Over-censorship or welcome classification? What 'Intermediary Rules 2021' will mean for future of OTT content

Tatsam Mukherjee
·6 min read

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were unveiled by I&B Minister, Prakash Javadekar, at a press conference last Thursday. The 'Intermediary Rules' will supersede (in certain parts) the Information Technology (Intermediary Guidelines) Rules, 2011. Meant for a larger oversight over Facebook, Twitter, and other social media platforms, the ambit of the rules will now also cover streaming platforms. Therefore, while experts are expressing concerns about the rules infringing about citizens' right to privacy and freedom of expression, even filmmakers/showrunners, who (mostly) had a free hand on streaming spaces, are taking note of what they may or may not be able to say in their films/shows in the near future.

"To stave off government regulation, OTT video streaming platforms have been trying to develop their own self-regulatory mechanism since January 2019 and there are at least 23 pending cases before different courts on this issue," says Internet Freedom Foundation (IFF)'s Litigation Counsel, Devdutta Mukhopadhyay, also going on to add, "the new rules massively expand the scope of the previous 2011 Intermediaries Guidelines by bringing OTT video streaming platforms and online news media within its ambit."

While the digital publication body, DigiPub News India Foundation, has expressed its reservations about the 2021 rules, calling it a 'strike on democracy itself' in an open letter addressed to the Union ministers Prakash Javadekar and Ravi Shankar Prasad, the OTT platforms have been relatively mum on the whole issue. It's no surprise, considering how Amazon Prime Video's Head of India originals, Aparna Purohit, was denied anticipatory bail by the Allahabad HC on the same day when these rules were announced.

Pataal Lok poster. Image from Twitter
Pataal Lok poster. Image from Twitter

Pataal Lok poster. Image from Twitter

Casting director and actor, Abhishek Banerjee, who starred recently in two Amazon Prime Video shows, Pataal Lok and Vishaanu (in the anthology, Unpaused), both of which were critical of the establishment to varying degrees, expresses his worry about the rules. "When we were taught to be creative in school and colleges no one told us that our creativity could hurt sentiments, or that we need to be careful about what we think, what we write or what we create. My creative sentiments as an artist and an audience are hurt. Wonder who can I go and complain to," he says.

It's hard to ignore the rules being announced on the back of the controversy around Amazon Prime Video's Tandav. The show, starring Saif Ali Khan, Mohammed Zeeshan Ayyub and Dimple Kapadia among others, earned a lot of flak on social media, for a scene featuring Indian gods. The showrunners immediately apologised and clipped the scene; however, a complaint was registered. Mukhopadhyay contends that the regulation of OTT video streaming platforms has been the subject of debate and discussion even prior to the Tandav controversy. When I ask Banerjee about it, his response is prompt - "Oh isn't it very apparent! The speed. The timing. I feel it's also prejudice."

The rules prescribe 'classification' of content, similar to how theatrical films are certified. Content will be classified as U, U/A7+, U/A13+, U/A16+ and A.

Scam 1992 actor Shreya Dhanwanthary welcomes the decision to 'certify' content saying, "Why the hell not I'm much more on board for it, so that one has a sense of what they're about to consume", however, she's a little concerned about the 'monitoring' aspect of the rules. "Regulating anything 'offensive' sounds funny and scary to me because the scope for that word is too far and wide. Given recent events, people taking umbrage at anything that even remotely goes against what they believe in and demanding heads as penance is a scary rabbit hole. Censorship of any form, in my head, is a blatant violation against the foundations of the democratic principles our wonderful constitution and nation were built on."

Kanu Behl, director of Titli, agrees with Dhanwanthary's comments about the rating system, and expresses similar concerns if the ratings approach takes the shape of censorship. "The ratings system was long overdue and takes a step in the right direction, as it places the onus on the viewer, rather than a censorship body. My long term wish though is that there aren't further changes to it because eventually what the audience chooses to watch in the privacy of their homes is purely their wish."

According to the rules, there will be a three-part grievance redressal system for any complainant.

At Level I, any grievance will be registered by a Grievance Redressal Officer within 48 hours and either redress/elevate the matter to Level II within 15 days.

At Level II, a self-regulatory body headed by a retired SC/HC judge shall have no more than six members, who are experts from media, broadcasting, technology and entertainment. The self-regulating body shall warn/censure/admonish/reprimand the entity, require an apology, require disclaimers, modify content, if it notes a violation of code of ethics, or because of any reason enumerated under Section 69A of the IT Act.

At Level III, there will be an Inter-departmental Committee comprising representatives from the I&B Ministry, the Ministry of Women & Child, the Ministry of Law & Justice, the Ministry of Home Affairs, the Ministry of Electronics & Information Technology, Ministry of External Affairs, Ministry of Defence, the Indian Computer Emergency Response Team, and include domain experts as it may see fit. Like the self-regulating body at Level II, even this committee will exercise similar powers to warn/censure/admonish/reprimand the entity, require an apology, require disclaimers, modify content, if it notes a violation of code of ethics, or because of any reason enumerated under Section 69A of the IT Act. "The manner in which these guidelines have been issued is deeply worrying because they draw their power from Section 69A of the IT Act which is a blocking provision and does not contemplate creation of such an elaborate regulatory framework," says Mukhopadhyay.

Mukhopadhyay also explains how the redressal framework might be skewed in favour of the govt, "The grievance redressal officers will receive a large volume of complaints from busybodies and they have to decide every complaint within 15 days. In this scenario, grievance redressal officers may err on the side of caution to avoid any future liability, and they may not give due importance to freedom of speech and expression. The composition of the second-tier self-regulating body needs the I&B Ministry's approval prior for registration, which suggests a degree of government control. Finally, the third-tier Inter-Departmental Committee comprises entirely of bureaucrats and it doesn't have any guaranteed judicial members or representatives from civil society. All these factors viewed together indicate that OTT platforms may play it safe and over censor to avoid being found at fault by a framework which lacks adequate procedural safeguards and tilts in favour of the government."

Looking at the way the Tandav controversy is playing out, one wouldn't be surprised if more shows follow a similar fate. "These amendments suffer from several procedural and substantive problems and they definitely pose a threat to creative freedom. Since there is no underlying legislation enacted by Parliament for OTT video streaming platforms like the Cable Television Network Act, 1995 for TV or the Cinematograph Act, 1952 for films, there are no legislative guardrails to stop the executive branch from expanding the scope of the rules and censoring content it finds problematic." Banerjee signs off by saying, "I'm still hopeful, a creative mind is always hopeful. We'll find a way, we have to."

Also See: Tandav row: Allahabad HC denies anticipatory bail to Amazon Prime India's Aparna Purohit

Amazon Prime Video removes ‘objectionable’ scenes from Saif Ali Khan’s political drama Tandav; issues apology for hurting viewers’ sentiments

Contemplating 'some action' on OTT regulation, says Centre; SC asks to file response within six weeks

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