OTT platforms ask for more time to comply, MIB remains non-committal

Concerns about lack of clarity about the compliance period, operationalising age classification mechanisms, dealing with a deluge of FIRs and public interest litigations (PILs) against streaming platforms, need for greater consultation going forward dominated the industry’s closed-door meeting with the Minister for Information and Broadcasting Prakash Javadekar on Thursday. Throughout the meeting, Javadekar maintained that the Digital Media Code of Ethics is not meant to censor, Forbes India has learnt after talking to multiple people aware of the proceedings.

The one thing streaming platforms in India need is time to comply with the newly notified Code of Ethics and that is something the Ministry of Information and Broadcasting was non-committal about, Forbes India has learnt. MIB Minister Prakash Javadekar at best offered a review of the status of the burden of compliance after 90 days.

After the meeting, Javadekar tweeted, “Had a fruitful meeting with representatives from OTT industry and explained the provisions of the OTT rules. All representatives have welcomed the new guidelines. The Ministry and industry will partner together to make the OTT experience better for all audience.” However, at least two people aware of the proceedings Forbes India spoke to disagreed with his assessment that the industry has “welcomed” the guidelines. While the representatives from different companies “thanked” the minister for the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 they expressed multiple concerns about them during the meeting with him.

The platforms are still reeling from the surprise notification of the Rules and evaluating how they are affected. While the MIB has maintained that the industry was consulted on the Rules, the industry maintains that there was no consultation on the version that has been notified, and the MIB’s push all this while had been for the industry to come up with a self-regulatory code. In fact, only two weeks before the Rules was notified, the industry had come out with an implementation toolkit that was signed by 18 signatories.

The hour-long meeting with Javadekar was attended by Zee5 Head Amit Goenka, Viacom18 Digital COO Gourav Rakshit, Amazon Prime Video Director and Country General Manager Gaurav Gandhi, Netflix Public Policy Director Ambika Khurana, Hotstar Senior VP (Legal) Amrita Mukherjee, Dipti Kotak (chief legal officer at Reliance Industries) on behalf of JioCinema, Shemaroo COO Kranti Gada, Sony LIV EVP and Business Head Danish Khan, MX Player CEO Karan Bedi, Ekta Kapoor from AltBalaji and ULLU CEO Vibhu Agarwal. Goenka chairs the Digital Entertainment Committee (DEC) of the Internet and Mobile Association of India (IAMAI), the body that has been behind the implementation toolkit. Rakshit is the DEC’s vice chairperson.

‘We need time to comply, clearer timelines, more consultation,’ say streaming platforms
All the streaming platforms at the meeting said they needed time to comply with the Rules, especially when it comes to re-classifying their entire catalogues according to the five age thresholds defined in the new Rules. Goenka told Javadekar that most OTT platforms already do some form of age classification but redoing it would take time.

Rakshit echoed Goenka’s statement about challenges on the compliance period, as well as on effective age-gating mechanisms. Netflix, too, voiced concerns about the short compliance period.

It is understood that in the pre-meeting of the industry, convened by IAMAI earlier on Thursday, the streaming platforms agreed to ask for 180 days to a year for compliance. However, Javadekar did not agree to it and instead said, “You are technology companies. If you cannot comply then who can?” There might be a review of the situation after 90 days but it is not certain.

Currently, the Rules only state that they come into effect on the date of notification, that is February 25. The only compliance period given for streaming platforms is that their self-regulatory body(ies) must register with the MIB within 30 days of the notification of the Rules, and if the body is constituted after that, within 30 days from the date of its constitution. Multiple platforms are concerned about this lack of clarity.

The Rules also require OTT platforms to mark content as U (universal), U/A 7+, U/A 13+, U/A 16+, and A (adult). The classification can happen on the basis of violence, nudity, sex, language, drug and substance abuse, themes and message, and horror. The only age-gating mechanism that the Code of Ethics talks about is parental lock; other age-gating measures have been left to the streaming platforms to determine and implement.

Since the Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 is already in effect, taken literally, any platform that has not classified its content as per the Digital Media Ethics Code is in violation of the rules.

Khurana, from Netflix, also said that the requirement of a monthly compliance report about the grievances received (under Rules 18 and 19) could overburden the government and the publishers of online curated content due to its granular and frequent nature.

Amazon’s Gandhi said that consultation with stakeholders should happen in future. Going forward, as advisories are released, the streaming platforms would like to engage with the government in a consultative manner, he said. Goenka, Khurana, and MX Player’s Bedi expressed similar opinions, Forbes India has learnt.

FIRs and PILs
Multiple cases and FIRs have been filed against streaming platforms for hurting “religious sentiments”, for being “immoral” and “indecent”, and for undermining the “security of the state”. The latest in the long list are the multiple FIRs filed against Amazon Prime Video for Tandav and Amazon Prime Video’s creative head Aparna Purohit.

The Supreme Court, hearing Purohit’s plea challenging the Allahabad High Court order that denied her anticipatory bail, through all the hearings in the case, has been fairly critical of content on OTT platforms.

In the hearing on Friday, the division bench stayed Purohit’s arrest, “subject to her cooperation”, saying, “These Rules don’t have any teeth. There is no provision for prosecution. They are only just guidelines,” Live Law reported. While dictating the order, the court said, “The Rules are in the nature of guidelines with no effective regulation of screening or taking appropriate action. The Rules do not list anything about appropriate action to be taken against those who don’t abide by the guidelines. The Solicitor General has submitted that steps will be taken for the same and it shall be placed before the Court.”

