Preliminary
On 26 September 2019, Medianama organised a roundtable discussion on online content regulation at the India Habitat Centre in New Delhi. It was well attended with over a hundred people in attendance representing stakeholders such as Netflix, Jio, Hungama, content creators notably Gursimram Khamba, journalists, researchers, policy professionals and lawyers. The session was led by Nikhil Pahwa of Medianama with plenty of animated discussion between various participants. This note tries to capture the essential points of the discussion. Attributions to individuals have been made where possible.
Highlights of the roundtable
1. Jurisdiction – which ministry- the Ministry of Information and Broadcasting (MIB) or the Ministry of Electronics and Information Technology (MeitY) – has the jurisdiction to regulate streaming platforms?
1.1 Sneha Jain, a lawyer with Sai Krishna Associates said that there was ambiguity in this space because the MIB has jurisdiction over the Cable TV Network Regulations Act, 1995 and the Cinematograph Act, 1952 while the MeitY had jurisdiction over the Information Technology Act, 2000 (IT Act). She also stated that the IT Act was reactive in nature.
1.2 Another lawyer in attendance said there was perhaps a need for an overarching regulator like the Competition Commission of India.
2. Self-censorship
2.1 Ashish from Hungama said that they had been cautious especially since the controversy around Sacred Games on Netflix. He said that edgy content was necessary to be competitive in this space, yet they were forced to tread with caution. He said that they kept a check on scripts, looked into language used, and the level of gore amongst other things. He gave the example of a series called Damaged which was about a serial killer which had many scenes which they needed to toned down.
2.2 In response Abhishek Soni, a representative of Reliance Jio, said that they could not have been asked to take down anything, and that their decision was voluntary. He stated that they only needed to comply with existing laws like the Indian Penal Code, 1860, the Copyright Act, 1957, and the Protection of Children from Sexual Offences Act, 2012, amongst others.
2.3 In response to this, Ashish from Hungama said that they self-censored in order to avoid any backlash.
2.4 Comedian Gursimran Khamba brought a content creator’s perspective to the discussion. He said that the self-regulatory code was laughable and it boiled down to if the CEO liked the story. He further added that the debate was actually not about sex, but rather about politics. Ambika Khurana asked him if the environment strangled artistic freedom, to which he responded that a chilling effect had happened.
3. Self-regulatory codes/ the IAMAI Code
3.1 Abhishek Malhotra of TMT Law gave the example of the Indian Broadcasting Foundation’s Broadcasting Content Complaints Council (BCCC) and said that such codes offered an alternate mechanism for people to raise grievances. Subscribing to this additional layer could reduce the number of litigations a company was subject to. Voluntarily staying away from these codes could leave companies open to more paternalistic regulation.
3.2 Another participant argued that the courts also gave their blessing to self-regulatory codes if they were working well. They cited the example of courts having endorsed the BCCC but the same was not true for the News Broadcasters Association’s code because that was not considered to be working well.
3.3 Regarding the IAMAI Code, the representatives from Netflix (Ambika Khurana) and Reliance Jio (Abhishek Soni) said that the intention behind the code was to put forth their commitment to upholding the law of the land. Aditi from Medianama asked who adjudicated the question of members not ‘deliberately and maliciously’ putting up content which was prohibited under this code. Khurana responded that the individual signatories to the code would take a call on this.
3.4 At the end of the discussion, when asked what would be an ideal outcome, Soni said that ideally there should be no regulation, but as a fall back they would like it if the self-regulatory code were to be accepted by the government.
4. Intermediary status
4.1 Lawyer Abhishek Malhotra pointed out that at present the government treated platforms as intermediaries. The key question was if they would lose this status if they began to self-regulate.
4.2 A representative from the Internet and Mobile Association of India (IAMAI) clarified that the signatories to the self-regulatory code did not view themselves as intermediaries. They have described themselves as Online Curated Content Providers (OCC Providers) in the code which excludes user generated content platforms.
4.3 A representative from SFLC.in suggested that they remained intermediaries for the purposes of the IT Act, but they lost the safe harbour provided to them.
Ikigai note: The question of whether exercising editorial content resulted in a loss of intermediary safe harbour is relevant even in the case of platforms which host user generated content.
5. Public v. private viewing/level playing field
5.1 The primary argument here was that certification was needed for films and television because they involved public viewing. On the internet, users selected what they viewed. The distinction was one of content which got pushed and content which users pulled.
5.2 Nikhil Pahwa of Medianama cited a statement made by the Attorney General during the porn ban case in the Supreme Court, where he had said that the government did not want to interfere in the private sphere.
5.3 Sudhir Gupta, former Secretary of the Telecom Regulatory Authority of India, argued that the distinction between private and public was that of convenience. He said that it could even be argued that uploading content was the same as uplinking and downlinking and therefore could even be considered broadcast. He expressed the view that similar services should be treated equally. He said that the objective of the regulation should be to create a level playing field. He cited the Shyam Benegal committee report which recommended that amendments needed to be made to the Cinematograph Act, 1952. He said that reducing regulation on film and television could be an option to consider.
6. Children accessing inappropriate content
6.1 A large part of the discussion focused on protecting children from accessing inappropriate content online. One person argued, “it takes a village to raise a child” and that platforms owed a responsibility in ensuring that children were protected.
6.2 Ambika Khurana of Netflix said that platforms did provide tools to aid parents such as parental locks and age ratings for content and that it was for parents to then properly use these tools.
6.3 Vithika from Love Matters said that they produced content for young people which engaged in conversations about sex in a positive way and that their content was blocked.
6.4 At the end of the discussion, when asked what would be an ideal outcome, Khurana said that she would like to see the use of technology tools to protect children and that there should be a standardization of age ratings for content.
(This post has been authored by Aman Taneja, Senior Associate who attended this event on behalf of Ikigai Law. Aparajita Srivastava, Senior Associate at Ikigai also attended this event)
