Self-Regulatory Online Content Code may not serve interests of Indian Consumers, Creators | Firstpost

Op-Eds by Public Law · January 31, 2019
Author(s): Sohini Chatterjee

The Internet and Mobile Association of India’s (IAMAI) move of codifying industry best practices for online curated content (OCC) providers has caused ripples.

Signatories of the code include major players like Netflix, Hotstar and Jio.

The central feature of the text is its assertion as a self-regulatory code. Signatories are expected to act in good faith in putting up responsible content online. As part of this, the platforms must ensure that the content offered by them is consistent with the principles of self-regulation contained in the code. There is an assumption that the code is free speech respecting. Despite its self-regulatory character and the purported legitimacy pinned to it, the code may contain false promise for consumers and creators of online curated content in India.

State involvement

The code is not without advantages. Both the arguments in favour of self-regulation, expertise and efficiency, could stand vindicated here. As it has been jointly drafted by a group of prominent OCC providers, it may be informed by relevant expertise and technical knowledge about the digital content industry. Further, the voluntary nature of the code may produce control more efficiently than government regulation by presenting lower costs relating to information, compliance and enforcement.

However, there is an underlying assumption that the code is sans State involvement. This merits scrutiny. It is worth noting that the raison d’être of the code is the fear of the State’s censorship impulse. In other words, it is a pre-emptive reaction to the threat that the Ministry of Information and Broadcasting (I&B Ministry) may be contemplating an online content law. Commenters have noted that video streaming services are not a policy priority for the government at present. The need for such a code to be introduced at this time is thus unclear.

Having said that, there have been at least two web-series related PILs filed in the Delhi High Court and the Bombay High Court seeking the removal of objectionable content from the shows Sacred Games and Gandi Baat. This may have led the OCC providers to anticipate a real threat of impending State action, with the government being prodded by the courts about its measures to regulate online content. In order to avert this possibility, the OCC providers went ahead with a self-regulatory model.

It is likely that the code will operate within a State-sanctioned framework. It allows for the I&B Ministry and the Ministry of Electronics and Information Technology (MeitY) to receive and forward complaints to the department of an OCC provider. The code may also receive official endorsement by the I&B Ministry. These channels provide room for further State influence.

Self-regulation and censorship
The code and the support for it is premised on a superficially stark contrast between self-regulation on one hand, and censorship by the State on the other. This is a blunt distinction for two reasons.

First, self-regulation is not a monolith at the opposite end of State regulation. A host of arrangements across the spectrum can be described as self-regulatory. The strategy may constitute merely an element in a broader regulatory agenda. Depending on how much state sanction accrues to the code, it can vary in its degree of self-regulation.

Second, the code has precariously combined some drawbacks of both State regulation and self-regulation. While pre-empting censorship imposed by the government, the code itself has engaged in private pre-censorship. It has prohibited categories of content which “deliberately and maliciously” disrespect the national emblem or flag, outrage religious sentiments, or encourage terrorism and violence against the State. The vague form and subjectivity inherent in the conditions make them red flags for free speech.

Its classification scheme for helping the consumer to determine age appropriate and sensitive content appears less intrusive. Even then, such categorisations, content descriptors and technological tools may be paternalistic. Overt intrusion into the choice of consumers should not be made in the garb of providing better information.

The code also exposes the shortcomings of self-regulation. It has been drawn up and collated by a group of private companies that lack democratic legitimacy and accountability.

Considering that there is no targeted law to censor online video content in India, it is hard to justify the widespread public effects the code will have in curbing the free speech rights of creators (freedom to impart ideas) and consumers (freedom to receive ideas).

Additionally, the existence of this code does not bar the formulation of alternate codes by another OCC provider, not party to it, or a group of such providers. The presence of multiple codes may lead to inconsistent norms prevailing in the industry on what constitutes responsible content. This may lead to confusion on what the prevalent standard is, and encourage OCC providers to err on the side of caution by censoring deeper.

The code does not appear to serve the interests of either Indian consumers or creators. There is enough cause to rethink the endeavour.

The author is a Research Fellow in public law at the Vidhi Centre for Legal Policy.

Originally published –

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