Content providers are worried if the govt will tighten its hold on online platforms

Fears of being brought under the government’s control have been gnawing at online content providers and news portals of late, in the wake of the Centre’s decision to bring these platforms under the purview of the Ministry of Information and Broadcasting.

These platforms will now be under the I&B Ministry headed by Prakash Javadekar, as per the gazette notification issued on November 11. The move has kicked up a furore on how this can lead to a government’s stranglehold on online platforms - and its bearing on creative freedom - apart from questions on why this was passed. Over the top platforms, for instance, were already following a self-regulatory code.

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Administrative order

“There are no new regulations, that’s the first thing to understand (about this order). It’s essentially an administrative order which has been passed by the Government of India, designating the I&B Ministry as the nodal central ministry to look at two specific items of business - OTT platforms and digital online news media. There is no inherent power with the I&B Ministry to either regulate OTT platforms or news websites which arises from this allocation of business. So essentially, what’s important for people to understand is, this may be a precursor to legislation or regulations which may follow thereafter,” Apar Gupta, executive director at the Internet Freedom Foundation, a digital rights group, told BusinessLine.

This is yet another sign of a heavy-handed content regulation framework favoured by the Government, averred Mishi Choudhary, founder of SFLC.in, a legal services organisation working on law, technology and policy. “

Although there is little to no clarity about what this entails... it portends a regime with more interference from the Ministry and less reliance on self-regulation, extending the censorship-heavy legacy to the internet.” There are some jurisdictional issues that arise with change in business allocation amendments that need further examination, she added.

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‘Rooted in the past’

Giraj Sharma, founder director of Behind the Moon, a brand consultancy, said, “This could lead to conflicts since (from) what we have observed so far, their content is likely to fall under ‘not permissible’ criterion of the ‘rooted in the past’ I&B Ministry. The need for this is obviously ‘better control’ and to ‘regulate’ what gets watched by over 18 crore subscribers.”

Though the fears of censorship triggered by the order are warranted, at the same time, one needs to derive a sense of assessment on the basis of fact, Gupta pointed out. “It’s not as if there is immediate censorship which results from this specific action. However, the likely apprehension of it occurring in future does arise.” Hence, there is a need for a greater level of transparency and a need for open public consultation before such legislative measures are passed, he added.

‘Is it government’s job’

But, as pointed out by Gupta, this move throws up a larger, pertinent question - should the government be in the business of regulating the media sector by itself, and what should be the ambit of such a regulation? Traditionally, in modern democracies, this role is being played through specialised regulators rather than by central government ministries, he said.

All we need is a framework for age classification, content descriptions for titles, access control tools and an efficient grievance redressal system instead of monitoring everyone’s viewing activities that they choose to pay for and are not publicly broadcasted, said Choudhary.

Moreover, fears of political compulsions or that of the ruling dispensation outmanoeuvring the content providers to air only favourable content also loom large, Sharma cautioned.

Meanwhile, there is a counter-argument that TV news, films and newspapers are already under the ambit of the same I&B Ministry, and that this is a mere extension of the same to digital platforms. But, we are talking of a completely different animal when we talk of OTT and digital content platforms as compared to TV, Sharma argues. “These platforms have so far been completely free to air what they like, and in a sense truly reflected the freedom of choice of the end-user - you watch what you want to and without any encompasses. So, in a sense, more than the content providers, this also marks the curtailment of choices of the viewing population.”

Also pertinent is the fact that there are laws concerning hate speech, libel, slander, defamation laws and other offences already applicable to online entertainment and news, Gupta pointed out. “So, I would say that the argument that these sectors are completely unregulated does not pass muster.”

Hampering growth

The OTT sector is going through a boom right now and any entry barrier will hamper this growth and investments, said Partho Dasgupta, Management Consultant and ex-CEO at BARC India. “I would also expect the Ministry to call in experts from the industry to help them understand and monitor the sector,” he added.

When asked about this order, veteran filmmaker Shyam Benegal said: “Censorship in a democracy makes no sense. In fact, it makes nonsense of democracy itself. Self-regulation is absolutely essential to maintain our democracy since it recognises our immense diversity.”

That this change was made without any proper consultation with the stakeholders is another concern flagged by experts. But, it is never too late to get the content providers onboard and dispel their bonafide apprehensions and factor in their point of view, said Behind the Moon’s Sharma.

Meanwhile, Anuj Kapoor, Assistant Professor of Marketing, IIM-Ahmedabad, sheds light on the positive outcomes that this move can herald. “If the intent behind this is to provide safe and quality content, then you will see that the content created after self-regulation versus after actual regulation won’t vary too much.” He said that studies have shown that consuming high violence content - typically found on OTT platforms - leads to enhanced aggression and possibility of committing crimes. “Also, consuming biased news (left leaning versus right leaning) creates echo chambers and bubbles and that leads to circulation of fake news. This may again lead to a polarised society. If the government’s regulation acts as a watchdog of content, it may lead to actually more equitable and just society,” said Kapoor.

Law needed

But, at the end of the day, this move clearly indicates that the government would like the I&B ministry to do more on this topic, as pointed out by Raman Chima, Asia Policy Director and Senior International Counsel at Access Now, on Twitter. “You don’t designate a Ministry to lead on an issue unless you want it to govern/regulate/coordinate that issue further,” he tweeted on November 11. However, this doesn’t mean that the I&B Ministry can now issue directions and orders that legally compel non-government actors to do or not do certain things in these sectors, he said, adding that for anything impacting fundamental rights, it needs to be issued under the law.

“It’s not like there shouldn’t be any regulation, but for the Central Ministry itself to do it directly, rather than by creating a regulator which may look at specific issues, it does throw open a challenge - that will we be able to receive the same kind of media diversity which has been promoted by online journalism as well as entertainment platforms? And will this present classification result in a form of censorship which brings in a level of control which we have seen on television, radio and print?” Gupta asks.

For now, his question hangs in the air.

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