Winter is coming

In today's Finshots, we talk about the possibility of the government regulating online streaming content.

The Story

Let’s take it from the top. On the one hand, we have the Information & Broadcasting (I&B) Ministry — responsible for the “formulation and administration of rules, regulations and laws in the areas of information, broadcasting, the press and the Cinema of India.”

On the other hand, we have the Ministry of Electronics & Information Technology — who’s responsible for the oversight of news, movies and TV shows streamed online. And while you would think that the I&B Ministry would be the ideal candidate to oversee streaming services like Netflix, it wasn’t possible because of how the government allocated responsibilities to different ministries. However, with a set of new amendments, the government has finally decided that the I&B Ministry will now have authority over streaming platforms and online news and they will be taking the lead on possibly regulating these entities in the future.

And look, everybody knew this was coming. Streaming platforms have been working with little to no supervision for many years now. And while they have been coordinating with the I&B Ministry to design a self-regulation code, you have to remember that the I&B ministry had no authority on the matter. So things were a bit hazy. However, now that these responsibilities have been delegated to them explicitly, things will likely be a lot different.

And while most observers still believe the government would prefer streaming platforms regulate themselves, they will definitely have a massive say in the formulation of this self-regulation code. But since we aren't there yet, we thought it would be interesting to look at the current regulatory framework. For a better perspective, you know?

Take Indian television for example. Non-news general entertainment channels (like Star for instance) work under the stewardship of an independent self-regulatory body — Broadcasting Content Complaints Council (BCCC). Their website claims there exists “a positive synergy” between BCCC and the Ministry of I&B, and that the council “keeps the Ministry informed”. Technically that’s to say that they live by their own code and the government doesn’t have a separate body to certify TV shows aired on these channels. However, if viewers have issues with a TV show, they can easily lodge complaints and the self-regulatory body is expected to deal with it. Including informing the ministry about the kind of actions initiated against these violations.

Then you have the CBFC — the Central Board of Film Certification (CBFC). They work under the I&B ministry and are responsible for regulating the “public exhibition of films”. So if you are a movie producer intending to showcase your film to the public via a theatrical release for instance, then the movie needs to be certified by the CBFC according to the Cinematograph Act, 1952. However, it doesn’t mean platforms like Netflix are obligated to show only those movies that have been certified by the CBFC. You see, there is no legal provision that states or implies that this law is applicable to the exhibition of films through the internet. And that, believe it or not, is a crucial distinction. However, there is a caveat.

As one excellent article notes —

After a film (whether produced in India or outside India) has been reviewed by CBFC, only the version of the film that has been approved by CBFC would be made available to the public. All other versions in possession of “any other person” must be surrendered under the Cinematograph Act, 1952. Releasing versions to the public which are other than the censored and certified versions of such films would be considered illegal under the Act. Recently, in a public interest litigation filed before the Punjab & Haryana High Court against the release of the films Mastizaade and Kya Kool Hain Hum 3, the court directed the producers/directors to submit an undertaking that they would not release the excised portion of the feature/film to anyone in any medium including the internet.

Meaning, once a movie has been certified, then that's the final cut. It will air the same way on all the streaming platforms. However, in the event the film hasn’t been certified by the CBFC, the likes of Netflix can host it on their platform —no questions asked. Weird, but it is what it is.

And finally, there is the matter surrounding definition. What are streaming platforms exactly?

We know they are not Cable TV. After all, cable network providers use satellite signals to distribute content to multiple subscribers. Netflix doesn't do that. Instead, it streams content over the internet. And while you could argue that this definition should suffice, it still doesn’t cut it. For instance, what’s separating Netflix from YouTube?

Both companies host content on the internet and you can view this content on-demand. They are over-the-top (OTT) media services, so to speak. But YouTube also hosts user-generated content. And if the state starts regulating what you and I post on the Internet, then wouldn’t that be tantamount to regulating speech? Well, it would. And considering right now we don’t have any laws separating the two, the government might have to draw clear distinctions between different kinds of OTT platforms and also classify users based on certain attributes.

Nonetheless, it will be interesting to see how the I&B Ministry will oversee streaming platforms and hopefully they don't go bonkers with the regulations.

Until then...

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Also don't forget to check our daily brief. In today's issue we talk about whether Joe Biden can revive the Iran nuclear agreement, the Greek government's plan to get more foreigners to settle in the country, and India's latest economic stimulus package. Do read the full draft here.