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 – 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.

The U.K.’s Creative Industry Faces “A Point of Jeopardy” as Streaming Gains Ground

It has been a year since citizens of the world were asked to shelter in place to keep family, friends, and neighbors safe. With everyone staying home, the entertainment industry has had to adapt and evolve. People who would normally go out for dinner and a movie on a Friday night have whipped up new recipes at home and hit play on the latest Amazon Prime or Netflix original movie. This brought many broadcasters face to face with the “existential threat” of streaming.

According to Variety, the latest virtual Deloitte and Enders Media and Telecoms conference hosted many people from the U.K.’s technology, media, and telecom sectors. They highlighted how, before the pandemic, the “creative industry was going through a period of phenomenal growth” but in the year since is confronting “a point of jeopardy.”

Tim Davie, director of the BBC, told Variety that the creative industry is “a brilliant British success story and it needs fueling and [investment].”

“The government are proactive on this,” he continued, “which is a situation in which we can ensure that there’s the right prominence in new environments for public service broadcasters. That is critical. It protects local creative work.”

Carolyn McCall, CEO of ITV, told Eminetra the public service broadcasts (PSBs) need “fair competition for it to work.” With streaming companies taking increasingly more users away from standard broadcasting and cable providers, “a broadcaster that provides public goods … will be dramatically eroded.”

Everyone likes to see local talent and fan favorites on TV; Alex Mahon, chief executive of Channel 4, surveyed viewers and found that “viewers see them as being more responsive to their experiences and to their lives …. helping them to view the U.K. and the world from the inside of the U.K., taking the familiar and sharing it through a new lens, as opposed to the exports who are looking from the outside in, often showing us people that we enjoy watching, but that we can in no way relate to.”

But even with such positive feedback, in the face of Big Tech and streaming platforms, it may be time for PSBs to band together to save themselves.

“It’s critical we collaborate,” said Davie, “The truth is we’ve always come together and created things that have had real value. We need to be working together and creating scale together in the new world. In areas like platform, we’ve got to think about what’s the future of open platforms. And, finally, I think we stand together in areas like prominence. There is a question for us as a community, as a culture, as the U.K., which is what kind of media market do we want? And we’ve always made those choices.”

Even with “niche streaming services” like Britbox, Freesat, and Freeview, local channels will fade away to make room for their competitors if they do not do something to increase viability. Coming together in collaboration could ensure that they keep the essential elements of public service broadcasting in an age where content is just a click away.

 

New Rules for Regulation of Digital Platforms in India

India’s government has established new rules for digital news organizations, social media intermediaries and OTT platforms under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, released by the Electronics & Information Technology Ministry and the Information & Broadcasting Ministry on Feb. 25 2021.

Framed under the Information Technology Act or the IT Act, 2000, the guidelines for digital media and OTT will become active on the date of publication in the official Gazette of India. The rules consist of three main parts, where Part I defines the terms and Parts II and III delineates compliance requirements. The regulation of social media intermediaries like WhatsApp, Telegram, Facebook, Instagram etc., is detailed in Part II and will be overseen by the Ministry of Electronics and Information Technology (MeitY). Regulations for digital news media and OTT platforms like Netflix, Hotstar, Amazon Prime etc., are contained in Part III, which will be managed by the Ministry of Information & Broadcasting.

Under the IT Act, 2000, OTT platforms were not previously regulated. The new rules however, framed under this Act, seek to exercise the power to regulate them, which can constitutionally only be done via a parliamentary enactment.

Code of Ethics
A Code of Ethics for OTT platforms is outlined in the Appendix of the Rules, under which is present a three tier Grievance Redressal mechanism. Level I – Self-regulation by the applicable entity, Level II – Self-regulation by the self-regulating bodies of the applicable entities and Level III – Oversight mechanism by the Central Government. There does not appear to be any legislative backing or a parliamentary law behind the Oversight Mechanism, which also allows the Ministry emergency powers to block content.

Grievance Redressal and Self-Regulating Mechanism
Level I states that OTT platforms must draw up a grievance redressal mechanism which will be headed by a Grievance Officer who must be an Indian citizen. A 15-day time period has been allocated for the Grievance Officer to address the complaint and revert, beyond which it will be escalated to Level II. In case the complainant is not satisfied with the publisher’s decision, they also have the choice to appeal to the self-regulating body in Level II within 15 days of receiving such a decision.

Level II contains the independent self-regulating body, comprising of publishers or their associations and is expected to be headed by a retired judge of either the Supreme Court, High Court or any eminent personality from the fields of media, broadcasting, entertainment or other relevant fields and have a maximum of six other members from these fields. This body must register itself with the Ministry of Information & Broadcasting and has the power to provide warnings, censure, admonish or reprimand the publisher, require an apology from the publisher, reclassify ratings, make changes to the content descriptors, synopsis, access control measures of the content or even censor the content. It will then pass on its decision to the publisher in the form of a guidance or advisory and inform the complainant of its decision within 15 days.

In Level III, if the complainant is not satisfied by the self-regulating body’s decision, they can appeal to the Oversight Mechanism of the Central Government within 15 days of receiving the decision. Non-compliance by the publisher to the self-regulating body’s directions can also result in the complaint being forwarded to Level III. This level comprises an Inter-Departmental Committee consisting of representatives from the Ministry of Information & Broadcasting, Ministry of Women & Child Development, Ministry of Law & Justice, Ministry of Home Affairs, Ministry of Electronics & Information Technology, Ministry of External Affairs, Ministry of Defense and such other Ministries and Organizations, including domain experts. The Chairman of the Committee will be a Joint Secretary from the Ministry of Information & Broadcasting. The primary objective of this Committee will be to address complaints regarding decisions taken at Levels I and II, and it is empowered to delete or modify content for preventing incitement to the commission of a cognizable offence relating to public order.

