“An English channel was launched in India, it was airing content from the US since it didn’t initially have local content. Given the expanded free speech and expression in the US, the license for comedy is much more there than for certain people, and certainly for two judges [in India]. For them, it bordered on vulgarity, and the channel got a ban order from a single judge, and also from the division bench. But once it went to the Supreme Court, we thankfully had a judge who had more liberal standards,” said Abhishek Malhotra, Managing Partner at TMT Law. He 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.

Malhotra was referring to the Delhi High Court’s ban on Comedy Central, which the Supreme Court later stayed. His point was that it’s antithetical to have standardisation in content, since content is creative.

“We would become robots if we have standardisation”, he said, adding that it’s “very difficult” to follow and implement standardisation, when you can instead have broad regulation.

Abhishek Malhotra, Managing Partner, TMT Law

But standardising age ratings is a good way to ensure a broad framework for maturity rating for content, according to Ambika Khurana, Director, Public Policy at Netflix. “Strengthening parental controls are important and should be used. Tech companies do provide the tools, but usage varies across countries and isn’t determined by how educated people are. That would settle a lot of skepticism that people have. Creators can continue creating what they feel is right, and yet we protect the most vulnerable sections who are spending a lot of time online.”

Now courts have begun to consider contemporary community standards as well. The IT Act, 2000, uses exactly the same language as the IPC 1860 for obscenity, which is when something is lascivious, appeals to prurient interest, or intends to deprave/corrupt a person, explained Manish from Centre for Policy Research. “Courts originally looked at whether the content itself is objectively obscene, whether that particular content would corrupt or deprave a reasonable man. Recently they’ve adopted the Contemporary Community Standards test, and you have to consider the individual watching the content.”

Do we need a regulation?

“We already have the IPC, and sections 67A, 67B, and 67C of the IT Act already apply to the internet. The IPC is content diagnostic, but there’s a very clear Supreme Court judgement which says that the IT Act applies whenever it comes to any crime committed on the internet,” said Sneha Jain from Sai Krishna Associates. “The current IT Act provisions are sufficient. It’s a reactive mechanism: if something isn’t compliant with the IT Act, it can be pulled down. But, there is no pre-censorship in the IT Act either,” she said.

It’s impossible [to regulate content] unless there is a convergence regulator to regulate content from different platforms, or from different sectors by one regulator, explained Anupam Sanghi. “Any other non-tariff related issues needs to be regulated by an overarching regulator like a competition regulator”, she said.

“There should ideally be no regulation,” said Abhishek Soni, General Manager at Reliance Jio. “The existing regulatory regime is sufficient and a self regulatory regime which we’re trying to evolve further should be the way to go. We feel that if it’s successfully done, the government will probably not need come out with such a regulation.”

Abhishek Soni, General Manager, Reliance Jio

At the same time, whether our content industry is mature enough to be regulated needs to be considered. “There are so many newer, smaller OTT players who are trying to enter along with these giant tech moguls,” said Gauri Bansal, Associate at 9dot9 Insights. “Would [regulation] in harm or curb the growth of a nascent industry that’s trying hard to survive and leverage tech?” Technology is only going to grow and permeate into other sectors and “there’s a sudden rush to regulate every single thing, its a knee-jerk reaction as opposed to a well-thought strategy, that can help the growth of an industry, and help us become a more liberal, progressive yet a very collective and tolerant economy and society.”

There is perhaps a case for an overhaul of regulations related to content, because certain considerations, such as the privacy judgement and its four-fold proportionality test, among other key judgments, weren’t in place when the Cinematograph Act was drafted, Vakasha Sachdev, associate legal editor at The Quint said. There has to be a rewrite of what is the objective behind these regulations. Once that’s in place, you can address the issues, whether it’s child pornography or various other things, with the appropriate measures.”

“Currently, neither ministry has jurisdiction to come out with a regulation because no law empowers them to do so,” according to Sneha Jain of Sai Krishna Associates. “There’s a little doubt around this, because if a regulation has to come out, it has to have a source in law. Currently, both the Cable TV Act and IT Act don’t seem to be clear in terms of content regulation. The larger concern is that nothing stops the government from drafting a new law altogether.” From the position the IT ministry has been taking, their power to regulate content per se is limited to Section 69(A). This goes back to Article 19(A) principles, and only its back, they may be able to do it, she added. “But if we have to look at a larger picture of streaming versus user-generated content, i.e. other than content which may impact 19 (1)(A), then I don’t know if they would have the power or not.”

