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Justice Prathiba M Singh calls for adjudicatory mechanism for streaming services, broadcasters

Delhi High Court judge Justice Prathiba M Singh called for an adjudicatory mechanism to regulate streaming platforms and broadcasters on Wednesday. “Unchecked growth [of OTT streaming platforms] could also lead to sudden disruption, especially because there are local issues and sensitivities which would get affected,” Singh said, recommending something akin to the neutral adjudicatory system established by the Uniform Domain-Name Dispute-Resolution Policy that is used for resolving domain name disputes. Singh was speaking at the FICCI event Fast Track Digital, broadcast here.

“Some self-regulation is on the anvil in the form of the Universal Self-Regulation Code for Online Curated Content Providers. However, the expanse and the effectiveness of this code is not known,” Singh said, referring to the self-regulation code signed by most major Indian streaming services that the government has refused to endorse. “And these platforms have been recently brought under the MIB regime with the amendment in the Allocation of Business Rules.”

Singh said that an independent adjudication framework should be there for broadcasters and streaming services, with their participation. “The convergence of free-to-air broadcasting, OTT, VOD, DTH, has shown that there is a need for an independent adjudicatory mechanism which does not consist of functionaries of broadcasters. In order to lend credibility, transparency and fairness, the same could be under the aegis of an independent service provider,” she said.

The system that comes closest to what Singh describes is the Digital Content Complaints Committee, an authority conceived by the Internet and Mobile Association of India that ran into opposition by many members anxious about the potential for censorship, leading to the formulation of the current self-regulation code put out by the streaming industry.

Excerpt of Justice Singh’s remarks

The voluntary nature of [self-regulatory broadcast] organisations and the multiplicity of organisations has in recent times created confusion as several players have chosen not to be part of these self-regulatory frameworks. So there are various examples of challenges that have arisen in the recent times which all of you are well aware of, and details of which need not be gone into for the present.

These issues which confront broadcasters, the regular television and other broadcasters would now, and as I had given for OTT, VOD and other platforms, whose popularity has got an impetus during the pandemic. As it is said, one man’s medicine is another man’s poison. The pandemic is the biggest example of this. Theatrical platforms and free to air television are slowly out of favour in the pandemic. The subscriber base of OTT, VOD and such platforms have grown in proportion.

Some self-regulation is on the anvil in the form of the Universal Self-Regulation Code for Online Curated Content Providers. However, the expanse and the effectiveness of this code is not known. And these platforms have been recently brought under the MIB regime with the amendment in the Allocation of Business Rules. The challenges according to me for these OTT and VOD platforms have just begun. While there can be no specific solution to the issues currently being faced by broadcasters in general, and digital platforms in particular, I would actually comment that the inspiration should be taken from other self-regulatory or independent redressal mechanisms which can be used as models for OTT and VOD and broadcaster platforms in general.

One model that really comes to my mind is the model of the domain name dispute resolution, which was set up in the initial stages when domain names were being registered. The creation of the Uniform Domain-Name Dispute-Resolution Policy, which a large number of legal practitioners are aware of, is one of the most successful independent regulatory mechanisms that is applicable and enforced globally for more than two decades.

I recall that when domain names were being registered, and trademark owners were having problems with domain names, the UDRP became the biggest solution for them, and the registration of domain names which had impinged upon trademark owners’ rights had caused a lot of consternation at the advent of the internet. The same was redressed by the UDRP. It provided a mechanism for third parties who had grievances to avail the services of independent service providers to resolve disputes. The [unclear] service providers were totally outside the ambit of ICANN or the registering companies like Network Solutions or GoDaddy.

More than 65,000 complaints have been dealt with successfully under this independent regulatory mechanism and two to three well-established service providers including WIPO are doing an amazing job in the domain name dispute resolution mechanism. The panelists who decide these cases are located around the world, and the system has proved quite effective.

I would say that OTT and other broadcasters should take a look at this particular model to look at how an independent self-regulatory mechanism can in fact be created. The convergence of free-to-air broadcasting, OTT, VOD, DTH, has shown that there is a need for an independent adjudicatory mechanism which does not consist of functionaries of broadcasters. In order to lend credibility, transparency and fairness, the same could be under the aegis of an independent service provider. If media and broadcasting have to remain free and fair, they ought to involve free and fair adjudicatory mechanisms which are not coercive in nature.

Apart from the creation of independent regulatory mechanisms, there ought to be a mechanism where broadcasters are a part of this adjudicatory mechanism, to ensure that the code of conduct is compulsorily applicable to all broadcasters without exception. OTT and VOD platforms and other creative content providers should also be part of this. Such a system would also protect and preserve the rights granted under the Constitution of India. While providing for reasonable restrictions, this would also minimise the need for legislative and judicial interference in issues relating to content.

OTT and VOD platforms are extremely cost-effective. They provide easy access to electronic devices with a mere requirement of an internet connection. They also cater to various hues and tastes and people in the privacy of their homes. These platforms also provide for growth and talent exposure to producers of content, artists, technicians, not just in the leading languages, but also in several regional languages and this is a very big important factor in our country where the regional language base is very high. These platforms will in future coexist with traditional platforms and carve their own existence in the years to come.

Though OTT platforms had entered India in a small way in 2008, in the last two to three years the penetration has been very high. The pandemic has increased its growth, and hence there is a need for clarity in terms of the code of conduct they ought to adhere to. Unchecked growth could also lead to sudden disruption, especially because there are local issues and sensitivities which would get affected.

Sometimes the non-dealing of issues with alacrity could also lead to questions being raised about the integrity of these platforms. So I would just conclude by saying that the digital world should ensure that it remains a medicine for all, and a poison to none. And in order to ensure that that happens, the digital platforms have to themselves come together and decide as to what is the manner in which they would want to be regulated by themselves, or by independent mechanisms.

Watch Justice Prathiba M Singh’s full remarks on media regulation. Excerpts have been lightly edited for clarity.

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