Policing Affect: Regulatory Regimes and OTT Platforms
Shubhangi Heda & Ishita Tiwary
“Technopolitics of the Global South" is a modest proposal for naming an aggregator site of new and relevant research that can easily be lost in one disciplinary silo or other. This occasional series on Borderlines inaugurates an effort to connect questions regarding contemporary political forms and practice with numerous other intellectual vectors, of data and digital colonialism, computing from the South, platform imperialism, and mass mediation.
This inaugural dossier begins with introductory framings by Arvind Rajagopal and Francis Cody. This is followed by a set of reflections from Shahrukh Alam, Kajri Jain, Shubhangi Heda and Ishita Tiwary, Anustup Basu, Joyojeet Pal, and Mehak Sawhney.
In summer of 2024, two of the biggest OTT (Over the Top) services, Amazon Prime Video and HBO, released the international blockbuster shows “The Boys” and “House of the Dragon.” However, Indian audiences were disappointed as they noticed that both shows had portions cut and censored. A couple of months earlier, we noticed people complaining on Twitter (now X) that iconic Hindi films such as Satya (dir. Ram Gopal Verma 1998) and Omkara (dir. Vishal Bhardwaj 2006) had significant portions censored and scenes that contained violence or cuss words were cut. Rewind to the beginning of the year, where South Indian superstar Nayanthara's film Annapoorani (2023) was removed from Netflix for reportedly hurting “Hindu sentiments.” The complaint was lodged on the grounds that, 1) in the film a daughter of a Hindu priest offers Namaz to cook biryani, 2) it promotes “love jihad” and 3) the actor in the film persuades the actress to eat meat stating that Lord Rama was also a meat eater .[1] This ties to the fact that in December 2023, Netflix bowed to government pressure and stropped streaming uncensored cuts of Indian film around the world. The newspaper the Hindu noted that, “The change in policy is significant for what was possibly the last streaming service in India that continued to show versions of Indian films before they went through the Central Board of Film Certification, which has increasingly been scrubbing films of political references, particularly those that are disparaging to the dispensation in power”.
These examples illustrate the complex terrain of regulation in India, where the questions of “sentiment” and “values” are used as a scaffolding to regulate the platforms. Why are OTT platforms regulated? According to the latest Federation of Indian Chambers of Commerce and Industry-Ernst &Young report on the Media and Entertainment sector in India, Digital Media contributes 32% of the revenue, even though OTT subscriptions went down by 12 % and OTT constitutes 1% when it came to number of hours viewers spent on consuming content across various mediums (TV, Film). This demonstrates that OTT is not a mass medium in India. This raises the question of why the government should regulate OTT platforms in ways that are publicized and politicized. Thus, in this paper, we specifically demystify the policy developments in India that led to content norms for OTT services under the Intermediary Rules 2021 (IT Rules) so as to shed light on why the scope of creative freedom has reduced in this sector.
Strategic Duality
OTT services entered the Indian market and started to gain popularity in 2016, at a time when political fervor around Digital India was burgeoning. Digital video consumption was seen as an opportunity to solve existing industrial issues by presenting it as a promise for better revenue and an alternate way to reach more viewers. To build this positive outlook, government representatives presented OTT services and digital video consumption as a technological solution to issues of monetization, measurement, and quality content in the media industry that had escalated on account of fractured and ad-hoc policies for the broadcasting sector in India .The narrative of opportunities dubbed as “digital disruption” obfuscates the fact that post-liberalization (after 1991) India did not have a communications or broadcast policy that could set a vision for the technological transformation.
In 2014, the Bharatiya Janta Party (BJP) came to power with Narendra Modi as the Prime Minister. The BJP is the political wing of the Hindu fundamentalist group Rashtriya Swayam Sevak Sangh (RSS) and is associated with the political ideology of Hindutva that espouses Hindu nationalism and hegemony. It has attempted to present and sell its vision of India to gain political power using two often contesting narratives. One is the narrative of economic prosperity. The BJP professes its vision of India as a destination for foreign investment, promising ease of doing business, lowering restrictions and achieving policy stability to gain acceptance of its infrastructural initiatives. Alongside, it uses the narrative of protecting Hindu culture and ideals to gain support from citizens, presenting itself as upholder of morality and culture. Scholars have analyzed the government's parallel and intersecting use of these narratives as duality, ambivalence, and spectacular realism that the government strategically creates and uses to develop acceptance of its policies, what we call in this paper “strategic duality”. What is strategic duality? It is a way to create a semblance of balance in the policy, making public-ization of government action in the right way and at the right time a critical part of the strategy, because it is vital for the government to be seen as making balanced and well thought out decisions.
