“Self-regulation is a bigger disease than an actual obvious clear law, not that I am asking for a law. We should take from the broadcast example and not have any self-regulation, because it’s only going to work for big brand platforms, and not for anybody else,” said Abhigyan Jha, CEO of Undercover Productions. Jha was speaking at MediaNama’s roundtable on online content regulation, held in Mumbai on December 13, with support from Netflix and Amazon.

Note that quotes are not verbatim, and have been edited for clarity.

Recounting his experience of making content for TV, Jha said that self-regulation “destroyed” television. He cautioned against a TV-like self-regulatory code for online streaming platforms because it might result in the creation of “bland content”. “We did one Movers & Shakers, but nobody else did a show like that for 10 years, before I did Jay Hind! online. There is no show that names names and makes satire on them in a country of 1.3 billion people, because we self-regulate,” he said. This also happened because channels put a lot of pressure on creators, Jha said:

“Most creators will not fight because there is a giant legal team that sits with you (inside a channel office), and bullies you to change your content on a daily basis. I was doing a detective show and they [asked me to] remove the guns because children are watching. How do you do a detective show and remove the guns? They [channels] say that children should not be seeing blood. All this is self-regulation, no government has told you [them to do this].” — Abhigyan Jha

Community standards on social media platforms have become “crushing,” said film-maker Paromita Vohra who also runs Agents of Ishq. “You can’t put out a diagram of the body or a drawing of a naked body especially if it’s a woman’s. There are so many restrictions,” she said. Vohra recounted a video that Agents of Ishq made about pregnancy and abortion, and said that she couldn’t promote it anywhere because every social platform kept flagging it. “You can’t promote words like ‘queer’, you can [promote them] on the days that all the corporates are promoting them. But otherwise, the promotion will get stopped,” she added.

Abhigyan Jha, CEO, Undercover Productions

There is already too much regulation

Mae Thomas, founder of Maed in India, highlighted just at how many levels self-regulation is already taking place: “There are so many levels at which we [creators] are already regulating stuff. Then from there you are putting it into production. There is an entire editorial team, they are in-charge of this, and they are censoring and cutting stuff out. Then within that production house, the legal team will suggest some more cuts. Then it goes to the OTT platform and then they and their legal team and their entire programming team are cutting stuff out,” Thomas said.

Vohra explained that even Agents of Ishq self-regulates. Before the platform or service, creators also consider what is suitable and what they can or cannot say. “We can’t always control [self-censorship by creators], but we are continuously trying to without sacrificing what we want to say,” she said. Platforms and services that operate on a larger scale can take the example of Agents of Ishq:

“I don’t know how you do that when you go up to  a big, large scale communication, but I think you do have to use small examples like ours to take out a set of principles and then think up from those principles rather than these assumptions that self-regulation will automatically be progressive, because it may not be,” she said.

Besides, a self-regulatory code might not factor in the diversity of content on the internet, Vohra added.

Paromita Vohra, filmmaker

“We self-regulate too much. Actually, the freedom is far more. We don’t take it.” — Abhigyan Jha

Apart from self-regulation happening at different levels, creators and platforms also have to keep in mind the government and the self-regulatory code, Jha said. He added that there is far more scope of making content for TV than what is currently being made, but not many people are doing that since they are already self-regulating.

Mae Thomas, Host & Founder, Maed in India

Vohra said that censorship has become more “sweeping,” just because a number of platforms started self-regulating. “I made a film called Unlimited Girls about feminism which was blocked in many, many colleges full of bros who would benefit from learning a little bit about feminism,” she said.

As a result of self-regulation practised by platforms, creators have to run “very long disclaimers,” Jha said. “You got people flying around in a fantasy show on TV and you are running a disclaimer saying this is not real. Now, are we going to be that kind of a nanny state? Are our companies going to really feed that to people?,” Jha added.

Ajay Chacko, co-founder and CEO of Arre, said that just because there is a self-regulatory code for TV, it doesn’t mean that there should be regulation for online content, in the name of parity. “The lesson to be learned with the internet coming in is whether we should regulate TV, print, and film so strictly. Can we can deregulate [them] instead?” he asked, adding that the only reason that platforms have signed a self-regulatory code is because they’re all “practical people,” and have chosen the “lesser evil”.

Caution despite the self-regulatory code; inconsistency among platforms is a given

IAMAI’s self-regulatory code, to which Netflix and Hotsar are signatories, “sets out expectations without really giving you concrete expectations on how those guidelines are supposed to be interpreted,” said Aroon Deep, an independent writer.

“Someone like Hotstar will interpret it to the maximum because they love doing it, and someone like Netflix will say as long as there is no intention to rebel against the state, I’m okay. Then that creates a problem because even though the document itself creates a process and structure to defend the creator, you are still left in a situation where caution is valued, where caution has a kind of legitimacy in the very creation of the document.” — Aroon Deep

So why do platforms self-regulate?

While Jha had earlier called self-regulation a disease, podcast producer Amit Varma said that it was merely the symptom of a broken legal system. “It’s true that there is way too much self-regulation whether by internal legal teams or by the sponsoring brands. But the point is that, if you just look at why they are self-regulating, it’s because in India, the legal system is such that the process is a punishment. It’s rational for legal teams in-house to err on the side of caution and do too much self-regulation,” he said. We should be pushing against the existing “bad laws” since the difference between those and an additional regulation of online content will be marginal, Varma insisted.

“The core problem here is that we have tons of bad laws in our books, all the caveats to Article 19, Article 295A, Article 153A, which spread this climate of fear and which lead people to self-regulate excessively.” — Amit Varma

“At some point, it is all about business,” said Aamod Gupte, general counsel & legal head at Eros International. “It could be a movie studio, it could be OTT content, you don’t want a situation in which you have invested Rs 10 crore and end up spending Rs 15 crore around it in on various litigations,” he added. The fact that businesses have to go through the litigation process for years and years is “the real pain,” according to Gupte, which compels most of them to self-regulate. “You have to have legal fees and travel costs, none of that ever recoups into your profits. That is really the issue at some point that one needs to consider,” he said.

“Two years ago we made a Snapchat filter pulled on PM Modi, which led to our business shutting down for two months,” said Tanmay Bhat, co-founder of comedy collective All India Bakchod. He added that “the psychological impact it has on creators is insane,” and recounted frequently receiving messages from content creators asking him if they’ll get into trouble for producing certain type of content. “So if the question is, are creators afraid? Oh yeah, for things that they shouldn’t even be afraid of saying. I think we have gone behind in terms of at least comedically what we could say earlier and what we can say today,” he added.

Read our coverage of the our roundtable on Online Content Regulation in Mumbai here