Indian Supreme Court Asks Big Streamers to Review Content

The Justice for Rights Foundation, an Indian non-government organization (NGO), filed a plea “seeking regulation on the functioning of” over-the-top (OTT) platforms such as Netflix, Amazon Prime and Disney+ Hotstar, among others before the Supreme Court.

According to Business Insider, the NGO claimed that OTT series like “Sacred Games,” “Tandav,” and “A Suitable Boy” among other shows, “have allegedly hurt religious, social and regional sentiments of the public at large.” Even popular international shows “Game of Thrones” and “Spartacus” were called out as being too vulgar and pornographic to be viewed by a wider audience.

What Does This Mean?
Essentially, the Justice for Rights Foundation is seeking to curb streaming content that is “unregulated and uncertified” for general audiences. According to Inc. 42, a three-judge bench led by Justice DY Chandrachud heard and discussed the filings made by the NGO regarding OTT regulations.

Along with the NGO’s plea, the apex court also heard the Indian government’s transfer petition plea that was initially filed back in Nov. 2020, to gather all OTT platform-related cases filed in various High Courts across the country and move them to the apex court.

Around 23 cases related to OTT content were heard throughout the Indian courts. By intending to transfer these to the Supreme Court, the government is trying to ensure that all cases are heard and that they do not end up clogging up the rest of the judicial system. This also means that whatever the Supreme Court ultimately decides, the other courts will have to comply.

Was a Decision Made?
After hearing the government and the NGO’s plea, the Supreme Court ordered a stay against all cases seeking OTT content regulation pending before multiple High Courts. The court will hear the proceedings for a similar case that is pending before it in the second week of April 2021, which is also when it will take a call on the transfer of all cases from the High Courts to the apex court.

What Are the Current Measures?
In response to the petition filed by the NGO, the government submitted an affidavit indicating the legal position governing OTT platforms: “There is a mechanism for regulation of the OTT Platforms under the provisions of the Information Technology Act, 2000 and the newly framed Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 notified February 25, 2021.”

While announcing these new IT Rules for OTT platforms and social media services, the Indian government outlined the “due diligence, grievance redressal and self-regulation measures.” It stated these new guidelines will pave the way for an Inter-Departmental Committee (IDC) comprised of representatives from various ministries, who will oversee complaints surrounding broadcast and online content. The IDC will be headed by an “authorized officer of the ministry” with powers to block specific content. All content must carry a classification certificate with one of the five ratings: U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).

However, the plea filed by the Justice for Rights Foundation states that the new IT Rules are mere guidelines that lack an effective mechanism for their proper implementation, and do not provide for any penalty or punishment in case of violations. It also states that the effective regulation of content on OTT platforms sans legislation is not feasible.

What Do the Courts Think?
In a previous virtual hearing in early March regarding the denial of a pre-arrest bail plea filed by Amazon Prime’s Head of India Originals by the Allahabad High Court, another Supreme Court Justice Ashok Bhushan remarked that the new IT rules “lack teeth” as there is no provision for prosecution or fine, and the guidelines don’t do enough to keep a check on “pornographic” content.

The Supreme Court then made it amply clear that it was in favor of “screening” content shown on these platforms. It noted that, “Traditional film viewing has become extinct. Now films and web series are viewed by the public on these platforms. Should there not be some screening? We feel there should be some screening… There is pornography on some films.”

The defense counsel disputed the court’s opinion that pornographic content is screened on OTT platforms. “I can show you thousands of films, not even one of them has pornography,” senior advocate Mukul Rohatgi asserted.

 

Worldwide Content Classification – What Happens When You Get It Wrong

In our previous blog post, “Worldwide Content Classification – How Hard Can It Be?” we examined how the exponential growth of the OTT and VOD markets, along with the annual release of hundreds of thousands of new titles, places pressure on content regulators and platforms to obtain in-country age-ratings before release. In this post, we’ll explore what happens when content providers attempt to short-cut the process.

Content producers use strategies to navigate the ratings process. We’ve discussed avoiding them altogether, but another common approach is mapped ratings. Mapping a rating involves looking at the MPAA rating and guessing the equivalency age rating in another country. This is usually done without a clear understanding of the criteria used by regulatory agencies and results in real risk if done so.

• If the rating is too low, then the content provider can find itself in legal jeopardy.
• If the rating is too high, then the audience is artificially constrained.
• If the rating is Unrated/Not Rated, then the content is not discoverable on most platforms.

The MPAA PG-13 rated film “Hunger Games” is a good example of how this issue can manifest.

