I’ve reached a point where we’re already self-censoring based on the experiences we’ve had,” said Tanmay Bhat, co-founder of comedy collective All India Bakchod.

At the Mumbai edition of the #NAMApolicy discussion on online content regulation (read the reports on the Delhi edition here and here), industry executives and creators grappled with forthcoming regulations — even as much of their behaviour was shaped by regulations like the IT Act which already existed. Now that the Minister who headed the I&B Ministry when it announced its intent to regulate online content is no longer there, the fate of these efforts is unclear. But no announcement has been made about the committee, and whether it’ll continue to be around or not.

The panel on regulation of online entertainment content was moderated by Nikhil Pahwa, editor of MediaNama, and comprised Sameer Pitalwalla, founder of Culture Machine; Tanmay Bhat, a co-founder of the All India Bakchod comedy collective; Aamod Gupte, General Counsel at Eros International; and Uday Singh, managing director of MPA India, the Indian chapter of MPAA, which represents the six large Hollywood studios.

This discussion was held at the Hilton in Mumbai, with support from STAR India, Amazon and Google.

Regulation without trust: AIB’s Tanmay Bhat pointed out that there needs to be trust in any regulatory system for it to work: “Regulation is going to have a crazy impact on the mental psyche of creators when they’re creating. I’ve reached a point where we’re already self-censoring based on the experiences we’ve had. In India, it’s not just the punishment, in India the process itself becomes the punishment. We’re a society of mistrust because there’s no trust in the process. It will for sure have an effect on the way creators think. Our experience has been that any regulation will make it harder.”

Tanmay Bhat from AIB.

Office shut down as a form of self-regulation: Sameer Pitalwalla of Culture Machine pointed to an example in the past where Put Chutney, a Tamil brand, got in trouble in Chennai when they posted content featuring the late Chief Minister Jayalalithaa in the hospital: “The video was like a Schrodinger’s cat where you don’t know if she’s alive or dead, and a lot of people took offense to that, because of the sensitivity of the topic, and in any case Chennai was going through its own crisis that year. It had a storm, riots, and jallikattu; and then it had Jayalalithaa, so it was a great year for business. In that atmosphere, our team began to get threats and we had to get them out of the city and shut down the office. Even the local cops were conspiring and gave out our office’s address and our employees’ personal addresses, so we had to transport them to their relatives’ places.”

Tanmay Bhat also gave an example of the time the Mumbai Police filed an FIR based on a meme AIB posted on Prime Minister Narendra Modi. Same outcome: following a media frenzy and threats, the AIB office too had to shut down.

Maturity as a determinant of regulation: Aamod Gupte, General Counsel at Eros International, pointed out that regulation only comes in markets that have matured significantly: “The point boils down to this: how much is your maturity level as an industry? If you step back and look at regulation from a broad perspective — look at regulation at any other sector for a minute. Look at insurance. The moment it comes to a scale and gets mature you’ll have an IRDA that has been set up which was not there many years ago. In real estate you have RERA. But whether you like it or not, there’s a regulator which comes when there is scale and maturity. As an industry, digital media is getting to scale, and there’s a maturity.”

 

Culture Machine’s Sameer Pitallwala speaks.

Already regulated: Uday Singh from MPA India echoed a point that was raised in the Delhi edition of the discussion: “We already have a regulation which is the IT Act. Is there a need to go beyond it when you’ve laid down six or seven principles and are not doing anything to offend viewers? In terms of the restrictions… It’s very interesting to see how this will go. Reagan once said: if it moves, tax it, and if it keeps moving, regulate it. And if it stops, subsidize it. There’s a tendency to do that. That’ll always be the case, and there’s going to be a move to see how we can get a wider level of subjectivity to freedom of speech, which I think is of paramount importance.”

He added: “There are basically three areas govt looks at. One is control, one is taxation, and the third thing is what the messaging going to people is, which is also a form of control. If you look at these three dynamics, playing out country to country and location to location. You’ll find the more liberal ones which are democratic institutions, give way to what you want to speak. That’s where we come from. That’s the nation that we are.”

