Say no to Indian censorship: Netflix, Hotstar and co form a code of honour

“I&B ministry won’t censor online video content, for now”

“After Amazon, Netflix said to have agreed to censor its content in India”

Amazon opposes voluntary censorship code move mooted by industry”

These are just a handful of the headlines that video streaming services in India have managed to make in the last few months. Will they? Will they not? The question of censorship in online media has been a daisy oracle for over six months now. All this amid political controversies, risk of state interventions and growing legal complaints against the “insensitive, uncensored and explicit” content put up by online video streaming platforms such as Netflix, Amazon Prime, and Hotstar in the absence of any law to regulate them in any way since these services don’t fall under the ambit of existing laws.

Putting all the speculation of voluntary censorship to rest, the leading video streaming companies in India have finally decided to go for self-regulation and say no to censorship. Well, largely. All these companies have been working as part of a sub-committee under the industry body Internet and Mobile Association of India (IAMAI) for a few months now, to develop a best-practices code for curated online video platforms – a working copy of which has been reviewed by The Ken.

In the code, which has nine signatories so far—Netflix, Hotstar, Voot, Times Internet, Eros, AltBalaji, Zee, Arre and Sony—video streaming platforms have said no to censorship. Instead, the companies have agreed to place easy filters such as content descriptions, information on the nature of the content and creating different categories for consumers to be able to choose content that is appropriate for themselves and their families. The idea is to protect consumer choice and agency, to protect “freedom of speech and expression”. The companies are likely to release the code later this week.  

32

Total number of OTT applications in India as of 2018, according to a report by Boston Consulting Group.

“The primary objective of self-regulation is to keep the government away and do something about the ongoing complaints before the state does,” said a person aware of the developments at IAMAI, on the condition of anonymity. Taking into account all the recent public interest litigations against some of the content, video streaming platforms are also going heavy on grievance redressal mechanisms.

With the lines between telecommunications and media blurring, and urban consumers increasingly moving onto video streaming platforms, it makes sense for the $500-million video streaming market—expected to touch $4.5-5 billion by 2023, according to a report of Boston Consulting Group—to regulate itself. Especially, when the demand for holding the platforms accountable has been growing exponentially. This best-practices code is being developed as per the existing TV model. In India, traditional broadcasting is governed by a statutory programming code as well as a self-regulatory body under Indian Broadcasting Foundation that ensures that the code is adhered to. Even for cinema, India has a Cinematograph Act, 1952 in place that reviews and certifies films for public exhibition; the government has recently proposed an amendment in the Act to combat piracy.

While video streaming platforms like Amazon Prime and Hotstar do blur explicit scenes and mute insensitive dialogues here and there as a part of self-censorship, there is no government rule or regulation for online streaming; these guidelines are new and untested where the member companies are attempting to blaze a trail for others, urging the government to follow. 

It may not be that easy, though. While television was a familiar domain when it came to regulation, given international advancements, video streaming is virgin territory. And Amazon Prime, also a video streaming platform, isn’t quite ready to commit to the code. “While we are assessing the situation, we believe that the current laws are adequate to fulfill this mission,” said Amazon India spokesperson, in an e-mailed response to The Ken’s query. 

Self-police

While the IAMAI committee was initially supposed to include technology platforms like Google and Facebook as well, what have finally come together for self-regulation are just curated online video platforms.

While the company has been a part of IAMAI discussions, it has decided not to be a signatory to the code. At a time when the calls for concern over the nature of the content and lack of accountability in video streaming are multiplying, now with some of their bandmates dropping out, will these nine platforms be able to fight censorship via the new code?

Tuning into a new policy

These video streaming platforms aim to guide the audiences to choose what is appropriate for them. “The consumers should know what a certain programme is all about beforehand, to make an informed choice, and in the process, the companies should be able to protect the creative freedom,” said an executive at one of the video streaming companies, who is aware of the discussions.

The idea is to protect the consumers’ choice as well as access. Where video streaming differs from traditional television in terms of censorship is that video platforms are defined as “pull television”, where a consumer can decide what she wants to watch, when, where and how, contrary to cable and satellite. As a part of this disclosure system, the video platforms will have to put up proper content descriptors and categorisation, including one with parental guidance to protect minors from inappropriate content. “With the help of technology, it is very easy to impose filters on content and maintain a parental lock to protect the minors,” said another person aware of the IAMAI discussions. 

