Why Indian laws for TV won’t work for streaming services

The Indian government calls it the “soft touch” approach. When it comes to regulating content on digital media, the government’s attempt is to project that new regulations are largely driven by industry. Narratives of minimum government intervention, ease of doing business and greater innovation underlie many of the approaches to regulate content that the government has proposed in the past few years.

But an analysis of recent media regulation proposals suggests this is not really the case.

Some recent examples include the grievance redressal system for streaming services such as Netflix, Zee5 and Hotstar within the Intermediary Rules 2021 and the Draft Broadcasting Services (Regulation) Bill, 2023, both of which describe a co-regulatory structure for streaming services.

However, they are likely to fail in encouraging innovation and allowing greater autonomy for streaming services.  This is because the framing of the grievance redressal system leaves enough room for government overreach and a co-regulatory structure curtails the creative freedom of streaming platforms.

Borrowing from broadcast

The co-regulatory grievance redressal system, introduced in 2021 to address content-related complaints, closely resembles the system designed for television. The two-tier structure for television consists of a complaints officer at the TV channel and if the complaint is not addressed at that level it would then be directed to an industry regulatory body formed by broadcasters. 

The structure adopted in the rules for streaming services has the addition of a government third tier.

The first tier is a grievance officer appointed by the streaming service in question, to whom complaints are first reported to.

The second tier consists of an industry organisation that has representatives of the various streaming services as its members. This body would deal with complaints not resolved at the first tier and can order content to be taken down or can censor scenes.

The third tier is an inter-ministerial committee that would have the final say on complaints that are not resolved at either of the first two tiers.

Apart from the grievance redressal system, the government also holds emergency powers to take down content if they feel that the content could disrupt public order.

The mechanism does not work for streaming services because the regulators borrowed it from the television sector without providing much clarity on how it would fit the streaming industry, despite claiming the design was exclusively for them.

It’s worked for the broadcast sector and has led to less government intervention, officials said. It was assumed that it would work for the streaming services sector too. Despite these claims, there has been a rise in self-censorship by streaming services in India.

Streaming services have also raised concerns that the new rules do not protect creators from criminal action while complaints are making their way through the grievance redressal system, as complaints against content can be filed with the police at the same time.

The pressure, or not, of ratings

To know how regulation works for TV — but won’t work for streaming platforms — the market dynamics for each have to be understood.

Over the years, broadcasters have functioned under the pressure of the television rating points system that has influenced their content strategy. Such ratings are weekly metrics used by advertisers and sponsors to assess the viewership of a television programme and to decide where they should put their ads.

As private broadcasters in India mainly rely on ad revenue to fund their operations, the higher their ratings the more chances they have of getting lucrative advertising deals. To achieve high ratings, broadcasters are motivated to produce content that appeals to mass audiences, rather than content that is more diverse but attractive to smaller niche audiences.

There is an added motivation to follow a set and proven formula of content programming to avoid any commercial risks.

This has led to general entertainment content on television mainly consisting of family dramas that have garnered high ratings in the past.

It is uncommon for channels to take risks and give up content that is largely inoffensive and formulaic.

In the case of broadcasting, how content is regulated is well-aligned with the pressure of ratings to play it safe, making the mechanism seem efficient.

Thus, the often-cited metric of fewer complaints and minimal government intervention as a measure of the success of the grievance redressal mechanism, does not prove its efficiency in balancing incentives to create diverse and edgy content and follow the obligations of responsible storytelling.

Rather, the self-regulation fits well with the market pressure of ratings that keep the content safe for a mass audience. But that logic doesn’t work for streaming services.

Edgier content

In India, viewers consume streaming content mainly on their mobile phones and smart TVs, hence there is an incentive to provide content catering both to family and personal viewing.

This is unlike television audiences who are mostly families watching together on a single  screen.

There is a greater diversity of content genres on streaming services and their subscription-based business model presents an incentive to experiment with edgy content to expand the variety of content offerings and keep viewers hooked on the platform. Thus, streaming incentivises niche preferences of the audience not just what is classified as family viewing.

Hence the obligation to adhere to the rules and avoid content that triggers political pressure is seen as an additional compliance and legal cost rather than being linked to broader economic incentives such as achieving high ratings.

But claims that the co-regulatory structure that streaming services inherited from the broadcast sector is successful because there are less complaints need to be examined carefully.

There are plenty of instances of streaming services self-censoring content to avoid any complaints from political pressure groups.

The vision of a light touch co-regulatory approach fostering creative freedom and leading to greater innovation has not been achieved.

Gathering evidence

Extending the existing regulatory structure of the broadcast sector to streaming without gathering evidence on its efficiency to preserve creative freedom threatens to instil an imbalance between incentives for content creation and social responsibility obligations.

Co-regulatory structures are successful when they can take on board the market sensitivities of the sector such as the kinds of content strategies that work for streaming services. However, the grievance redressal system for streaming is based on assumptions of success derived from the metric of fewer complaints, without delving into understanding the incentives for content creation within the streaming sector.

Instead, the co-regulatory mechanism could facilitate a balance between how creativity can be incentivised on streaming platforms and how genuine complaints can be adequately addressed.

The Ministry of Information and Broadcasting could conduct a transparent regulatory impact assessment to understand stakeholders’ perspectives, including those of civil society and content creators.

Such regulatory impact assessment could specifically aim to build knowledge of current systems of content regulations, which can inform the structure and powers of the proposed co-regulatory structure.

It is also essential to ensure that co-regulatory structures represent the interests of diverse streaming services with different content strategies as they cater to different audiences.

Shubhangi Heda is a PhD candidate with the Digital Media Research Centre at Queensland University of Technology in Brisbane, Australia. Her research focuses on content regulations and media policy in India.

(Photo Credit: Streaming services experiment with edgier content, and hence, are vulnerable to pressure from political groups. Tech Daily Credits Unsplash)