Scholarship investigating the politics underlying media policy in India remains scarce. What emerges in published research is a narrative about the management of opposing forces of economic liberalization and nationalism/localization and globalization coupled with the rise of Hindu nationalism. Importantly, irrespective of the government in charge (Congress or BJP), it was clear they did not the possess a cohesive vision to manage this contest between forces. Parthasarathi (2018) highlights how policies were driven by either “strategic intent” or “considered silence” that reaped political benefits by favouring particular stakeholders. For example, mandatory digitization of cable networks that was wrapped in the narrative of transparency and progress by the Congress government was particularly beneficial for Multiple System Operators, broadcasters and the government. Crucially, while both BJP and Congress governments have attempted to project their support for the growth of the Indian media economy, the publicization of protection and advancement of national culture remained important. For example, the intent to protect the Indian culture from “invasion from skies” led to exhaustive and vague program and advertisement codes for broadcasting, while film censorship continued. What constitutes “Indian culture”, though, has changed with different governments.
The rhetoric of protecting “Indian culture” was present before liberalization but with arrival of digital technologies and OTT platforms, in particular, contemporary policy has become more prone to strategic duality. William Mazzarella (2013) suggests that postcolonial censorship’s “performative dispensation” was to play both police and patron, in a chronic state of cultural emergency that is the condition of mass publicity. This was a foundational transaction between the unstable “open edge” of mass publicity, and the assertion of sovereign power, whose authority was periodically evoked to filter authorized and unauthorized sensuous transgressions. Drawing from Mazzarella, Ravi Sundaram (2015) argues that the management of public affect through authorized circulation has broken down all over the postcolonial world, if not elsewhere, disrupting older transactions between sovereign power and a population seen as susceptible to sensorial powers. For Francis Cody (2023), media is seen as an interface between law and the public, particularly when the law takes into consideration prevailing socio-ethical norms rather than merely sticking to abstract legal principles, as well as when the judges are mindful of popular discourse. In the case of OTT, the use of strategic duality successfully created the impression that BJP government’s policy choice is efficient and that it adequately balances creative freedom and responsible storytelling. However, it steers the focus of policy discussions on content controversies without giving due attention to technological affordances and industry dynamics associated with content creation and viewing experience on these platforms. In what follows, we unpack how government uses narratives of cultural protection and economic prosperity simultaneously, what we refer here as strategic duality and can be also understood as ‘double speak’ that BJP government has used while applying content regulations on OTT.
Rhetorical Gestures
During the beginning of our research, when OTT platforms were not subject to content regulations, our field respondents all emphasized the freedom to conceptualize and execute novel content[2]. They particularly singled out the accommodative, creative, and experimental nature of these services. Here content could be offbeat or wacky since the room for niches multiplied, unlike the ‘massy’ mediums unlike film or television. While OTT offered a distribution and business model that can diversify content choices, the policy discussion did not account for the value it offered content creators and the industry to make unconventional content. Rather policy deliberation was always tied to discussion of how content offended Indian sensitivities, and the regulations could curtail such risk, without having a broader vision of cultural priorities.
This has historical roots. In 1998, India officially gave cinema industry status, under the then BJP government led by Atal Bihar Vajpayee. It is crucial to note that Indian cinema found a significant market abroad in the 1990s, and its exports brought a lucrative income stream. During this regime, the regulatory drive of censorship shifted towards representation of political issues rather than that of sexuality (Vasudevan 2000). Vasudevan notes, that key films to suffer censorship were Zakhm (1999), Black Sunday (released 2007), and the documentaries War and Peace (1998, The Final Solution (2003) dealt with critical political issues for the BJP like Hindu religious imagery and depiction of Hindutva attacks on Muslims. Notably, films that depict sexuality, especially a spate of films produced by Mahesh Bhatt, did not run into any trouble. Although, films depicting lesbian relationships such as Deepa Mehta’s Fire (1996), came into line of fire. In these cases, the main source of violence were extremist wings of the Hindu Right. We see this management of the political through contestations around content on OTT as well. The government strives to maintain the narrative of cultural nationalism to develop moral justifications to gain acceptance of its policy choice from citizens. Eventually, for the industry, the government’s control over content emerges as "regulatory fiat" that the industry has to pay to tap into the Indian market.
