The Ministry of Information and Broadcasting (“MIB”) on November 10, unveiled the preliminary draft of the Broadcasting Services Regulation Bill, 2023 which was poised to redefine the regulatory landscape governing the broadcasting industry in India. This proposed Bill aims to repeal the lengthy Cable Television Networks (Regulation) Act, 1995 and amalgamate it with current regulatory standards governing the Indian broadcasting sector into a single legislative framework. However, the Bill makes it clear in Section 42 that it will not be barred from other laws, such as the Information Technology Act of 2000 (the IT Act) and the Telecom Regulatory Authority of India Act of 1997. The Bill has crafted its provisions in a way that transcends the boundaries and acknowledges the emergence of OTT platforms. The Bill also notably encompasses digital news platforms and internet broadcasting networks (Section 3(1), including platforms like Prime videos, Netflix.

KEY FEATURES OF THE BILL

  • Content Regulating Committee (CEC)- The Bill in Section 24(2) introduces a self-regulatory mechanism called CEC, which consists of eminent individuals representing different social groups, including women, child welfare, scheduled castes, scheduled tribes, minorities. The crucial part here is that the provision grants the Central Government the authority to prescribe details regarding the CEC, including the number of members and quorum. The purpose of this Committee, as outlined in the provision, is to serve as a mechanism for self-certification by broadcasters or broadcasting network operators. The committee is entrusted with the responsibility of evaluating and certifying the content that is to be broadcasted on their platforms.
    Stakeholders assert that this mandate for securing approval from the CEC prior to content dissemination by the Ministry of Information and Broadcasting (MIB) effectively establishes an internal oversight body which seems reminiscent to that of a censor board. Over-the-top (OTT) platforms express apprehension regarding the potential application of obsolete television regulations to their domain through the program code, which goes against the very objective of the bill, which is to ‘look forward’ and change with changing time.
  • Power to inspect and Penalize under Chapter V- The provision in Chapter V of the Act grants the Central Government inspection rights for broadcasting networks, allowing to pose penalties ranging from advisory actions, censures and imprisonment. The quantum of these monetary penalties and Fines are dependent on the financial capacity of the entity or individual.
    This is quite problematic because tying monetary penalties to financial capacity may raise equity concerns, and the lack of a clear review mechanism or proportionality principle in penalties could impact fairness and effectiveness.
  • The Broadcast Advisory Council (BAC)- Section 27 and Section 28 of the Bill talks about the Broadcast Advisory Council that would be established by the Central Government and would comprise of a Chairperson with significant experience in media, ex-officio members from various government ministries, and independent members nominated by the Central Government. This Council will hear the complaints regarding violations of the Program Code or Advertisement Code and make recommendations to the Central Government. The government can then issue orders and directions based on these recommendations.
    This BAC’s composition, which includes government officials and independent members nominated by the Central Government, may lead to a regulatory capture. There is a risk that the interests of the broadcasting industry and the government may unduly influence the council’s decisions to the detriment of public interest.
    The presence of ex-officio members nominated by various government ministries in the BAC may compromise its independence. The potential influence of government officials on decision-making processes raises concerns about impartiality and the ability to address complaints objectively
  • Accessibility to individuals with disabilities- Section 23 of the Bill incorporates provisions to promote accessibility for persons with disabilities within the realm of broadcasting services. It empowers the Ministry of Information and Broadcasting (MIB) to enforce guidelines that specifically aim to enhance accessibility for individuals with disabilities. To fulfill this mandate, operators in the broadcasting sector are required to undertake various actions, including incorporating appropriate subtitles, providing audio descriptions to supplement content, and translating specific material into sign language. These measures collectively align with the overarching goal of ensuring that broadcasting services cater to the diverse needs of persons with disabilities.

 

CONCERNING GRAY AREAS

  • Self-certification of content by the Content Evaluation Committee (CEC), which would impede the creative freedom of TV broadcasters and OTT players alike.
  • Even if the Broadcasting Services Regulation Bill is enacted in its current form, there will be other laws that will also be governing online content platforms including OTTs. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which still regulate the platform itself. This could possibly be a laborious obstacle for OTTs and other entities publishing digital content in comparison to other self-regulating authorities like InfoComm Media Development Authority (IMDA) from Singapore, which issues a code of conduct for regulating the OTT platform.
  • The controversy around the Broadcasting Services Regulation Bill centers on its inclusion of OTT platforms and the plan to regulate them like traditional broadcasting services. While both deliver content, the key difference is that broadcasting pushes content, while OTT allows users to pull content of their choice. This raises questions about whether regulations should be uniform for user-selected content and pushed content. The suggestion for a single legislation covering both traditional broadcasting and OTT platforms requires thoughtful examination.

 

Author – Shyamli Shukla, Associate

Co- Author – Phallya Jain