Self-regulation of OTT: Is it too little, too late?

On Tuesday, the Supreme Court asked the Centre on the measures it plans to take to regulate content on over-the-top (OTT) video streaming platforms such as Netflix and Amazon Prime Video.

A bench headed by the Chief Justice of India asked the government to submit a reply to the public interest litigation (PIL) filed by advocate Shashank Shekhar Jha seeking the establishment of an autonomous body to regulate web shows and films. Last month, the SC had also asked the Centre, Amazon Prime Video and Excel Entertainment to respond to a plea alleging that the Mirzapur web series had tarnished the image of Mirzapur by depicting it as a city of goons.

The pressure on the government to regulate OTT is not coming from the courts alone. According to a person familiar with the drafting of the OTT guidelines, even the Rashtriya Swayamsevak Sangh is exerting its influence on the Bharatiya Janta Party-led government to formulate rules at the earliest.

It’s not difficult to see why. There are enough court cases and FIRs against several web series. FIRs were registered against the makers of political thriller Tandav, which was released on Amazon Prime Video. Eventually, the information and broadcasting ministry, the administrative ministry for OTT platforms since November 2020, intervened and the director agreed to apologize and make changes to the alleged offensive scenes.

In 2019, Netflix was also in the crosshairs of political parties which had complained against series such as Leila and Sacred Games. That the Centre intends to regulate streaming platforms was evident from I&B minister Prakash Javadekar’s statement in the Rajya Sabha earlier this month. In a brief submission, he said that guidelines were almost ready and will be implemented soon.

A person familiar with the government’s move on the matter said that the Centre has sought help from Prasoon Joshi, chairman of the Central Board of Film Certification, to create a model code governing the OTT platforms. Joshi is in the good books of the government for adept handling of film-related matters unlike Pahlaj Nihalani’s controversial term at CBFC. To be sure, the government is under pressure to bring OTT on a par with films, so that all streaming content is pre-screened and certified.

Suggestions include creating a vertical under CBFC to handle OTT content. Some are of the view that streaming platform regulation should scan programming through three separate lenses: related to children and women, sex and violence, and defence and security forces.

However, for now, CBFC is ill-equipped to handle such a vast mandate owing to paucity of infrastructure.

Besides, the government, too, is not keen on pre-censorship of content. It is in the favour of age-appropriate classification by platforms, among other things. It is also veering towards a Singapore-like model, which functions under the Infocomm Media Development Authority (IMDA). As per its regulation, service providers are required to obtain a licence, classify content on their platforms, display ratings and content descriptors and spell out the prohibited content.

Also, much like the Singapore rules, the Indian government is keen to introduce penalties for code violation.

Even as the government is mulling its options, 17 of India’s largest streaming services hurriedly signed a self-regulation toolkit under the aegis of the Internet and Mobile Association of India (IAMAI). The signatories said they have included government suggestions after their first content code was rejected by the ministry in September 2020.

Despite prodding from the government, the video streaming services could not come up with a unanimously acceptable code for two years. And when they did, the government found a two-tier complaints redressal mechanism missing.

Last week, the platforms said they had incorporated the suggested changes. They have identified the prohibited content, mentioned the applicable laws on paper and made provision for a two-tier system.

To be sure, the original draft did have a provision for an external body headed by a retired judge to look into complaints that were escalated. This was not acceptable to a majority of platforms.

Their latest attempt at including a second tier is an ombudsman, which allows for two members from the company and one external member, to look into complaints. It’s not clear if this independent member will have veto power. Mint