It is unclear how this policy approach achieves the balance between responsible storytelling and protecting cultural sensitivities. Venkaiah Naidu, Minister of Information and Broadcasting (MIB) stated in a 2017 speech at an industry event that "while digital technologies do not have boundaries, the state does". Here, the minister was referring to content on digital services and the kind of values that such content represents and its association with national culture. The turning point in policy discussions that unraveled lack of policy direction vis a vis OTT was the release of first Netflix Indian original Sacred Games, which became popular in India in 2018. Inspired by the success of Sacred Games, other services also started to invest more in original content. As the industry was realizing the value of OTT for experimenting with content that was not possible on television and films, there was the emergence of a policy juncture that would have ideally required the government to have open stakeholder consultations and build market knowledge of the impact of OTT services. This policy juncture emerged due to a multiplicity of causes like content controversies and concerns of television distributors around regulatory disparity. After the release of Sacred Games, a lawsuit was filed against Netflix and the makers of the series for defaming an ex-prime minister of India and for vulgar content. This got entangled with the industrial concerns of television distributors. With many OTT services in India started by existing television broadcasters, the television distributors were concerned about regulatory disparity as the Government continued to introduce new pricing norms for channels or interconnection guidelines, while OTT services had no such regulatory burden. These regulations have always been a point of contention between the government and the industry. Despite the concerns being related to structural issues like interconnection and pricing, television distributors used a narrative of moral panic to lobby the government for content regulations on OTT, attempting to subtly address the disparity of structural regulation .
Please Don’t Regulate Us!: Government as Facilitator of Digital Transformation
Commenting on content being created on streaming one of our respondents noted that, “And, in first couple of years they did go overboard. I think every show that you watched was just unnecessarily violent in parts and there was lot of sexual content …. And, I know lot of apps like MX player and Alt Balaji made only pornographic content, without any storyline…. MX player caters to tier 2 and 3 audience, Hindi heartland and so does Alt Balaji which … caters to low end [not]… watching the Netflix of the world, and it was their conscious strategy.” [3] This harks back to the earlier point we made when it comes to institutional experience of regulation in the country; it is political and not sexual content that is subject to regulation. In the case of OTT, it is interesting that international platforms, such as Netflix and Amazon, are most subject to regulatory mechanisms, although their market share is minuscule compared to domestic platforms like Jio and Hotstar.
As OTT services were positioning themselves in the India market in their own way, their response to the policy juncture triggered by the Sacred Games controversy seems to be informed by the industry's institutional experience of content regulation. In the case of OTT, the experience of censorship served as a cautionary tale. Following the Sacred Games controversy and other lawsuits, the Internet and Mobile Association of India (IAMAI), an industry representative body for OTT services, initiated the process of drafting a code of conduct to prescribe broad content norms for them. This was to avoid the government taking over the power to regulate content. Services such as Netflix and Hotstar were in favour of an industry self-censorship code akin to the one that existed in Southeast Asian nations, with Netflix, Fox, and Walt Disney.
Despite these measures of pacification, the government criticized their efforts. The voluntary code of conduct formulated by the industry defined OTT services distinctively and introduced a two-tier grievance redressal system to address complaints against content.[4] However, the government claimed that the self-regulatory body proposed by IAMAI did not have provisions for appointing an independent member, on whom OTT services could not wield their money and ideological influence. BJP government’s pushback against the self-regulatory code of conduct was also contextually tied to the phase when the BJP government realized the potential of the digital medium to express its political ideology and also the necessity of maintaining control over online speech to suppress dissent against the State.
