The Indian government recently announced that all the online news media and OTT platforms in the country such as Netflix, Amazon Prime, Hotstar will come under the ambit of the Ministry of Information and Broadcasting.
On 9th November, the government issued a notification in its official gazette and clarified for its own internal business that these platforms will be scrutinized by the Ministry of I&B now but there is no rule, no legislation for them.
Earlier in December 2019, the government had announced a consultation through the ministry of I&B in which they put the law of Press and Registration Of Books Bill for Public Consultation , under this any new newspaper has to register itself under the Press and Registration Book Bill. The government then decides its ads accordingly. It also issues press cards through it and grants access to people it wishes to. There was a suggestion in its wordings in section 2(k) that digital news media i.e. the online news media should be included in this as well. So all online news media would suppose to register under the government of India. But there are even many international news media houses like the New York Times, Washington Post who also write on India, so does this mean they will register under this legislation? And if they choose not to register will the government block these websites?
THE NEW REGULATIONS BY THE GOVERNMENT
The government recently announced a new set of rules Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021,this mandates online media as well as OTT platforms to follow the existing content codes meant for television and print media. Under the new rules the OTT platforms have been told to self- classify their content into 5 age categories U (Universal),7+,13+,16+ and A (adult) category. But the problematic part is OTT platforms and digital news are being told they have to follow the Code of Ethics as per which they cannot put up any (i) content which affects the sovereignty and integrity of India; (ii) content which threatens, endangers or jeopardises the security of the State;
(iii) content which is detrimental to India‘s friendly relations with foreign countries; (iv) content which is likely to incite violence or disturb the maintenance of public order It is all justified that no content should be made that goes against the country or incites violence but the (iv) phrase which states “ or any content which disturbs public order.” Now what is this public order? It is determined by the government , whatever the government thinks is justified will be labeled as a content disturbing public order.
Another dangerous provision in these new rules is the Emergency Blocking Power which states that the Secretary may, if he is satisfied that it is necessary and justifiable in blocking of public access of any information or part thereof through any computer resource and after recording its reasons in writing, now this power is given in those cases where “no delay is acceptable”, and such cases are nowhere defined so the government might announce in any case that delay is not acceptable according to its own discretion.
THE REACTION OF THE GENERAL PUBLIC
After this announcement, the general public got divided into two halves. On one side, people said this is a good thing as they believed in the grab of content, vulgarity was screened on some OTT platforms and now this will come to an end. People believe that all the news channels streamed on TV or the newspaper have to register so why not the online news media? But if we look at the online news its pattern of the economics of creation, distribution, and consumption is entirely different.
On the other side, people say that this is a very wrong decision because this is just a tool of the government to censor things. The content, movies, series which criticize the government or where questions are raised against the government will be banned by the government. If we take old regulation drawn up from legacy broadcast and legacy media and apply it to online and digital media then it will result in a bad impact on innovation, freedom of speech, and expression as well as cultural export which is quite good in the entertainment sector. A regulation should always be based on sound public policy and evidence and it should be not because the government wants that the sector needs to be controlled.
IS SELF-REGULATION A SOLUTION?
Now the question is whether self-regulation is a solution to this? Self regulation refers to the steps companies or industry associations take to preempt or supplement governmental rules and guidelines. For an individual company, self-regulation ranges from self-monitoring for regulatory violations to proactive “corporate social responsibility” (CSR) initiatives. A few months ago OTT platforms said that they will censor their content so that the government has no such difficulty and it needn’t take any steps. These platforms have said that they will make a self-censorship code and will follow the same. “About 15 OTT platforms, including Netflix, Disney Plus Hotstar, Amazon Prime Video, Zee5, Voot, Jio Cinema, ALTBalaji, Eros Now, Hungama and Shemaroo, have signed a self regulation code, to govern their curated streaming content.They aim to do this by adhering to disclosures such as, specifying maturity ratings and content descriptors (e.g., language, violence, sex), and it’s effective immediately.
It is quite noticeable that their censorship was so strong that Hotstar which streams John Oliver’s famous censored an episode entirely based on the PM of the country. But self-regulation is also not a very good option altogether because it doesn’t see what is lawful or not, it takes into account the thing due to which liability might, self-regulation primarily works when firms see a credible threat of government regulation, even if it may hurt short-term sales and profits.
WHAT IS THE RIGHT SOLUTION THEN ?
There are some kinds of simple regulations which the government can impose, something similar to what happens internationally. There you are supposed to give advance notice of what a person is about to watch so that he can make a rational decision. The second thing is a parental control that if a parent doesn’t want his child to get exposed to the wrong type of content he is always presumed to be the legal guardian and the person who can always exercise the degree of control over his child. The third thing could be regulating the time you spend on these media platforms this might even help to some extent.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 , s. 19 .
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 , s. 16 .
 INDIA CONST. art. 19, cl. 1.
Author: Sonakshi Singla from Army Institute of Law, Mohali.