In order to ensure that companies are held accountable for these guidelines against consumer complaints, every platform will have to incorporate a grievance redressal department to adhere to the code as well as address the complaints, with the details of a point of contact available on every platform. Additionally, the IAMAI will constitute a committee to hear consumer complaints and hold the members i.e. the video streaming platforms liable. While the committee will be the deciding authority on violations, all jurisdictions of online content will be with the Ministry of Electronics and Information Technology (MeitY).

It’s not that the platforms will not censor anything at all. Any content that disrespects the national emblem or flag, represents child pornography, intends to outrage religious sentiments and spreads narrative around terrorism or incites violence against the state—largely being already governed by the Information Technology Act, 2000—will be strictly prohibited across all the platforms.  

“However, there won’t be any censorship on licensed content except for this. As for original, local shows, the companies will be slightly more cautious,” said the executive quoted above.

Netflix, Viacom18 (that runs Voot) and Eros declined to comment on the development. Questions sent to Star India, Sony Pictures Networks, AltBalaji and Arre went unanswered. The Ken also attempted to reach Chitrita Chatterjee, associate vice president at IAMAI, through messages, but received no response. While ZEE5 didn’t confirm the release of guidelines in January, Manish Aggarwal, business head, ZEE5 India said that self-regulation is the way forward. “For a country as diverse and populous as ours, it will be the most effective. Having said that, we are closely working with the concerned authorities and other industry players in setting up the guidelines,” he said.

Moral police

This best-practices code comes after months of firefighting legal complaints, consumer criticism and repeated calls from the traditional broadcasting sector to regulate over-the-top (OTT) video streaming platforms.  

On the top

Hotstar was the most downloaded over-the-top video streaming application in 2017, followed by JioTV and Voot, as per data from App Annie quoted in Ficci-EY report.

American streaming platform Netflix probably faced the most intense legal battle after its popular original series Sacred Games got released in India in July. There were political controversies, followed by police complaints and public interest litigations in Delhi High Court for insulting the former Prime Minister Rajiv Gandhi and incorrectly depicting some historical events. In fact, in an affidavit, even MeitY had batted for freedom of speech to Delhi High Court and said that it cannot ask Netflix to remove the alleged objectionable part in the show. Another plea in Bombay High Court against the sexual content in Sacred Games (and AltBalaji’s Gandi Baat) demanded pre-screening of web content.

These intermittent calls for regulation of video streaming platforms haven’t been only about the content and censorship, but also about regulatory compliances and financial price borne by traditional broadcasters, satellite and cable operators. While all three of them need permissions and registration with the government to operate and must comply with content guidelines, there is no such rule for video streaming platforms. 

“There needs to be a regulation in place for video streaming platforms; it is having an impact on cable and satellite as well because there is no level playing field. Consumers are increasingly evaluating and moving on to video streaming platforms, when legally there is nothing to govern the platforms,” said Roop Sharma, president at Cable Operators Federation of India. 

A still from the popular series Game Of Thrones.

In fact, the Information and Broadcasting (I&B) Ministry had formed a committee to regulate online content in April 2018 that later got disbanded with its mandate being handed over to MeitY in July. However, nothing has been heard from the committee since. According to a person involved in the discussions, the new best-practices code largely has the “blessings of both the ministries”.

An email sent to MeitY additional secretary Pankaj Kumar, seeking details on the committee and its involvement in IAMAI consultations has gone unanswered. An I&B ministry spokesperson said that the ministry is aware of such developments through media reports. “The ministry will be in a better position to comment about the impact once these guidelines are finalised and come in public domain,” the spokesperson said.

It’s not just internet video streaming that has attracted the government’s attention when it comes to regulation. It’s the internet. In a recent draft amendment to IT Act, the government, just ahead of elections, proposed that social media platforms—Facebook, Twitter and WhatsApp—should “proactively” deploy technology to remove “unlawful” content. The move has been received with criticism. Industry executives say that it is expected to undermine encryption and privacy; the draft amendment is open for consultation as of now.

