20, Feb 2024 | A Legal Researcher

The Indian government had extended the deadline for receiving public comments on the Draft Broadcasting Services (Regulation) Bill, 2023 to January 15, 2024. Broadcasting Services (Regulation) Bill, 2023 The Bill seeks to replace the Cable Television Network (Regulation) Act, 1995 [Cable Act]. This article deals with the provisions of the bill and what it means for the broadcasting industry- including digital news outlets and Over the Top platforms like Netflix etc. and for the larger free speech discourse. Several media organisations, including Editors Guild of India (EGI) and Citizens for Justice and Peace (CJP) sent their detailed comments (read criticisms) on the Bill.

The Cable Act has, so far, been the main law on content for broadcasting and cable networks but the recent advancements such as internet-based content on personal devices has made it necessary for a more updated legislation to be in place. 

What does the Broadcasting Services (Regulation) Bill, 2023 do?

First, it extends the regulatory scope of government to cover over-the-top (OTT) Content, digital news, and current affairs. It also has expansive and almost all-encompassing definitions for stakeholders. It requires Broadcasters and Broadcasting Network Operators to “register with or give intimation to the government before providing their services.” 

In the Regulatory sphere, the bill first requires Broadcasters and Broadcasting Network Operators to appoint a grievance officer who will listen to any complaints. If the complainant is not satisfied with the decision of the grievance officer, an appeal could be made to a Self-Regulatory organisation in which the Broadcaster should be a part of. For example, if there is a complaint against Netflix’s content, a complaint would be first raised, with Netflix and if dissatisfied with Netflix’s response, one can appeal to this Self-Regulatory organisation which will constitute people represented by organisations like Netflix, Prime Video, Zee5 etc. In the TV news and Digital news sphere, this kind of structure already exists with organisations like News Broadcasters & Digital Association and the DIGIPUB News Media Foundation. 

The Bill requires that every Broadcaster and Broadcasting network operator to constitute Content Evaluation Committees whose certification is necessary for the broadcast of the content or programmes and the Central Government does have the power to prescribe the programmes for which the certification is not required. 

The Bill introduces the government oversight via the Broadcast Advisory Council (BAC) with five officers from various ministries, nominated by the Central Government and five independent persons nominated by the Central Government with experience in the fields of Media, entertainment, broadcasting, Child rights, disability rights, and rights of women, human rights, law and other relevant fields. This Advisory Council’s first function is to hear appeals arising out the complaints that have been heard by Self-Regulatory Organisations. The council however only provides its recommendations while the Central Government retains the power to issue orders and directions based on such recommendations. It is unclear as to how much independence can members of the Broadcasting Advisory Council have when they have been appointed by the government itself, in matters that are related to criticisms of the government itself! 

Section 29 of the Act states that the BAC may constitute review panels with such number of members as may be prescribed to carry out the functions mentioned above and the decision by these review panels will be as good as the decisions by the BAC itself. For example, the 11 members of the BAC can choose 5 members to review a particular case. This is problematic due to the excessive powers given to the members without any pointers as to qualification of members of the review committees. Given that the Central Government has power to prescribe rules to cover the assignment of case to a review panel by the BAC, the bill gives Central government an arbitrary power to form committees as it wishes- committees that can give recommendations affecting freedom of speech.

Section 19 of the Bill states that any programme or an advertisement transmitted or re-transmitted as broadcasting services shall be in conformity with the Programme and Advertisement codes respectively. Section 20 of the Bill states that any person who broadcasts news and Current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium- as a part of systematic business, professional or commercial activity shall adhere to the Programme and Advertisement Codes. Essentially, not only YouTube news channels such as Akash Banerjee’s Desh Bhakt but also individual based YouTube news channels –such as those run by Punya Prasun Bajpeyi, Ravish Kumar and Navin Kumar (Article 19) will also come under this section’s purview. 

A welcome move within the bill is the Accessibility guidelines for persons with disabilities. The accessibility guidelines, which would be later published by the Ministry of Information and Broadcasting may include requirements to supplement video programs with subtitles of size colour and various fonts and with audio description for the blind in various languages, translation of audio content of videos, whenever appropriate, to sign language, making the applications of broadcasting services to be accessible by persons with disabilities whenever appropriating to sign language making the applications of broadcasting services accessible in terms of their usage by persons with disabilities etc. 

Provisions of Concern in the Bill

The concerns with respect to this bill are twofold. First, the promotion of self-censorship of broadcasting networks due to the persistent government oversight, and second, the potential for restrictions on online free speech of individuals and independent media. 

Due to the fact that the Self-Regulatory Organisations’ decisions are subject to a Board Advisory Council which does not have any real independent members, by appointment- there is a consistent and overarching oversight on OTT or other such Broadcast platforms. Therefore, instead of producing the content which could irk the government and have it not transmitted due to an order by the government on the recommendation of the government appointed Committee, the Broadcasters would rather not produce such content. A law regulating an industry is appropriate, but such regulations having serious repercussions for freedom of speech and expression, and even freedom of trade, is not. 

Secondly, the regulation on individual news publishers is concerning since the compliances that have been prescribed in the bill, including a compliance to the Programming Code, is essentially an extra burden on the individual creators who have resorted to internet-based content creation due to the low entry barriers it provides. While one should hope that as the bill passes through the democratic processes of law making, it will shed these provisions that has serious potential to damage free speech, it is also important to keep a note of the legislations that seek to or have the effect on free speech and raise concerns. 

This Bill currently is past the consultation process and to understand the process of how to send over any concerns regarding the bill to the Ministry, you can visit letuschill.in, an initiative by the Internet Freedom Foundation.

(The author is a legal researcher with the organisation)

Related:

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