The table below demonstrates the broad difference in age ratings across several countries and indicates what ratings could result if content providers were to ignore cultural sensitivities and simply guess an age rating based upon the MPAA’s PG-13. The ratings in red indicate conceivable ratings based on an unfamiliarity of country ratings criteria or cultural sensitivities. These higher ratings would result in a smaller audience, and therefore, lower box office. Too low a rating, as in the case of rating the film a “12” in Brazil, could put the content provider in legal jeopardy for exposing young children to unacceptable content such as violence. The cells with black borders and in green are the actual country ratings for the film as assigned by the regulatory bodies.

To understand the market impact of getting it wrong, in Germany, for example, the difference in audience between an age “12” and an age “16” rating is 2.6 million potential viewers. Therefore, guessing a “16” rating for “Hunger Games” in Germany (where the average theater ticket price is $10) would have a $26M impact on box office sales in one country.

In some countries content providers can release content as Unrated or Not Rated. This is problematic because most platform algorithms exclude unrated content, which means those films will not be discoverable or appear on a platform’s list of recommendations. Unless a subscriber knows the title of the film or show, they will not be able to find it. If they cannot find it, they will not watch it.

Episodic television is more challenging because scripts change from episode to episode, and the rating may be higher or lower as a result. This risk is most often seen in dramas that include violence, sexual references, cultural, religious and/or moral content. The television series’ “Mizrapur”and “Tandav” are clear examples of this phenomenon.

Both shows have episodes that are acceptable under India’s standards. However, in one episode of “Tandav” members of the public complained the content “hurt religious sentiments.” “Tandav” is the subject of legal action following a complaint filed by member of India’s Parliament. As the following quote shows, review of that one episode was enough to foment a complaint to the Union Minister for Information and Broadcasting.

“After watching the series, it was found that in the 17th minute of the first episode, characters playing Hindu gods and goddesses have been shown in an uncharitable way and using objectionable language, which can incite religious tension. Similarly, in the 22nd minute of the same episode, efforts have been made to ignite caste clashes with casteist remarks. The person holding a dignified post like that of Prime Minister has been shown in a very derogatory manner in the web series.” – Senior Sub-inspector Amar Nath Yadav

“Mizrapur” is now before India’s Supreme Court, following complaints that episodes depict the area’s residents as a “goon(s), vagabond(s) and adulterer(s) in front of the country,” and has “completely tarnished the historical and cultural image of the city/district.” One must question how an OTT platform can be expected to know the seriousness of these types of concerns when the in-country producer is not aware of them? “Mizrapur’s” producers have publicly said that any misrepresentation was unintentional, but that has not stopped legal action against the series.

Cultural sensitivity is another factor that can seriously impact content. Issues like drug addiction, rape, child abuse, and suicide are seen differently in many cultures and must be taken into consideration. Suicide, for example, is treated differently in film in the U.S., United Kingdom, France, Netherlands and Sweden, and Japan. How it is portrayed matters. Is it a primary component of the story? Is it depicted in the film, e.g., seriously or callously? Is it violent or not? Without a full understanding of these cultural factors, content providers can make mistakes in age-ratings and consumer advisories that directly impact markets and revenue.

Besides adverse impact to revenue, penalties for violating local laws and cultural norms can include take-down notices, monetary sanctions, legal sanctions, negative brand and business impact, and possibly imprisonment. Risk can be mitigated when content creators use the Spherex platform to culture fit their content for local audiences worldwide.

 

1 Tandav controversy: Here’s everything you should know, The Indian Express, Jan. 27, 2021

2 Supreme Court issues notice to Centre, Amazon Prime Video for ‘Mirzapur,’ Mint, Jan. 21, 2021

3 Ibid.

 

 

 

Worldwide Content Classification – How Hard Can It Be?

The explosion of direct streaming and OTT services worldwide on a wide range of platforms e.g., online, mobile, and Connected TV (CTV)means content creator’s products have global potential. That means films, TV shows, documentaries, and live events can reach new markets and generate additional revenue for everyone in the production chain. The only challenge is it isn’t a simple process. The good news is Spherex offers a solution to assist creators in reaching those markets quickly, properly, and cost-effectively.

The phrase, “how hard can it be?” is a common first thought, but when considering things like different cultures, languages, religious sensibilities, and intolerance to violence and sexuality, getting content released in a timely manner can get slowed to a crawl or stopped altogether simply due to a lack of cultural awareness and competence.

