tl;dr
The Ministry of Information and Broadcasting (“MIB”) released the Broadcasting Services (Regulation) Bill, 2023 (“Broadcasting Bill”) for public consultation on November 10. The draft bill includes “Over-the-Top” (“OTT”) content & digital news published by individuals under the regulatory ambit raising concerns for online free speech and journalistic freedom. Read our initial analysis of the Broadcasting Bill, after a first read.
About the draft bill
Comments on the Broadcasting Bill have been invited till December 9. MIB claims to have introduced the Broadcasting Bill to cater to the evolving needs of the broadcasting sector and in light of the technological advancements in the sector. The Broadcasting Bill, if converted into an Act of Parliament, will replace The Cable Television Networks (Regulation) Act, 1995 (“Cable Act”) as well as other policy guidelines currently governing the sector. An explanatory note has been released alongside the draft bill to facilitate better comprehension. The Bill comprises six chapters, 48 sections, and three schedules. Part C of the Broadcasting Bill applies to internet broadcasting networks. As per the Broadcasting Bill, a broadcasting services or network will only be allowed to provide service/ operate if the Union government has registered or provided an intimation to the broadcaster or broadcasting network operator [Clause 4(1), (4)]. With respect to the “OTT” broadcasting service, they will be required to provide an intimation to the Union government of its operations, if their number of subscribers or viewers fall within the prescribed threshold. The threshold as well as the form and manner of intimation will be prescribed by the Union government at a later stage [Clause 16(2)].
(Regulatory) dark clouds looms over “OTT” platforms
The Broadcasting Bill expands the regulatory coverage of the Cable Act to include “OTT” content & digital news media under the ambit of the regulation. To capture emerging technologies, the draft bill extends application to “internet broadcasting networks”, which as per its definition in the draft bill includes Internet Protocol Television (“IPTV”) and “OTT” broadcasting services. The Broadcasting Bill defines “broadcasting” as “one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network, intended to be received or made available for viewing, by the general public or by subscribers of the broadcasting network.” As an extension of this definition, ‘OTT broadcasting service operators’ such as Netflix, Disney Hotstar, Jio Cinema, etc. are classified as “Broadcasting network operator”. It clarifies that an “OTT” broadcasting service would not include a social media intermediary, or a user of such intermediary, as defined in rules under the Information Technology (IT) Act, 2000.
“OTT” broadcasting services make on-demand or curated programmes available over the internet or a computer resource, which is consumed by a subscriber who makes an account with the provider. While “OTT” broadcasting services provide access to a range of content on its platform to several of its subscribers, viewers retain the autonomy to not consume a programme if they wish to do so. This, in principle, is a direct contradiction to the nature of cable TV or radio services, wherein consumers cannot choose to stop the airing of a programme (even if they may be able to switch channels). Applying stringent rules and codes to “OTT” broadcasting services may increase financial and compliance burden for such broadcasters, negatively impact user experience, choice, and even costs borne by the users. Thus, we question the very need to bring “OTT” broadcasting services under regulation and at par with terrestrial, cable, and radio broadcasting services.
Here, we must recall MIB’s historical baggage with respect to its conventional regulation of traditional forms of media. It has administered both licensing and content censorship powers over radio, cinema, and television broadcasting, specifically through laws such as the Cinematograph Act and the Cable Act. The 2020 notification under the Business of Allocation Rules brought digital and online media under the jurisdiction of MIB. An amendment to the Rules in August 2023 brought ‘Films and Audio-Visual programmes/content made available by online content providers/publishers’ as well as ‘online advertisements’ were brought under the regulatory ambit of MIB. Thus, the Broadcasting Bill, which seeks to envelope “OTT” broadcasting under the regulatory umbrella for radio and tv, must be examined while keeping in mind MIB’s institutional history of regulation and censorship.
Here, MIB must take inspiration from the principles laid down in the report of MIB’s Expert Committee on Film Certification chaired by Shyam Benegal (“Expert Committee”). The Expert Committee stated that film viewing is a consensual act, and so regulation should limit itself to a statutory warning, noting that the artistic expression and creative freedom of filmmakers should be protected and any certification should be responsive to social change. Such arguments apply even more to the realm of online content, where the viewer directly chooses the content they wish to consume.
Notwithstanding our criticisms of the draft bill, we appreciate the Ministry’s intention to include Accessibility Guidelines in the Broadcasting Bill in order to make broadcasting services more accessible to persons with disabilities. Some commendable measures proposed include availability of sign language, audio descriptions and subtitles for videos, designation of a disability grievance redressal officer, etc.
