“There has to be some regulation, but we cannot have something in this country which allows VoD providers to transcend the boundaries of regulation”, a participant at the discussion on online content regulation, organised by Centre for Communications Governance at the National Law Univeristy, Delhi, on the 9th of August 2019, said. The discussion, held under Chatham House Rule (hence we can report the comments but not attribute) ranged from the economics of the content business, to its regulation, the rationale behind a self regulatory code, and some future-gazing with the potential for a converged regulator.

What struck me, though, was the point that regulation has an impact on an industry, in terms of the cost of doing business – that overarching regulations on traditional media businesses have harmed the industry – and is there a scope for de-regulation of the media business, instead of a move to bring everyone down to the most highly regulated level? Level playing field issues featured extensively in the discussions.

Our notes from the discussion:

How are VoD providers are regulated?

  • They are not intermediaries: “VoD providers are not intermediaries, and do not fall under the IT Act for intermediaries. You will see hybrid types of platforms, which will have certain elements of Netflix and certain elements of youtube. By itself it is not an intermediary. Only the content class where they have comments or user uploads, will be under intermediary. All existing content laws apply to content platforms.”
    …”On the baazee.com judgment, those are not intermediaries, because they’re not producing the content. With VoD providers, it is still open to interpretation. The settle principled is that they’re not.”
  • Ministry says they are intermediaries: “The ministry says that content providers are intermediaries under section 79. When it got dismissed in the Delhi HC the court wasn’t aware that there is no compulsion to carry a certificate”…
  • Cinematograph act? The Karnataka HC has disposed off a matter [recently]. It says that the Cinematograph Act is not applicable because it’s not public exhibition, it’s for private use.
  • Licensing of VoD providers? On the day of the admission of the petition in the SC, it was asked about whether online providers have a license. The onus was on the ministry to respond. The ministry in an affidavit says they don’t have a license, but there is no provision or compulsion to get a license.”…”We have been able to establish that there’s a gap that needs to be bridged. VoD series are able to exploit this lacunae.”
  • Takedown of content:
    • “In case of digital the impact remains. In that context, what is required is a takedown. You want to stop the continuation of the wrong content. If that is the objective then these two things are different: one is a platform approach under 79 and the second is a VoD service. There there is a distinction. Then we have to decide about what is wrong content.”
    • “The Internet is a medium where things continue till taken down. What’s the recourse? section 79 is only for platforms. How can a court play a role? Otherwise you have a criminal line, where criminal courts can’t ask you to take down content. It’s only for illegal content.”
    • “Section 69 has been used to issue blocking orders for content. A blocking order under Section 69 which has the same practical effect as censorship.”
    • “Section 69 applies to content providers and not to intermediaries. It has limited powers.”
  • “How you access content determines how the govt can regulate it. There’s govts own discussion on what is good for it to do, and what’s not. If it is a public screening or a private screening, anything that is above a certain number of people, the applicability of the Cinematograph act (which Parliament has considered amending and has not), that is regulated by the MIB and the censor board needs to be considered. From a policy perspective, the censor board provides an immunity [to certified content]. It’s the section 79 of its own time. If you have a certificate, you can say that I have a certificate and can screen. People have been held in contempt when they’ve tried to bar a certified film. Then there is control when there is broadcast spectrum, that’s a MIB has had to patch and create a structure for broadcast regulation, which is why it is subject to litigation.”
  • “General law applies (under the IPC) applies to content, and in certain cases, when that content is provided by intermediaries, the telco has certain immunity [under Section 79].”
  • “If someone runs a multi million dollar service, and you put in something defamatory. The aggregator is liable for what laws for what laws have been broken. It doesn’t mean government approval. The public screening is limited, but video distribution isn’t. “
  • “All of us say that there is [need for] some form of accountability. The problem is that there is pre-approval and pre-censorship for content. Does the censor board apply to online? How do apply it to VoD there? VoD is not simple, because there are hybrid players. If you look at how YouTube is redesigning its product, it’s also a VoD service. The precertification is therefore the issue. Video content doesn’t have a precertification requirement. That’s a societal conversation we have not had.”
  • “Courts are horribly ill prepared right now. The courts have to answer: do you want to apply the colonial legacy to online content. In an ideal world you’ll have a converged communications regulator. It will lie with the DoT. This will go to Parliament. It’s wrong to blame MEITY for everything. Their mandate is to say what is in the IT Act. Anything beyond that is what they bring to Parliament.”

