By Tanu Banerjee, Ishan Johri & Garima Kedia
Until now, over-the-top platforms (OTT Platforms) curating content enjoyed a free reign in India in terms of the content made available by them.
Digital media has been largely unregulated and allowed complete creative freedom to content creators. Increased consumption of content by the Indian audience also resulted in a massive growth in the number of OTT Platforms launched in India, catering to the diverse sensibilities of the Indian audience. However, this also resulted in numerous controversies, with several shows, both Indian and foreign, being dragged into disputes on questions of obscenity, defamation, hurting of religious sentiments, etc. The ministry of information and broadcast (MIB) has in the past year stressed on some form of regulation of OTT Platforms to streamline the sector and held consultations with several stakeholders. In this background, the MIB recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules).
The new rules require OTT platforms to set up a robust three-tier grievance redressal mechanism. The first level will comprise regulation by the OTT Platform itself through a grievance officer. The second level will be an institutional self-regulatory body formed by publishers of content and their associations. This self-regulatory body will comprise industry experts headed by a retired Supreme Court/ High Court judge /eminent personality in the relevant field. At the third level is an inter-department committee constituted by the MIB that will provide oversight and hear appeals for decisions taken at level two or if a complaint is referred to the inter-department committee by MIB.
The code of ethics introduced under the Rules set out guidelines for classification of content based on viewer’s age, themes, content, tone and impact, and target audience; and requires OTT platforms to give due consideration to sovereignty, security, friendly relations of India, etc.
Content rating categories are divided into “U” (suitable for all ages), U/A 7+ (suitable for person aged 7 years and above), U/A 13+ (suitable for persons aged 13 and above), U/A 16+ (suitable for persons aged 16 and above) and ‘A’ (restricted to adults). OTT Platforms must deploy access control mechanisms for content classified as U/A 13+ or higher.
These content classifications are, in fact, not new and existed as part of the Cinematograph Act 1952 and are also similar to the rating criteria proposed under the self-regulatory codes released by the Internet and Mobile Association of India. However, classification of content based on subjective yardsticks will be a challenge given such classification would, in practice, be based on the sensibilities of personnel of each OTT platform.
While upfront content ratings will encourage viewers to make informed choices, can a viewer who continues to watch a film, series, or show despite the warnings and ratings, still register grievances under the grievance redressal mechanism? The rules do not provide for specific grounds on which complaints can be made, and given the subjective nature of the content and diverse sensibilities of viewers, there are likely to be a multitude of complaints. The challenge for OTT Platforms will be to balance grievances from different viewers with varied social sensibilities and the demand for different types of content on their “on-demand” service models from a wide audience base.
Manifestly, the oversight mechanism of the MIB will act as an appellate body for all decisions from the second level and allow the central government to exercise some control on the programming of platforms. While the rules do seek to maintain a balance between self-regulation and government control, two key provisions are tilting the balance in favour of government oversight: first, registration of the self-regulatory body is subject to MIB’s satisfaction; and second, the inter-department committee at level three may hear complaints referred to it by the MIB, thus skipping the first two levels of self-regulation.
What needs to be seen is the way the government practically implements the rules, and if it decides to be stringent or allows sufficient independence to OTT platforms. As in the past, content of all kinds may continue to be created despite the classifications or rating mechanisms or takedowns due to grievances. Besides, given the blurred territorial divisions in the digital era and demand for foreign content from different jurisdictions amongst the next-gen in India, an overly restrictive regime – while battling some social evils, will end up curtailing distribution of certain content through legitimate means, which may, in turn, lead to a surge in content piracy. Further, the code of ethics introduced under the rules may lead to content creators and OTT platforms revisiting their strategies and ideas of developing content.
While the intent of the rules appears to be to curtail problematic content, empower viewers to make more informed choices, and create a level playing field for various mediums, at this juncture, the rules appear to be a speed breaker in the fast-paced OTT industry.
As the digital space and technology for the distribution of content evolves, the regulatory framework for the digital industry will also continue to evolve. In order to ensure fine-tuning of any significant bottlenecks, implementation challenges, and prevent possible misuse of the regulations, policymakers and stakeholders should continue to engage with each other to put in place a regulatory framework that is effective and balanced.
Banerjee is a partner, Johri a senior associate and Kedia an associate, Khaitan & Co. Views are personal