Current affairs, codes, and censorship
Any programme and advertisement transmitted or re-transmitted as broadcasting services must be in conformity with the Programme Code and Advertisement Code (“Codes”) respectively [Clause 19(1), (2)]. Adherence to the Codes, which are yet to be prescribed, extends to any person who broadcasts news and current affairs programs through a digital medium (such as online paper, news portal, website, social media intermediary, or other similar medium). This excludes publishers of professional or commercial newspapers and online replicas of such newspapers.
This one sentence provision under Clause 20 titled 'News and Current Affairs Programmes' may have wide ranging consequences on independent journalists who rely on the digital platforms such as social media to publish news that may typically be viewed as unpalatable to the government. This over broad provision will apply to not only journalists, but even individuals who choose to share news through online blogs or platforms. This Clause raises alarm as an individual sharing news on social media platforms may become liable if the broadcaster/ broadcasting network, self regulatory organisation, or a government appointed council believe that they have not complied with the Codes. This may affect online free speech as well as the freedom of journalistic expression of a news broadcaster or an independent news disseminator, whether it is in an organisational or individual capacity. Further, such regulation may also threaten a users’ right to access multiple, diverse points of view because the individual broadcasting news will likely only produce content which is palatable to the Union government so as to avoid non-compliance penalty.
Choosing the path of self-regulation
The Broadcasting Bill suggests a three-pronged regulatory structure:
- Self-regulation by broadcasters and broadcasting network operators
- Self-regulatory organisations (“SROs”)
- The Broadcast Advisory Council (“BAC”)
Such a three-tiered regulatory system was introduced under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). This structure was created without any statutory basis or any public consultation. The allotment of such wide powers to the Union government in the absence of any constitutional or parliamentary backing posed a grave threat to the freedom of speech and expression of content creators and publishers, as well as to the right of free access to information of the consumers of such content. The constitutionality of this part of the IT Rules, 2021 has been challenged in several Courts. Given the challenge to Part 3 of the IT Rules, which is administered by the MIB, we must question the attempt to bring a similar model of regulation and grievance redressal for “OTT” content and digital news media as well as the imposition of other obligations on broadcasters such as the need to ‘intimate’ the Union government. A similar obligation was imposed on publishers of news media by the Ministry, to furnish information under Rule 18 of the IT Rules, 2021, despite a stay on the Rules that lay out the 3-tier regulatory mechanism.
Under the Broadcasting Bill, a broadcaster or operator would be required to appoint a grievance redressal officer for the purpose of receiving and hearing complaints in contravention of the Codes, become a member of an SRO, establish and maintain suitable mechanisms for the filing and redress of complaints, and publish information related to complaint redressal mechanisms prominently [Clause 25(1)]. In addition to this, every broadcaster or operator would be required to constitute one or more “Content Evaluation Committee” (“CEC”), the size, quorum, and operational details of which would be determined by the Union government. As per the draft bill, broadcasters could only broadcast programmes that have been certified by the CEC.
As per the functions listed under the Broadcasting Bill, the SROs will address grievances which have not been addressed by the broadcaster or broadcasting network operators within the prescribed time period, hear appeals filed by complainants against the decision of the latter, and issue guidance or advisories to its members for ensuring compliance to the Codes [Clause 26(3)]. An SRO will also be required to make governing norms and articles for its members, which would include punishment for non-compliance with the norms or the Codes. The punishment includes temporary suspension, expulsion from membership, advisory, warning, censure, and/or monetary fine up to 5 lakhs [Clause 26(4)]. Through the standards and practices formulated and adopted by the BAC, the Union government will be able to exercise indirect control over curated content.
The Broadcasting Bill allows the Union government to constitute the BAC consisting of an independent member with 25 years of experience in the media industry as the Chairperson; 5 ex officio officers representing MIB, Ministry of Women and Child Development, Ministry of Home Affairs, Ministry of External Affairs, and Ministry of Social Justice and Empowerment; and 5 additional eminent independent persons [Clause 27(1)]. The terms and conditions related to the appointment of members to the BAC, the manner of their selection, tenure, and the manner of performance of their functions are yet to be prescribed. The BAC may refer any appeal or reference to review panels constituted by it. The current composition of the BAC raises concerns around the Council's autonomy.
The BAC may hear appeals filed by complainants against the decision of the SROs as well as the complaints regarding violation or contravention of the Codes referred to it by the Union government [28(1)]. After examining complaints, the BAC has to make recommendations to the Union government, which will then issue appropriate orders and directions [Clause 28(2),(3)]. The ability of the Union government to refer a complaint to a government-appointed body as well as the power to issue final order is likely to pave the way for censorship as well as self-censorship.
