What is the ambit of online entertainment content? Do we strictly look at professionally produced content on Netflix or Hotstar or do we also club a video of a cat playing outdoors that is uploaded a Twitter in the same bucket? Dr. Subho Ray, the President of the Internet and Mobile Association of India, at MediaNama’s discussion on “Online Content Regulation” in Delhi said that “Anything can be content. What I produce, I decide whether I make it content or something else. So if you start defining from top-down, I don’t think you ever get the correct approach. I for one think that news is the biggest form of entertainment today, and most people will disagree with me. I’m being serious because you are trying to produce of definition for something which you cannot have a definition. So I would put on record that there is no need to define content.” Dr Ray was speaking his personal capacity.

The video:

This discussion was held at the India Habitat Centre in Delhi, with support from STAR India, Amazon and Google. The discussion explored various issues surrounding regulation of entertainment content like possible challenges with regards to labelling entertainment, discerning between various types of platforms, censorship among others:

Defining entertainment content

Vibodh Parthasarathi, Associate Professor at Jamia Millia Islamia elaborated on the classification of the types of content, “Content has two forms, there is the speech form of content and then there is the commodity form [of content], what we actually pay for. So for me, those broad distinctions are important.” Later, he said that “There are different ways in which commodity form is already being restricted. So if you ask me if content should be regulated, on the issue of speech I would say no but when we talk about it as a commodity the answer is yes.”

Arpita Biswas, who works on free speech issues at Centre for Communication Governance said, “We must work backwards from what already is regulated and what isn’t (on defining content). Print media, for example, has specific self-regulatory mechanisms which streaming platforms still don’t have. In fact they don’t have any form of regulation. So for the context of this discussion we need to focus on whatever isn’t regulated.”

MediaNama’s Aroon Deep also spoke about classifying content as entertainment, “I think the line between speech and entertainment is that what is the power of the producer to comply with standards they can adhere to and what is the size of the audience they regularly reach. In short form videos, you will have a very small portion of creators who reach large scale. You don’t get ‘Gangnam Style’ from millions of people, you have a small collection of artists who have the backing they need to reach large audiences. And they are bound by advertising and acceptability standards that advertisers have. So it makes sense to limit what you want to regulate as entertainment content to TV Shows, Movies and other content that is broadcast to large audiences.”

Aroon Deep then mentioned the various RTI pleas he had filed in the past year to find out if the Central Board of Film Certification (CBFC) or the I&B ministry had any plans on regulation streaming services, particularly paid online content. The CBFC said that they didn’t, and “insisted that their ambit was limited to theatrical releases and they were not interested in having their authority extended to include online content.” Multiple RTI’s were filed with the I&B Ministry, which also did not want to regulate online content. “And now suddenly they got up and said we want to regulate news and let’s do this (streaming platforms) also.”

On Self-regulation

In terms of creating standards, to possibly pre-empt the government’s regulatory efforts, Biswas said, “One of the good things about self-regulation is that because it is industry insiders who are developing the code, they know what’s best for them and it also allows some flexibility.” Subho Ray, however, had strong views on self-regulation, “From a business side my problem with self-regulation is that people who are already legally doing business with some bit of good practices and self-compliance, they get overburdened with a self-regulatory code. While people who not registered as legitimate entities will not comply with any of these laws or self-regulation. So you will still have a vast number of people over whom nobody has regulatory powers.”

The issue with self-regulation is that it can turn into self-censorship. This has happened with Netflix and Hotstar earlier with Angry Indian Goddesses and some other films. Biswas said, “The instances in which self-regulation turns into self-censorship is when there is external pressure. If you look at Facebook for instance, there was an anti-hate speech law that was implemented in Germany and this led to a lot of censorship on the platform. This was because of pressure from the government and Facebook decided to over-comply to some extent.”

Aroon Deep talked about how self-regulation works best when it is built upon institutions that have a solid framework and public trust, “Globally the primary objective of entertainment regulation has been classification and not really any kind of censorship. In a country like the UK classification has credibility as a public process. Netflix in the UK has the BBFC rating on each title even if they are not required by law to do so. Netflix goes the extra mile there and gets all its content rated by the BBFC. That’s because of the public trust in the process and the institution. When you don’t have that kind of a framework, which the CBFC doesn’t, you don’t have the kind of public credibility that the BBFC or the MPAA for example have. In that scenario, our best bet is to keep doing what we do and hope that international best practices keep you afloat.”

Parthasarathi continued the discussion on self-regulation. “In regulatory theory, the idea of self-regulation emerged at a time when it was thought that there are certain activities which are not central to the function of society and if those activities are regulated by communities the state wouldn’t mind it. The big fault line here is that if you think something is central to the functioning of society then according to that theoretical framework its something that is not amenable or not apt for self-regulation.” He continued, “For me, the pressures on self-regulatory bodies are largely self-created. The burden is taken on by them to over-comply. That is the other fault line with self-regulation, we want bodies outside the state to try and do this monitoring work because we don’t trust regimes. But at the same time bodies outside the state would lack the kind of teeth that a statutory body would have.”

Should reach and viewers dictate regulation?

