“Self-regulation [for content platforms] is not going to happen because their business model is subscription,” said Rajesh Lalwani, Director at Scenario Consulting. “OTT platforms are going to push the boundaries to get people on board, and they will have slightly edgy content, or a lot more edgy content. I don’t see this [working] until you have got leaders, until you have got number twos. This space is too nascent right now to self-regulate.” Lalwani was speaking at MediaNama’s discussion on Regulation of Online Content last week in New Delhi, supported by Amazon, Netflix and Facebook, and in partnership with CCG-NLU Delhi.

However, there is a self regulatory code in existence, created by the IAMAI, and signed by many OTT platforms. “The self-regulatory code has come as a reaction to what the government could possibly do,” said Abhishek Malhotra, Managing Partner at TMT Law. “From the platform’s point-of-view, when you have court cases ongoing, the IAMAI would come and say, ‘Look, if you do not have a self-regulatory code, then perhaps something may be forced upon us. So, let’s just try and figure out something which is acceptable across all stakeholders.'”

Every law, whether it’s the Cinematograph Act or Cable Television Act, tries to regulate not the content, but the platform, he said. “If there’s an A-rated film, it’s not been banned but it only gets a certification that a particular category or age group cannot watch it. Even platforms are already enforcing self-regulation by implementing a parental lock”, he added.

The purpose behind the code was just to adhere to the law of the land, said Abhishek Soni, General Manager at Reliance Jio, which is a signatory to IAMAI’s code. “We adopted it to observe all the rules and regulations of the land. We don’t want to go beyond that and we don’t want to offend anybody. That’s the idea.”

Effectiveness of self-regulatory mechanisms

Self-regulatory bodies for news and entertainment broadcasters like Indian Broadcasting Foundation (IBF), News Broadcasting Standards Authority (NBSA), and Broadcasting Content Complaints Council (BCCC) ensure that there’s an alternative mechanism for people who may have issues with a programme or channel, Malhotra said.

The self-regulatory gives you “an additional layer of protection”  “by providing people a platform where grievances can be aired. That’s the more important purpose of this self-regulatory code,” Malhotra said. “If [a platform] has voluntarily opted out of it, they are possibly opening themselves up to being subject to a more paternalistic method, or forcibly being asked to toe the line.”

But it’s worth noting that even with the self-regulatory code, people haven’t stopped going to the courts, there are cases ongoing against streaming platforms in the Supreme Court and most recently in the Madhya Pradesh High Court. “In our country, the reasons for going to court are not necessarily to do with what the real issue is, but also for other considerations. You may possibly not be able to foreclose the right of a citizen to go to courts,” Malhotra said. But a self-regulatory mechanism helps because as the BCCC has “become more ubiquitous and people have started using the forum, litigations have gone down.”

Manish, Centre for Policy Research

In Cable TV, there’s a statutory code in addition to the self-regulation, under which a consumer can file a complaint independent of the self-regulatory code. “Even though some of the provisions of the program code rules of the Cable TV Network Rules are really grotesque, and state that programs should not be in bad taste, or promote anti-national sentiments, there isn’t much awareness about them. Which is why we don’t see random people filing cases against TV operators,” said Manish, research associate at Centre for Policy Research.

The effectiveness of the code might depend on the level of authority or the power to penalize that the self regulatory bodies have. In case of the NBSA, some members have flouted their rules and “despite being reprimanded, not corrected it, or decided to leave [the organisation].” Simran Agarwal from IIT-Bombay said. Thus there is a situation where the only way to bring about enforceability is by statutory regulation, as indicated by the Karnataka High Court decision.

Currently, the code has been by 10 streaming platforms, including Netflix and Jio, others such as Amazon Prime Video and Hungama Play aren’t party to it. For instance, the adult bar for one platform might be 16 years, but it may be 18 years for another platform. Will this lack of uniformity open the door for a situation where the government will want to come in and impose its own regulation? According to Abhishek Soni, you have to self-regulate well to avoid that, as was seen with the News Broadcasting Standards Association. “The government feels the News Broadcasting Association has not done a good job with its self-regulatory code, he said. “But the government feels that the BCCC has done a very good job. Usually, if there’s a critical complaint, in case of the entertainment side, it is referred to the BCCC because the government feels they’ll do an adequate job. For the NBSA complaints, the government generally take their own action.

Government might wait-and-watch to see if self-regulation is working

Sumant Srivatsan, Publicis Groupe

The manner in which policy usually works is that the government will see whether the self-regulatory code is working or not. If it’s working and being implemented properly, they will possibly adopt a hands off approach,” according to Malhotra. He explained that in a Delhi HC judgement the court had opined that the manner in which the BCCC was set up was a fairly representative sample, with a retired Chief Justice of a High Court or Supreme Court as the head, people from industry, people from Ministry of Information & Broadcasting; it said the system was working very well. The Supreme Court also endorsed that.

The content

According to Ambika Khurana, Director, Public Policy at Netflix, the IAMAI’s self-regulatory code clearly calls in the beginning out that there are various laws of the land such as the IT Act and the Indian Penal Code. “The section in the [self-regulatory code] on prohibited content also mentions that none of these companies would ‘deliberately’ or ‘maliciously’ want to focus on any content which can upset anybody’s sentiments. I think it’s a very very subjective question. There’s no straight answer that I have. But yes there is no deliberate or malicious intent to hurt anybody.”

Regarding the movie PK, the Delhi High Court had actually categorically said that just because the perpetrators create violence does not mean that it’s against Article 19(1)(a), said Sneha Jain from Sai Krishna Associates. “You have to look at the whole situation where somebody creates a law and order situation,” she said.

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Read our other reports from the discussion here.