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.”
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’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.
The latest Media and Entertainment Outlook 2020 report by PwC states India is currently the world’s fastest growing OTT market, and is positioned to become the world’s sixth-largest by 2024. This means India is likely to overtake South Korea, Germany, and Australia in OTT revenue. Sizable investments by Netflix, Amazon, Disney+ Hotstar and other players in both originals and licensed content is expected to make up 93% of total OTT revenue.
This is good news in terms of consumer choices. It also means that with the increased flow of content, the supply chain starting from content production to content release needs to be robust enough to keep pace in the country. Therefore, the recent move by the Indian Government to regulate OTT platforms under the Information & Broadcasting (I&B) ministry may create some roadblocks in India’s OTT landscape.
India has resisted regulation of the OTT space and no laws or rules exist regulating OTT platforms. It is a relatively new medium of entertainment, classified as digital media. Unlike traditional media such as television, films, print or radio, which follow government guidelines under the direction of various regulatory bodies, OTT enjoys a free run. However, there have been frequent calls for censorship of online content by various political groups and social organizations. Shows like Netflix’s “Leila” and “Sacred Games” have invited the ire of certain groups leading to court cases asking for bans or regulation of streaming content. As a pre-emptive measure, in January 2019, nine streaming services in India announced a self-regulation code under the aegis of the Internet and Mobile Association of India (IAMAI). The code settled on some “best practices” to avoid government-led censorship. However, the government indicated that this might not be enough and started holding consultations on the subject.
Consequently, in February 2020, the IAMAI drafted a new code. At the Government’s insistence, a Digital Content Complaints Committee was created to serve as an appeals body that can penalize OTT players. This did not sit well with some of the OTT services indicating lack of consensus and adequate consultation within the IAMAI. In September 2020, the organization prepared a third version of the self-regulatory code. Signatories include 15 international and local platforms on board viz. Netflix, Amazon Prime Video, Disney+ Hotstar, ALTBalaji, ZEE5, Arre, Discovery+, Eros Now, Flickstree, Hoichoi, Hungama, MX Player, Shemaroo, VOOT, Jio Cinema, SonyLIV and Lionsgate Play.
The ministry of information and broadcasting asked IAMAI to consider other self-regulatory models since the government does not support the current one. The letter stated “The proposed self-regulatory mechanism lacks independent third-party monitoring, does not have a well-defined Code of Ethics, does not clearly enunciate prohibited content, and at the second and third-tier level there is an issue of conflict of interest.”
In a far-reaching move, a gazette notification issued Nov. 11 and signed by the president of India, online films, digital news, and current affairs content were brought under the purview of the Government’s I&B Ministry. With the government’s decision to regulate online content providers, the challenge for the OTT platforms would be keeping a check on their content. It is also likely that they would have to apply for certification and approval of the content before streaming. This could give rise to many conflicts as most OTT platforms showcase content that would otherwise be censored by the certification boards in India.
No specific guidelines have been announced as yet, but it is known that the Programme Code governing TV content and which found an outlet in the Cable Television Network Regulation Act, 1995, may serve as a template to frame rules for online content. So, while the industry waits for more regulatory guidelines from the I&B ministry, OTT platforms are likely to resist any plans to censor content being streamed in India citing infringement of creative freedom.
Turkey enacted a new social media rule Oct. 1, 2020, and several social media platforms are not happy about it. The law “requires [companies] to establish a formal presence within the country” which will increase the companies’ “liability for harmful content.” Originally passed through parliament in July, the law also requires companies to appoint a Turkish representative to respond to content complaints and implement court orders.
According to local authorities, the law exists to “fight internet crime and determine liability.” This essentially means that social media companies that want Turkish users to continue accessing their service must abide by the country’s rules. Unfortunately, many companies, including Facebook, refuse to comply.
What Does This Mean?
If companies refuse to comply with this new law, “they can face penalties” such as heavy fines of 10 million Turkish liras (~$1.3 million) or 30 million liras (~$3.8 million) in December 2020. Companies will also face an ad ban in January 2021 and “have their bandwidth throttled by 90% in another six months.” This means that users will be effectively barred from using most popular social media platforms.