Rules for providers of OTT content
OTT content publishers are forbidden from showing any content that is prohibited under Indian law. There is also mention of exercising caution when showing content that can be detrimental to the sovereignty and integrity of India or has the potential to cause friction with its allies. Additionally, OTT providers are asked to remain sensitive when portraying the culture, beliefs, practices or views of any racial or religious group in the country. Also required is self-classification of the OTT content into five new age-based categories – U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Access control mechanisms like parental locks for content classified U/A 13+ or higher and reliable age verification mechanisms for content classified as “A” must be implemented by the OTT providers.

A major concern for OTT providers is the Oversight Committee’s power to block access to content that it deems unfit for the public which is seen as the government’s overreach to suppress creativity. However, the secretary of the Ministry of Information & Broadcasting, Amit Khare, moved to quash these concerns – “There will be no authoritarian process. The regulation system is accountable to the courts. Any misuse of power can be checked.”

Khare said that these rules represent a paradigm shift in policy. “As of now, any movie that released to theaters needs to be approved by the Classification Board, but for these OTT platforms, no such requirement is there. The government has left the decision up to them. They can decide what labels to use. The idea is that the viewer should be aware of what they will be watching.”

He stressed that government would in no way alter the content available. “Films only have three categories, while we have provided five for OTT platforms. The government is willing to consider extending a similar classification for movies released in theatres as well.” Khare also highlighted how OTT platforms have democratized entertainment. “These rules were debated for over a year-and-a-half. We have also taken a conscious decision to not set up a web portal where grievances can be filed as we wanted to make sure people didn’t think the government was needlessly interfering,” he said. “The people can directly complain to the platform and if the complaint is not resolved by their standards, it can be escalated to the ministry.”

Australia’s New Media Bill Could Give Big Tech the Boot

Big Tech is on watch with Australia’s new media bill. Introduced to parliament in December 2020, the new bill “will pass into law fairly soon” and require digital platforms to pay for news. This means that companies like Google and Facebook will have “to pay local media outlets and publishers to link their content,” according to CNBC.

Paul Fletcher, Australian Minister of Communications, Urban Infrastructure, Cities, and the Arts, spoke with CNBC’s “Street Signs Asia” about the new law, saying the government expects large companies like Google and Facebook to comply with the bill. “The democratically elected government of Australia expects that businesses that are doing business in Australia will comply with our laws.”

How Much Does Each Company Pay?
According to the bill itself, each digital platform must make an offer to each registered news business corporation (RNBC): “the agreement specifies that the responsible digital platform corporation will ensure the payment of remuneration to the covered RNBC (or a related body corporate of the covered RNBC) for the making available of the registered news business’ covered news content by one or more of the covered services, in respect of the covered period.” Any offer made by a company then becomes a binding agreement.

Essentially, the amount paid is determined by an offer made by the company in question (Google, Facebook, etc.) to an RNBC, and it is then either accepted or declined by the RNBC.

What Kind of News Are They Paying For?
The bill defines all covered media content as “core news content” or “content that reports, investigates or explains current issues or events of interest to Australians.” Essentially any news that a user could get through a basic Google search or scroll through their Facebook feed would be regulated by this law. This has executives at Google and Facebook concerned.

What Does this Mean Going Forward?
According to CNBC, Google could pull its search engine from Australia entirely, despite its 94.5% market share. This move could allow other companies such as Bing or DuckDuckGo, to expand their reach and user base. Facebook (and FB-owned companies) have also come out saying they could prevent Australians from sharing news on their social networks.

Google CEO Sundar Pichai met with Fletcher as well the Australian Prime Minister, Scott Morrison, and Treasurer, Josh Frydenberg, to discuss the bill. During the meeting, it was made clear that Google would have to comply with the terms if they wanted to maintain a presence in Australia.

“We have seen from time to time over the last few years, big tech companies — typically U.S. tech companies — make threats about leaving Australia if they weren’t happy with our regulatory settings,” Fletcher said.

According to The Guardian, Tim Berns-Lee, who invented the iconic world wide web (WWW) in 1989, said this new media bill “risks breaching a fundamental principle of the web by requiring payment for linking between certain content online.”

Berns-Lee went on to say that blocking a user’s ability to share links with other users was a core value of the web and requiring companies to pay for that privilege was considered a world-first provision.

“If this precedent were followed elsewhere it could make the web unworkable around the world,” he said. “I therefore respectfully urge the committee to remove this mechanism from the code.”

Google and Facebook are the primary targets of this bill, since they make up 80% of the advertising spend in Australia. Facebook appealed to the Australian Senate committee, arguing that the new regime created by the bill was “complex, unpredictable and unworkable for our business.” They even suggested that such a bill runs “contrary to the Australia-US free trade agreement,” echoing a similar concern from the US government.

Google also believes the code is unworkable, and “would break the way search engines and the internet work for everyone.” It even proposed that their search engine be exempt from Australia’s new code.

According to Financial Review, Microsoft’s president, Brad Smith, thinks the media bill helps “level the playing field” between Big Tech and news media. He said he would make sure Microsoft complied with the order and was willing to sacrifice profit if the US government decided to adopt a similar bill.

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.