for the mandatory requirement of the cache server within Nepal if the OTT service provider intends to make any members or customers in Nepal or acquire any kind of fee from Nepal. It has also required the storage of user information within the server of Nepal. Further, the OTT service providers should keep a record of the programs transmitted by them, for at least 60 days time period and such shall also be made accessible to the Ministry and other governmental authorities in the process of investigation.
The content to be displayed through OTT must also be subject to categorization as per age. The “U” rating must be categorized for such content which is appropriate to all the age groups where “A” rating is provided to the content for the age group above 18 years. Same way, the “R” rating is provided to the content appropriate to the age groups of 10-18 years.
The Regulation also provisions that the Ministry can take in control such equipment or make necessary arrangements to disallow the operation of such equipment which has been used to transmit or communicate the program in an unauthorized manner without obtaining necessary license or approvals as required by the Regulation.
As the Regulation mandatorily requires an approval from the Ministry in order to distribute the content through the internet in Nepal, it will be interesting to see if the foreign companies providing such services through to the users based in Nepal comply with these provisions. Due to the limited market user in Nepal, it is less likely the service providers would be willing to register themselves in Nepal as it may also trigger other compliance requirements as per the laws of Nepal. Further, it would be too important to see what the government’s next move would be as the Regulation is silent on the time period to comply with such requirements and what would it do to foreign OTT service providers if they fail to comply with the licensing requirement of the Regulation.
(Suman Siwakoti is a corporate lawyer dealing with matters related to data privacy and e-commerce.)