Amit Khare, Secretary of the Ministry of Information & Broadcasting, said on Tuesday that the Ministry was proposing to take over jurisdiction on online content regulation in India from the Ministry of Electronics & Information Technology. “OTT being a digital platform will fall under the purview of the Ministry of IT. We are proposing a decision that content should fall under purview of I&B. Convergence of ministries is extremely necessary,” Khare said during an online session at FICCI e-FRAMES

This is a significant policy change for the government. In 2018, the I&B Ministry disbanded an online content regulation committee it had formed earlier and ceded its jurisdiction on the issue to a MEITY committee. In a Lok Sabha response this year, MEITY said that streaming services were intermediaries under the Information Technology Act, 2000, which would mean it was their jurisdiction, and not the I&B Ministry’s.

But this proposal, which would change this status quo, is consistent with the I&B Ministry’s recent pressure on OTT services to create a Digital Content Complaints Committee. I&B Minister Prakash Javadekar gave streaming services 100 days to finalise a code of conduct. The DCCC, which some members of the Internet and Mobile Association of India came up with, would be headed by retired Justice AP Shah, and would have the power to penalise streaming services for showing prohibited content. This would be similar to the Broadcast Content Complaints Committee, whose formation led to significant self-censorship on television. To illustrate why emulating that (through a body like the DCCC), we applied broadcast guidelines on an episode of Sacred Games.

That includes content that “promotes and encourages disrespect to the sovereignty and integrity of India,” “represents a child engaged in real or simulated sexual activities or any representation of the sexual parts of a child for primarily sexual purposes,” “promotes and encourages terrorism and other forms of violence against the State (of India) or its institutions,” or content that “has been banned for exhibition or distribution by online video service under applicable laws or by any court of competent jurisdiction.”

It has been 126 days since Javadekar gave the industry that deadline. Streaming services have been split over the proposal, which has primarily been pushed by Disney-owned STAR, Reliance Jio, Sony Liv, and Network18. Eros was the fifth company to sign on. IAMAI members are now trying to find common ground on the issue, given that this has been a contentious issue, rife with disagreements.

Khare on converging regulations across mediums

Khare pointed out that while content on newspapers, TV shows and the internet were now converging in their medium of distribution, the regulations governing them remain different.

First came the print media, so we had the Press Council of India. Then we had All India Radio, there we had a different structure. FM radio is not permitted to air news other than that of AIR.

Television developed on a different line altogether. In TV there is no pre-censorship, there is a regulatory structure that comes in after content has aired. Films require prior certification from the CBFC. OTT platforms do not have any regulation as of now. For five different media, four are having differing regulatory practices; they are either self-regulated, pre-regulated, post-regulated, and one of them [OTT] is unregulated.

But when it comes to the content, everything is converging. What we used to call different media earlier— a newspaper when printed is subject to PCI regulations. But online, it is not. If a film is shown online, it will not be subject to CBFC.

If we take a TV program, they also have a different system. Now, what the Ministry is trying, and let us be very clear, instead of bringing everyone to the lowest common, the attempt is to have more freedom for all.

There is definitely a need for a level playing field for all media. But that doesn’t mean we will bring everybody under a heavy regulatory structure. Our government has been focused on ease of doing business and less regulation, but more effective regulation. I’m also looking after HRD nowadays [Khare is also the Secretary of the Ministry of Human Resource Development], and there we have light but tight regulations. [It’s better if] we have just four rules and say you better comply with all of them, rather than having a plethora of rules without getting the desired result.

[emphasis ours]

And what would a converged regulation look like? Khare said that ministry officials were studying Singapore’s approach. “What they have is one structure, and they are providing what is the no-go area,” Khare said. “If you’re not in the no-go area, everything is open. So you don’t have to keep changing the regulation every time the technology changes, because the regulation is as per the no-go of the content, not as per the technology. So that is the broad idea, but it is still at the idea stage.” Citing the pace of technology, Khare said, “If we start regulating everything, we will end up regulating nothing.”

Khare made no mention of the Digital Content Complaints Committee, but his remarks indicate that even if regulation across the board is simplified, there will still be some rules on what streaming services and other players can and cannot show.

MediaNama’s take

(Nikhil Pahwa adds)

Any move by the I&B Ministry to take over regulation of content on streaming services will essentially, under law, be difficult to distinguish from regulation of speech on user generated content platforms. The IT Act recognises intermediaries and users as two distinct types of entities. Intermediaries exercise no control over content, and merely enable speech on the Internet.

Just as ISPs are intermediaries for streaming services, user generated content (UGC) platforms such as YouTube and Facebook are intermediaries for users uploading their content, including videos. The Act itself does not distinguish between Netflix and a user uploading her video on YouTube. Thus, any regulations from MIB that apply to Netflix, will also end up applying to users on UGC platforms. Unless, of course, the IT Act is amended to create classes of intermediaries, and classes of users. That might be one of the changes that MEITY might be considering, while it is looking to amend the IT Act.