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Decoding the OTT Content Code: A tale of two self-regulatory bodies

The OTT ecosystem will be split between two regulatory bodies as Indian Broadcasting Foundation (IBF) expands its purview to cover digital platforms and launches its own self-regulatory body, whose members currently include the OTT platforms that are a part of broadcasters’ networks. This move has challenged the authority of the Internet and Mobile Association of India (IAMAI), which is in the process of setting up and operationalising a self-regulatory body for the OTT streaming platforms as part of the Level II structure mandated by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The IT Rules 2021 prescribe a code of ethics to be observed by publishers of digital media, including news and current affairs providers and online curated platforms (OTTs).

In case of the OTTs, there will be a three-tiered grievance redressal system, where first tier will allow for self-regulation by publishers, next tier allows for self-regulation by the self-regulation bodies of the publishers, and finally an oversight mechanism by the central government.

Speaking about the guidelines, Uday Sodhi, Senior Partner, Kurate Digital, said, “The guidelines require each OTT platform to classify their content and make sure they are compliant. They will have to set up an internal procedure (grievance redressal) for complaints, which will escalate to a self-regulatory body – whether it is by IAMAI (Internet and Mobile Association of India) or IBDF (Indian Broadcasting and Digital Foundation) – in case of a dispute. News and OTT have different redressal mechanisms.”

Explaining further, he said, “The Government is asking OTT platforms to classify content based on age appropriate categories and if there is a complaint, your internal self-regulatory mechanism should be able to answer that query. If that is not satisfactory, then the complaint will go to a self-regulatory body. First, someone in the organisation takes a clear decision with regards to a complaint; if there is a dispute then the self-regulatory body steps in. The self-regulatory bodies act as a filter before the complaints are heard by the Government.”

The new IT Rules allow for more than one self-regulatory body of publishers, being an independent body constituted by publishers or their associations. The need for regulation was stressed after the controversy surrounding ‘Tandav’ and the Sudarshan TV case, which landed in the Supreme Court (SC). The SC noted that there are no regulatory guidelines for social media intermediaries and OTTs and directed the Government to come up with suitable regulations.

Giving an overview of how the regulatory guidelines came into being, a legal expert associated with one of the leading media companies, on condition of anonymity, said, “In the Cable Television Networks (Regulation) Act, there is a programming code and an advertising code. In the programming code, there is no mention of a self-regulatory body. It says the Ministry will implement the programming code. In the advertising code, it talks about Advertising Standards Council of India (ASCI) regulation. ASCI regulation has been recognised from day one. Television and OTT are different technologies. Television is a pull technology. The TV industry made a mistake by saying it was for public consumption. There was a Pratibha Nathani case in Bombay High Court, where one of the petitioner broadcasters mentioned that TV was for public consumption. It is a nuanced interpretation. Thus, television is also regarded as a push content platform like theatres. So, television does not have pre-censorship unlike theatres. Before the setting up of a self-regulatory body such as Broadcasting Content Complaints Council (BCCC) under the Indian Broadcasting Foundation and the News Broadcasting Standards Authority (NBSA) under the News Broadcasters Association (NBA), TV was regulated by an intermediary committee formed by bureaucrats, where there was no representation of any TV broadcasters. As a result, there were many petitions filed against the Government and in almost all cases the broadcasters won in the High Courts. Since then, there hasn’t been any controversy involving general entertainment channels.”

Elaborating further, the legal expert said, “From the second half of 2018 to 2021, there has been a lot of talk about a self-regulatory code for OTT content by IAMAI. There was a lot of debate and deliberation about the right methodology. In September 2019, out of the 20 members of IAMAI, five members signed a self-regulatory code with Justice AP Shah as chairperson. Citing technical reasons, IAMAI pulled down this content code as a majority of members did not sign it. Non-signatories told IAMAI that they cannot lend their name to the content code. They went back to the drawing board and came out with another code and brought it to the Government. The Government sat silent on the second code as they were very unhappy with it. In February 2020, the Ministry of Electronics and Information Technology (MeitY) called another meeting. The Ministry insisted on three grounds: 1) The self-regulation has to be outside the company at an industry level. 2) It should involve outsiders and not the company representatives. 3) It should be headed by a retired Chief Justice of Supreme Court or High Court. The proposed guidelines were based on the The Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013, which has a provision for independent members. We advised the Ministry to first engage with the signatories and then the non-signatories, but they invited everyone together and gave us a 100-day deadline. They wanted IAMAI to come up with a self-regulatory guideline within 100 days. They (IAMAI) were not able to meet the deadline.”

“The reason for the delay was because of pandemic and the hours and hours of content that needs to be viewed and classified again and as per the new rules. This required time. That’s why each of the OTT companies separately and collectively returned to the government to ask for more time for implementation,” the legal expert added.

Speaking about the allegations of a rift between pureplay OTT players and broadcasters, the legal expert opined, “It is not reasonable to say that this is a split due to a dispute between the OTT players and broadcasters. This case is not the same as the split between self-regulatory bodies News Broadcasting Standards Authority (NBSA) under News Broadcasting Association (NBA) and Professional News Broadcasting Standards Authority (PNBSA) under News Broadcasting Federation (NBF). Here you may call it a conflict between the news broadcasters as there is no provision under Cable Television Networks (Regulation) Act for multiple bodies.”

Replying to the allegation that broadcasters want to impose TV regulations on OTT players, the legal expert remarked, “We have fought government regulation and formed a self-regulatory body. Even though TV is regulated as a push content platform under the CTN Act, we fought and got recognition from BCCC. The IT Rules are completely different as there is no pre-censorship or certification of content before it is broadcast. Digital media is clearly recognised as a pull platform and the Government has clearly defined what a self-regulatory body can do. So, why would we impose push content regulation on a pull platform? It is not in our interest.”

We reached out to a media veteran, who has spent many decades in the broadcasting industry, to understand the wisdom of having more than one self-regulatory body. On the condition of anonymity, he opined, “I am very surprised by this development. If there was one industry body speaking the same language, they would be able to push the envelope with the government much more. From the broadcasters’ perspective, from what I understand, they’re anyway dealing with content issues with Ministry of Information and Broadcasting (MIB) and managing so far without any problems. So, if they have to go to the same Ministry, why should they create or be a part of a separate body? This gives them control as within the IBDF there may be a feeling that Netflix and Amazon are a threat to them. At IAMAI, there may have been a feeling that they (broadcasters) were playing second fiddle to the pureplay OTT platforms.”

“The broadcasters, fortunately or unfortunately, want to be on the right side of the government. If they don’t toe the line when the OTT business has a falling out with the government, it may impact the broadcasting business. I believe, for any industry there should be one industry body. You form an industry body for lobbying and if you are not united in that effort then why create an industry body in the first place,” the media veteran concluded.

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