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Comment: Self-regulation a positive step for OCC platforms, but...

For how long will video streaming services stave off direct govt intervention?

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At a high profile event in Delhi last week, a section of the Indian digital industry, comprising some of the biggest global players and domestic thoroughbreds who now define themselves as online curated content (OCC) platforms, announced a self-regulatory code --- distancing itself from user-generated content or UGC platforms.

That the formal launch of the self-regulatory code, signed by nine platforms till now, was preceded by a bit of drama, backroom politics and media leaks involving the content and phrasing of the code --- highlighting the proponents and critics of the self-regulatory mechanism --- is another tale worthy of another time and place as the devil always lies in the fine print, though a Reuters report did bring out the divergent views. 

The objectives of this OCC Code, drafted by an industry body Internet and Mobile Association of India (IAMAI) after consultations with the stakeholders are as follows: 

• Empower consumers to make informed choices on age-appropriate content; 
• Protect the interests of consumers in choosing and accessing the content they want to watch, at their own time and convenience; 
• Safeguard and respect creative freedom of content creators and artists; 
• Nurture creativity, create an ecosystem fostering innovation and abide by an individual’s freedom of speech and expression; and 
• Provide a mechanism for complaints redressal in relation to content made available by respective OCC Providers. 

Though highly laudable and praiseworthy a move, there’s no denying the fact that with curated content getting increasingly edgy in India in an hitherto unregulated environment, the government, nudged by the judiciary, has been actively toying with the idea of setting government-mandated guidelines, a fact that has been officially denied in and out of the parliament. The looming general elections in a few months time has made the government, probably, more circumspect.

But it would be interesting to analyse the move of the fledgling OCC industry that boasts of several billions of investments in original Indian content by international and domestic players like Netflix, Amazon Prime Video, Hotstar, Zee5, Voot, Reliance Jio, etc. 

Types of streaming services

The online video industry primarily has two segments:

# Curated video on demand (VoD) applications, which refer to digital applications that provision proprietary content for which application/platform concerned indulge in curating the content made available. 

# UGC platforms/applications refer to those platforms/applications that allow users to upload content and make it available for other users to stream. In this case, the entity owning the application performs no role in curating/editorialising the content made available through its platform.

# There’s a third category too of streaming services that are a hybrid of curated and UG content.

As the professional video streaming applications exercise editorial control (curation) over the content made available through their platforms, they are liable for such content.

On the other hand, UGC platforms enjoy certain protection within the Indian law framework as they can be classified as “intermediaries” under Section 79 of the IT Act, 2000. They shall not be held liable for the content distributed through their systems if they did not initiate the transmission; select the receiver of transmission and select or modify the information contained in the transmission.

However this provision is not a blanket protection as the platform can in no situation escape the responsibility to act in conformity with law as the same section clearly states “the intermediary observes due diligence while discharging his duties under this act and also observes such other guidelines as the central government may prescribe in this behalf” and “the intermediary has [not] conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act”.

The said safe harbour continues to operate only for 36 hours, which means the intermediary has only 36 hours to acknowledge the receipt of complaints from the aggrieved user and a period of 30 days to respond to the same.

While Section 79 of the IT Act was originally intended to provide time to intermediaries to act in alacrity with the law and get their act in order, however, in practice it has been abused by UGC and social media platforms that have used it as a protective wall to prevent any action against them.

Existence of self-regulatory mechanisms for content industry

Self-regulatory/co-regulatory mechanisms for content regulation have long held field for governance of editorialised or curated in content in India.

The print media has Press Council of India (PCI); the news and current affairs broadcast has News Broadcast Standards Authority (NBSA); non-news broadcast has Broadcast Content Complaints Council (BCCC) under the Indian broadcasting Federation and advertisement sector has Advertising Standards Council of India (ASCI).

TV content, generally, is regulated in multiple ways that range from statutory regulation to self-regulation. The content or programmes on these channels are regulated by the Cable Television Networks (Regulation) Act, 1995, which consists of a programme and the advertising codes that all content transmitted or retransmitted on television must adhere to. The programme and the advertising codes are collectively called “codes” and are mentioned in the Cable Television Networks (Rules), 1994.

The programme code largely regulates the content that should be shown on TV. For example, the programme code prohibits airing any content that may not be suitable for public viewing that may be otherwise prohibited under the Cinematograph Act, 1952. This code also prevents the airing of content that may be in contravention of prevalent policies such as obscenity, communal disharmony, child pornography, etc.

However, to ensure the independence of the media, a self-regulating provision has also been acknowledged by the state. To that end, IBF and NBA’s guidelines for regulating all content on TV across all forms of transmission --- cable, terrestrial, DTH, IPTV, etc. --- have helped, but have raised some questions too. The self regulatory codes will be applicable on NBA and IBF members who can be penalised by the self-regulatory bodies, but what about the non-members? Not all the 650-odd on-air TV channels out of the 800+ government permitted channels are members of IBF or NBA or both. 

Still, the need and importance of self-regulatory mechanisms in India was observed by the Supreme Court of India in the case of Common Cause vs. Union of India where it affirmed and recognised the self-regulatory mechanism put in place for advertising content by ASCI. 

