Digital content regulation: Learning from best global practices

Excerpts from this year’s FICCI Knowledge Series: Fast Track Digital.

Do video-on-demand (VOD) services need regulation? Or, is it too early? These two questions formed the theme of the second session of this year’s (2020) FICCI Knowledge Series: Fast Track Digital.

Called ‘Digital content regulation: Learning from best global practices’, the hour-long session discussed the need for regulation of digital services, and also the global best practices that can be helpful to India’s vibrant VOD industry.

Moderated by Vanita Kohli-Khandekar, contributing editor, Business Standard, the panel included:

Ajay Chacko, co-founder and CEO, Arre

Gaurav Rakshit, COO, VOOT

Karan Bedi, CEO, MX Player

Sanjeev Lamba, Hungama Originals

Tarun Katial, CEO, ZEE5 India

Vivan Sharan, partner, Koan Advisory Group

Kohli-Khandekar opened the discussion with a reference to the telecom authority of India (TRAI), which the government had brought in to handle the “conditional access mess”. TRAI did an excellent job in its first decade and brought order to the television broadcast.

But, over the years, it has started equating television broadcasting with telecom. This has resulted in a set of problems that culminated in NTO 1.0, NTO 2.0, price regulation… “And that’s why regulation in entertainment worries people,” Kohli-Khandekar remarked.

She said that the recent move by the Ministry of Information and Broadcasting (MIB) to bring digital streaming platforms and news outlets under its ambit was logical and expected. She went on to add that there’s been a PIL in the Supreme Court demanding OTTs be regulated. On the other side, there’s the Internet and Mobile Association of India (IAMAI), which has developed a robust code, and it’s still being debated and discussed with the government.

“It’s not a big deal if MIB is the regulator… the issue is: what’s the principle you are going to use to regulate people,” asked Chacko of Arre, who went first. He remarked that, maybe, it’s time to liberalise cinema, TV, print and radio, rather than bring “digital down to the lowest common denominator (most regulated medium).”

Chacko lamented the fact that media isn’t considered in India’s top 10 industries. “The industry, put together, reaches 85-90 million people, but hasn’t been able to generate value from a business point of view, as compared to mid-tier IT companies…”

Referring to consumer complaints, he said that as compared to the size of the country, the number of complaints was a handful. PILs were thrown out or not regarded as serious or considered frivolous.

Kohli-Khandekar asked Katial to respond, not only as the CEO of ZEE5 India, but also as the head of the committee which drafted the IAMAI self-regulation code.

As per Katial, because almost everyone (18 platforms) in the industry signed this code, it was different from the previous ones they’d worked on. He disagreed with the assumption of regulation, now that digital media falls under MIB. He said the ministry has never said in any affidavits or court cases that it plans to bring in any form of regulation. “All public statements have been about encouraging self-regulation.”

Katial mentioned his experience of working with the Asia Video Industry Association (AVIA), Netflix, Disney and Comcast in developing the self-regulatory code that’s similar to the one developed under IAMAI. “The code that goes across all Asian markets and recommends players to deliver content diversity, while being self-responsible and accountable.”

He also spoke about OTT consumption is no longer personal (smartphone viewership) and people watch it together on TV hence, age rating and parental locks are important so that one can tell stories, and also allow users to use technology to decide what, and how, they want to watch.

Hungama Originals’ Lamba then jumped in. “In every country, media is divided into silos (films, news, press and, now in last five years, digital).” The regulatory framework for each is different. Look at films, in the US, it’s a private body MPAA, India has the CBFC. TV is controlled by the FCC. It’s a self-regulatory body on behalf of the broadcasters association…. How each medium is distributed and consumed is different and, hence, there’s no one size fits all.

“My own view is that digital poses two challenges: content and access. Access is based on technology: gating kids’ content, not allowing people to watch something unless there’s a subscription or you prove you’re 18 years old. Content is more on what is political grounds, religious grounds, cultural grounds; all those softer issues...”

Lamba went on to say that there is a need for some form of regulation. One, there should be clear guidelines in self-regulation. Two, they should be consistently applied across a particular sector to avoid different interpretations. Three, the consumer must be fully aware of these guidelines and must be allowed to make their choices. And there must be some level of control in case of violations of these guidelines.

Rakshit of VOOT said, “It has been a long road in getting all industry participants together on the same page to align on the code.” In spirit, everyone is aligned with what they want to put in front of the consumer, but the industry is different from traditional content media.

He said that the government encourages self-regulation and is giving us (the industry) space to find what’s appropriate. The industry has robust laws to protect against inflammatory content or otherwise, but “what’s different in our industry is the ability to be able to narrowcast to an audience also allows us to provide age-gating capability so the content consumed is consistent.” It’s a big part of the code the industry is adopting.

Koan Advisory Group’s Sharan said MIB is in charge of the space and that “global best practices are meaningless unless contextualised to our politico institutional setup.”

“We will see new standards at some stage and those will have to derive from a triad of Article 19(2) of our Constitution, which creates reasonable restrictions to free speech. The second part would be all the technology controls, access controls, and platforms. The third aspect is standards of acceptable speech based on locational, temporal or creative context.”

As far as context is concerned, as far as judicial pronouncements (cases against platforms) go… has evolved from Hicklin test, which used to look at things out of context, very narrowly (take a piece of content divorced for the overall piece and see if it offends say terms of obscenity) to the Roth test which sees content as a whole and looked at the context to now community standards…

Sharan went on to say that to evolve a standard of our own, “we need to ensure this triad doesn’t stop creative freedom, but furthers it.”

“There are two categories: minors and adults. Minors need to be protected (can be done through specialised laws), but we need more on the supply side and how we impact children through content.

MX Player’s Bedi had the final say, and simply asked, who regulates? It’s the big question and the government has said that it is in favour of self-regulation...

The point of debate is who creates this self-censorship framework? The Ministry of Information & Broadcasting clarified the rules of business. Everybody in the industry was fully aware that change was coming… The ministry clear is that self-regulation what they want, the industry is happy with it…Referring to Chacko’s point, Bedi said one must try and “settle on a denominator that’s acceptable for all,” and it’s a matter of time before we come up with a set of standards that is agreeable to all.