This begs the question of who in the content creation chain needs age ratings services and when do they need it? Because assigning appropriate age ratings occur post-production, it would be premature to discuss ratings with writers, directors, or producers at the creation phase of content. Their focus is on developing and telling the story. That leaves obtaining age ratings to those whose responsibility is deciding where films will be released, e.g., producers, post-production houses, and distributors.

The map identifies countries where age ratings are required for any content to be exhibited or streamed. Countries shown in dark blue are in the top 20 markets measured by total box office receipts for 2019. Those in light blue simply indicate smaller market countries, but still requiring age ratings. Countries in gray have no formal film maturity rating requirement.

By our count, 56 countries worldwide have some form of maturity ratings requirement. The vast majority of those (45) have a government-managed entity or office (often a sub-agency to a ministry, or separate cultural agency) to oversee their rating system. The rest are operated or managed by the film industry or a private service. In the United States, for example, the Motion Picture Association of America (MPAA) established and manages an industry-based rating system that has been used not only in the U.S. but worldwide since 1968. It is administered by the Classification & Ratings Administration (CARA), an independent division of the MPA. Films released in the U.S. must obtain an MPAA rating to be shown in most theaters. Films can be unrated, but that limits exhibition in most of the country’s theaters and greatly reduces box office potential worldwide. However, those same films can be streamed on any OTT platform.

There is no agreed-upon global standard for rating video content. No country, region nor the Media & Entertainment (M&E) industry has called for one to be developed. There are some countries that regulate film, but not television or streaming content. Hence, there are approximately 53 distinctly different sets of rules content creators and distributors must follow to obtain ratings for their work to be shown in other countries. This is in addition to any language, cultural, or religious sensitivities they must also navigate to obtain distribution approval before they can make money. That doesn’t mean countries can’t agree on how to rate content; there are examples of this happening. In Europe, for example, Germany’s independent Freiwillige Selbstkontrolle der Filmwirtschaft (FSK) standard has been adopted by Switzerland, and the Netherland’s “Institute for the Classification of Audiovisual Media” system has been adopted by Belgium and Turkey.

Not everyone gets it right. Mistakes in ratings can lead to public outcry, negative media attention, religious criticism and in some instances, the loss of a job or landing oneself in jail. Major studios have offices located worldwide to deal with ratings and have for decades, so it’s not as challenging for them because their teams live where the content is released and are familiar with any cultural problems that may arise.

It is important to note that some of the world’s largest markets frequently update/change their regulatory requirements. The European Union recently instituted local content requirements. Examples of scenes in a film being approved in one country and not the neighboring country are quite common. What is acceptable in Japan may not be admissible in China. Likewise, some content satisfactory to regulators in one region of India is not allowable in another.

The challenge facing content creators and distributors is their lack of the unique cultural knowledge required to navigate international regulations in their target markets. The sheer volume of catalog and future content (averaging 356,781 new titles each year for the past five years) presents a real dilemma for both regulators and content creators. Creators can’t release the content without a rating, and the regulator can’t assign a rating without a review. It’s the proverbial cat and mouse chase. With over a decade of working directly with the world’s most influential government regulators, Spherex can quickly identify risks and prevent problems from occurring before they happen, thus ensuring your content is released to market without worry or wait.

AppleTV+ Gives Tom Holland’s ‘Cherry’ R-Rating

Tom Holland is Spiderman. Thanks to the Russo Brothers, it is rather difficult to imagine Holland playing any character who isn’t wearing tights or swinging from a web with Mary Jane. His iconic role as Peter Parker has propelled his popularity among Marvel fans to monolithic proportions. After the release of “Spiderman: Far from Home,” Holland devotees will flock to just about anything he is involved in. Apple TV+ gives audiences a rare opportunity to see Holland expand his acting range for this rather dark role in “Cherry” which received an R-rating. Moviegoers be warned. This is not your friendly neighborhood web slinging feature for the kids. It is far from that.

The folks over at Distractify offered some insight into why “Cherry” received a hard R. They make the claim that Holland’s character is “pretty much the opposite of do-gooder Peter Parker” and becomes a “battered anti-hero.” Apple TV+ are in a unique position as they have a feature film where, rather than thwarting evil and saving lives, Holland is injecting evil and taking lives. The film follows the story of Cherry, a young man who grows up in a midwestern, middle-class family but feels deprived and cast down by society. He meets the love of his life Emily, but she soon moves away for school. Aimless, Cherry drops out of college and joins the military in a last-ditch effort to get his life back on track. Returning from the war, Cherry suffers from PTSD and still lacks a sense of direction in life. He reunites with Emily, who is addicted to drugs, and runs with the wrong crowd. This leads Cherry to develop an addiction of his own. What happens when money runs out and they can’t fund their habit? They turn to robbing banks of course.