Case for self-regulation by OCC platforms

As envisioned by the Indian government’s Digital India initiative, access to digital services (government and entertainment services included) is now at the centre of India’s collective rise transcending urban/ rural, income and gender divides. 

At present the OTT space is being regulated by the Ministry of Electronics and Information Technology (MeitY), which, as per government rules, is the ministry in charge of making policies in all matters relating to information technology, electronics and internet except licensing of Internet Service Providers. It is also in charge of matters relating to the Information Technology Act, 2000. 

Information Technology Act, 2000 as India’s primary cyber law legislation provides for punishment for new offences such as publishing or transmitting obscene materials, materials containing sexually explicit acts and materials depicting children in sexually explicit acts.

Moreover, intermediaries are subject to the Information Technology (Intermediary guidelines) Rules, 2011, which require intermediaries to publish rules and regulations as well as a privacy policy, and terms and conditions or user agreements that inform users not to use the platform to upload or transmit information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling.

Well aware of any government’s leanings towards an Orwellian Big Brother-regime, Supreme Court has noted the value and importance of the internet as a medium, and has warned against excessive censorship underlining the importance of keeping the internet open and free. This is notably evidenced by the striking down of Section 66A of the Information Technology Act 2000 in a historic case few years back, which upheld the freedom of speech and expression. The court held that words like ‘offensive’, ‘annoying’, ‘menacing’, ‘insulting’ used in the section as grounds for restriction on speech on the internet were too vague and that this would have a chilling effect on speech on the internet. 

Presently, there is no single regime regulating online content. This makes online content platforms soft targets and vulnerable in the whole scheme of things as they are subject to multiple existing criminal and civil laws. Some media reports some time back highlighted the self-censorship of content being undertaken by some OTT platforms – much before the self-regulatory code were announced and by those platforms that have not yet signed on for the last week’s announced codes. 

Implementing a framework for self-regulation for curated VoD platforms could work as a guiding principle for OCC platforms and could ensure that the stakeholders regulate their content in a responsible and professional manner, protect users from illegal, infringing and discriminatory content (after all pirated content too cannot be allowed a free run as it results in loss of big time revenue), while being mindful of the need to nurture creativity, foster innovation and abide by the citizens’ freedom of speech and expression, and their right to receive information.

To create an environment of responsibility in the online video space, it is necessary for the VoD industry to appreciate the genuine need of consumers for a safer viewing experience. In the Indian context, the needs of consumers get enhanced due to emphasis on family viewing as multiple-devise or solo viewing is still not a mass phenomenon.

In the Indian scenario, the industry shall have to contend with the diverse socio-cultural and economic strata that exist within our society that bring along a complex set of different sensitivities. 
With such a background, it is important, that the curated VoD industry agrees to a common set of principles, which reflect the following:

# Empowering consumers to make informed choice regarding appropriate content for their families and themselves;

# Protecting interests of consumers in making available content they want to view;

# Safeguarding the freedom of creative community, while achieving the above two objectives. 

The self-regulatory code for OCC platforms made public by IAMAI does address most of the aforementioned points, but also raises questions like:

# Will the days of edgy domestic and international content for Indian consumers be soon over?

# Will it lead the government to crack the whip via mandated guidelines if such self-regulation fails to rein in the errant ones?

Questions that only the future can answer as we at Indiantelevision.com still haven’t laid our hands on a future-predicting crystal ball.

However, enlisted below are some self-regulatory regimes from other parts of the globe that seem to be working? These global practices around regulations in curated VoD space indicate that many regulators and governments have refrained from imposing heavy regulatory control to avoid burdening the segment with legacy regulations and allowing it to grow optimally. Importantly, user choice and control have been prioritised over blocking of content to ensure protection of minors. Built in safe guards (like age filters and proper messaging about content type) have helped prevent access to objectionable content on an opt-in basis.
 
Comparative Summary of OTT-Content Regulatory Frameworks

Jurisdiction

Regulatory Approach

Description

Canada

Self-Regulation

Canada has a strong system of self-regulatory practices which encourage industry partnerships with government as well as with each other to come up with codes of practice. The Canadian Association of Internet Providers (CAIP) became one of the first industry associations to come up with a code of conduct and this has been leveraged as a template for a number of online-industry designed codes to address various concerns like protection of personal information and protection of consumers of E-commerce.

Japan

Self-Regulation

In the absence of an independent regulatory commission, Japan’s internet industry is another jurisdiction to have embraced self-regulation. Non-governmental, non-profit organisations have been formed, with the support of for profit organisations, to regulate the industry. This includes the Content Evaluation and Monitoring Association and the Internet Content Safety Association

Australia

Australian Communications and Media Authority (ACMA)

Co-Regulation

Legislative scheme requires ACMA, which is the converged regulator for broadcasting, telecom and the internet, to give the industry an opportunity to develop co-regulatory solutions before other forms of intervention are considered, with the regulator maintaining reserve powers to intervene when co-regulation has not adequately addressed issues of concern.

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