A. Preliminary:
On 09 August 2019, the Centre for Communication Governance (CCG) at National Law University (NLU), Delhi had organized a closed-door roundtable discussion on online content regulation, with a focus on video on demand (VOD) services. This post is based on our notes from the event. As the event was organized under Chatham House Rules, we have not attributed any of the comments to any specific person.
The event was attended by various representatives from civil society organizations, policy think tanks, law firms, companies and lawyers. Nehaa Choudhary, Public Policy Lead and Arpit Gupta, Associate, from Ikigai Law attended the event.
B. Key points discussed at the event:
The following are the broad points discussed at the event:
1. Nature of video-on-demand platforms:
1.1Many people were of the view that video-on-demand platforms cannot qualify as ‘intermediaries’ under the Information Technology Act, 2000 (“IT Act”), since they themselves upload the video content on their platforms. They exercise complete control over the content, in terms of curating it, modifying it and even controlling access to it. Hence, they are not entitled to the ‘safe harbour’ protection under Section 79 of the IT Act.
1.2 However, there are certain platforms which have a ‘hybrid’ nature. For instance, YouTube acts as a platform for both its own content and user-generated content. However, there was a general agreement that to the extent YouTube also uploads its own content, it does not qualify as an ‘intermediary’.
1.3 To the extent a video-on-demand platform does not qualify as an ‘intermediary’, it will be subject to all existing content regulation laws. Hence, a question was raised that whether a separate certification or other process is required at all for VOD platforms.
1.4 For the purposes of regulation, the distinction between an ‘intermediary’ like YouTube, and a VOD platform like Hotstar is relevant. In case of an intermediary, we need to regulate the person who uploaded the content, and not the platform which hosts it. When people upload a documentary on YouTube, no one has a problem with that. But when the same documentary is made available on Netflix, we demand such content to be regulated. It is the user who should be regulated, not the platform.
1.5 The ‘whataboutery’ argument is wrongly applied- it is incorrect to suggest that just because television or cinema is regulated, VOD platforms should also be regulated.
2. ‘What will be the mechanism of regulating VOD platforms?’- Thoughts on censorship
2.1Views were expressed on how censorship of VOD content cannot work in the same manner as it does for television or movies theatres.
2.2 Pre-certification of content results in a presumption about its legality. Once certified, the legality of that content cannot be questioned.
2.3 Multiple petitions have been filed before various High Courts seeking regulation of VOD content platforms. But many of these petitions have also been dismissed, such as those before the Delhi High Court and the Karnataka High Court.
2.4 While some people believe that non-invasive censorship can help, some people have endorsed the existing censorship systems in the country. It was also suggested that self-regulatory system may also result in censorship, as platforms may be too cautious in making certain content available for public viewing.
2.5 The problem with censorship is that it is not a ‘one rule fits all’ mechanism. There are so many differentiating factors when it comes to content, that each factor can have a censorship system of its own. For instance, take the mode of viewing content. Since most VOD content is viewed privately on personal devices, it cannot be subject to the same kind of censorship as public exhibition of content such as movies.
2.6 Content diversity is another such factor. Not all content demands the same regulation, and VOD platforms release a wide variety of content. Violent or sexually explicit content cannot be treated at par with a kids movie. Does this mean that for every piece of content uploaded by a VOD platform, it will need certification? High content diversity on VOD platforms also means that it’s very difficult to decide what’s best for the audience.
2.7 It is argued that market standards can be used to determine whether something should be censored or not. However, it is difficult to determine such standards. Can the ‘audience demand’ of a content be one such factor? Should there be ‘labelling standardization’, in that content meeting a certain threshold should be certified as ‘A’? There is no rational way of determining these standards. It does not make a difference in a country of a billion people if there only 50,000 complaints. That can’t be the standard for determining whether something should be censored or not.
2.8 However, there were views in favour of censorship as well. Discussing the petition before the Delhi High Court, it was stated that the High Court in that case had only discussed the issue of post-screening remedies in its jugement, but did not make any reference to pre-emptive screening. This is despite the fact that the Ministry of Electronics and Information Technology had said in its affidavit that it is not compulsory for VOD platforms to get a license.
2.9 Certain platforms may be providing VOD services, along with other non-content related services. How will such organizations be regulated? Also, if VOD platforms are liable for hosting content on their platforms, will internet service providers also be held liable for providing access to such VOD platforms?
2.10 Since the proliferation of VOD platforms is relatively new, the government has also found itself in unchartered territory.
2.11 There was also discussion about which body should be regulating VOD platforms. Ideas of having a ‘converged communications regulator’ were mooted.
2.12 Even though many people were against the idea of subjecting VOD platforms to censorship requirements, they were supportive about having a complaint mechanism, or a grievance redressal mechanism for consumers.
3. Self-regulatory code:
3.1 The self-regulatory code released by IAMAI for certain VOD platforms in January 2019 was also discussed. One concern raised about the self-regulatory code was that it could set a negative trend. There can be a possibility of a second version of the code being released with more restrictions.
3.2 Companies need to be informed of their rights- they are important to the digital ecosystem- they should not have to operate under threat of action being taken against them by the government.
3.3 Consumers these days are aware enough to make the right decision for themselves and their family. However, platforms may consider coming up with a consumer grievance redressal mechanism.
3.4 References were also made to the Broadcasting Content Complaints Council, which is an instance of a self-regulatory organization replacing the legal regulatory process under the Cable Networks Act.
This post is based on a compilation of notes prepared during the event by Arpit Gupta, Associate at Ikigai Law.
Disclaimer: The statements given above do not reflect the verbatim statements given by various attendees at the event, and have been edited for clarity.