A switch in time

In light of everyone (and their counsels) trying to hold video streaming platforms liable for one thing or another, this best-practices code couldn’t have come at a better time. First, it will bring down the constant firefighting that video streaming platforms have to indulge in as well as clear the air on censorship responsibilities.”Categorising content based on age appropriateness will aid viewers immensely to use their discretion and make informed choices about the content to be watched by them and their families,” said Karan Bedi, chief executive officer at Times Internet-owned video streaming platform MX Player.

“We do believe that with increased viewer caution, the concerns on censorship of content will be addressed. Even after such categorisation, if viewers have any individual concerns, they will be able to discuss their concerns with the internal grievance redressal forum of relevant OTT players,” he added. 

250 million

The amount of online video audience in 2017, a number which is expected to touch 500 million by 2020, according to a 2018 Ficci-EY report.

While the new uniform code will not have an impact on the day-to-day business of companies, it will certainly help in handling consumer complaints through an industry committee. Hence keeping the litigation costs in check. The gravest concern that the new guidelines will address is the intervention of the government, and, therefore, the protection of freedom of expression. “The reason why this uniform industry guideline was first proposed was to avoid state intervention,” the executive quoted above said.

Little doubt then that when the government had first proposed the idea of content regulation, it was met with a lot of flak from industry stakeholders, mostly highlighting that video streaming may lose its edge with regulation.

The pressure to regulate video streaming isn’t confined to India though; 2018 saw such calls world over, in different ways. While the European Union had proposed in 2018 a law requiring video streaming services to devote at least 30% of their overall libraries to local content, Turkey approved a law where video streaming platforms would need a proper license to operate. In the UK, there is a war brewing between public broadcasters and on-demand players, where the former called on the government to ensure their prominence in television guides. Even the Canadian Radio-television and Telecommunications Commission (CRTC) had recommended that music and video streaming companies should be federally regulated for creation of local content, in a 2018 report.

So far, there has been light touch regulation in case of video streaming though, with the exception of certain nations like China, where companies have to comply with local licensing norms and permits as well as log user data and content.

“There is no uniform code internationally, given the individual state and government interventions,” said the executive quoted above. However, a set of subscription-video streaming platforms across the Association of Southeast Asian Nations (ASEAN) including Disney, Netflix and Fox+, in 2018, had signed a self-regulatory content code for ASEAN users that talked about taking measures to protect minors from age-inappropriate content and making available resources to consider complaints or other concerns. “The ASEAN code seems to be working for the companies involved; the IAMAI guidelines are on similar lines. People want to be trusted with the content, especially when they are paying for it,” said an executive at another video streaming platform, requesting not to be named.

Fitting the shoe

While the hope is that this best-practices code will do for video streaming what self-regulation did for television, can it?

In 2011, Indian Broadcasting Foundation (IBF) had formed a Broadcasting Content Complaints Council (BCCC) to examine content-related complaints against non-news, general entertainment television channels. As of 2017, according to its website, IBF has had a total of 376 channels as members (out of a grand total of 886 as of 31 October 2018, as per numbers released by I&B ministry). It closely works with the government to keep a check on content violations. 

Where video streaming differs from television is that the latter had a full-fledged set of regulations—‘Programme Code’ prescribed under the Cable Television Networks (Regulation) Act, 1995—to base its principles on. Television also had the advantage of drawing inferences from international case studies. As far as the internet is concerned, the subject and its regulation are alien concepts to India and the world alike. Everyone is figuring out a way as they go.

The general expectation among the executives is that a uniform code in the industry will largely take care of the ongoing concerns around video streaming as more members join. That it will set the ball rolling for regulation. However, some stakeholders do have their concerns. “There is already enough under IT Act that governs the platforms, and once you go the regulation way, even if it is self-regulation, there is no going back. It may lead to a larger set of censorship rules; nobody is sure where this will land video streaming,” said a media executive aware of IAMAI discussions, asking not to be named.

How the code sits with the government and other video streaming platforms will be clearer in the coming months, once the companies are settled with the guidelines. For now, a beginning has been made in independent and autonomous content regulation for digital media.

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