Latest Self-Regulation Code For Streaming Services In India Raises Troubling Questions

There is a risk brewing in India’s online video streaming space. And the said risk could see us sleep-walk into a scenario where online content in India mimics its formulaic television counterpart.

On February 5, 2020, at its annual India Digital Summit, the Internet and Mobile Association of India (IAMAI) launched the ‘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: 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? We believe 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 an 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 and investment, and will 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 foremost, 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, as has been widely reported, 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.