The order uploaded to the SC website states, “the learned Solicitor General submits that the Government shall consider and take appropriate steps for regulation or legislation as may be found fit by the Government and the same shall be placed before the Court”.

This seems to suggest that the government will submit a draft of another set of rules to regulate OTT platforms.
During the March 4 hearing, the apex court rued that some OTT platforms show “pornographic materials” on their platform, The Indian Express reported. A Reuters report said that the division bench expressed its support for a screening mechanism for online streaming services.

Prior to the hearing, on March 3, Amazon Prime Video had issued an apology over its content:

“Amazon Prime Video again deeply regrets that viewers considered certain scenes to be objectionable in the recently launched fictional series Tandav. This was never our intention, and the scenes that were objected to were removed or edited when they were brought to our attention. We respect our viewers’ diverse beliefs and apologize unconditionally to anyone who felt hurt by these scenes. Our teams follow company content evaluation processes, which we acknowledge need to be constantly updated to better serve our audiences. We will continue to develop entertaining content with partners, while complying with the laws of India and respecting the diversity of culture and beliefs of our audiences.”
While the incident was not directly mentioned during the meeting, the fear of being harassed through multiple FIRs and PILs reigned supreme. Multiple platforms, including Voot, Amazon Prime Video, Netflix, AltBalaji and Ullu raised concerns about how FIRs and PILs are filed against them from all corners of the country for arbitrary reasons.

Kapoor mentioned an AltBalaji show where despite her removing three episodes for being sexually explicit herself, police from the cyber cell continue to visit their sets and summon employees for interrogation. She asked if complying with these rules would mean that they would stop getting such FIRs. Javadekar replied that if streaming platforms comply, he could give it to them “in writing” that the number of FIRs filed against them would significantly reduce, Forbes India has learnt.

There is nothing in the Rules that prevents people from filing petitions in the court or FIRs at police stations against the streaming platforms. The assumption seems to be that with the three-tier grievance redressal mechanism, at least some of those will be diverted to the in-house grievance officer.

MIB’s role in the ‘independent’ grievance redressal mechanism
After the meeting, MIB released a statement that the new Digital Media Code of Ethics only requires streaming platforms to “to disclose information and that there is no requirement of registration of any kind with the Ministry”. A form for this will soon be ready but it is not clear what fields the form will have. Literally speaking, it is true that an OTT platform does not register with the MIB directly. Functionally, it is a bit different.

Every streaming platform must be a member of a self-regulating body under Rule 11. This self-regulating body—which must be headed by a retired Supreme Court or High Court judge, or “an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights, or other such relevant field”—must register with the MIB. Before granting registration to this body, the Ministry must “satisfy itself” that it is indeed headed by the pre-defined people and follows the newly notified Code of Ethics.

In its statement, the MIB said that “no member will be appointed by the Government”.

The bigger problem with the three-tier mechanism, according to industry sources and civil society activists, is that the third tier is an executive-led Inter-Departmental Committee which will be chaired by an MIB officer, not below the rank of Joint Secretary. This committee, which will consist of representatives from different ministries—Home Affairs, External Affairs, Defence, Electronics and Information Technology, Law and Justice, Women and Child Development, and others—will take the final call on any complaint raised by a person against the content or functioning of a streaming platform.

Additionally, the MIB Secretary, at the sole recommendation of the aforementioned MIB officer—called the “Authorised Officer”—, also has the power to block content under emergency situations (such as national security or public order concerns) without consulting with the committee. Consultation with the committee would happen after the content has been blocked.

Industry met earlier to build consensus
IAMAI informed the online streaming services of a meeting with the MIB minister only on Tuesday evening. In the run-up to the meeting, most members of the DEC wanted time to arrive at a consensus about the main talking points with Javadekar. IAMAI initially did not respond but eventually said that a change of date “might not be possible”. Eventually, the pre-meeting was convened on Thursday morning but notices were sent out quite late because of which at least one member missed most of the meeting.

It is unclear whether DEC Chairperson Amit Goenka communicated all the issues that were agreed upon during the pre-meeting. While some maintained that by thanking the MIB for the guidelines, Goenka landed up expressing tacit support for them, other sources said it went as planned. Everybody, however, agreed that if they had had more time to prepare for the meeting with the MIB minister, the meeting would have been more useful, Forbes India has learnt.

This is not the first time the DEC has failed to reach a consensus. The MIB had rejected a self-regulatory code that IAMAI’s DEC had proposed in February 2020 as it had only five signatories, MediaNama had reported. IAMAI’s own Governing Council had, in its March 23, 2020, meeting questioned whether a code with only five signatories could be considered an IAMAI code, according to a MediaNama report. IAMAI has almost 300 members while the DEC, which was responsible for coming up with the content regulation code, has about 30. Taking into account all the regional OTT players, India has significantly more than 30 online streaming services.

At least three different versions of the self-regulatory code have been released by IAMAI since 2019, the last of which was an implementation toolkit released in February 2021 for the third version of the code. The implementation toolkit has 18 signatories, but nobody knows if the toolkit is of any value anymore given the new Rules from MIB. Forbes India