The self-regulation toolkit: OCC operators struggle for a fine balance

Arguments over a voluntary code for self-regulation intensify even as the prospect of government intervention looms

For online curated content (OCC) providers, who broadcast their content over the internet, the dream run of creating programming without any regulation is now over.

In the first week of February, Information and Broadcasting (I&B) minister Prakash Javadekar announced that the government will soon come out with regulation for these players. On Thursday, 17 OCC operators quickly signed on the dotted line for a voluntary code after over two years of contentious debate. What they accepted was a toolkit for the industry, which they have presented to the I&B ministry for approval. The big boys who endorsed the code include Netflix, Amazon Prime, Disney Hotstar, Voot, Sony Liv, Zee 5, MX Player and ALTBalaji.

The code, finalised by the Internet and Mobile Association of India (IAMAI), has suggested a two-stage grievance and complaint redress structure. The first stage will involve an internal panel comprising company executives. If dissatisfied, the complainant could escalate it to an advisory body to be also set up by the OCC that will have three members, one of whom could be selected from an empanelled group of independent members.

Elaborating on the rules, Gourav Rakshit, co-chair of the digital entertainment committee of IAMAI, said, “We have incorporated many of the suggestions from the government and expect more OCC players (there are 40 of them) to join in.” 

But will this code for self-regulation pass government muster? Most countries are grappling with the same challenges of regulating OCCs and have varying models. In Singapore, for instance, the government’s media regulatory body has issued a detailed code for OTT platforms. OTT players have no say. In Australia, it is co-regulated with the Australian Classification Board classifying both online and offline content (only Netflix has been allowed to self-classify its content using its own tools). In the UK, too, the British Board of Film Certification has a partnership with Netflix, again allowing the streaming giant to set its own ratings for its programmes.

“We must allow the OCC sector, which is in its infancy, to grow. Let them first self-regulate; if it does not work, regulation may be considered,” said Gowree Gokhale, senior leader, IP, technology, media and entertainment practice, Nishith Desai Associates. “We should have a balanced approach between creative freedom and regulation.”

But OCC players admit that they have been a divided house and that is why the government is muscling in. In November 2020, a government notification made it clear the oversight on OCC platforms would be with the I&B ministry. Earlier, there was confusion over whether they fall in the ambit of the Ministry of Electronics and Information Technology or not.

Also, there has been growing complaints about the content shown by some OCC players on the justification of “creative freedom”, especially those which were not paywalled. The matter came to a head recently after Amazon Prime’s web series Tandav was caught in a controversy over allegations of hurting religious sentiments. The director was forced to remove some scenes and issued an unconditional apology after discussions with the I&B ministry. Some OCC players say Amazon Prime should have gone to court, since apologising has emboldened the Centre to interfere in content creation.

Yet OCC players have taken inordinately long to come to a consensus. In January 2019, a code of conduct was mooted by nine OCC players taking best practices from various countries. The government was not interested. In February 2020 five players — Hotstar Disney, Voot, Sony Liv, Eros Now and Reliance Jio — proposed a two-tier complaint redress mechanism that would include an internal redress committee and a Digital Content Complaints panel for appeal, to be set up under former high court judge Justice A P Shah. It was akin to what the Indian Broadcasting Federation has undertaken by setting up an independent redress mechanism in the Broadcasting Content Complaint Council.

Insiders say the other big players had rejected the two-tier plan. “As three of the five members were also broadcasters, the global OCC players feared we have a vested interest in foisting the same legacy regulation on everyone and scuttling their freedom on content. They did not want any regulation or did not understand the Indian realities,” said a senior executive of a global OCC. Some of them objected to former judges heading such panels fearing it would imply government interference through the backdoor.

A third attempt at self-regulation was made in September 2020 by IAMAI, but the government rejected it as it lacked a third-party monitoring and redress mechanism, a defined code of ethics and clarity on what content will be prohibited.

The fear among many OCCs is that the compromised fourth attempt might again be rejected, too, and the government may move towards imposing its rules. Part of the reservation is over the fact that even in the new toolkit, the second stage of redress does not envisage an industry-led independent advisory body under the aegis of IAMAI. The independent members in the advisory committee would be appointed by the company so there is a question of transparency.

Yet some OCC players have mooted the idea that IAMAI should set up a paid advisors’ panel from which the OCCs will have to draw their independent members as well as contribute to their cost. Rakshit says it is a proposal under consideration. But some international players are uncomfortable with an industry body undertaking peer review of its content. As a result, some OCC players fear that they could be licensed.

Overall, content producers are backing light regulation. Siddharth Roy Kapoor, president of Producers Guild of India, said, “What is required is soft-touch regulation of content so that creativity is not stifled. It is because of this that we have seen so much of meaningful content from India.”

The question is whether the government will see it that way.