India: IAMAI's Self-Regulatory Code For Curated Content Providers: Hits And Misses

Netflix, Hotstar, Jio, and six other online video on demand service providers have adopted a voluntary self-regulation code for their content in India. The Internet and Mobile Association of India, a not-for-profit industry body coordinated among the aforementioned video on demand service providers for the development of the Code for Self-Regulation of Online Curated Content Providers ("the Code"). The Code enumerates the kinds of video content which would not be published on any of the platforms. The Code also prescribes a maturity rating for content to be published through the platforms.

The Ministry of Information and Broadcasting had set up a committee to develop a new regulatory framework in early 2018. A few Public Interest Litigations had also been filed in relation to inflammatory and 'adult' content published over video on demand platforms such as Netflix and Alt Balaji. The adoption of the Code by the bigwigs of the VOD industry is being seen as an attempt to avoid any further regulation. It is noteworthy that other forms of media (especially news media) have had some form of self-regulation for years now. While newspapers (and journalists) are governed by self-regulatory codes devised by statutory bodies such as the Press Council of India, non-statutory bodies such as the Indian Broadcasting Foundation and News Broadcasters Association have adopted self-regulatory codes vis-à-vis  non-news/non-current affairs and news broadcasts on television respectively.

The Code adopts three 'R's namely (self) Regulation, Rating and Redressal.

Self-Regulation of VOD Platforms

The primary objectives of the Code include the empowerment of the consumers to choose age-appropriate content, creation of an ecosystem which respects the freedom of speech and fosters creativity and the development of a complaints redressal mechanism.

The Code specifically prohibits the VOD platforms from 'deliberately and maliciously' publishing any content which:

i) Disrespects the National Anthem or the National Flag;

ii) Contains any representation of the sexual parts of a child for primarily sexual purposes or represents a child engaged in real or simulated sexual activities;

iii) intends to outrage religious sentiments of any class, section or community;

iv) encourages terrorism and other forms of violence against the State; and

v) has been banned for exhibition or distribution by applicable laws or courts with competent jurisdiction.

These restrictions seem simple yet effective. The restrictions avoid the use of nebulous terms such as 'morality' and 'depravity' which have been used in the Program Code under the Cable Television Networks (Regulation) Act, 1995 and Self-Regulatory Content Guidelines for Non-News & Current Affairs Television Channels adopted by the Indian Broadcasting Foundation, thereby implying that VOD platforms can remain in compliance with the Code even if they publish any content which is not necessarily suitable for unrestricted access. Hence, Netflix and Hotstar can continue with the streaming of shows like Sacred Games and Game of Thrones, which seem to be major crowd-pullers.

Rating of content by VOD platforms

The Code mandates that the VOD platforms categorise their content into three broad categories (which can have further sub-categories) namely i) General / Universal Viewing; ii) Content which requires Parental Guidance and iii) Content meant for age-appropriate audiences. The VOD platforms which accept the Code are required to display a content descriptor or guidance message indicative of the nature of the content and age-appropriateness. The signatories to the Code are expected to implement tools which allow for parental control/access control.

While the maturity rating system prescribed by the Code is similar to the system followed by the CBFC, yet the system seems deficient in certain aspects. For instance, the rating system could have been more granular akin to the system under the content code adopted by Info-communications Media Development Authority of Singapore, which allows for 6 categories of content basis age appropriateness, namely i)G – General, ii) PG – Parental Guidance, iii) PG13 – Parental Guidance for Children below 13, iv) NC16 – No Children below 16 years of age,  v) M18 – Mature 18, for persons 18 years and above and vi) R21 – Restricted to persons 21 years and above. Following the Singaporean content code, the Code could have mandated the use of age-verification mechanisms for viewing any content appropriate for older audiences only (although, the same would affect user experience on the platform).

The Code could also have prescribed for content descriptors such as those contained in the Pan European Game Information or YouTube's rating system. YouTube's content descriptors include "F" for flashing lights (which might trigger epileptic seizures), "D" for drug use and "L" for strong language. The Code's rating system also seems deficient as far as mandating the use of the rating system is concerned. The Code does not specify how exactly are the 'ratings' supposed to be displayed. The Code could have specified the size as well as the duration for which the ratings need to be displayed. The Code is also silent about the advertisement of any content (on the platforms) which is suitable for older audiences only.

Redressal Mechanism by VOD platforms

The Code states that the signatories to the Code need to have a department in place to receive and address any consumer related concerns and complaints in relation to content. Such departments would also be responsible for ensuring the platforms' adherence to the Code. The contact details of the said department are to be available on the platform as well as the signatory's website so that consumers are aware of the redressal route to be followed if a user believes that a platform has violated the Code. The Code also states that the Ministry of Information & Broadcasting and the Ministry of Electronics & Information may forward any complaint to the relevant departments of the Online Curated Content Platforms and the departments are expected to address the same.

Upon receipt of a complaint by an aggrieved user, (along-with essential details such as user's login-id, title of the content, date of viewing and the nature of the alleged violation), the concerned department should acknowledge the complaint within 3 working days. If the department is of the opinion that the Code has not been violated, the same should be communicated to the complainant within 10 days. In case of a violation of the Code, the Department after discussions with internal stakeholders must communicate to the aggrieved user within 30 days of receipt of the complaint, specifying the precautionary action(s) taken to address the complaint.

While the prescription of the redressal mechanism is commendable yet the mechanism seems to lack 'teeth'. An ideal self-regulatory mechanism should consist of self-regulation at two levels- entity level and the industry level. For instance, under the Press Council of India's Norms of Journalistic Conduct, a complainant may approach the Editor of the concerned newspaper and also the Secretary of the Press council of India.  The mechanism by the Code prescribed does not allow for a route an aggrieved user may follow if his/her complaint is not acknowledged or if he/she is unsatisfied with the response provided by the concerned department, as prescribed in self-regulatory codes pertaining to other media.

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