The issue with regulating people: TV channels are well-staffed with compliance officials, but online, where users create content, that’s difficult to impossible to do. Pitalwalla of Culture Machine said, “In the Kathua rape case, TV news channels come under POCSO, which means they can be held accountable if they reveal the victim’s name. But on social media, the perpetrators are people like you and me sharing Change.org petitions mentioning her name. It was all over our feeds and nobody will be fining Facebook.” (The Delhi High Court later issued a notice to Facebook, Twitter and Google for revealing the victim’s name.)

Eros India’s Aamod Gupte.

Jurisdiction and stakeholders: Gupte pointed out that MIB has no jurisdiction to regulate online content: “MIB is not the forum for online content at all, they have just no jurisdiction. MeitY is what they have publicly announced; so be it. There is enough power under IT Act which MeitY enforces. This is usurpation of power. There is no jurisdiction MIB has over this kind of content. We have publicly said that their only role has been to issue uplinking and downlinking licenses and to regulate that carriage of TV channels. It’s not really content. It’s not in their domain. Look at the MIB panel they’ve put together. Who are the stakeholders there? It’s all the babus who are not affected parties. They’re not the stakeholders who would have a say in the matter. Where is digital content representation? NBA and IBF are there, but OTT companies are completely missing. The stakeholders are missing.”

How self-regulation can happen: Pitalwalla said, “Self-regulation is not being done by the users, it’s done by the algorithm and the platforms. The fact of the matter is that a lot of content being commissioned by Amazon Prime Video is being self-regulated. Even Netflix. In fact, there was a big brouhaha that MediaNama reported on when Angry Indian Goddesses had been censored by Netflix and went up. It’s not the user who’s affected, it’s the platform because they cannot take safe harbour because India doesn’t have DMCA. That’s really what’s going to be regulated. They, in turn, will use Govind’s company BoomLive — it’ll be used as a place to train the algorithm to see what works and what doesn’t, that’s the only way to scale the self-regulation.”

There is no way you can take 400 hours of content uploaded every minute that grows exponentially on YouTube, Twitter Instagram, Sharechat, and you already see the problem with Facebook. Today if you put up copyrighted content, the fact of the matter is that Facebook’s ContentID system [to flag copyrighted content] isn’t as good as YouTube’s, and that causes a lot of firms to grow their viewership really quickly. In the future, if you think of a long term basis, the only way to regulate stuff is when the platform itself moves at the speed of culture, gets trained, and then the algorithms themselves will self-curate. That’s the only end-game scenario. It can’t be the government.”

Uday Singh is the Managing Director of MPA India.

Do Indians protect free speech? Tanmay Bhat pointed out that even though laws and regulations are in place to protect their speech, content gets them in trouble without any of those protections kicking in: “The authorities themselves aren’t trained to figure out— with our meme FIR case, we made a meme, and the government supporters went crazy and started spamming the Mumbai Police handle saying ‘arrest these people’. Some hapless guy at the police saw that there saw 500 people tweeting to him saying we have to do something about it, and filed an FIR. This guy is not educated to understand what Snapchat is, what a meme is, what the joke is, and just went ahead and did it. Then there’s the hullabaloo of the media and the office shuts down for a while. Forget algorithms, people in charge of these things need to understand what is happening. The police even put out a statement saying ‘We have asked Orkut to take down the meme’. This is legit. So how do you— self-censorship is a whole other ballgame. The worry is that some people will get angry, and that will result in business shutting down for fifteen days. So our problem is very different. Our problem is that we’re looked at at a certain way.”

Aamod Gupte recalled an exchange from a court hearing before the cable TV industry agreed to self-regulate: “You’ll be shocked to know, there was a discussion in the court, when regulation was being discussed, and I’m talking about a situation in which the petitioners said that ‘let the content be first pre-censored before it is uplinked, and then let’s view it, approve it, and then allow downlink’.”

 

Quotes have been lightly edited for clarity.