The Cabinet Secretariat, on Wednesday, 11 November, issued a notification bringing “online content providers” and “news and current affairs content on online platforms” under the jurisdiction of the Union Ministry of Information & Broadcasting.
The notification, issued under the allocation of business rules, essentially means that the Union I&B Ministry will now have principal administrative jurisdiction over online news portals and OTT/streaming platforms.
This has been under consideration for months and would allow the Ministry to regulate online news portals as well as streaming platforms through legislation.
While the government has described the move as providing a level playing field and creating an enabling regulatory environment, the notification comes amid concerns of curbs on freedom of expression and innovation on OTT platforms.
While streaming platforms have always batted for self regulation, experts say there is indeed “a degree of nervousness” about the shape the ministry’s regulation may take.
What Does This Mean?
Simply put, streaming platforms like Netflix, Amazon Prime, Hotstar, Zee5, Sony LIV and others will now be under the administration and governnce of the Union I&B Ministry.
The OTT platforms space is currently unregulated and do not require certifications for releasing content nor does it have a self regulatory body on the lines of the Press Council of India.
However, does this mean that the ministry can start regulating OTT platforms and compel them to follow orders? Experts have said this isn’t how it will work.
Raman Jit Chima, Asia Policy Director and Senior International Counsel at Access Now, explains that “this doesn't mean that the I&B ministry can now issue directions and orders that legally compel non-govt actors to do or not do certain things in these sectors. For anything impacting fundamental rights, it needs to be issued under law.”
Chima explains in a tweet that the notification is about “who is supposed to lead on an issue within the different Ministries of the Govt of India. Not regulatory power by itself.”
“This is yet another sign of a heavy handed content regulation framework favored by the Government,” says Mishi Choudhary, technology lawyer and founder, SFLC.In.
Highlighting the lack of clarity about what this entails for different types of Intermediaries, platform and content creators, Choudhary adds, “it portends a regime with more interference from the Ministry of I&B and less reliance on self-regulation by the OTT platforms extending the censorship heavy legacy to the Internet.”
Notification Signals Shift in Govt Intent on OTT Platforms
While there was ambiguity around whether the Union Electronics & IT Ministry (MeitY) or the Union I&B Ministry holds jurisdiction over online content providers, that has now been cleared.
Legal experts point out that placing jurisdiction under the I&B Ministry will probably clear the decks for a regulatory code. The Internet Freedom Foundation explains in a statement released on 11 November that the I&B Ministry “has an institutional history of regulation.”
“It has administered both licencing and content censorship powers in the radio, cinema and television broadcasting specifically through laws such as the Cinematograph Act and the Cable Television Regulations Act,” IFF said in its statement.
Apar Gupta, Executive Director, IFF, speaking with The Quint, further explains that as far as MeitY’s dealing with online content providers is concerned, it had clearly stayed away from imposing regulatios.
“The notification signals a change in stance. The Union Electronics & IT Ministry had clarified that there was no need for regulation under Cinematograph Act for prior licensing of content. It had also submitted before the Delhi High Court that the contours of the IT Act and Indian Penal Code were sufficient to deal with complaints against streaming platforms,” Gupta said.
He adds that I&B Ministry’s jurisdiction comes with a degree of concern. “The I&B MInistry may take a different route to regulation and it could be a precursor to a legislative route,” Gupta added.
I&B Ministry Rejected OTT Platforms’Self Regulation Code
Amit Khare, Secretary, I&B Ministry, had said back in July that the Ministry was proposing to take over jurisdiction on online content regulation in India from the Ministry of Electronics & Information Technology.
According to an Economic Times report, a ministry official said on Wednesday that the move was taken to ensure a level playing field for all media, and bring an "enabling regulatory environment so that all digital players adhere to the laws of the land."
“There have been at least 40 court cases where the government had to make an appearance. Courts have also urged the ministry to have a regulatory mechanism. We have been working on that with stakeholders," the ET report quoted a top ministry official as stating.
Indeed, the I&B Ministry had been working with OTT sector for nearly two years on a self regulation code and grievance redressal mechanism. There have been three separate versions between January 2019 and September 2020.
Previous versions of codes of best practices and self-regulation, published in January 2019 and February 2020, were met with mixed acceptance by streaming platforms amid serious disagreements pertaining to the grievance redressal mechanism, inadequate consultations and some stringent restrictions on content.
Shortly after the presentation of the February version which only saw five platforms sign on, the I&B Ministry had given the industry 100 days to finalise a code of self-regulation and create an adjudicatory authority.
On 4 September, the “Universal Self-Regulation Code for Online Curated Content Providers” developed under the aegis of IAMAI was the most unanimous and adopted by 15 members.
Signatories included Zee5, Viacom 18, Disney+ Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus, and Flickstree.
However, the ministry rejected this self-regulatory streaming code. According an Indian Express report, the Ministry refused to support the Code, stating it lacked independent third-party monitoring, did not have a well-defined Code of Ethics and did not clearly enunciate prohibited content.
The Quint reached out to Netflix, Zee5 and Amazon Prime for comments. While Netflix and Zee5 did declined to comment, Amazon did not respond.
What Happens to Online News Portals?
The notification also specifies that “News and current affairs content on online platforms” would also be within the principal jurisdiction of the I&B Ministry.
So, what would a regulatory regime with regards to online news look like? Gupta points out that unlike print or television, online news portals do not have a licence requirement. However, there is limited clarity on what regulation may follow.
“One doesn’t know who exactly would fall within its purview and which portals wouldn’t. Moreover, there are diferent kinds of news portals, some focused on specialised areas like health, startups etc. One doesn’t yet know what shape the regulation would take and there is a degree of nervousness around it.”Apar Gupta, Executive Director, IFF
Separately, the Centre has also signalled its intent to regulate the FDI coming into digital media entities, just like television and print news.
On 17 October, a “clarification,” issued by the Union Commerce Ministry, has permitted three categories of digital media entities “registered or located in India” up to 26 percent foreign direct investment through the government approval route and has given companies one year’s time to align with the policy.
“FDI in television news and print news were regulated. Therefore, in September 2019 the government came out and said FDI in digital news is also to be regulated,” Vivek Gupta, partner at KPMG India told The Quint.
Concerns of Censorship & Innovations
According to Gupta, as far as OTT platforms are concerned, two primary concerns arise if regulations are brought in.
- Impact on freedom of expression and concerns around censorship.
- It may negate the high degree of innovation, creativity and thereby affect investment.
Kazim Rizvi, founder, tech policy think-tank The Dialogue, makes a similar point. “This increased censorship might also affect artistic creativity for which these platforms were earlier praised,” he told The Quint.
“Given the increased use of online platforms by the consumers for news and entertainment, these regulations can also serve as a medium for curbing dissent and driving a particular narrative,” he added.
ONLINE NEWS MEDIA
According to IFF, one such regulatory measure is the pending process of the Registration of Press and Periodicals Bill, 2019 ('RPP Bill').
In its current form, the RPP Bill is plagued by definitional confusion and lack of a clearly stated purpose. The RPP Bill neither contains a clear definition of “news on digital media” nor does it indicate the objectives sought to be achieved by identifying and regulating digital news media.
“Now, it’s an open question whether this, or any other legislative measures, will cause censorship or bring in compliances that while aimed at checking social problems such as “fake news” may just result in greater government control?” the IFF statement says.
Overall, Rizvi says the provision in its current form also seems vague and could cover a wide range of platforms such as social media which may not even be intended. “It must be made clear as to what services they are particularly targeting and how they are seeking to regulate it.”