The Internet and Mobile Association of India released the third version of its Self-Regulation Code for Online Curated Content Platforms on 4 September. Its birth comes at a time when online streaming of films and TV shows, on platforms such as Netflix, Amazon Prime Video, and Disney+ Hotstar, has become a regular feature for middle-class Indians, especially since Covid-19 lockdowns. However, in addition to more eyeballs, streaming platforms have also attracted concern and criticism due to their unregulated status, which has been expressed in public interest litigations.
In August 2019, the Karnataka High Court rejected one such PIL. It had sought to bring these digital platforms under the Cinematograph Act, the law that provides for certification of all theatrical releases by the Central Board of Film Certification (CBFC). Earlier that year, the Delhi High Court rejected a PIL that sought a ban on these platforms until regulations were formulated.
These cases, along with the Modi government’s stance that self-regulation was preferable to statutory rules, spurred the streaming industry to embark on a deliberative process to regulate itself. The result is the Self Regulation Code.
A framework for informed choices
The Self Regulation Code creates a framework that signatories have voluntarily adopted, in order to assuage concerns about a regulatory vacuum in the Online Curated Content Platforms (OCCP) sector. It aims to strike a balance between consumer concerns and the creative freedom of content creators, a differentiating factor that has contributed significantly to the sector’s success. The Code requires all signatories to implement age ratings, content descriptors, and encourages the adoption of technical controls such as parental locks and passwords to access adult content. The principle behind these measures is to maximise the ability of a viewer to make informed choices about the content he/she consumes. The Code also provides a framework for consumers to express and escalate their grievances related to such measures.
The Code carves out a niche for OCCPs, and differentiates them from user generated content (UGC) platforms such as YouTube. It outlines the features of OCCPs that make this a discrete regulatory category – their ‘pull’ nature, where users can choose to consume content at their convenience, and the fact that they represent private viewing as opposed to public exhibition.
More importantly, the Code represents a wide consensus amongst different OCCPs. Its previous versions were contentious — the first one was released in January 2019, and the second version released in February 2020 only gained only five signatories. The September 2020 version has 17 signatories, including Netflix, Amazon Prime Video, Disney+ Hotstar, MX Player, Sony LIV, Eros Now and Voot. We estimate that the current signatories account for approximately 70 per cent of the total monthly average users (MAU) across the OCCP ecosystem. The Organisation for Economic Cooperation and Development (OECD) has found market coverage to be one of the primary factors that drives the impact of Industry Self Regulation (ISR), according to a study of its practices.
A stated objective of the Code is to add predictability to the sectoral environment – a timely aim because of the uncertainty around the status of online content in India. It may also avoid overt government censorship, a lack of which has set online content apart from film or television in India. Self-regulatory systems help achieve this aim by standardising certain practices. Examples of such models include the Motion Pictures Association of America (MPAA), which follows a standardised age rating system for American films, or America’s Entertainment Software Rating Board, which provides video games a rating system.
The frameworks set by these regulatory bodies have become industry standards, and are immediately recognisable to consumers, providing them the information required to choose what they wish to consume. At the same time, these regulations preserve a creator’s abilities to make the content he/she wants to.
The Code requires all signatories to adopt an age ratings system, but grants them the flexibility to devise their own categories for the purpose of rating content. Similarly, it recommends certain kinds of content descriptors and technical measures, but does not standardise them.
While this may have been done to ensure the concurrence of all signatories to get operationalised, the Code also provided a proposed framework for age ratings that signatories may want to adopt. It splits content into five age-based categories, on the basis of themes such as violence, sex and nudity and drug abuse. In providing a proposed framework, the Code hints at the value of an industry-wide standard, although it does not prescribe the same.
Grievance redressal mechanism
Consumer grievance redressal is another primary function of the Code. In its first version, this regulatory framework consisted of a single level – a department under each provider that would receive complaints. In contrast, the current version adds more layers to this system, which enables consumers to escalate their complaints if they are not satisfied at the first level.
If a consumer has a grievance about the manner in which content is presented, such as misleading age ratings or content descriptors, they can submit a written complaint. At the first tier, the grievance goes to the platform’s Consumer Complaints Department (CCD), which will also receive complaints forwarded from various government departments. The CCD is bound to acknowledge receipt of the complaint within 48 hours and provide a response within 15 days. In case it needs more time to respond, it can seek an extension of 15 more days.
If the complaint has merit, the CCD may reclassify content, add additional warnings/disclaimers to it, or have the synopsis changed to reflect a more accurate description. If the CCD’s response does not satisfy a complainant, he/she can escalate it to tier two and approach the Internal Committee for review. Signatories have the option to create a separate CCD, or to invest its functions in this Internal Committee. At the highest level sits the Advisory Committee, with at least one independent member, who is not engaged with that particular OCCP provider, to ensure impartiality.
Effective redressal mechanisms help build consumer trust in the self-regulatory scheme and provide information on emerging problems and compliance, according to the OECD study. However, the framework in the Code remains internal, with minimal external representation. This may be due to the high degree of subjectivity when it comes to creativity and content. While signatories of the Code have not vested powers in an external top tier, the framework presented is an improvement from its previous versions, and a step in the right direction. Once in practise, this system will create data on the sort of grievances consumers have, which can be used to improve it in future deliberations.
The Code’s adoption by major OCCP platforms is an encouraging milestone in the journey of self-regulation. The industry should use it as a forum to continually evolve best practices, as has happened in other countries. For instance, in 1984 the MPAA introduced PG-13, a new rating category, to rate films that fell between kids’ content (PG) and adult content (R). If platforms voluntarily adopt standardised ratings, descriptors, and technical measures, they will build trust within consumers and government stakeholders. More importantly, such actions will also bring consistency to the streaming ecosystem and help create the predictability sought to be achieved through the Code.
The Code’s ultimate success would be for the government to give it legal recognition — just like it did with the Advertising Standards Council of India. The ASCI started out as a voluntary self-regulatory body, but the government recognised its role in regulating advertising practices after advertisers adopted and followed it. Today, the ASCI Code is compulsorily applicable to all TV advertisements, and the decisions of the Council are binding on members as well as non-members.
The widespread acceptance of the Code among curated platforms, along with voluntary adoption of standardised practices, will help strengthen the case for legal recognition in India. It will be a win-win solution for all stakeholders — consumers, the government and the industry itself.
The authors work at Koan Advisory Group, a technology policy consulting firm. Views are personal.
This article is part of ThePrint-Koan Advisory series that analyses emerging policies, laws and regulations in India’s technology sector. Read all the articles here.
Disclaimer: Some signatories to the self-regulatory code are clients of the Koan Advisory Group.
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