Legal experts have voiced several concerns with the draft Broadcasting Services (Regulation) Bill, 2023, which seeks to create a consolidated legal framework for the broadcasting sector in India. Published on November 10 by the Union Ministry of Information and Broadcasting, the proposed legislation aims to replace the nearly three-decade-old Cable Television Networks Regulation Act, 1995 and bring under its ambit over-the-top media providers and digital news platforms.

The main problems flagged were the potential for censorship of over-the-top platforms, the erosion of the independence of digital media and the lack of clarity with regard to regulation.

Key features

The bill extends the regulatory framework to cover digital news platforms and over-the-top content that is streamed via the internet, such as by Netflix.

Further, it introduces a system of self-regulation through content evaluation committees. It mandates that over-the-top platforms can only broadcast programmes certified by these committees formed themselves by the platforms, except for those the government exempts from such certification.

Finally, it establishes a Broadcast Advisory Council to advise the Union government on violations of the programme code and advertisement code.

The Ministry of Information and Broadcasting is accepting feedback from stakeholders on the bill till December 9.

Small toy figures are seen in front of diplayed Netflix logo in this illustration taken March 19, 2020. | Dado Ruvic/Reuters

Reductive regulatory mechanism

The bill extends cable television regulations to online entities, explained lawyer Shruti Narayan, who is a Fellow, Policy and Advocacy, Asia Pacific at Access Now, an international non-profit organisation that advocates for and defends digital rights.

“Regulating different kinds of media and technologies in the same way is problematic,” she said.

According to Narayan, there is a crucial distinction between cable and online broadcasters: the internet provides opportunities for dissemination with low barriers to entry for creators and easy access for viewers, leading to greater availability of information and choice.

Regulations for cable and traditional forms of broadcasting deal with a different set of challenges. Further, users of online content consciously choose what content to consume from a variety of options available to them.

“Regulating both in the same way does not recognise their differences and limits free speech and expression,” she said.

Censorship fears

Several experts said that the bill gives the government a tool to censor content broadcast by over-the-top platforms.

Kamya Pandey, a journalist with Medianama, a digital news website focusing on technology policy, explained that the bill states that the size, quorum and other operational details of the content evaluation committees established by every broadcasting platform would be prescribed by the government. This way, she said, the government could exercise a lot of control over these bodies.

“This, combined with the government’s ability under the bill to regulate or even prohibit the transmission of channels or programmes on vague grounds, gives it significant censorship powers,” she said.

Pandey was referring to the provisions under the bill by which the government can prohibit the transmission of channels or programmes on grounds relating to protecting the sovereignty, integrity or security of India, friendly relations with other nations, public order, decency and morality.

These same grounds that have been used by the government in the recent past to censor online content under the Information Technology Act and book digital media platform NewsClick under the draconian anti-terror law, the Unlawful Activities (Prevention) Act. The presence of these grounds in the recently enacted Digital Personal Data Protection Act, 2023, as exceptions to allow data collection by the state has also led to concerns that they would be abused by the government to conduct surveillance.

“The regulatory homogenisation of the cable TV and OTT content may stifle innovation and growth in the online curated content industry,” said Tejasi Panjiar, Associate Policy Counsel at the Internet Freedom Foundation, a digital rights organisation. “The impact on dynamic, diverse, extensive creator community and their artistic as well as creative freedom is unfathomable.”

Pandey questioned how content evaluation committees formed by over-the-top platforms would assess content to be dubbed in several languages. “The translation and fluency in these languages would require the expenditure of significant additional resources, which will be an additional burden on these platforms,” she said.

Producers will not release work in India due to this culture of censorship, she warned. On November 20, the Washington Post had reported that international over-the-top platforms Netflix and Amazon Prime had already pulled some films and shows due to censorship concerns.

Lawyer and public policy professional Apar Gupta said that with the bill, “censorship is not a concern but a certainty”.

Journalistic freedom of digital media publications

Experts also noted that the inclusion of digital news published by individuals under the regulatory ambit raises concerns for online free speech as well as the freedom of journalistic expression.

“This 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 the non-compliance penalty,” said Panjiar.

Under the bill, failure to comply with its provisions may lead to penalties ranging from censorship of content and having to air an apology to the broadcaster being kept off-air for some hours or days, in addition to a fine. Repeated instances of non-compliance could lead to the broadcaster’s registration being cancelled.

She added that the definition of news and current affairs programmes in the bill as “newly received or noteworthy programmes, including analysis, about recent events primarily of socio-political, economic or cultural nature” is vague and broad enough to include under its scope even content creators that may not fit the traditional notion of broadcasters.

All independent YouTube journalists and news analysts would come within the ambit of this definition. So would digital news websites, since the bill defines the term “programme” to include writing.

Narayan called the regulation of independent news media “alarming”. She said that including such media within broadcasting was excessive. “In principle, regulating and censoring news is problematic,” she said. “This is exacerbated when applied to independent and small-scale journalists, who provide platforms for diverse views.”

Panjiar noted that this may have wide-ranging consequences on independent journalists who rely on social media to publish news that may 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,” she warned.

She warned that the regulatory powers to censure or prohibit content published by news broadcasters under the bill extend beyond the permissible restrictions on free expression allowed under Article 19(2) of the Indian Constitution.

Digital media platforms are already covered by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

“Since the IT Rules already cover digital media entities, the imposition of additional overlapping obligations causes a lack of clarity and over-regulation,” Narayan said. “This could have a chilling effect on independent news media.”

Both she and Panjiar also pointed out that the regulatory structure under the bill is similar to the one established under the Information Technology Rules, 2021, that is currently being challenged before various High Courts and has already been stayed on grounds of unconstitutionality by the Bombay High Court and the Madras High Court.

Pandey noted that under the bill, broadcasters may be prohibited from broadcasting in certain regions. This means that over-the-top platforms would have to track the location of users.

This, combined with the ability of the government under the bill to intercept the data of these platforms gives rise to privacy concerns, she said.

Image for representation. | Danish Siddiqui/ Reuters

Broadcasting reforms

The bill imposes a command-and-control mechanism for any audio-visual content published online, Gupta said. The control rests with the Union Ministry of Information and Broadcasting, he said.

He said that broadcast content must be regulated only by market forces, criminal law and guidelines set by the public broadcaster Prasar Bharati.

Panjiar suggested that the regulation of the broadcasting domain must be severed from executive control. She said that the Union Ministry of Information and Broadcasting “must take inspiration from the principles laid down in the report of the Ministry’s Expert Committee on Film Certification chaired by filmmaker Shyam Benegal”. The Expert Committee had stated that film viewing is a consensual act, so regulation should be limited to a statutory warning.

“Such arguments apply even more to the realm of online content, where the viewer directly chooses the content they wish to consume,” she said. “The Union government must take inspiration from the recommendation given by the Expert Committee and steer away from dictating modifications and deletions and refrain from acting as a moral compass”.

Gupta suggested that instead of content moderation, the government must look at at the concentration of ownership and the potential for monopolies by corporate entitites in media and broadcasting. “This leads to less diversity, and opens up to political and corporate influence, which is not great for creativity,” he said. In other words, market concentration is the problem that must be examined.