How should countries regulate the ever growing and evolving forms of digital media? How should safe harbour protections evolve given that some prominent social media platforms have recently taken to behaving like publishers rather than as mere intermediaries?
What should be the nature of regulation, if at all, when it comes to OTT streaming platforms? These are some questions that have vexed countries across the globe and they are grappling with the problems in their own ways.
There was a similar global debate a few years ago about Net Neutrality. India, in many ways, finally settled that debate by firmly tilting on the side of Net Neutrality.
This week, India may have given another model for the world to take cue from, if not completely emulate, when it announced the Intermediary Guidelines and Digital Media Ethics code. The Indian Government did not introduce any separate legislation for Digital Media, but developed a framework within the existing statute after extensive consultations. The salient features of the new regulations set many benchmarks.
No statutory authority
First, the distinctive aspect of the proposed framework is that, unlike in Singapore and Australia and the proposed structure in United Kingdom, there will be no statutory authority to regulate content on Digital Media.
Instead, a soft touch co-regulatory mechanism has been envisaged in which the trust is placed on digital media platforms to resolve all grievances through in-house redressal mechanisms or through pooled self-regulating bodies. Only when these mechanisms fail, would a government oversight mechanism kick in to issue advisories.
This proposed new mechanism will end the multiplicity of legal complaints filed in different states and different courts, each reacting differently to the same grievance. Duplicity of proceedings and multiplicity of approaches caused great inconvenience to the publishers.
This code comprehensively deals with this issue by establishing a one stop portal where the users can register their grievances pertaining to online content providers and online news publishers.
Second, recognising the nature of OTT players and despite demands for introducing a censorship regime for films and web series, the government has refrained from doing so. Instead, a self-certification regime, as appropriate for different age groups, has been introduced.
This is a major departure from prevalent norms in India where film content has to go through censor board certification process. The new guidelines for OTTs establish a new paradigm and place the trust in content creators to be responsible without hampering their creativity in any way.
It is a major inflection point for India’s entertainment industry and this unshackling of the creativity of India’s story tellers is fulfilment of a long-aspired dream.
Third, the new intermediary guidelines protect the free flow nature of social media intermediary platforms while at the same time making it incumbent upon them to follow the duly laid down laws of the country. The recent controversial decisions by some social media platforms during the US elections have sparked a global rethink of the nature of intermediaries.
Articulated by French President Emmanuel Macron and others, the global opinion has started veering around the view that while intermediaries should continue to protect free speech and free flowing nature of social media, they should not become some kind of self-appointed supra-global authorities manipulating public opinion. The regulations proposed in India have managed to balance out these different imperatives.
Chief Compliance Officer
The intermediary rules mandate social media platforms to establish a Chief Compliance Officer within the territorial jurisdiction of India. This officer will ensure that duly enacted Indian laws are complied with and social media platforms do not act as some kind of appellate authority over and above India courts or Indian laws.
The rules will thus be equally applied as per law rather than as per personal beliefs or ideologies of the social media platform owners.
The rules also mandate the intermediaries to provide a mechanism for verification of ordinary users who wish to get verification done and provide them a visible symbol of verification. This will ensure that social media discourses are more authentic because it will be possible to see who are the genuine and verified people taking part in a discourse who are unverified.
One significant innovation of the guidelines for intermediaries is the proposed distinction between social media intermediaries and significant social media intermediaries, the latter being an intermediary having users above a defined threshold.
This move will keep the compliance burden light for new Start-Ups while ensuring that established players — like Facebook, Twitter, etc — with large user bases operate with more due diligence.
Fourth, the regulations for curated content providers and digital news publishers bring them on par with television and print media. The norms of Journalistic Conduct of the Press Council of India, through which the vibrant and free mainstream media of India self regulates, would now be applicable to digital publishers as well.
Level playing field
This ensures level playing field, missing till now, while at the same time introducing no new guidelines.
India in the past has been known to over regulate or make compliance burdens so high that they stifled any creativity. In that sense, the digital media regulatory guidelines are a paradigm shift in the way India thinks of regulations. Self-regulation rather than bureaucratic rigmarole is the new norm.
Doing away with censorship with films for OTTs would have been unthinkable in the Indian context even a few years ago. Avoiding the temptation of introducing a digital regulatory authority is a fundamental mindset change in the way bureaucracy works in India.
The government seems to be telling the digital innovators and the content creators that they in government are not the repository of all the wisdom in the world. Instead, the government trusts the digital entrepreneurs and story tellers to self-regulate.
Recently India opened up its cartography sector to the private innovators and ended state monopoly. Just a few months ago the government had deregulated ‘Other Service Providers’ (OSPs) with new rules that created a friendly-regime for ‘Work from Home’ and ‘Work from Anywhere’ while removing several reporting and other obligations for such companies.
The new digital media guidelines are the latest instance of trusting private enterprise and citizen while keeping the regulatory compliance light.
The passionate defence or private enterprise that Prime Minister Narendra Modi recently mounted in Indian Parliament is no longer limited to words but is taking concrete policy shape. In that sense, the new digital media guidelines can be thought of as part of a series of Trust Reforms — Trust in the citizens of India.