The media & entertainment industry has witnessed a steady growth across the world. The recent trend of the use of the internet for media consumption has catalyzed this growth.[1] Today, many online media platforms or over-the-top platforms (OTT / OTT platforms) offer curated video content[2] suited to the needs and demands of individual consumers. The OTT market in India alone is expected to cross USD 5 billion by 2023.[3]
The OTT sector in India is lesser regulated than its offline counterparts like film and television.[4] This allows creative freedom to content creators which enables OTT platforms to cater to the tastes of a wider audience. This, coupled with the convenience of accessing the OTT platform anytime anywhere appears to be one of the main reasons behind the popularity of these platforms with the modern audience. Some feel that content available online is not always suited for everyone who has access to it or find it problematic for other reasons. This has led to a growing demand for regulation of some kind for the OTT sector. India has begun deliberations on various approaches to censor content on OTT platforms, in the wake of rising court cases and police complaints against offensive content.[5] As India mulls its own approach, it is worthwhile to look at how other countries around the world regulate OTT content.
Singapore
The laws on the regulation of OTT content in Singapore are direct. The Infocomm Media Development Authority (IMDA), the media regulatory body of Singapore issued a code of practices for OTT and video-on-demand services to follow from 1 March, 2018.[6] Service providers are required to classify their content on the same basis as offline films – a) G: for general, b) PG: for parental guidance, c) PG13: for parental guidance for children below 13, d) NC16: for no children below 16 years of age, e) M18 for mature audiences (18 and above) only, and f) R21 for content restricted to people of 21 years and above only.[7] Service providers are allowed to offer content rated NC16 and above only if provide for a parental lock function on their platform. Further, they are allowed to offer R21 content only if it is locked by default and the provider implements a reliable age verification mechanism. The code further requires service providers to display the ratings and the elements in the content, including theme, violence, nudity, sex, language, drug use and horror[8] which led to the rating, to be displayed visually and prominently to the viewer before such viewer chooses to consume the content.[9]
The code also prescribes do’s and don’ts for the service providers. They must ensure that the programs hosted by them comply with the prevailing laws of Singapore, do not undermine national or public interest and national or public security and do not undermine racial or religious harmony among others.[10] The code further requires service providers to a) ensure a balance between the viewpoints expressed in news, current affairs and educational programs (factual programs), b) make reasonable efforts to ensure accuracy of facts, c) correct any significant errors in factual programs at the earliest opportunity, and d) prohibit flashing and repetitive images and programs with subliminal messaging from their platforms.[11]
Australia
The Broadcasting Services Act, 1992 (BSA) is the principal legislation governing the OTT sector.[12] It is regulated through a complaints-based mechanism introduced on 1 January 2000[13] known as the online content co-regulatory scheme. Schedule 5 (for content hosted outside Australia) read together with Schedule 7 (for content with an ‘Australian connection’)[14] of the BSA lay down detailed guidelines on the kind of content which may be hosted online. The BSA covers both content which has been classified and also content which has not been classified.[15] Content which has not been classified is treated at par with the rating it is most likely to get if classified.[16] The scheme specifically deals with content which has been classified as 1) RC (or refused classification) which is given to content which cannot be sold, advertised or imported in Australia, 2) X 18+ which is given to content that is restricted to adults due to its sexually explicit nature, 3) R 18+ which is given to content that is restricted to adults as it is considered high in impact for the audience and may be offensive to some sections of the adult community, or 4) MA 15+ which is given to content that is restricted to the people over the age of 15 as it is considered high in impact for the audience below that age.[17] Apart from content classification, the scheme also appears to restrict access to certain kinds of content.[18] The scheme prohibits hosting of and access to RC content. Further, it restricts access to content which has been classified as X 18+, R 18+ or MA 15+.[19]