Level playing field

  • VoD vs regulation of films screened in theatres: You contrast that with pre-certification which is mandatory for movies in theatres. We think of the cinematograph act as being coercive, but it gives legal shelter to those creating these movies. Certain kinds of licensing and production in a formal setup are preferred by VoD providers. What is missing is that there is no registration beyond entity registration, and medium specific and content rules.
  • Video vs other media: What’s noticeable here is that usually for print you don’t have content specific rules. It’s only for video. In the SC, video is seemingly differentiated and has content oversight. It needs to follow the code which is either the cinematograph act or the cable television rules.
  • “We are trying to address the issue that there exists a lacunae [in regulation]. Can we allow any medium of broadcasting to transcend the restriction or boundaries of 19(2), which are reasonable restrictions? There isn’t a level playing field. When [Cinema and TV] are covered under a regulatory mechanism, why not the others as well? Why is regulation seen as a hostile mechanism? It is necessary to restore a presumption of legality on those services as well.
  • “When the question is, with respect to the cinematograph act, it was about not allowing a particular type of content by the public. If you’re trying to apply the same principle: what is the purpose to be achieved, and whether what you’re doing has a nexus to the purpose? If I create a documentary on YouTube, and one that a VoD platform creates. I don’t see a difference. “

Current regulatory moves

There are 5 PILs in court. Two got dismissed in the Delhi HC. The third got disposed recently in the Karnataka HC. One is before the Nagpur bench of the Bombay HC. That’s a larger prayer, and is called uncanned media. Two petitions remain at the writ level. There’s a high degree of risk happening because of what is happening in courts. these can be regressive.There’s the cinematograph act reform. There’s the Shyam Benegal Committee report. There will be arguments for content parity, where they’ll say that they’re allowed to make risqué content and [TV/Cinema] are not. TV and Cinema have infantilised content. Media is converging and things will change.

What happens next

  • “PIL’s will first come for non invasive kinds of content. Finally what we’ll see is censorship systems for self regulatory codes, with standards and practices culture. There are programs which don’t use the word beef, or breast in case of breast cancer. You can’t make a show because there is a risk of litigation. This dulls the diversity of content.”
  • Going down the legal route in an industry in flux, what can be alternatives? push for content reform. People don’t like the content that they did in 1850 when obscenity was defined. There’s medium differentiation. We view videos more privately. There’s a high degree of content diversity on the Internet. There are intelligent controls possible on the video itself. TV shifted shows to 10pm slots. Audience demand will result in self censorship. There is a need for labelling standardisation, for a pre-notice. This is market side argument addressed by VoD providers. the more compliances you build in, there will be more entry barriers. You don’t want a regulatory barrier in self regulation because there are new entrants.”
  • “Since the last 4 months the ministry has failed to answer the question, there have been some meeting with TRAI, they say they are mulling over some framework. Do we need a new legislation? The Cable TV industry said the same thing when they started, that the industry is too young and there is no law to regulate them. The Delhi HC judgment has post screening remedies. The order has a punitive remedy and not a preemptive remedy. Whether we need that is an issue of debate.”

The media industry is struggling

We’re learning the wrong lessons

“There’s a lot of what-about-ery in the ecosystem. If TV has it, why not online? We’re learning the wrong lessons from any era. What is the problem that is trying to be solved? Is there a problem with the content, the jurisdiction? There will be lots of minuting that makes us second guess. Is there a structure that helps the consumer [base] and industry grow? Consumer [base] and industry are growing despite regulation. Make other sections (types of media) more liberal. Whether it’s a convergence regulator, with a consumer vision and industry vision… We’re one of the largest media output countries in the world. The overall business put together is still a fraction of what it can be. We’re looking at too much micro-management, without understand the problem trying to be solved.”