Alongside the problems related to streaming, fake news and misinformation were becoming prominent, giving the government legitimate grounds to formulate laws empowering it to take down content. Although in many instances, misinformation was peddled by Hindu-right pressure groups. For example, the first-ever online fake news debate in the parliament, was focused on mob lynchings incited through misinformation peddled by Hindu-right pressure groups on WhatsApp. The government leveraged the lynching incidents to control online platforms. It pushed for rules that allowed it to take-down content and issue internet shutdown orders to protect national security and maintain public order without proper due process. While the fake news by Hindu right got the focus in the parliament, the government has often protected the Hindu right pressure groups and ideologies online and instead content controls are used to suppress online dissent. This was evident during protests against the Citizenship Amendment Act and farm laws, where the social media intermediaries were asked to take down content that criticized the government.
Controversies from series on streaming like Liela, Ghoul, Pataal Lok, Suitable Boy, Godman etc. emerged from Hindu nationalist sentimentality, for example. In Liela there were claims of anti-Hindu imagery; Ghoul was claimed to spread liberal and left-wing propaganda; Pataal Lok was claimed to hurt the religious sentiments of Hindus and Sikhs. Police complaints were filed by BJP political representatives against the makers of Suitable Boy, Pataal Lok and Godman for hurting Hindu religious sentiments. The government used the frequent controversies to claim that the industry's self-regulatory efforts are not working and also to highlight regulatory ambiguity in which OTT was functioning as a critical problem as it has limited the state’s capacity to control content. Television distributors echoed similar justifications to regulate content on these services, as they feared that the rise of OTT would lead to cord-cutting and adversely impact their business. In the face of rising pressure from content controversies and lobbying efforts from television distributors, the government presented itself as an inevitable choice to take over policy deliberations from the industry.
Essentially, industry self-regulation remains, while the govt intervenes whenever it chooses, based on claims of Indian culture in danger or of Hinduism in danger. One respondent stated, “India has this tendency of being quite protectionist in its outlook. But I think it also tends to borrow heavily from what's happening globally, particularly Europe, because it's a pretty conservative jurisdiction…most countries are right because the harms presented by the online space are becoming more unwieldy. That being said, it's an interesting thing that the online space accounts for very little activity when you consider most forms of commerce India, it only accounts for 5% of retail ecommerce does. But because it's so visible, I think it's a political catch point. is […] …So you're seeing a policy evolve that is kind of premised on these disputes between industry without considering what the larger picture is and what really considering all stakeholders within the ecosystem rather than just a handful extrapolating outcomes for the ecosystem on the experience or assertions of a handful of stakeholders.” [5]
Tandav and the Final Policy Outcome
Tandav (2021), was a political series starring big name Bollywood actors such Saif Ali Khan and Dimple Kapadia. Immediately upon its release it was mired in controversy. BJP leaders called for it to be banned, alleging it to be anti-Hindu and hurting religious sentiments of the community. The most controversial scene was that of a character of the show (depicted by a Muslim actor) essaying Lord Shiva in play for a sequence in the series. The complaint was filed by BJP MLA Ram Kadam who stated that “strict action should be taken against the actor, director and producer of the web series.” He later tweeted Tandava will be boycotted until necessary changes are made.#BanTandavNow," he had tweeted. "Just as there is a system of censors for reviewing films and serials, a similar arrangement should be made to review series on the OTT platform. Writing to @PrakashJavdekar ji. A member of Parliament tweeted, “OTT content be regulated in the interest of integrity of India.” “OTT Platforms having absolute freedom from censorship has led to repeated attacks on Hindu sentiments which I strongly condemn.” Following this, the aforementioned sequence and the sequence where a character hurls insults at another character using anti-casteist language were removed. A lawsuit was also filed against the makers of Tandav. The director of the series Ali Abbas Zafar also apologized twice and the Supreme Court declined to give protection to the makers. Crucial to note here is that the creator and main actors of the series are Muslims.
