by Nikhil Pahwa and Aroon Deep

“This is not an IAMAI code, and it should not be represented in that manner,” a stakeholder apparently said during a contentious meeting held via video conferencing on March 18th 2020, by the Internet and Mobile Association of India (IAMAI) with several streaming platforms. This video conference was held keeping in mind that Chitrita Chatterjee, an advisor with the IAMAI, was expected to meet the Ministry of Information and Broadcasting (MIB) on the 20th of March, to discuss the status of a self regulatory code for online content streaming companies, which the Ministry is also pushing for. That meeting, sources have told MediaNama, did not taken place, owing to the general concerns related to the spread of the COVID-19 pandemic.

On the call, the IAMAI had sought support for its latest content regulation code, given that MIB Minister Prakash Javadekar has given the industry 100 days to finalize a self regulatory code that has participation of much of the online streaming and entertainment industry. Depending on what is finalized, the code could end up affecting the availability of shows and movies on online streaming services, and how shows are possibly censored and subtitled. For illustration purposes, MediaNama had applied the draconian BCCC code to an episode of Netflix’s Sacred Games.

IAMAI’s “Tier 2” code, as the latest code is called, was rushed through last month, and has anything but consensus: only five out of around 30 of its own Media & Entertainment committee members have signed up:  Disney-owned STAR, along with participation from Reliance Jio, SonyLIV, Network18 and Eros. Four additional companies – Netflix, Zee5, Arre and ALTBalaji, who had signed up for a previous version of the code (Tier 1) have opted out.

The Tier 2 code, somewhat hurriedly conceptualised and announced last month, envisions the creation of a self regulatory body, called the Digital Content Complaints Committee (DCCC), led by Justice AP Shah, as an independent body which can receive complaints on content on platforms from the government and consumers, impose fines of up to ₹3 lakh, reclassify ratings of relevant content, ask for the inclusion of disclaimers or editing the synopsis of relevant content. The Tier 1 code had a grievance redressal mechanism which was internal to each company, with the appointment of nodal officers.

These codes have largely been created to prevent the rollout of a government determined code: a Viacom18 representative, during the video conference, also said that the I&B Ministry has created a draft programming code, along the lines of the strict ones imposed for TV and advertising content, and the trade body argued that it is trying to prevent such a code from being enacted. Note that there were reports, last year, that the Ministry has plans to issue a “negative list” – a list of some “non-negotiable” prohibited content. More here.

However, the lack of consensus, and indeed, unhappiness with the manner in which the Tier 2 code had been pushed through by the IAMAI was evident on the call, multiple sources told MediaNama, and much of it came from the dissenting voices who had written to the IAMAI earlier. The call, according to our sources, saw participation from Netflix, STAR India (Disney), Reliance Jio, Apple, Amazon, MX Player, Zee5, Apple, Viacom, Shemaroo, SonyLIV and Hungama, among others. Google and Facebook did not participate, we were told. IAMAI, Netflix, Amazon and MX Player declined to comment for this story. Viacom18/Network18 hasn’t responded to a query for confirmation or denial, sent to them last week. The receipt of the email was confirmed to us Issues raised on the call:

Whose code is it?

One of the main bones of contention was how few companies had actually been involved in creating the Tier 2 code, even though it was presented by the IAMAI to the ministry and the public at large, as a curated content industry code.