What factors should be kept in mind while approaching regulation of online entertainment? Aroon Deep said, “The key factor is the difference between broadcasting content and narrowcasting content. Anyone can watch Doordarshan, all you have to do is get a free dish antenna. That then essentially has to come with a lot more regulation than something like Netflix where you have to log in and enter your payment details, you also see all these content description and warnings. And the number of Netflix viewers is a fraction of that compared to DD. So that should necessarily be treated differently than broadcast.”

Biswas agreed with his point of view, “Access should play a role in the way content is regulated. But on what other factors should determine if a content should be regulated is a dangerous thing to go into because there is no precedent. And if you draw from existing norms like CBFC you could end up causing harm for these platforms.”

On the issue of obscenity which was brought up by a member of the audience, Deep chimed in, “Whatever obscenity laws exist are kind of sufficient. Obscenity is pretty much what society considers it. When you have an industry that is so necessarily intertwined with the expectations of what society considers acceptable, then a separate definition obscenity is not necessary. As far as specific cases go, you regulate for the norm, not the exception.” He later opined that “As far as entertainment goes it is safe to be reactive, if there is a real-life harm then you regulate.”

Why is government looking regulate now?

On the issue of why regulate now Ray commented, “It’s not the government doing it, it’s the state who is doing this and through a wrong instrument. Previous governments have done similar or worse things. They may do it for whatever reason they want to but it is for us to ask why.” He also highlighted the fact the burden of compliance on online companies is already pretty steep, “Internet companies follow all the other laws of the land meant for all mediums and also the IT act.”

Protecting free speech online

One of the questions that came up during the discussion is how arbitrary blocking of content by platforms affects a content creator’s livelihood and freedom. Naveen Kanwadia, who works for Hotstar commented in his personal capacity, “In India, within our freedom of speech and expression and freedom of livelihood and occupation they both fall under the same set of fundamental rights that is Article 19. There is a clear line of judicial approach where even commercial speech has been held to be protected within the right freedom of speech and expression. Going back to the Sakal newspaper case where the government actually tried to control print media by controlling the newsprint. Similarly today in broadcast, that can be denied access to satellites and in case of the Internet, it could be blatant internet shutdowns. There is a clear differentiation between those who create the content and the carriage methodology used for delivering it to the people.

How are platforms reacting

One question that came up was regarding how are platforms regulating the content and how is it different from platforms which host or license professional content like Hotstar, Netflix versus platforms driven by user-uploaded content like Youtube and Facebook.

Kanwadia said, “As a platform (Hotstar) which actively creates content, there is a lot of investment being made in creating filters like parental controls. But a user-generated content platform will not do moderate their content in a similar way as they have the safe harbour regulations protecting them. For a platform which creates and publishes content, the threshold of liability is so much higher than platforms which are basically denouncing any responsibility at all. The person creating the content is always the easy target. A content creator because of the virtue of having ownership of the content is always easier to pin down. This dichotomy that exists right now needs to be addressed.” He added that “I’m not asking for more regulation or more liability for user content driven platforms, but rather a reduction of liability for everyone. The liability of the broadcast is far higher than any digital platform aswell, so this needs to be addressed. Unlike the net neutrality debate here the legacy media platform is asking for a reduction in regulation for everyone digital and broadcast because freedom of speech is the bread and butter for any content creator or broadcaster.”

Chinmayi Arun, from CCG at NLU Delhi, had a slightly different take on the issue, “Prior to the internet the speakers had a more direct right in terms of questioning the way in which the government was regulating them and the danger of having our speech mediated via an online platform is that sometimes the platform can take a censorship decision that is not consistent with the constitution and there is nothing you can do.” She then threw out a question asking if a system in which if users were able to appeal a platform’s decisions and if it is a powerful enough platform, then take it all the way to the judiciary.”

Kanwadia, responded by saying that, “No platform would ever want to take away content that they have invested in. Usually, excessive self-regulation happens when there is a threat of overt regulation. This is where the self-regulatory mechanism can work better. If there was a proper self-regulatory mechanism then probably the same right of appeal will be available to the consumer. In case of a statutory regulation process, it would in all probability be an immediate takedown and not an appeal.”

Chinmayi Arun responded to that, saying, “The debate has moved on substantially. Earlier when we were doing the intermediary liability debate, Center for Internet and Society had done a piece of research which looked into how far platforms are over responding to notices. And they found it to be pretty far. I don’t think its even a debate anymore that platforms tend to be risk averse and tend to over-regulate to avoid consequences. That doesn’t mean they are out to stifle free speech but that’s just the reality of how markets work.”

Kanwadia said, ” What is required in the judicial approach is the user-generated platform to be amenable as they are heavily protected. The professional content entity is anyways amenable to all judicial provisions available. If some kind of citizen scrutiny has to be brought in, it has to be brought in for them.”

But this brought up the question what distinguishes user-generated and professional content, Journalist Kim Arora who was hosting the panel asked, “How does the distinction between user-generated content and professional content? What happens when say a Vice Media or T-Series uploads content on YouTube?” The consensus on this issue once again was that it is hard to use such labels.

Cyril Sam who is a fellow at the International Center for Journalists felt that going after the content was the wrong approach, “When we moved to an engagement based economy this led to the growth of poor content. (The type of content everyone wants to regulate) We need to hurt platforms and their business models through regulation. That might help us solve the problem.”

Notes:

  • Quotes have been edited lightly for clarity.
  • Naveen Kanwadia and Dr Subho Ray were speaking in their personal capacity