Are streaming platforms intermediaries?

Although there is a distinction between streaming platforms and user-generated content, the government seems to be saying otherwise. In all the court matters relating to streaming platforms, the government is saying that OTT platforms are intermediaries, according to Abhishek Malhotra. “So once they are intermediaries, and in case there’s a violation of law relating to the content on a platform, and the platform is taking “the advantage of being an intermediary”, and implementing the self-regulatory code, are they then giving up their intermediary status?”

Amitayu Sengupta, Assistant VP, IAMAI

But according to Amitayu Sengupta, Assistant VP at IAMAI, which drafted the self-regulatory code, the signatories of the code had said “we are not intermediaries”. So a new term ‘Online Curated Content providers’ was coined. “Once they are intermediaries, the content that is being put on them in the event that there is a violation of the law and it is sent to them, they could possibly only be liable if they do not take it down in terms of the intermediary guidelines,” he said.

“If the government enforces a code, or a self regulatory code comes up, it would apply only to one set of users (Amazon Prime or a Netflix or Hotstar)?” Nikhil Pahwa, founder and editor of MediaNama asked. How streaming services are different from any user uploading content on any platform: “How are they [regulators] going to distinguish between such streaming platforms, and anybody who is starting a video site, or streaming or uploading videos, say for non-commercial purposes? What about when people upload content on user-generated platforms.”

“The affect is the same, they’re all equal users on the internet. Just like YouTube is an intermediary for users who upload content on that platform, ISPs are intermediaries for services like Netflix, Amazon Prime and Hotstar. In the end, on the Internet, if you’re not an intermediary, you’re a user,” Pahwa said.

“In the same way, how are streaming services different from porn? The Supreme Court had said that it doesn’t want to regulate what people are viewing in the privacy of their bedrooms. So how do you distinguish between the two types of content services?”

What about public and private viewing?

“The entire aspect of content started classically from the certification process because it was public viewing,” said Malhotra. “Unless a cinema theatre owner is empowered to say that a child cannot enter their cinema premises when an A-rated film being shown; they cannot refuse someone to come in. So cinema was all about public viewing; and so was television viewing.”

But a factor now is also what does effect does certain kind of content have, whether its privately or publicly viewed. “All regulation of content has traditionally focused on the person viewing the content, this blurs the difference between public and private viewing, because the question is, ‘what is the effect it has on the viewer’s mind?'” said Manish from Centre for Policy Research. Unless this fundamental mindset changes around  the nature of regulation, “we’re not going to see a new paradigm of how we regulate content,” he added.

Algorithms and removals

Algorithms perform editorial functions on user-generated content platforms (like YouTube), but streaming platforms are performing editorial content by selecting content as well, said Nikhil Pahwa, founder and editor of MediaNama. So when there’s a self-regulatory code, what stops that from being made applicable to platforms and content on platforms?

Algorithms are simply not strong enough to make all determinations right now, according to Sumanth Srivathsan of Publicis Groupe. Some of it is problematic because it’s censoring or filtering content that shouldn’t be censored or filtered.

We need to improve the guidance of the algorithms. As a viewer, I have a problem if an algorithm is deciding not to show me something. I’d rather be the judge of what I see, and what I allow my family members who aren’t in a position to make an informed decision to see.

How foreign services available in India will be dealt with

A pertinent issue is how regulators would enforce a code on streaming services that operate outside of India, but can be streamed in India.

“We have VPNs today, and it’s very easy to access content,” said Sneha Jain from Sai Krishna Associates. “It’s not easy to say that there should be a standard or a code applicable, across contents, across platforms, across different kinds of services. But any regulation has to keep in mind that there is a right to receive information protected under Article 19(1)(a), and that regulation has to be considered reasonable within the scope of Article 19(2).”

Note: Quotes have been edited for length and clarity.

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Read our other reports from the discussion here.