So far, the Australian Classification Board has been classifying both online and offline content.[20] Recently though, after a two-year pilot test, Netflix got the approval to self-classify its content using its own tools.[21] A monitoring program revealed that Netflix’s tool can assess and classify content with 94% accuracy.[22] The tool is expected to help Netflix classify content and issue suitable advisories quickly so as to premier its content in Australia without any significant delays.[23]
The United Kingdom
In September 2018, the Director General of the British Broadcasting Corporation (BBC) called for a regulation on video streaming services such as Netflix and Amazon.[24] Following this, the UK culture secretary hinted that video streaming services should face the same scrutiny as other public service broadcasters.[25] Despite an absence of any specific regulations covering online videos, the British Board of Film Certification announced a partnership with Netflix under which it allowed the streaming giant to set its own ratings for film and television programs.[26]
Thereafter, the UK government released a white paper on the threat that unregulated online content posed and sought closed consultation on how it could be dealt with.[27] The white paper is concerned only with user-generated content at the moment.[28] It proposes a new regulator and a regulatory framework to ensure online safety of British citizens.[29] The functions of the regulator will include – a) to oversee and enforce the regulatory framework, b) to set-out codes of practice, c) to oversee user redressal mechanisms, d) to promote education and awareness about online safety, and e) to commission and undertake research to improve standards of online safety among others.[30] The proposed regulatory framework will include – a) a duty of care on the companies to take reasonable steps to keep their users safe, b) a mandate on the companies to tackle illegal and harmful activity on their service, c) a requirement of releasing an annual transparency report by the company, and d) a mandate on the company to have an effective and easy to access user complaints function among others.[31]
The white paper has sought responses from the concerned companies and stakeholders over questions based on issues around transparency[32], redressal of complaints[33] and the scope of the regulator[34] among others. As on the date of publication of this piece, the UK government seemed to be analyzing the feedback it received.[35] The findings of the white paper may also dictate how online curated content is regulated in the UK in the future.
Turkey
The Radio and Television Supreme Council (RTUK)[36] of Turkey is the primary body tasked with the regulation and supervision of radio, television and on-demand media services in the country. It recently notified a regulation,[37] which aims to regulate content being broadcast on the internet.[38] It mandates joint stock companies established locally, providing radio, television or on-demand broadcast services over the internet to obtain a license. The license would be granted for 10 years. It further mandates the license holders to encrypt the audio and visual feeds, provide their access to the RTUK for remote monitoring and also share various IP licenses with the RTUK to enable broadcast recording. It also mandates the sharing of program catalogue, corporate structure and contact information of representatives of the license holder.
While this brings the OTT content market in Turkey under a licensing regime, many feel that regulations prescribing censorship of the OTT content too may follow soon.[39] Reportedly, Netflix applied for a broadcasting license in wake of the new rules.[40]
Indonesia
Indonesia’s biggest telecom operator Telkom blocked Netflix after its global rollout in 2016 for violating local censorship laws.[41] In 2017, Indonesia’s Ministry of Communication and Information Technology gave Netflix a month to comply with local regulations and partner with a local operator or create a local unit. Subsequently, Netflix entered into a partnership with Telkom following which the latter unblocked user access.[42]
The Indonesian Broadcasting Commission (KPI), the state body monitoring all broadcasting content, announced on 7 August, 2019 that it would release rules which would enable it to monitor digital media content such as that hosted by YouTube, Netflix and other social media.[43] No such rules were available at the time of publishing of this piece.
Kenya
Kenya’s film certification body Kenya Film Classification Board (KBFC) banned Netflix 2 weeks after its launch in the country citing the service to be a threat to moral values and national security.[44] KBFC planned to release a law under which anybody uploading and broadcasting any videos on the internet would be required to have a filming license.[45] After public uproar, the KBFC went back on its plan.[46] Although not much is known on the licensing front, but Kenya seems to be in the final stages of developing a framework to tax foreign OTT services such as YouTube and Netflix.[47] This suggests that the country may not let the services carry on their business without some form of regulatory oversight.