Clause 31 allows the Union government’s power to inspect, intercept, monitor, and seize the equipment of broadcasting networks and services. Notably, the broadcasting network and services will have to be provided a notice in writing informing them of the grounds of confiscation, a reasonable opportunity of making a representation in writing, as well as an opportunity to appeal the decision of the authorised officer to the court. The application of such powers on “OTT” broadcasting services raises concerns around the executive’s indirect control over the platforms. Clause 35 further strengthens these concerns as it allows the Union government to order the broadcaster or the network to delete or modify programme or advertisement and even direct the channel to be off-air for a specified number of hours as a penalty for violating the Codes. The Union government cements its censorship powers under the draft bill through Clause 36(2) under which it may, if it deems it necessary or expedient to do so in public interest, prohibit the operation of any broadcasting services or broadcasting network operators in the areas notified.
In light of increasing scrutiny of streaming platforms, the Union government oversight over the BAC and CEC raise censorship concerns. Here, the MIB’s Expert Committee recommendation for a more liberalised regime even for film certification and its caution against the Central Board of Film Certification acting as a ‘moral compass’ must be remembered and applied. The Union government must take inspiration from the recommendation given by the Expert Committee and steer away from dictating modifications and deletions.
Excessive delegation of rule-making powers
The Broadcasting Bill has left a lot of the specific provisions to be determined in the future by the executive. Such excessive delegation of rule-making leads to uncertainty for the stakeholders who may be impacted by the draft bill and prevents individuals from being fully informed so as to meaningfully engage in the consultation process. Spanning over 70 pages, the Bill includes 60 instances of "as may be prescribed" and 17 instances of "as notified by the [Union] Government”. While we recognise that in some instances specificity is needed to be or must be left to future rulemaking, these must be accompanied by relevant safeguards to protect against arbitrary rule-making. However, a number of the instances of delegated legislation in the Broadcasting Bill contribute to increased uncertainty, vagueness, and raise concerns. Some grievous examples of delegated executive rule-making (without safeguards/protection), wherein clarity and specificity are of utmost importance in our opinion, are stated below:
The Central Government, may, for the fulfilment of such social objectives, as may be prescribed, allow registration or intimation as a broadcaster or broadcasting network operator..... [Clause 4(4)]
Every broadcaster and broadcasting Network Operator shall ensure that: (a) he transmits programmes in compliance with such terms and conditions and in such manner as may be prescribed. [Clause 5(1)(a)]
Any cable broadcasting network operator, satellite broadcasting network operator, IPTV network operator or such other broadcasting network operator, as may be prescribed, who intends to provide Platform Services on their registered broadcasting network may apply for permission to broadcast Platform Services to the registering authority in such form, manner and containing such particulars as may be prescribed. [Clause 7(1)]
Any programme transmitted or re-transmitted as broadcasting services shall be in conformity with the Programme Code, as may be prescribed. [Clause 19(1)]
Any advertisement transmitted or re-transmitted as broadcasting services shall be in conformity with the Advertisement Code, as may be prescribed. [Clause 19(2)]
Any person providing an OTT broadcasting service in India, with such number of Indian subscribers or viewers as may be prescribed, shall, within a period of one month from the notification of this Act or its meeting the prescribed threshold, provide an intimation to the [Union] Government of its operations, in such form and manner as may be prescribed. [Clause 16(2)]
The Broadcast Advisory Council, may, constitute review panels, with such number of members and such composition, as may be prescribed, to carry out its functions referred in section 28. [Clause 19(1)]
The terms and conditions related to the appointment of members to the Broadcast Advisory Council, the manner of their selection, tenure and the manner of performance of their functions shall be such as may be prescribed. [Clause 27(4)]
Let Us Chill
Previous attempts to suggest self-regulation for on-demand video streaming platforms have been viewed with scepticism in light of increasing censorship, both self-imposed and through legal requests. The unfortunate consequence of such censorship is a negative impact on the fundamental right to freedom of speech and expression. Exerting executive control over “OTT” content will lead to over-compliance and self-censorship on part of platforms, who will be keen to avoid the wide discretion allowed to the government when it comes to punishments. Reports suggest that several completed TV shows and movies have already been cancelled fearing government censure. Given the Codes’ similarity to the Code applicable to cable TV, and the increased censorship of TV programmes as a consequence, the Broadcasting Bill must be examined with caution.
Important documents
- Draft Broadcasting Services (Regulation) Bill, 2023 (link)