What are Online Curated Content Platforms, and How are they Different from Other Platforms and Mediums?
Online Content Curated Platforms [OCCPs], are online platforms that curate a range of content and present it on a singular platform. Examples of these platforms include Netflix, Amazon Prime, Hotstar, AltBalaji amongst others. They are essentially video on demand (VOD) platforms whose primary function is to make video content available to the people. They are based on what is commonly referred to as a ‘pull’ model,[1] where consumers choose what they wish to watch at a time and place of their choosing. OCCPs are different from other online platforms like Youtube, Facebook, Instagram etc. which provide user generated content (UGC).
It is important to distinguish OCCPs from other UGC platforms to understand the difference in applicability of laws. UGC platforms compared to OCCPs have limited control over the content that is being uploaded on their platforms. On UGC platforms, the majority of the content is uploaded by the users which is then subject to the guidelines and policies issued by the platforms, whereas in the case of OCCPs, the platforms themselves upload all the content.
Overview of Current Scenario
Currently there are no specific laws pertaining to OCCPs. However, they are bound to follow other laws of the country pertaining to legality of content. Thus restrictions on content under provisions of the Information Technology Act[2], 2000, Indian Penal Code, 1860[3], Protection of Children from Sexual Offences Act, 2012[4], which deem content that is obscene, inciting violence, displaying child pornography or defamatory illegal, do apply. They are further subject to all the restrictions on freedom of speech and expression under Article 19(2) of the Indian Constitution. Therefore, any content that would be illegal offline, would also be considered to be illegal online. [5]
Currently OCCPs in India have their own internal guidelines and policies for content moderation and internal complaint redressal mechanisms. In May 2019, the Supreme Court of India issued a notice to the Centre following a plea filed by the Justice for Rights Foundation[6], calling for the regulation of content being made available on such OCCPs. Further, in March 2020, the Ministry of Information and Broadcasting is reported to have given the stakeholders of the OCC industry 100 days to finalise a uniform code of conduct and set up an adjudicatory body for the same. [7] While the ministry has clarified it won’t censor any content, it has insisted on age certification and better complaint redressal. [8]
This move came shortly after the Internet and Mobile Association of India [IAMAI] in February 2020, proposed a second uniform code of conduct,[9] providing for an independent adjudicating body , the Digital Content Complain Council [DCCC]. Only 4 platforms have currently agreed to sign the same yet. The IAMAI, earlier in 2019, came out with a similar Code of Best Practices for Online Curated Content Providers. This code had 8 signatories and did not provide for an independent adjudicatory body. [10]
What Would a Uniform Self-Regulation Code Entail?
Given the likely scenario of a self regulation code, it is vital to understand what this code would practically imply. The self regulation code for the OCCPs, proposed by the IAMAI, in 2020 contains a description of what kind of content will be prohibited, and requires the platforms to classify content, provide maturity rating and allow parental or access controls.[11] These guidelines would be in addition to the statutory restrictions under various laws mentioned earlier. In its current form, these guidelines are applicable only to the platforms that choose to sign this code. The purpose of this code is essentially to enable the OCCPs to exercise caution with regard to the content that they put up on their platforms and further provide more information to the viewers regarding the content available, to make a more informed choice.
Currently, the non news and current affairs television channels’ model of self regulation can also be taken as an example of a self regulation model. This code of conduct is applicable to all non news channels on television, as opposed to only those who sign it. It provides for a two tier redressal mechanism with an independent adjudicating body called the Broadcasting Content Complaints Council and further, restrictions on the content that can be broadcasted, with content categorisation guidelines.[12]
As mentioned earlier, the IAMAI has in the past year and a half, come out with two sets of self regulatory codes, the primary difference being, the latter, provides for an independent adjudicating body the DCCC, which was absent in the former. The proposal of this body is what is considered to be primary bone of contention between the non signatories and the IAMAI. Most industry players are of the view that an adjudicatory body could open the doors to possible censorship in the future, and while some of them approved of the earlier code, were not willing to sign the second one that provides for this body. The question thus arises over the need of an adjudicating body in addition to a self regulatory code.
If any code of conduct for the OCCPs is to be applied, it must be accompanied by some form of enforcement mechanism. The primary motive behind an adjudicating body is to provide for accountability and ensure compliance with the provisions of the code. An adjudicating body provides an additional layer or accountability and enforceability to the internal redressal mechanisms that most platforms have.
