Read our follow up letter to Justice A.P. Shah on self-censorship by Hotstar and the IAMAI’s self regulation code #LetUsChill

Tl;dr

IFF has written an open letter to Justice A.P. Shah and shared a copy of it with the Internet and Mobile Association of India (IAMAI). In it we have expressed our concerns of self censorship beginning to permeate across online video platforms. We have sent this as a response to three recent developments. First, the Government filed a counter affidavit before the Supreme Court last month in which it endorsed self-regulatory institutional mechanisms for domains like social media. Second, the Minister of Information & Broadcasting Prakash Javadekar met with industry players setting a 100 day timeline for market participants to agree on a code of conduct and adjudicatory mechanism. Third, Hotstar India’s largest online curated content providers banned an episode of Last Week Tonight which dedicated an 18 minute segment to Indian Prime Minister Narendra Modi. Therefore, we have written to Justice Shah to take cognizance of these developments and the risk the IAMAI’s self regulation code poses to people’s right to receive and impart information.

Background

In early February 2020, the Internet and Mobile Association of India launched a new Code for Self Regulation of Online Curated Content Providers. Among other things it sought to establish a second tier oversight mechanism under the aegis of a Digital Content Complaint Council (“DCCC”). The DCCC has been constituted in a manner which is eerily similar to the Broadcast Content Complaints Council (“BCCC”) which is the relevant self-regulatory oversight mechanism for television in India. Notably, the BCCC and the accompanying self-regulation code operates parallel to statutorily recognised content norms for cable television. When such parallel frameworks subsist it is likely that content creation, removal and censorship decisions err on the side of caution. As we all know, India’s TV ecosystem has aligned itself to be a risk averse space where content remains homogeneous and its quality pales in comparison to global creative economies.

We have studied the IAMAI’s self regulation framework and many of the same problems that we see with respect to TV come up in this context as well. It establishes vague prohibited content norms which go beyond constitutional thresholds and provisions under relevant laws like the Information Technology Act, 2000 and the Indian Penal Code, 1860. In addition we are concerned with the way that the framework has been designed in an exclusionary manner, the scope and applicability of the DCCC and its interactions with government in particular, and limited actual considerations of the public’s right to free speech and expression.

We believe it is likely to translate into a paradigm where there will be excessive self censorship which will plague India’s online content space. At a broader level we believe it will lead to an overarching chilling effect which will mean that certain types of content will not get made and it will lead to a body blow for plurality and diversity in India’s fledgling online content ecosystem. Sensing these concerns we have already written to the IAMAI and the touted chairperson of the proposed DCCC, the former Chief Justice of the Delhi High Court, Justice A.P. Shah. In it we have articulated our aforementioned concerns with the framework.

Subsequent developments since then reinforce our trepidation with the DCCC and the IAMAI’s self regulation code. To be sure, the Code has only five signatories who have developed the code in conjunction with the IAMAI in an opaque manner-- with no inputs from external stakeholders. The exclusionary nature of the Code is magnified by the fact that the online curated content space in India has more than 35 payers. Therefore, it is concerning that the Indian Government has started taking steps to formalise industry wide adoption and endorse such parallel frameworks which fuel self censorships.

Latest Developments

In an ongoing matter on online content regulation, the Ministry of Information and Broadcasting (MIB) filed a counter affidavit filed before the Supreme Court of India. In it MIB endorsed a self-regulatory institutional mechanism for other domains like social media. This concerns us because it seems like there is a slippery slope brewing which could lead to a chilling effect spreading across major online platforms (both which are fully curated and those which are semi-curated).

Additionally, a report in the Mumbai Mirror dated March 03, 2020 revealed that the Union Minister for Information and Broadcasting Mr Prakash Javadekar met with online content industry representatives. In the meeting, the Minister gave the representatives a 100-day timeline by when they must arrive at a consensus on an industry code of conduct and an appropriate adjudicatory mechanism. This is clearly indicative of a risk that the Government may be pushing other segments of the industry to become signatories to the IAMAI Code and come under the jurisdiction of the DCCC. If this happens we could be fast heading to a restrictive online content space along the lines of how it functions in the Indian television ecosystem.

Our concerns self-censorship were of course exacerbated by the recent incident in which Hotstar, one of the primary signatories to the IAMAI’s self regulation code, proactively banned an episode of Last Week Tonight with John Oliver which was centred on Indian Prime Minister Narendra Modi.

What have we written?

Given these multiple developments we have written to Justice A.P. Shah outlining these incidents and how it ties up with our stance on the IAMAI self-regulation code. We have urged the concerned parties to revisit their current positions and will follow up with them to consider avenues through which self-regulation does not become a gateway to trample upon people’s freedom of speech and expression, overall creativity, diversity and plurality. To this end, we have shared with both Justice Shah and the IAMAI Governing Council links to a recent report by Access Now which looks at different models of online content governance. The report also examines self-regulation and outlines certain key principles in ensuring such systems do not violate human rights.

IFF will continue to continue to engage with the subject, and fight towards ensuring self-regulation does not become a means for collateral censorship.

Important Documents

  1. Link to IFF’s open letter to Justice AP Shah and copied to the Governing Council of the IAMAI dated March 12, 2020 (Click here)
  2. Link to blog providing synopsis of Access Now’s report on online content governance (Click here)
  3. Link to IFF’s open letter Justice AP Shah dated February 11, 2020 (click here)
  4. Link to IFF’s letter dated February 07, 2020 sent to IAMAI, with copies sent to the Ministry of Information & Broadcasting (MIB) and the Ministry of Electronics & Information Technology (MeitY) (click here)
  5. Link to press report of Government’s counter affidavit in Supreme Court endorsing self-regulation institutional mechanisms for social media along the lines of legacy media (click here)
  6. Link to Mumbai Mirror story dated March 03, 2020 which reveals MIB’s meeting with online content players where 100 day timeline for self regulation framework is imposed (click here)
  7. Link to news report highlighting Hotstar ban of Last Week Tonight episode on PM Narendra Modi (click here)
  8. Link to text of IAMAI’s Code for Self Regulation of Online Curated Content Providers (click here)


Want to watch John Oliver do his thing unimpeded? Help us fight industry and government efforts to censor the internet by becoming an IFF member today! Also have you noticed other instances of internet censorship? Kick start the conversation with our community on IFF’s new forum at forum.internetfreedom.in