OTT industry split as IBF, IAMAI look to form separate self-regulatory bodies

Posted on 28th May 2021

The Indian Broadcasting Foundation's (IBF) decision to change its name to Indian Broadcasting and Digital Foundation (IBDF) by also giving membership to over the top (OTT) platforms has split the streaming industry.

The divide has resulted in broadcaster-owned OTT platforms on one side and the standalone OTT platforms, under the aegis of the Internet and Mobile Association of India (IAMAI), on the other side.

Till now, the OTT players were aligned with the IAMAI, which is the apex body representing the entire gamut of digital businesses in India. Ten OTT players namely Netflix, Amazon Prime Video, ALTBalaji, Hungama Play, MX Player, ShemarooMe, Aha, Lionsgate, Firework TV, and hoichoi have decided to stay in the IAMAI camp.

According to an IBF official, the foundation has so far received confirmation from Disney+ Hotstar, ZEE5, SonyLIV, Voot, Sun NXT, Discovery+, Jio TV, and Jio Cinema who will join its digital self-regulatory body (SRB). Most of the OTT platforms that have agreed to join the IBF are owned by the broadcasters.

The foundation has sent out letters of invitation to OTT players including Netflix, Amazon Prime Video, MX Player, Eros Now, and ALTBalaji among others. The official added that the OTT platforms will be a part of a separate subsidiary within the rechristened IBDF.

"IBF will be renamed IBDF since the IBF Board has been discussing that the foundation should expand beyond broadcasting into digital by including OTT. We will create a separate subsidiary to handle digital which includes OTT as well as other digital platforms. The idea is to include non-broadcaster-owned OTT platforms in the foundation also. We are also open to welcoming the digital arm of leading TV news players and other platforms," the official said, on condition of anonymity.

On the players who have confirmed about joining the foundation's SRB, the official added, "We made the announcement on Thursday morning and so far we have got confirmation from 8-9 players. These include OTT platforms owned by IBF members like Disney+ Hotstar, SonyLIV, ZEE5, Voot, Jio TV, Jio Cinema, Sun NXT, and Discovery+ among others."

The membership of IBF's SRB will be on an invitation basis. "We are sending invites to all OTT platforms whether it is Netflix, Amazon Prime Video, or ALTBalaji. We are not restricting it to IBF members," said another IBF official on the condition of anonymity.

The foundation has started working on the modalities of the SRB and has informed the ministry of information and broadcasting (MIB) about the same. "We have started working on the SRB and that is almost in place now. We are close to finalising the head of the regulatory body. Things are in place now and we have already informed the MIB. They are also very happy," the official claimed.

As per the intermediary rules, the digital media publishers will have to provide a grievance redressal mechanism at their own end which is level 1. The second level is forming an SRB which will be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person. In the third level, the MIB will formulate an oversight mechanism.

IAMAI Head of Public Policy Bhanupreet Saini noted that 10 OTT players have confirmed that they will join the digital industry body's SRB. "IAMAI as an industry association is working towards setting up and operationalising a self-regulatory body for the OTT streaming platforms to address grievances as part of the Level II structure as mandated by IT Rules 2021," Saini said.

A senior media executive, who specialises in regulation, said that there is no problem in this split as multiple SRBs will mean competition. "Actually, multiple self-regulatory bodies are possible under the intermediary rules. It will also ensure competition among the self-regulatory bodies to perform better. Having a single SRB is an ideal situation in a small industry of 40 players. However, IAMAI has been indecisive and slow in decision making," the executive said.

IAMAI's Saini, however, said that the association is progressing well as far as the formation of an SRB is concerned. He also said that the pandemic has delayed the setting up of the SRB. "The unprecedented pandemic situation in the country has impacted our transition to the new regulatory regime, particularly the process to onboard senior experts for the Grievance Redressal Board," Saini noted.

The executive said that the IBF has been deliberating for the last one month about forming an SRB for OTT but the final approval to go ahead came only on Friday by the foundation's board. He also said that all the OTT players should join the IBF-supported body since it has proven its credentials through the smooth functioning of the Broadcasting Content Complaints Council (BCCC).

"It will be a good thing if they join us because we are an established body and BCCC has established its credentials before the judiciary, before the ministry, and before the stakeholders also. When was the last time there was a controversy about general entertainment content?" the executive asserted.

The government's decision to bring the OTT sector under the MIB will prove to be a boon for the sector. "Government should proactively support the SRBs to strengthen their self-regulatory mechanisms and if there is a content violation then the government should send advisories to state governments and DMs not to entertain any complaint but to forward the complaint to the MIB or the respective SRBs," the executive stated.

TMT Law Practice Managing Partner Abhishek Malhotra said that the digital media players need to tread cautiously since the MIB has issued a notice asking them to furnish details within 15 days. "The ministry will not take immediate action against non-complying platforms because there are legal cases that are going on. The Kerala High Court has clearly told the centre not to take coercive action against LiveLaw. So the ministry knows that there is an interim stay on the operation of Part III of the guidelines by the Kerala HC. In other cases also, the guidelines have been challenged on the basis that they are unconstitutional."