TL; DR:
On 5th February, 2020 the Internet and Mobile Association of India (IAMAI) announced the launch of its Code for Self Regulation of Online Curated Content Providers. Among other things it provides the basis for the creation of the Digital Content Complaint Council (along the lines of a similar system in place for TV) to oversee content creation and distribution in the online video streaming space. Although there are only four signatories (as opposed to nine in the case of a previous iteration), there are rumbling that the group is seeking government endorsement of this initiative. We have written to the IAMAI and copied the letter to both the Union Ministries of Information & Broadcasting; and Electronics and Information Technology highlighting how this will lead to self-censorship to the detriment of internet users, creators, producers and competition within the market. Based on these grounds we have asked the industry body to roll back the code and asked government authorities to refrain from endorsing the framework.
Background
This post is to update everyone that there is a risk brewing in India’s online video streaming space. And said risk could see us sleep walk into a scenario where online content in India, mimics its formulaic television counterpart. On 5th February 2020, at its annual India Digital Summit, the Internet and Mobile Association of India (IAMAI) launched its Code for Self-Regulation of Online Curated Content Providers. It follows up an earlier Code of Best Practices for Online Curated Content Providers the industry body had put out in January 2019.
Unlike the previous code which had nine signatories, the latest iteration has just four signatories namely, Hotstar, Voot, Jio and SonyLiv. Prior signatories including Netflix, Zee5, AltBalaji, Arre and ErosNow were conspicuously absent at the new code’s launch. Other major players like Amazon (Prime) and Google (YouTube Premium) have stayed away from the process since its inception. Considering India has more than 35 online video streaming providers, the Code is not really representative of the entire industry’s position. So then why are we concerned if it is only being carried out by such a small number of players?
Our Take: This is a precursor to self-censorship and for online streaming to go down the path of TV
Simply put it is the first step towards broad basing self-censorship as industry practice in India’s online video streaming space. If that is indeed the outcome, it would adversely impact internet users in India, creators, artists, production companies and so on. It is also likely to harm competition, innovation, investment and would facilitate industry capture by a few firms over the ecosystem.
The framework essentially builds on the original code of best practices through some key changes. First and most importantly, it seeks to establish an independent enforcement authority called the Digital Content Complaint Council (DCCC) to oversee a signatory’s content related practices. This DCCC mechanism is eerily similar and largely derivative of the Broadcast Content Complaints Council (BCCC) (under the Indian Broadcasting Foundation) which essentially governs content on non-news and television channels in India.
We all know what that has meant to Indian television and how that has led to a largely homogenous content ecosystem, inundated by typical saas-bahu programming devoid of much creativity or pathos. Moreover, how often do we watch our favourite international content on TV and get bummed out that a large chunk of the programming has been edited out? In this context, the online video streaming space was a breadth of fresh air for Indian audiences who were fans of global and local storytelling. Further, it provided opportunities to local storytellers who had until then been rejected by traditional television, theatrical and radio media.
The legal basis and policy need for this effort is questionable at best
In this context, it is disconcerting that even though there is no legal mechanism which empowers the DCCC, its ties with the Government are undeniable. The proposed DCCC is meant to be chaired by a retired High Court or Supreme Court judge. Also, the DCCC is designed to include three members from national level statutory commissions like the National Commission for Women (NCW), the National Commission for Protection of Child Rights (NCPCR) or the National Human Rights Commission (NHRC). Its composition would also facilitate incumbent business capture as the DCCC is meant to include three industry representatives and two online curated content providers (likely to be signatories to the Code). Considering the opaque manner (with no public/stakeholder inputs) in which the Code has been developed, and the public facing impact such a privately designed framework can have-- the legal validity of this effort remains dubious at best.
Second, such codified structures essentially provide the Government a parallel avenue with little to no legal accountability to apply pressure on businesses to censor people’s views and beliefs. It erodes channels for dissent and satire-- and is arguably incompatible with the fundamental right to freedom of speech and expression under the Constitution of India.
Third, like the previous code on best practices, the new code for self-regulation talks about “prohibited content”. What is particularly dangerous is that the newest draft has been modified in a manner which makes the grounds for censorship vaguer. This would afford the DCCC with more discretion to remove certain speech/content which would otherwise be legal under the Constitution of India and also applicable laws like the Information Technology Act, 2000 and the Indian Penal Code, 1860. This is compounded by the fact that the DCCC does not envision membership of stakeholders from research, academia or free speech backgrounds, to act as a safeguard for people’s right to receive and impart information. Therefore, it may be concluded that this Code is merely a liability reduction initiative which is being pushed through at the cost of plurality, diversity and creativity-- all cornerstone’s of the right to free speech and expression.
Our letter to IAMAI
In a letter dated 17th January, 2019 we had previously written to the IAMAI voicing our objection to the initial Code for Best Practices. We argued it was a slippery slope which would act as a precursor towards self-censorship in the Indian online content space. Our beliefs are reinforced by the latest Code for Self-Regulation and we have sent a representation to the IAMAI requesting them to roll back the effort. In addition, we have shared a copy with both the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB), to brief them with the issues of endorsing the framework.
Important Documents
- The latest Code for Self-Regulation of Online Curated Content Providers released by IAMAI on 5th February, 2020.
- Our letter sent to IAMAI, also copied to the Ministry of Information and Broadcasting (MIB) and the Ministry of Electronics and Information Technology (MeitY).
- The Code of Best Practices for Online Curated Content Providers released by IAMAI and signed by 9 players in January 2019.
- Our letter dated 17th January, 2019 to the IAMAI outlining our concerns relating to the initial IAMAI Code of Best Practices.