In February 2021—after the release of Tandav—the government announced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules for social media intermediaries, online news publishers and online curated content providers. These new rules is reflective of the State’s desire to control all forms of media creativity and production. With the new rules, the BJP government introduced a three-tier mechanism and Prakash Javadekar, the Minister of Information and Broadcasting called it a “soft touch regulatory architecture”. While the first two tiers establish a system of self-regulation by content services and the self-regulatory bodies of content publishers, the third calls for an oversight mechanism by the central government. A government-mandated committee has the power to remove objectionable content and address any issues pertaining to OTT content.
The Minister of Information and Broadcasting, while introducing the IT Rules 2021, he also stated that with their content norms and three-tiered grievance redressal system will bring more parity between broadcast and OTT services and address the concerns of cable operators and television distributors that streaming has an undue advantage and can show edgy content as it does not have to follow any content norms. On the other hand, he also claimed that IT Rules were necessary to address several complaints that the ministry is receiving regarding content on OTT . Here, duality is reflected in the government’s assurance that the IT Rules would not hinder creative freedom, while also claiming that these rules are vital for controlling content on these platforms. The government's claims were primarily aimed at gaining acceptance for the IT Rules.
With silences and gaps throughout the policy discussion, the scope of industry-led regulation, advancing creative freedom, and focusing on issues of content diversity and quality had been strategically ignored. With the government leveraging content controversies to pressure the industry, not adopting industry self-regulation and justifying implementing IT Rules, the industry eventually got the signal that they have to toe the line with the BJP government. After the implementation of the rules, a recent investigation by the Washington Post noted that OTT platforms in India are facing immense pressure in greenlighting content that is remotely political or religious in nature. Why are these platforms acquiescing to the government? It is widely believed it is due to economic factors. OTT revenues in India are projected to grow from $2.6 billion in 2022 to $13 billion in 2030, according to the Confederation of Indian Industry (CII) and the Boston Consulting Group.
The understanding of the industry that if it has to grow its market within India it has to toe the political line of the BJP shows that the government’s management of the political remains central to both formal policy conversations and informal pressures on content creators and OTT services. In this scheme of things, where government bodies positioning themselves as neutral mediators and public watchdogs together collude in which streaming becomes a space where the enmeshment of corporate and government interest decides what the public watches. Hence, public interest itself is marginalized.
Strategic duality within policy deliberations helps to understand how the government, without directly leaning into ideological claims against content, can still make them central to the policy process. Ultimately, as content controversies intensify and the strategic duality shifts the focus to content controversies, it appears that the role of the government is inevitable. Self-censorship of themes that would trigger a political backlash from Hindu nationalist pressure groups is a plausible outcome.
Endnotes
[1] Love jihad is a conspiracy theory advocated by Hindu fundamentalists. This theory accuses Muslim men of wooing/seducing Hindu women in order to force them to convert to Islam.
[2] Anonymous interview with author. 2020, 2021
[3] Anonymous between a journalist and the author. 2022
[4] From Internet and Mobile Association of India, Code of Self-Regulation for Online Curated Content Providers, 2020: The Objectives of this Code are to: 1. Empower consumers to make informed choices on age-appropriate content; 2. Protect the interests of consumers in choosing and accessing the content they want to watch at their own time and convenience. 3.Safeguard and respect creative freedom of content creators and artists; 4. Nurture creativity, create an ecosystem fostering innovation and abide by an individual’sfreedom of speech and expression; and 5. Provide a mechanism for complaints redressal in relation to content made available by respective OCCPs. 6.Provide an escalation mechanism for redressal of complaints relating to content made available by respective OCCPs
[5] Anonymous interview between a policy expert and the author. 2023
Shubhangi Heda is an early-career media policy researcher whose work lies at the intersection of media policy, law and media industry studies in non-Western contexts. She completed her doctoral research focused on the emergence of streaming services and their entanglement with Indian political and regulatory structures at the Queensland University of Technology. She is currently a researcher and educator affiliated with the Digital Media Research Centre at QUT.
Ishita Tiwary is an Assistant Professor and Canada Research Chair at the Mel Hoppenheim School of Cinema, Concordia University. She also directs the research lab Raah which aims to examine the intersection of migratory processes and media practices. Her research interests include video cultures, media infrastructures, migration, contraband media practices, and media aesthetics. She is the author of Video Culture in India: The Analog Era (Oxford 2024).
Thumbnail Image: by the author