Saudi Arabia
Saudi Arabia’s Anti-Cyber Crime Law[48] (ACCL) appears to be a sweeping law on all-things-internet. The seemingly short legislation uses wide language to give overarching powers to the country to censor internet activity. While it is unclear if the country has any laws dealing specifically with OTT content, it recently used the ACCL and invited international criticism. The Communications and Information Technology Commission cited Article 6 of the ACCL and requested Netflix to remove an episode of ‘Patriot Act’ which was critical of the government, from its domestic catalogue.[49] Though Netflix complied with the request, it attracted criticism for giving-in to the country’s severe restriction on freedom of expression.[50]
Conclusion
The OTT content market is still in a very nascent stage across the globe. Most countries are witnessing a sudden spike in the number of consumers in the OTT space. Some countries, either already have laws or are seriously considering laws to regulate the space. The need for the laws also seems to be coming from varied voids which the countries seek to fill. Countries like Australia and Turkey appear to want to create a regulatory regime for online players which is similar to the approach for offline players. Their laws are drafted accordingly and seem to fill the (real or perceived) absence of any regulatory burden over OTT players which exists over offline players. Countries like Kenya, Indonesia and Saudi Arabia on the other hand appear to want to regulate the space to increase government control and to enforce a strict censorship regime. Their laws are drafted accordingly and seem to be heavy on the idea of state monitoring and regulatory oversight. The UK and Singapore appear to be a convergence of both the ideas wherein they want to bring the players under some regulatory framework and simultaneously protect their citizens from potentially harmful and misleading content.
India too appears to have had a tryst with both the schools of thought. In its 2018 consultation paper, the Telecom Regulatory Authority of India sought responses from stakeholders on whether there existed an imbalance in the level of the playing field between online and offline players of communication services and if there even existed a need to level it out.[51] Many ideological groups on the other hand seem to be pushing the government to adopt laws to enforce censorship of online content.[52]
Therefore, while contemplating its approach, India will have to carefully study the exact need for the laws before it actually drafts or notifies them. Among other things, it may have to look into whether its objective is to protect its audience or to bridge any regulatory gaps and create a regulatory regime for online players the same way it has for offline players. Here, it is important to note that they two modes of content consumption are seemingly less similar than they appear to be. In movies and television, the audience is not in control of the content that is being offered to them. Though for cinema they have an option to choose between different movies released at the same time and for television they have the option of skipping through channels; they don’t however have the option to choose what is finally shown on the screen. With online content, the audience is in greater control of what they choose to finally see from among the many options available. The former involves the content being “pushed” to consumers while consumers “pull” their desired content in the latter. Since the audience has a better say in the latter, a regulatory approach followed for push-based consumption may not necessarily do justice to the mechanics of how online content is offered.
At a time when the tastes of viewers are ever diversifying and they seem to be interested in accessing a variety of genres of films and shows, it may also be important to step back and understand how to best address the people’s need before pushing forward the idea of any form of regulation.
This post is authored by Rishwin Chandra Jethi, Associate with inputs from Aman Taneja, Senior Associate and Tanya Dayal Sadana, Principal Associate at Ikigai Law.
References
[1] Deloitte, Digital Media: Rise of on-demand content, 2015, available at: https://www2.deloitte.com/content/dam/Deloitte/in/Documents/technology-media-telecommunications/in-tmt-rise-of-on-demand-content.pdf
[2] Platforms like Netflix, Prime Video and Hotstar are considered as OTT platforms offering curated video content. Platforms like Facebook, YouTube and Instagram are considered as OTT platforms offering user generated content.
