This article is written by Sameera Khan from Amity Law School, Noida

Table of Contents

Introduction

The Indian Ministry of Information and Broadcasting has put forth a new bill intended to replace the Cable Television Networks (Regulation) Act of 1995, recognizing the significant shifts in the media landscape. With the advent of Internet Protocol Television (IPTV), over-the-top (OTT) platforms, and other digital broadcasting services, the existing legislation has become outdated and inadequate for the current environment. The Ministry has highlighted the need for a streamlined and cohesive regulatory framework to bring consistency and clarity to broadcasting regulations.

In 2020, the Ministry proposed amendments to the 1995 Act, and on November 10, 2023, it released the draft Broadcasting Services (Regulation) Bill, 2023, for public comment. This Bill aims to consolidate various broadcasting regulations into a single law, replacing the Cable Television Networks (Regulation) Act, 1995. Additionally, in April 2024, the Telecom Regulatory Authority of India (TRAI) issued a consultation paper seeking public input on the creation of a National Broadcasting Policy.

The Ministry’s draft Broadcasting Services (Regulation) Bill, 2023, seeks to establish a unified regulatory framework for multiple broadcasting modes, including digital cable TV, OTT content, and digital news. It also incorporates contemporary definitions and provisions for new technologies such as Direct-to-Home (DTH) and IPTV. This Bill is intended to function as supplementary legislation to the Information Technology Act, 2000, and the Telecom Regulatory Authority of India Act, 1997, without overriding or limiting these laws.

Key Provisions of the Bill

Expanded Scope of Broadcasting

The 1995 Act only regulated cable networks, excluding OTT platforms. The new Bill broadens the definition of “broadcasting” to include “one-to-many” transmission of audio, visual, or audio-visual content via a broadcasting network. As a result, OTT platforms such as Netflix and Amazon Prime will now fall under the Bill’s jurisdiction. The term “broadcasting network” now includes satellite, internet, terrestrial, and cable networks. Additionally, “broadcasting network operator” is defined to encompass any individual or entity operating a broadcasting network with a valid registration, license, or permission, including telecom and internet service providers.

Programme and Advertising Code Compliance

The Bill introduces a programme and advertising code (the “Code”) to be established by the Central Government. All broadcasting services, including OTT platforms and digital news outlets, must adhere to this Code. However, traditional newspaper publishers and their digital versions are exempt from this requirement, maintaining a distinction between different types of media.

Self-Classification of Programmes and Access Control Measures

Broadcasters are required to classify their programmes according to a government-specified rating system, taking into account the content’s context, theme, tone, impact, and target audience. These classifications must be displayed at the beginning of each programme. Additionally, broadcasters must implement access control measures for restricted content, such as adult content, to ensure that it is only accessible to appropriate audiences.

Accessibility Guidelines for Persons with Disabilities

The Bill mandates that broadcasting services be accessible to persons with disabilities, incorporating measures like subtitles, audio descriptions, and sign language translations. Broadcasters must submit annual accessibility audit reports to the Government, which will appoint a disability grievance redressal officer to handle complaints regarding accessibility violations. This provision aims to make media content inclusive and accessible to all members of society.

The Regulatory Regime

The Bill establishes a three-tier regulatory structure: self-regulation by broadcasters and network operators, regulation by Self-Regulatory Organisations (SROs), and oversight by the Broadcast Advisory Council (BAC).

Self-Regulation by Broadcasters and Broadcasting Network Operators

Broadcasters must form Content Evaluation Committees (CEC) comprising representatives from diverse social groups and sectors. The CEC will certify programmes before broadcast, except for those exempted by the Government. Broadcasters must also appoint grievance redressal officers to address complaints and maintain mechanisms for complaint resolution. This ensures that content is evaluated and complaints are handled at the source.

Self-Regulatory Organisations (SROs)

Broadcasters and network operators are required to join SROs, which will handle unresolved grievances, hear appeals, and issue guidance to ensure compliance with the Code. This intermediary step aims to provide an industry-driven resolution mechanism before government intervention.

Broadcast Advisory Council (BAC)

The Government will form the BAC, consisting of a chairperson, five nominated officers, and five independent members. The BAC will hear appeals against SRO decisions, recommend actions to the Government, and ensure compliance with the Code. This body will act as the highest authority in the regulatory framework, providing final oversight and ensuring adherence to standards.

