Just before the I&B Minister announced the government was set to bring out guidelines for Over The Top (OTT) platforms, an industry evangelist and media & entertainment leader Amit Khanna had written: “One looming shadow is the impending regulation (self?) of online content. Government has to be light-handed in regulating content. Existing organisations like the TRAI are ill-equipped to handle the fast-changing digital ecosystem. Self-regulation with clear-cut guidelines is the way forward.” In that short passage, Khanna had laid out the four pillars that could introduce an ecosystem that might truly propel the OTT industry in India to great growth – light-handed, self-regulated with clear-cut guidelines and more responsibility. However, though the government released its new intermediary guidelines for digital content on digital media and OTT platforms, saying they reflected its desire to enable ‘soft-touch regulation’ and to foster self-regulation, the rules, drafted without industry consultation, appear completely one-sided and against the OTT platforms. The new Code of Ethics for OTT platforms, online news and digital media stipulate self-classification of content by the platforms to inform and help viewers choose what they want to watch, and specify appropriateness across five age groups - U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult), with parental locks necessary for U/A 13+ or higher, with descriptors, age verification, display before content play, et al. So far so good, and OTT platforms in India are completely in sync with self-classification of content as per the best global standards. But that’s really where the government’s attempt to promote self-regulation by OTT platforms ends. This is because, thereafter, the new three-tier grievance redressal mechanism kicks in – two of which are antithetical to self-regulation. Tier I provides for self-regulation by the platforms/publishers, who will appoint a grievance redressal officer to address every complaint within 15 days of filing. Complaints not successfully addressed will escalate to Tier II, where a self-regulatory six-member body sits, to be headed by a retired Supreme Court or High Court judge, or some other independent eminent person. What’s unilateral is: OTT players have been left out of this ‘self-regulatory’ body. Tier II will have the power to ‘censure’ incriminating content, ranging from ‘taking action to delete or modify the content’, thereby force-fitting on OTT players the power of intermediaries under the IT Act. Moreover, the MiB wants the body to be registered with it and the ministry could well indicate that the panel is not to their ‘liking’ – all of which is akin to regulating the self-regulatory body. At Tier III sits the I&B ministry and the inter-ministerial body it will create for the final oversight, anointed with overriding and even pull-down powers that are unconstitutional. Together, these are highly restrictive, unfair and inimical to the OTT platforms. One has only witnessed lip service to self-regulation. The need of the hour is to ensure that the OTT platforms have an equal place at the table at Tier II as one of the six-member bodies and that the government must reconsider the overriding powers it has given itself. Without framing a new law, the government has given itself emergency powers whereby the Secretary, I&B Ministry, may order an immediate block on public access to any content, without giving its publisher a hearing. The Information Technology Act 2000 does not extend its purview to news media, so the guidelines to regulate digital news platforms too suffer from the same kind of lack of legislative backing that regulation by proxy of OTT does.