According to TechRadar, several other social media platforms have been blocked or banned in Turkey, including:
- Facebook (and Messenger)
- Google apps (e.g., Docs, Drive, Translate, etc.)
The heavy-handed restrictions are linked to the revision of Turkey’s Internet Act of 2007 in February 2014. This “omnibus law … further impacted internet freedoms” and is the main reason Turkey is now classed as “Not Free” by the Freedom House Index.
Earlier in the year, according to MediaNama, Turkish president Recep Tayyip Erdogan noted that social media platforms must either be “completely banned or controlled. He made this declaration after his daughter’s family received “personal attacks” on Twitter.
What Happens Now?
Human rights activists are not convinced that the Turkish government can uphold this law. Back in 2019, before the law was even implemented, Turkey blocked access to “408,000 sites, 40,000 tweets, 10,000 YouTube videos and 6,200 Facebook shares,” according to Sevket Uyanik, an online rights activist.
Activists have described the new law as “draconian” and stifling—another attempt by the government to “chill free speech.”
Emma Sinclair-Webb, senior Turkish researcher for Human Rights Watch stated, “We strongly urge the social media companies not to comply with the new law. It sets a dangerous precedent both for freedom of expression in Turkey and the rest of the world.”
For now, it looks like the law faces a fair amount of social and, possibly legal, opposition although any case could take years to reach Turkey’s constitutional court.
An erotic comedy series on ALTBalaji, an OTT platform in India, recently invited the ire of the Indian Defence Ministry. The ministry objects to certain scenes in “XXX” and expressed its concern in letters to the Central Board of Film Certification (CBFC).
The Defence Ministry contends that that the Indian Army uniform is disrespected and depicted in a negative light that hurts those personnel currently serving and veterans. In one particularly contentious scene, the adulterous wife of an army officer has her boyfriend wear her husband’s uniform and, while indulging in BDSM, rips his uniform apart.
The Ministry wrote to the Central Board of Film Certification requesting it to direct producers of web series to seek permission from the ministry before airing films depicting the Indian Army or military personnel. Considering online content’s regulatory gray area, the letter was also sent to the Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology.
It is significant to note that the CBFC, which functions under the Information and Broadcasting Ministry, is not authorized to regulate content on video-streaming platforms. Its role is restricted to films released in theatres and on television satellite channels. In India, content on OTT platforms is not monitored by any specific body. The platforms are still in the process of finalising a self-regulatory code for the content they stream.
This is the latest episode of governmental interference related to media content. In a similar incident, the Indian Air Force (IAF) wrote to the Central Board of Film Certification complaining against its ‘undue negative portrayal’ in the movie “Gunjan Saxena: The Kargil Girl” released on Netflix Aug. 12. The film is based on the first Indian Air Force woman pilot who was part of the 1999 Kargil conflict between Pakistan and India.
The letter read “In the aim to glorify the screen character of ‘Ex-Fit Lt Gunjan Saxena,’ the producers present misleading situations and portray an inappropriate work culture, especially against women in the IAF.” The letter also speaks of presentation of incorrect gender bias.
Established in 1952, the bureaucratic film certification system in India is a challenging maze which filmmakers must negotiate. In India, the concept of film certification is often synonymous with censorship, primarily because a large majority of films are pruned by the state to make them ‘fit for certification.’ Critics, commentators, and filmmakers are largely unanimous in expressing their opinions about the system being a social and a judicial construct, and the biggest impediment to creative expression in Indian cinema.
Restrictions on how the armed forces are depicted already exist. A three-stage approval process requires producers to first approach the defence forces before filming begins, and then get an approval through the censor board and the defence ministry for a final release agreement. The current diktat (an order or decree imposed by someone in power without popular consent) declares the Defence Ministry bring web series under that same approval process. Since this is tied to the larger question of how regulations over Indian OTT content evolve, it is likely to remain unresolved in the present. However, there is a growing list of organizations including the Ministry of Defence seeking greater control over web content in India.