[3] Mint, Video streaming market in India to reach $5 billion by 2023: BCG report, 21 November 2018, available at: https://www.livemint.com/Consumer/P9ZSN91tXV9eWM3mXRndrJ/Video-streaming-market-in-India-to-reach-5-billion-by-2023.html
[4] PricewaterhouseCoopers, Video on demand: Entertainment reimagined, page 27, available at: https://www.pwc.in/assets/pdfs/publications/2018/video-on-demand.pdf
[5] Economic Times, Netflix and Amazon face censorship threat in India: Source, 18 October 2019, available at: https://economictimes.indiatimes.com/industry/media/entertainment/netflix-and-amazon-face-censorship-threat-in-india-source/articleshow/71636063.cms
[6] IMDA, CONTENT CODE FOR OVER-THE-TOP, VIDEO-ON-DEMAND AND NICHE
SERVICES, available at: https://www2.imda.gov.sg/-/media/Imda/Files/Regulations-and-Licensing/Regulations/Codes-of-Practice/Codes-of-Practice-Media/OTT-VOD-Niche-Services-Content-Code-updated-29-April-2019.pdf?la=en
[7] Ibid, Part 1: Classification
[8] Ibid, Part 5: Classifiable content elements
[9] Ibid, Part 2: Display of classification rating and consumer advice
[10] Ibid, Part 4: General principles
[11] Ibid, Part 6: Additional consent considerations
[12] Department of Communication and the Arts, Online content regulation, available at: https://www.communications.gov.au/policy/policy-listing/online-content-regulation
[13] Department of Communications, Information Technology and the Arts, Review of the operation of schedule 5 to the Broadcasting Services Act 1992, May 2004, available at: https://www.communications.gov.au/file/37616/download?token=EQxMbk1y
[14] Submission by the Australian Communications and Media Authority to the Australian Law Reform Commission Inquiry into Serious Invasions of Privacy in the Digital Era – Issues Paper 43, November 2013, available at: https://www.alrc.gov.au/wp-content/uploads/2019/08/52._org_acma_submission.pdf
[15] Schedule 7, Part 2, Division 1, Section 20, the BSA
[16] Schedule 7, Part 2, Division 1, Section 20, the BSA
[17] Department of Communication and the Arts, Online content regulation, available at: https://www.communications.gov.au/policy/policy-listing/online-content-regulation
[18] Schedule 5, Part 5, Division 3, Section 60(1)(c)-(e), the BSA
[19] Schedule 7, Part 2, Division 1, Section 20, the BSA
[20] Australian Classification, What we classify, available at: https://www.classification.gov.au/classification-ratings/what-we-classify
[21] Australian Classification, Australia leading the way with Netflix on classification, 15 November 2019, available at: https://www.classification.gov.au/about-us/media-and-news/news/australia-leading-way-netflix-classification
[22] Australian Classification, Australia leading the way with Netflix on classification, 15 November 2019, available at: https://www.classification.gov.au/about-us/media-and-news/news/australia-leading-way-netflix-classification
[23] The Sydney Morning Herald, Netflix gets approval to classify own shows after two-year trial, 20 January, 2019, available at: https://www.smh.com.au/business/companies/netflix-gets-approval-to-classify-own-shows-after-two-year-trial-20190120-p50sim.html
[24] The Guardian, Tony Hall: regulate video streaming services or risk ‘killing off’ UK content, 16 September 2018, available at: https://www.theguardian.com/media/2018/sep/16/tony-hall-regulate-video-streaming-services-or-risk-killing-off-uk-content
[25] Screen Daily, Netflix and Amazon could face more regulation in UK, hints culture secretary, 8 March 2019, available at: https://www.screendaily.com/news/netflix-and-amazon-could-face-more-regulation-in-uk-hints-culture-secretary/5137492.article
[26] The Guardian, Netflix to set its own age ratings for film and television programmes, 14 March 2019, available at: https://www.theguardian.com/media/2019/mar/14/netflix-to-set-its-own-age-ratings-for-film-and-television-programmes
[27] UK Department for Digital, Culture, Media & Sport, Online Harms White Paper, 8 April 2019, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793360/Online_Harms_White_Paper.pdf
[28] Ibid, Chapter 4: Companies in scope of the regulatory framework
[29] Ibid, Chapter 5: A regulator for online safety