“Cherry” is based on Nico Walker’s semi-autobiographical novel of the same name. According to Distractify’s article, the R rating of its film counterpart is “well-deserved” considering how the film portrays drug addiction and thievery. It’s a bold move for the Russo Brother’s in that an R-rating goes against the grain of their usual family friendly Marvel movies. Uncle Ben would be rolling in his grave if he could see his poor Peter Parker now. Watch your beloved Spiderman go from web shooting hero to veteran shooting heroin on Apple TV+ Mar. 12.

Switzerland Reveals New Youth Protections for Film and Video Games

Switzerland’s Federal Council recently submitted a draft of the Youth Protection Act (YPA), which will make age labels and controls “uniformly stipulated throughout Switzerland and made mandatory for films and video games.”

 

According to Media Landscapes, existing legislation provides “guaranteed freedom of press and freedom of trade” as stipulated by Article 16 of the Swiss Federal Constitution. While the Federal Council finds the current broadcasting corporation “most suitable for the future” it did find the need for more stringent demands regarding the requests and public service offerings for Swiss youth. Under the YPA, all media, regardless of how it is presented to the public, will be regulated while keeping the broadcasting corporations on a similar budget to previous legislations.

 

What Does It Do?

According to the International Law Office, the YPA “aims to enhance the protection of minors against inappropriate media content that could endanger their physical, mental, psychological, moral or social development.” The new law also takes a firm stance against the use of data, especially the data of youth users. While data can be collected per on-demand and platform agreements, under the YPA that data cannot be used for commercial purposes—the use of a minor’s data for anything besides age verification will earn a Sfr40,000 fine, roughly $45,177.53 USD.

 

When Does It Go into Effect?

Swiss Parliament is set to discuss implementing the YPA in spring 2021. While nothing is certain, Parliament is already keeping a closer eye on service providers and how they handle youth data.

 

Younger generations are turning away from more “classic or traditional media”; Media Landscapes reported only 20% of people under the age of 24 watch Swiss television broadcasts, while 70% of those over 60 still do. This is because youth are less inclined to watch broadcast content and would rather stream something from a popular provider or download a video game. Even with dwindling broadcast numbers, the Federal Council has chosen to keep the current structure with the addition of the YPA.

Australia Bans Hentai

Australia’s Border Force (ABF) has blocked the popular animated form of Japanese pornography, hentai, from entering the country. Besides hentai, other banned items include sex toys, Japanese porn videos, and sexually suggestive figurines—basically, any product marked with a “+18” symbol. This decision followed an increased number of images depicting rape, incest, pedophilia, and sexual abuse.

This is not the first time Australia has expressed concerns with anime and manga: in February 2020, Australian politicians advised its government to analyze classification laws after noticing that Japanese videos and comic books portraying sexual images of children were being sold in the country.

According to The Oxford Dictionary “hentai” is defined as “A subgenre of the Japanese genres of manga and anime, characterized by overtly sexualized characters and sexually explicit images and plots.” In Japanese it means “transformation” or “metamorphosis.” Hentai is available through book (comic) and televised media (anime). Anime is a televised cartoon in the Japanese style, like, “Dragon Ball Z: Dead Zone (1989)” or “Sailor Moon Crystal (2014),” which are considered suitable for both children and adults.

Hentai, on the other hand, is a type of anime that includes provocative material with very explicit images and plots. It is strictly prohibited for children and is aimed at adults only. Compared to western cartoons Japan has developed a distinctive visual, dramatic, and artistic style. The first Japanese cartoons were produced in the early 20th century, but anime became even more popular after World War II.

The popular adult store, J-List, confirmed the ban in an interview with Vice: “DHL Japan called us last week, informing us that Australian customs have started rejecting packages containing any adult product. They then advised us to stop sending adult products to the country. Following that, current Australian orders with adult items in them were returned to us this week.” According to J-List, they have been advised to stop shipments to Australia altogether.

The ABF website also warns travelers from bringing hentai and other types of pornography into the country, including “offensive fetishes, bestiality, child pornography, sexual violence.” Anyone found in violation of this new ban can face a heavy fine, loss of property, or up to 10 years in prison, depending on the strength of the offense.

Australia is not the first country to take a firm stance against pornography; France banned its citizens from accessing popular hentai websites in November 2020.