In case of the second code of the IAMAI, the primary function of the proposed DCCC is to oversee the adherence of OCCPs to the self regulatory code and act as the second tier of grievance redressal. Pursuant to receiving a complaint, the DCCC may direct any platform, to reclassify ratings, include a warning, edit the synopsis of any form of content and/or even impose a penalty on the platforms. Modification or withdrawal of any content has not been provided for in the code. The decisions of the DCCC are binding only on signatories but no penalties are mentioned in case of non compliance. There is a clear lack of enforceability of the decisions of the DCCC rendering the purpose of the DCCC redundant.
Looking at the BCCC model, in case of repeated non compliance with the decisions and warnings of Council, the I&B Ministry is notified and encouraged to take appropriate action. The I&B Ministry has reportedly stated that the new code must create an adjudicatory body.[13] The new rules that the OCC industry formulates may be based upon IAMAI’s model or it may draw inspiration from the non news and current affairs television channels’ self regulation code, or it may even take an entirely different approach. At this point, it is purely conjecture.
Challenges
VOD services that are provided by these OCCPs are not akin to services provided by Cable TV or Cinema Halls. OCCPs are unique in the sense that currently there are no specific regulatory laws applicable to them and the same has been confirmed by the Ministry of Information and Broadcasting[14]. Even though the Information Technology Act 2000 does apply to them, they do not fall under the definition of ‘Intermediary’ going by the literal interpretation. An ‘intermediary’ has been defined in Section 2(w) of the Act as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online marketplaces and cyber cafes.” These OCCP’s apart from hosting third party content also produce original content for which they are not an ‘intermediary’. With respect to the content for which they are not an ‘intermediary’, they can only be punished for publication of sexually explicit, obscene or any material depicting children in a sexual manner. For example, Section 69A of the IT Act that provides for blocking public access to any information through any computer resource in the interest of the sovereignty & integrity of India, public order, friendly relations with foreign states or any other reason if necessary, is not applicable to these OCCPs, as they are not intermediaries.
Even if the OCCPs do come up with a code, the problems with their regulation are manifold. At the outset itself, the fact that there are numerous such OCCPs apart from the major ones such as Netflix, Amazon, Hotstar, AltBalaji, Zee5, SonyLIV to name a few, it is a far fetched idea that each and every one of these OCCP’s would be inclined to sign the code. Earlier this year, the IAMAI came up with a new set of code but major players such as Netflix, AltBlalaji, Zee5, refused to be bound by it and asked for its recall[15]. This code by IAMAI provides for the creation of a Digital Content Complaint Forum(at the OCCP level) and DCCC (adjudicatory body). Even though they have managed to come up with a code, there is a complete absence of an enforcement mechanism. The code in terms of imposing measures on the defaulting OCCP talks about, reclassifying of ratings, issuing warning cards and levying a financial penalty up to Rs. 3 lakhs[16]. It is apparent that this code is without any actual teeth. Similarly, even if another code is formulated, signed and brought into force with more stringent penalizing measures there still won’t be any enforcement mechanism. Say, for example, what would stop an OCCP to make available any content in violation of the said code, and how would the adjudicatory body actually force the OCCP to remove such content until and unless it is directly in violation of any other statutory law.
The idea of self-regulation is only being pushed forward both by the government and the OCCPs because any other mode of exercising control is far more impractical, be it certification, or a statute specifically for OCCPs like the Cable Act. For instance, if certification is made a must for OCCPs, it would mean that a certificate would be required by the OCCP to release a movie on its platform, while the same movie might be available on YouTube later without any certification.[17]
Conclusion
The recent developments including the release of the new code by the IAMAI and post that, a directive from the ministry asking the OCCPs themselves to draft a code of regulation have generated arguments both in favour and against regulation of this sector. Some argue that with the existence of statutory provisions governing the legality of content being put up as mentioned above, there is no need for additional regulations governing the industry. Accordingly, additional restrictions on the content being displayed would amount to censorship, as has been seen in traditional cinema and a curtailing of artistic freedom and thought. However, it is important to note that as of now, although the general laws do apply to them and provide for restrictions like complete ban on child pornography, they are almost non existent when compared to those exercised on television or theatre broadcasts. Further, the government has emphasized its reluctance to censor and encouraged responsible viewing by demanding appropriate rating and warnings.
Notwithstanding the feasibility factor of self regulation of OCCPs, it is more propitious that we leave the OCC industry be. While that may seem like the devil-may-care way of letting an unregulated industry go rampant, it is important that we remember that the people running these OCCPs are still subject to the laws of the land. Naturally a person should not be deprived of enjoying a particular content just because it is deemed offensive by someone else. What is explicit, communal or obscene cannot be measured on a scale or ascertained by a standard formula. The classification, if any, should be limited to what is legal to watch and what isn’t. Considering that, it would be most opportune to widen the scope of the Information Technology Act and include these OCCPs within the definition of ‘intermediary’. This would mean that any censorship, if it takes place, would be done by the authority of law, and because the content being censored is in violation of the act itself, hence illegal. This action would also help to bring what is communal, obscene or otherwise inappropriate under an existing legal framework and thus would be decided under a semi-standard formula that is continuously evolving itself in line with the changing times.
[1] CODE OF BEST PRACTICES FOR ONLINE CURATED CONTENT PROVIDERS, at, https://www.viacom18.com/pdfs/Self-Regulation_of_Online_Curated_Content_Providers.pdf, (last accessed 13 April 2020).
[2] Information Technology Act, 2000, ss. 67A and 67B.
[3] Indian Penal Code, 1860, ss. 124 and 499.
[4] Protection of Children from Sexual Offences Act, 2012, s. 15.
[5] ‘Discussion Paper: Online Curated Content Regulation Strategic and Legal Issues’, Nishith Desai Associates at http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Online-Curated-Content-Regulation.pdf (last accessed 13 April 2020).
[6]Shruti Mahajan, ‘SC issues notice in plea seeking regulation of content on online streaming platforms’, BarandBench, at https://www.barandbench.com/news/supreme-court-issues-notice-in-a-plea-regulate-online-streaming-platforms, (last accessed 12 April 2020).
[7] Hemani Sheth, ‘Centre gives OTT platforms 100 days to put self-regulatory code in place: Report’, Hindu Business Line, at https://www.thehindubusinessline.com/info-tech/centre-gives-ott-platforms-100-days-to-put-self-regulatory-code-in-place-report/article30969669.ece (last accessed 13 April 2020).
[8] Aroon Deep, ‘I&B Ministry gives OTT Industry 100 days to create adjudicatory authority’, MEDIANAMA, at, https://www.medianama.com/2020/03/223-ib-ministry-gives-ott-industry-100-days-to-create-adjudicatory-authority/ (last accessed 13 April 2020).
[9] SELF REGULATION FOR ONLINE CURATED CONTENT PROVIDERS, at https://www.medianama.com/wp-content/uploads/IAMAI-Digital-Content-Complaint-Council-NEW.pdf, (last accessed 12 April 2020).
[10] CODE OF BEST PRACTICES FOR ONLINE CURATED CONTENT PROVIDERS, at https://www.viacom18.com/pdfs/Self-Regulation_of_Online_Curated_Content_Providers.pdf, (last accessed 13 April 2020).
[11] SELF REGULATION FOR ONLINE CURATED CONTENT PROVIDERS, at https://www.medianama.com/wp-content/uploads/IAMAI-Digital-Content-Complaint-Council-NEW.pdf, (last accessed 12 April 2020).
[12] Self-Regulatory Content Guidelines for Non-News & Current Affairs Television Channels, Indian Broadcasting Foundation, at, http://www.ibfindia.com/sites/default/files/pdf/Self%20Regulatory%20Guidelines%20for%20non-news%20%26%20current%20affairs%20programmes.pdf (Last accessed 13 April 2020)
[13] Aroon Deep, ‘I&B Ministry gives OTT Industry 100 days to create adjudicatory authority’, MEDIANAMA, at, https://www.medianama.com/2020/03/223-ib-ministry-gives-ott-industry-100-days-to-create-adjudicatory-authority/ (last accessed 13 April 2020).
[14] Ashok Upadhyay, ‘No content regulation on online streaming platforms, RTI reveals’ IndiaToday, at https://www.indiatoday.in/binge-watch/story/no-content-regulation-on-online-streaming-platforms-rti-reveals-1607998-2019-10-10, (last accessed 12 April 2020).
[15] Nikhil Pahwa, ‘Streaming players ask IAMAI to recall streaming content code, question legitimacy; IAMAI responds’, MEDIANAMA, at https://www.medianama.com/2020/02/223-streaming-video-iamai-digital-content-code-netflix-amazon-hotstar/ (last accessed 12 April 2020).
[16] SELF REGULATION FOR ONLINE CURATED CONTENT PROVIDERS, at https://www.medianama.com/wp-content/uploads/IAMAI-Digital-Content-Complaint-Council-NEW.pdf, (last accessed 12 April 2020).
[17] Aakarsh Singh, ‘Shackle to Netflix and Chill?’ iPleaders, at https://blog.ipleaders.in/shackle-netflix-chill/, (last accessed 11 April 2020).
By Shivali Shah and Sahastranshu, Editorial Board, RSRR.