[30] Ibid, Chapter 5.2: The regulator’s functions will include
[31] Ibid, Chapter 3: A new regulatory framework
[32] Ibid, Question 1
[33] Ibid, Question 2
[34] Ibid, Question 4
[35] UK Government, Online Harms White Paper, available at: https://www.gov.uk/government/consultations/online-harms-white-paper
[36] See https://www.rtuk.gov.tr/en
[37] Regulation on the Presentation of Radio, Television and On-Demand Broadcasting on the Internet (Turkey Regulation), 1 August 2019, available at: https://www.resmigazete.gov.tr/eskiler/2019/08/20190801-5.htm
[38] Kavlak, Rtuk Regulations On Internet Broadcasts, available at: https://www.kavlak.av.tr/rtuk-regulations-on-internet-broadc
[39] Reuters, Turkey moves to oversee all online content, raises concerns over censorship, 1 August 2019, available at: https://www.reuters.com/article/us-turkey-internet-censorship/turkey-moves-to-oversee-all-online-content-raises-concerns-over-censorship-idUSKCN1UR539
[40] Reuters, Netflix applies for license under new Turkish broadcasting rules, 3 September 2019, available at: https://www.reuters.com/article/us-netflix-turkey/netflix-applies-for-license-under-new-turkish-broadcasting-rules-idUSKCN1VO14R
[41] BBC, Netflix blocked by Indonesia in censorship row, 28 January 2016, available at: https://www.bbc.com/news/technology-35429036
[42] The Drum, Indonesia’s largest telco Telkom unblocks Netflix after new partnership, 12 April 2017, available at: https://www.thedrum.com/news/2017/04/12/indonesia-s-largest-telco-telkom-unblocks-netflix-after-new-partnership
[43] The Jakarta Post, Indonesia’s broadcasting watchdog to monitor Netflix, YouTube, 7 August 2019, available at: https://www.thejakartapost.com/news/2019/08/07/broadcasting-watchdog-to-monitor-digital-media.html
[44] The Guardian, Kenya’s film censor: Netflix a threat to ‘moral values and national security’, 21 January 2016, available at: https://www.theguardian.com/film/2016/jan/21/netflix-threat-kenya-film-classification-board-censor-moral-values-terrorism
[45] iAfrikan, Kenyans need a license to post videos online, 18 May 2018, available at: https://www.iafrikan.com/2018/05/18/kenyans-need-a-license-to-post-videos-on-social-media/
[46] Tuko, No Kenyan will be arrested for posting videos on social media – government clears the air, 23 May 2018, available at: https://www.tuko.co.ke/274616-no-kenyan-arrested-posting-videos-social-media-government-clears-air.html
[47] The Citizen, Kenya’s plan to tax YouTue, Netflix in final stages, 16 August 2019, available at: https://www.thecitizen.co.tz/news/africa/3302426-5237846-6107b6z/index.html
[48] Saudi Arabia, Anti-Cyber Crime Law, 2009, available at: https://www.citc.gov.sa/en/RulesandSystems/CITCSystem/Documents/LA_004_%20E_%20Anti-Cyber%20Crime%20Law.pdf
[49] The Washington Post, Hasan Minhaj speaks out after Netflix pulls an episode of ‘Patriot Act’ in Saudi Arabia, 3 January 2019, available at: https://www.washingtonpost.com/arts-entertainment/2019/01/01/hasan-minhaj-criticized-saudi-crown-prince-patriot-act-netflix-pulled-episode-saudi-arabia/
[50] Amnesty International, Saudi Arabia: Censorship of Netflix is latest proof of crackdown on freedom of expression, 2 January 2019, available at: https://www.amnesty.org/en/latest/news/2019/01/saudi-arabia-censorship-of-netflix-is-latest-proof-of-crackdown-on-freedom-of-expression/; The Independent, When it decided to censor Patriot Act in Saudi Arabia, Netflix showed us how it deals with moral dilemmas, 2 January 2019, available at: https://www.independent.co.uk/voices/netflix-patriot-act-saudi-arabia-mohammed-bin-salman-hasan-minhaj-censorship-a8707651.html
[51] Telecom Regulatory Authority of India, Consultation paper on regulatory framework for OTT communication services, Question 7, 12 November 2018, available at: https://main.trai.gov.in/sites/default/files/CPOTT12112018.pdf
[52] Economic Times, RSS wants streaming platforms to nix ‘anti-India’, ‘anti-Hindu’ content, 8 October 2019, available at: https://economictimes.indiatimes.com/news/politics-and-nation/rss-wants-streaming-platforms-to-nix-anti-india-anti-hindu-content/articleshow/71485819.cms?from=mdr