  • “Two weeks back there was a round table with re-introduction of [I&B minister] Javadekar to the media ecosystem. Everybody came in and said were screwed. He asked: ‘What we’re doing with the new tariff order, who is happy with it? Industry is not happy, consumer is not happy, the broadcasters – some are happy and some are not’. A ministry which is a guardian of a big part of the industry, says that what we’ve done hasn’t resulted in anything major. An industry reaching to 800-900 million people should have been valuable in the country. There’s a much bigger endemic rot in the system, and the media economics are broken.”
  • The top and the bottom of the cable and DTH has shifted.

“Can we solve the industry wide problem of complete lack of value creation. There is no [traditional] media company left that is entrepreneur led. One reason is the regulatory nonsense. There are regulations that damaged different parts of the system. If we can make all of govt responsible for micros in our lives, any regulatory framework will take us back into the past.”

“No regulation made the IT industry what it was. In, e-commerce the same thing happened. The VoD industry is like that.”

Self regulatory code

  • “What gives arguments for a self regulatory code [credibility] is convergence.”
  • “The code is not a censorship document. it’s only outlining where the constitutional stuff is going to be red line for us. it’s just talking about informed choice.”
  • “I don’t know why there is criticism, and it’s seen as a censorship code. One of the biggest reasons why we were keen on the code was for agreeing to industry best practices, and giving informed choices to consumers. Those were the basic reasons why most people who signed the code were coming from. It has content description, parental controls, it wants you to specify age rating content, and then it’s up to the person whether they want to or not watch it. There has to be deregulation for others and taken back to TV as well. If I say that I want to watch channel x, and that has content rated 18+, I am exercising that choice. It isn’t being forced down their throat. But everyone has to act responsibly. We have to be cognizant of where people who consume content will be coming from. Essentially, it has to enable an informed decision.”

The way the TV regulation has become, it has led to market failure. It’s a self regulatory system. It was built in cases which there were PILs, in which self regulatory body went and got official status for deciding consumer complaints. If you get three content violations, your license will get revoked. I hope I’m wrong, you’ll be preempting that with this self regulatory code”

  • “Why the others are not a part of [the self regulatory code], is because they didn’t want to be. We went to everyone – Google, facebook. They chose not to be. They couldn’t give guidance on what this is, whether something works for a 14 year old. The disclosures weren’t possible from a tech perspective.”
  • “I believe that disclosure/choice based mechanisms, with self regulations are the way forward. The ultimate weapon is the remote. If you don’t have a problem don’t watch it. Are we going to say that for these 9 players, or the 20 that sign up, you’ll have ecosystem. There is no point trying to see what is best for the audience.”
  • “There will be different views on the code. In the community, you have to be responsible netizens. If VoD had come together they formed the group, is this something that.. there are intermediaries, they’ve been doing work on how to control these activities before it is released on the platform. Filters are being put. Each one will develop mechanism for control. From a machinery perspective, the govt will have to act as an enabler. These things are to difficult. Tech itself will give solution.”
  • “Self regulation is fine because that’s at least some fig leaf. The larger moral [of this debate] is please deregulate the others. We’re getting pressures all the time.”

The way forward

  • “What’s the way forward? One is Ofcom. They have a hierarchy based on 4 criteria. The first is a regulatory body. There are 3 media: movies (cinematograph), satellite (cable tv rules) and VoD. This shift from push content, to pull out content, it isn’t under either rules. We want general guidelines and principles for them. Then the concept of public viewing vs private viewing is the germaine concept. The liability of those who are curating this content. The third is the controls that we have or the set regulatory frameworks coming from these content generating platforms. The third is what are supposed to be the standards for these platforms. Would these be the same as which are being followed [by other media]? Who decides to what extend this would happen.
  • “In an ideal world, you’ll have a communications ecosystem with converged communication bodies. You don’t want online certification of all forms of online content. If you look at video statements by govt officials. Even a government of India film in cinema has a certification. In case of online, they don’t. You might say there are genuine issues and that’s the conversation we need to have. Imagine that you’re going to have a converged communications regulator. How do you avoid some of the mistakes in the past of censor certification.

“Right now you have more content more speech than any time before. We have to figure out closing out the regulatory gap without harming these things.”

  • “The only intention [of the self regulatory code] was to have informed choice as a bedrock. Whether the minister or MIB, they said self regulation is fine.”