Understanding the self-regulation debate on over-the-top platforms in India

OTT

In the democratic order, the media is an institution which holds considerable power and responsibility. This is an essential fact considering the legislation or regulation that is required to facilitate a healthy growth for the industry. The sector, today, is arriving at the same crossroads many other have, which is one of technological growth and evolution in the way the industry functions. Technological innovation is responsible for the growth of several new segments in the audio-visual industry such as online video streaming, e-Sports and online gaming. The accessibility it offers brings with it, new challenges, for example, the regulation of content for children, economic regulation for free-premium services, in-app purchases and so forth.


One of the most important arguments when it comes to the debate surrounding regulation is that of stifling creative expression. The way this hurdle may be solved is by putting in place a system of self-regulation, one with appropriate checks and balances. Given the present context, it appears that self-regulation of this industry is not only a requirement but also a necessity.


This is not to say that there are no shortcomings of the self-regulatory model. Critics of this system argue that there are rarely any penalties or corrective measures that can be imposed by self-regulatory bodies and that it is easy for individual members to ignore them. Further, often such bodies do not entertain third-party complaints.


However, all these arguments do not curtail that if the media is to serve its role as a platform for the exchange and expression of ideas, as well as being a watchdog on the government, self-regulation remains the best option.


The increase in online video streaming platforms due to their relative newness and lack of proper oversight brought attention to the need for norms and regulation. The film industry in India has also voiced concern that while their industry requires a Central Board of Film Certification (CBFC) while the streaming industry does not even follow a self-regulatory code.


Thus, in January 2019 an initial self-regulation code was signed by nine platforms including Hotstar and Netflix.
The code mandated signatories not to stream content which was:
1.    Banned by courts
2.    That disrespects the national emblem and the flag
3.    Promotes terrorism or violence against the state
4.    Shows children in sexual acts
5.    Promotes and encourages disrespect to the sovereignty and integrity of India


The code was subsequently revised and a two-tier grievance mechanism for the platforms was included in the agreement. The first tier would mandate streaming platforms to set up a digital content complaints forum and resolve consumer complaints within 30 days of receiving them. According the code, consumers could escalate complaints to Tier 2 – which was the New Digital Council. The government could also forward a complaint to the council for a decision.


In line with this code, last month, platforms such as Hotstar, Jio, SonyLIV, Voot and Eros signed and formed an independent adjudicatory council to resolve consumer complaints. These companies account for over 70% of the over-the-top (OTT) streaming market in India.


The move to create a Digital Content Complaint Council (DCCC), headed by a retired judge and having representation from the government and entertainment industry, however, did not go unopposed.
Those who have chosen to stay away from the code argue that the first tier, which gives individual platforms a chance to resolve consumer complaints, is adequate and there is no need for a second tier.


Further, the parties state they are open to further discussions which must also include regional players and stakeholders such as content creators since there are around 35 OTT platforms across the country in a rather nascent industry. They assert there must be proper representation in the decision-making process for them. 


Meanwhile, those who have agreed to the self-regulatory mechanism state that a void would create the opportunity for the government to regulate online content that is currently free of any state control/censorship.


The government response to this has been to maintain that it does not wish to regulate content, however, there is an emphasis on the need for some form of self-regulation, in which case, the quicker OTT platforms can come to an understanding, the better.


What must be retained by any self-regulatory authority is that the industry, especially the news remains free of persuasion from other pillars of a democracy. There must be an assurance of freedom to reporters and journalists and equally to content creators and artists. 


It is only logical then, that media accountability through self-regulation can be achieved when the distributors agree to cooperate and develop a fair and efficient system of self-regulation which benefits not only them but also their customers, the citizens.


This blog was authored by Kartikeya Saigal.