  • Is it even an IAMAI code? Many stakeholders questioned whether the Tier 2 code is an IAMAI code, if it represents just five of 20 stakeholders, and the IAMAI claims to represent the industry. One stakeholder even said that given that the DCCC is a separate body, with separate funding, and it is not representative of the industry members of the IAMAI, and only of the signatories to Tier 1.
  • Why wasn’t the rest of the industry consulted? One of the issues with the Tier 2 code, was that when it was formulated, only the nine signatories to Tier 1 were consulted. Amazon raised the point that when the code impacts the rest of the members, it is only fair that the IAMAI be expected to consult them, because it impacts the entire industry. IAMAI repeatedly said that an industry membership is dynamic and they cannot have fresh consultations for each new streaming company joining the body, a stand that was supported by Viacom18. MX Player pointed out that there are old members (including them) that haven’t been consulted, asking about why the IAMAI chose not to have an industry-wide discussion when the MIB gave the feedback that Tier 1 isn’t enough. Amazon asked about why the IAMAI would want to push a code which represents just a few members, and called for a wider consultation. In response, the IAMAI said that a group of companies wants this code for hygiene, while others do not. They believe it is fine to start with five companies, and more will join with time. Note that this is something that the IAMAI had said to MediaNama earlier as well.
  • Content Creators included? There was some discussion, we’re told, about whether content creators should be included in the debate about the code, but given the number of content creators in the country, and that the code will be applied to, and through, streaming platforms, the idea was shot down.

Also read: IAMAI’s new code for online content streaming sets up a self-regulatory body, incorporates penalties


Start at Tier 2 or Tier 1? Or something else?

Given that the Tier 2 code has only five signatories, the Ministry of Information and Broadcasting has given the IAMAI 100 days to figure out getting more signatories. There were disagreements on whether the Tier 1 code is still up for discussion on not.

  • Discussing code vs consensus: Some members suggested that what the MIB wants is consensus, and not necessarily a new code. They suggested that the focus should be on building consensus, and not necessarily discussing Tier 2, and how that needs to be changed.
  • Let’s go back to Tier 1: MX Player, which hadn’t signed up for Tier 1, repeatedly suggested that the widest possible consensus will be on Tier 1, and the IAMAI should go back to that model, and discuss on means of modifying or enhancing that, so that more people sign up for it. That, it emphasized, should be the starting point of the discussions on the code. Amazon said that there could be alternate solutions as well, and disagreed with the idea of starting the discussion with Tier 2. Netflix was open to the idea of having a new code from scratch, if it meant that more companies would participate. The IAMAI disagreed, reiterating that the Tier 1 code was a starting point, and they cannot review the code every time a new member joins. Viacom18 also opposed reverting to a Tier 1 code even if that meant that it leads to more consensus from industry players.
  • Are Tier 1 and Tier 2 really that different? While some stakeholders positioned Tier 2 as merely an enhancement of Tier 1, MX Player disagreed, saying that the two are fundamentally different, because having a separate body to determine regulation of content is an external process, while allowing the platform to deal with complaints by themselves is an internal process.

Also read: Streaming players ask IAMAI to recall streaming content code, question legitimacy; IAMAI responds


On DCCC as a separate body

Given that Chatterjee has to meet the Ministry of Information and Broadcasting, who she represents – the DCCC or the IAMAI – became a contentious issue during the discussion, according to many sources.

  • Can IAMAI create new entities? Questions were raised about whether the IAMAI’s constitution allows for the creation of a new body that represents a fraction of their member base. In response to this, the IAMAI pointed out that they have other independent bodies under the IAMAI as well [Editor: for example, they have the Payments Council of India]
  • The confusion about the IAMAI and DCCC: Amazon raised the point that Chatterjee, an advisor with IAMAI, who has been instrumental in setting up the DCCC and the Tier 2 code, cannot represent both the IAMAI (whose Media and Entertainment Committee has around 30 members) and the DCCC (which has five signatories). Netflix asked for clarity on who represents IAMAI and who represents DCCC, and asked for a distinction in the representation to the government. Netflix also pointed out that the Tier 2 code and the DCCC were announced at the India Digital Summit, the annual Internet industry conference that the IAMAI organises, and thus is it difficult to treat the DCCC as separate from the IAMAI, which claims to represent the Internet industry. Some stakeholders were adamant that the DCCC should not seen as representative of the curated content members of the IAMAI. The IAMAI clarified that the DCCC hasn’t as yet been rolled out, while the two are separate. At the meeting with the government, Chatterjee will represent IAMAI and only speak about what transpired in the meeting [Editor: parts of which are covered in this article]

Notes from MediaNama events on Online Content Regulation: