When asked a question about what problem is it that they’re trying to solve, by coming up with a “self regulatory code”, and why they think they need to be a creators of a solution when they aren’t the problem [“Why do you want to be the solution when you aren’t the problem?”], there wasn’t a conclusive answer, except the fact that in Public Interest Litigations, the Ministry of Information and Broadcasting is asked to identify responsibility for online content, and that it had begun a now-aborted process for Online Content Regulation earlier this year.

At a discussion held yesterday by the Observer Research Foundation in Delhi, stakeholders related to the online Video-on-Demand ecosystem [although not all the major players, and not everyone who does VoD], along with others, discussed the creation of a self regulatory code to address some of these concerns: with the objective of seeming like responsible players if and when problems arise.

The fear was illustrated by another comment, that regulation will come. “We [content creators] will push boundaries and there will be something that will offend a lot of people and government might create a code that we might not want.” Thus, the idea is that before the government can regulate us, lets regulate ourselves. “There is a requirement for a code from within the industry”.

It’s worth remembering, though, that the regulation that the MIB was looking at also covered news, news aggregators, and video aggregators. For some reason, the Video on Demand [VoD] industry seems to think that it was just about them.

Important: This discussion was held under the Chatham House Rule, which means the content of the discussion can be disclosed (hence is being published here), but the identity of the person or their affiliation is not disclosed. My (paraphrased) notes from the discussion below do not separate comments by speaker to further protect the identity of the individuals who spoke (I marked them as S1, S2, S3 and so on in my notes). They’re all separate points, not in sequence, so they might contradict other points made.

What the online content code will have

  • The idea is to offer the consumer choice, and help them make an informed choice. Drafts for a content code were exchanged in an IAMAI committee, and there is work being done on a common minimum standard. Informed choice should be the bedrock.
  • If 15-20 people can sign off on at least a 2 pager or a 4 pager. Others need not join, but when they are ready they may join.
  • Don’t call it a regulation, but a disclosure norm. The idea is to have industry best practices. That should be something that we commonly accept.
  • The code will have disclosures about:
    • Language
    • Whether it has strong language
    • Violence
    • Sex

Also watch: MediaNama’s discussion online content regulation

Comments on the idea of a code

  • The right to offend is essential.
  • The collective is always a mass. How do you look at a collective, and hence the impact zone of cinema? Whatever is collective is certified. Digital is a game changer, and a great story needs to be told. Content has been democratised by the Internet. However, there is a role played by Fake News and Child Pornography that drives regulation.
  • If you start taking censorship seriously, we would create the great wall of china in India, and we are not ready as a country to build a censorship regime around data and the Internet. [A response: We don’t see a China type model because the enforcement framework for that in India is weak.]
  • Everything you say is likely to offend at least someone. So if we’re going down the path of censorship, you’ll end up having to censor everything.
  • The Internet does not distinguish between content and comment, media and communication, or even between industries. [There is greater protection is being equated with the entire Internet, instead of being carved out and regulated separately]
  • How much of this is about creating a competitive advantage for the VoD industry by ringfencing it. The moment you have such a code, everything, including user generated content will begin to be held to that standard. Is the industry trying to create a predictable environment for itself?

We are dealing with three worlds: movie halls, satellite/cable and Internet. There can be an ask for fairness and equality and a level playing field, but we should think of these as three different experiments with speech. There should be a way of crossing the river by testing the stones, and we shouldn’t monomaniacally insist on Article 14 type of approach: it’s good and healthy to have 3 types of media and see what works.

  • We must understand that there is diversity of content online. Content is becoming local, but this is responsible creative content. [i.e. distinguish us from others]
  • As digital takes over from traditional forms, content consumption moves from push to pull. Are we enabling consumers to make an informed choice?
  • Introduction of content for kids led to age verification. The elephant in the room is regulation.
  • We are in an environment where we need more free speech. This [content code] is a signalling point.
  • When you say that videos that call for violence shouldn’t be allowed, how do you deal with archival content, which, for example, show videos from partition and call for violence against communities, asking for people to be burnt? How will a content code deal with that?

On Regulation vs Self Regulation

    We hope that with the code we don’t have unintended censorship

  • Self regulation is not self censorship. Having a code means we are protecting our own producers, so that these are the sign-posts out there for the audience. There’s a difference between self regulation and self censorship.
  • Lets identify the levers we want to focus on at this stage. The industry is best suited to design this. Disclosure is the first lever.
  • There is content being blocked. Laws and rules are being created by government until they get slapped by judges.
  • The broadcast industry is its own worst enemy: by recommending and accepting norms when they are not needed. [In response to this, another stakeholder said that the self regulatory code was brought in by the industry in response to the MIB coming out with its own code, so it was reactive, and thus this example is not correct.]

We are looking to pre-empt regulation. We do not have control over how the larger population reacts to things. We agree that there is disclosure and informed choices can be made. That is in our control [so we must do that].

  • Censor board only deals with certification and the “censor” word should be dumped. However, content is of a sociological concern.
  • Self regulation is a Faustian bargain
  • Governments will not hold back something which is an organic investment from the industry and something that is democratically unfolding.
  • A red flag went up when a comment was made that we shouldn’t be creating a code. We are an industry and a standard setting has to be in line with standards elsewhere. We need to be able to propose models from home.
  • To outsides OTT [Over the top/Video] providers might seem homogeneous, but do we move beyond OTT? Can we have common principles, agreed upon beyond the industry?
  • Can we move to a situation of diversity of content with classification?
  • Stay away from standard setting, and not set a false ceiling for OTTs.
  • There are prosumers and companies, and these have different liability and thresholds. Professional [content creators] have unlimited liability.
  • The aggregators have safe harbor so we [Video on Demand] need different standards

Also watch:

On changing the regulatory framework

  • If you do not engage with the law [and only do norm-setting] then you will end up with a rotten base. Judges will always point towards the laws.
  • Identify what the ideal legal framework is that the industry wants. Look for what changes need to be made to the IT Act, Cinematographic Act, TRAI Act and others, like criminal defamation, hate speech.
  • We need to educate the regulator and ask for forbearance. Lets not create a code. [A response: As companies, do we take up the challenge of finding common ground? Lets start with that thought exercise first. This is a gathering of the willing. If you don’t agree then you can join us when you’re ready. This is not mutually exclusive from educating the regulator.]
  • This regulation cannot come about without a regulator that looks at both content and carriage. That is at least 3 years away.
  • There is a need to collaborate on research and look at deeper fixes

“When compared with what we see with regulatory practices, we have to look at what protects us when engaging with the regulator, so that there is predictability with how the regulator deals with us.”

  • Content related offenses can be activated by private parties. Constitutional doctrine is shifting towards a liberal regime, with Article 19 primarily being in play, and reasonable restrictions being seen as exceptional exceptions. [so there shouldn’t be a move to create new norms right now].

Other comments

  • When I watch a movie on Google Play movies, the first thing they show me is the censorship certificate. That’s not necessary.
  • Government wants OTTs to pay taxes. They want to control mass media. We need to push for light touch regulation.
  • Problem with IT Act is that MEITY is not taken seriously in the government.