Netlix, Hotstar and a host of other popular video-streaming platforms are expected to soon exercise self-censorship of their content.
What does this mean?
This means that many of our favourite apps and services have signed on to a voluntary code called “Code of Best Practices for Online Curated Content Providers”. Developed by the Internet and Mobile Association of India (IAMAI), the code, intended to act as “guiding principles”, prescribes a form of “industry best practices” that OTT platforms are expected to adhere to.
This code, among other things, prescribes a set of “prohibited content” that a platform like Netflix and Hotstar is expected to voluntarily remove from its shows. Hence, scenes that the platform may deem to potentially cause hurt to religious sentiments, disrespect national symbols or promote terrorism will be snipped off.
IAMAI has sought the endorsement of the Ministry of Information & Broadcasting as well as the Ministry of Electronics and IT for this code. A number platforms like Netflix, Hotstar, Voot, Zee5, Arre, SonyLIV, ALT Balaji and Eros have signed on and ratified the code.
The question, however, is that there is no objective standard to go about deciding what is disrespectful and what isn’t.
So, what kind of prohibited content does this code advocate?
- Disrespecting the national emblem or national flag
- Children in real or simulated sexual activities
- Outraging religious sentiments
- Promoting terrorism
- Content banned from distribution or exhibition
“Content which deliberately and maliciously disrespects the national emblem or national flag;”
The code does not define what constitutes "deliberate" or "malicious". It does not specify the contours of what would be regarded as "disrespect" either. Moreover, while it specifies the national emblem and the national flag, it makes no mention of other national symbols like the national anthem. Will that be beyond the purview of this code?
CASE IN POINT 1: Rann (Hotstar) directed by Ram Gopal Varma engaged with topics of corruption in media, politics and business. In doing so the film depicts the national flag at various times. How will platforms deal with content that make statements critical of state institutions where, perhaps, a flag or an emblem may be present in the frame?
CASE IN POINT 2: Maheshinte Prathikaram (Netflix), a Malayalam film starring Fahadh Faasil, has a scene which shows two fighting individuals abruptly halt their scuffle to stand in attention when children start singing the national anthem in a school nearby. While the Code does not mention the national anthem along with the emblem and flag, there is no clarity on how platforms will treat the anthem.
“Content which deliberately and maliciously intends to outrage religious sentiments of any class, section or community;”
This section of the code places a restrictive burden on freedom of speech and expression. It not only fails to define words like “deliberately”, “maliciously” and “outrage”, the failure to do so risks disproportionate censorship at the whims of a few. An example of this was the recent controversy surrounding the release of the Hindi film Padmaavat. This may lead to preemptive censorship in anticipation of a backlash.
CASE IN POINT: Garbage (Netflix) by Quashik Mukherjee (known as Q), a scathing indictment of organised religion, depicts religious figureheads in acts of sex and violence. Given the subjective nature of the reading of this provision, how will platforms deal with subjects that engage with themes of religion and politics?
“Content which deliberately and maliciously promotes or encourages terrorism and other forms of violence against the State (of India) or its institutions;”
Once again, by not defining "deliberately”, “maliciously” or “encourages terrorism”, this section risks imposing an unreasonable chilling effect on freedom of expression. How does a platform deal with a film that explores the complex subject of terrorism? Like depiction of state symbols and religion, this rule is prone to misuse and disproportionate censorship.
CASE IN POINT: Ghoul (Netflix) a mini-series is set in a future dystopian India. The Radhika Apte starrer takes place in a military detention facility and revolves around a confrontation between terrorists and the military officers. The show also involves themes of religion, violence and politics. However, to prove any content to be deliberately encouraging terrorism also places an enormous burden of proof on platforms.
Where Do We Go From Here?
The Internet Freedom Foundation, in a letter to IAMAI has stated concerns about the disproportionate impact on freedom of expression. The letter reads, “we reasonably anticipate that the adoption of this code and endorsement by Government will in time develop into a censorship system for online content streaming, which will serve no objective public policy goal, and may not even decrease the liability exposure of companies.”
For new entrants, an existing code such as this is also likely to not only restrict the choice of subjects but also raise operational costs. “It is however a certainty that this system will increase compliances and costs for entrepreneurs and startups who enter this sector,” the letter adds.
The Code also provides for a complaint-redressal mechanism, but does not specify any penalties for non-compliance. The platforms are required to set up an internal department to address complaints regarding content. They are also required to categorise and classify content. This is only expected to push compliance costs higher.
The Code was prepared by a few stakeholders and without a process of public consultation. “The absence of experts and academics, free expression scholars, entrepreneurs who are not large incumbents and then to pose a self-regulatory code on the entire online curated video space is unrepresentative of the interests impacted through it,” the IFF letter also states.
Perhaps, a more representative and wholesome approach would be to revisit the terms in an open and consultative manner.
For many who have enjoyed shows like Sacred Games on Netflix, the question is, how will this impact the second season of Sacred Games, a series that controversially engaged with state machineries, religion as well as political history and some of its tallest figures?
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