Powers of the Government and Penalties

The Bill grants the Government powers to inspect, monitor, seize equipment, obtain information, and halt broadcasting operations to protect public interest. It can also delete, modify, or prohibit the transmission of programmes. Penalties for violations include advisories, warnings, fines, and potential imprisonment for serious offenses. Monetary fines are determined based on the financial capacity of the offender, with maximum penalties varying by entity size. This provision ensures that penalties are proportionate and can effectively deter non-compliance across different scales of operations.

In summary, the draft Broadcasting Services (Regulation) Bill, 2023, aims to modernize the regulatory framework for India’s broadcasting sector, making it more comprehensive and adaptable to contemporary technological advancements and media consumption habits. This Bill is a significant step towards creating a unified, transparent, and inclusive broadcasting regulation that addresses the needs of today’s diverse media landscape.

Defining the certain Clauses of the bill

Clause 1(dd) – The Programme

Within the intricate framework of the bill, certain clauses demand thorough examination and careful consideration. Clause 1(dd) addresses the definition of ‘Programme,’ a term that, due to its broad scope, encompasses the extensive range of audio, visual, and written content transmitted through broadcasting networks. This broad definition could potentially bring content disseminated via platforms like YouTube or any website under the regulation’s purview, raising significant concerns about the extent of governmental oversight in the digital space. This expansive approach to regulation necessitates a nuanced understanding of the balance between necessary oversight and freedom of digital expression.

Clause 2(v) – News and Current Affairs

Clause 2(v) explores the realm of ‘news and current affairs programmes,’ yet its current definition is fraught with ambiguity. The phrases ‘newly-received or noteworthy audio, visual, or audio-visual programmes’ and ‘about recent events primarily of socio-political, economic, or cultural nature’ create a lack of clarity. This ambiguity poses a risk of misuse, potentially infringing on the right to freedom of expression enshrined in Article 19 of the Indian Constitution. This calls for a precise and objective definition, one that aligns with the Supreme Court’s ruling in Shreya Singhal v. Union of India, which upheld the sanctity of digital expression while advocating for responsible content creation.

Clause 2(y) – Over the Top Broadcasting Services

Clause 2(y) addresses OTT broadcasting services, which operate in a domain distinct from traditional broadcasting. While the one-to-many nature of traditional broadcast media justifies a level of governmental oversight, OTT streaming is characterized by a more personalized, one-on-one engagement with content on individual devices. The draft bill’s attempt to regulate OTT services under the same framework as traditional broadcasting warrants careful consideration to avoid overreach and to respect the unique nature of OTT content consumption.

Clause 4(4) – Requirements for Broadcasters and Network Operators

The definition of ‘Person’ in Clause 2(z), the registration exemptions in Clause 4(4), the prohibition on state governments and political parties from engaging in broadcasting in Clause 6, and the powers of inspection and seizure outlined in Clauses 30(2) and 31 present a complex regulatory puzzle. Each clause and sub-section serves as a crucial component in the regulatory machinery, necessitating precise calibration to balance regulatory needs with the freedoms of expression and innovation.

Clause 27 – Advisory Council

The Broadcast Advisory Council, as envisioned in Clause 27, represents a crucial entity where impartiality and independence must be ensured. The composition of this council, the public consultations informing its establishment, and its alignment with constitutional principles are essential for its legitimacy and effectiveness. The Council’s role will be pivotal in navigating the regulatory landscape and ensuring that regulations are applied fairly and transparently.

In summary, these key clauses within the bill reflect the complexities of modernizing India’s broadcasting regulations to include digital and OTT platforms. Each provision must be carefully considered and crafted to ensure that the balance between regulation and freedom of expression is maintained, aligning with constitutional principles and contemporary media consumption habits.

Implications of the Bill for the Media and Entertainment Sectors

The proposed legislation by the Ministry of Information and Broadcasting (MIB) is set to significantly impact the media and entertainment sectors. While the MIB asserts that the bill will enhance the self-regulatory mechanism for compliance with programme and advertising codes, the broadcasting industry harbors concerns about several provisions that may restrict creative freedom and impose stringent regulatory measures.

Self-Certification of Content

The broadcasting industry is apprehensive about the introduction of self-certification of content by the Content Evaluation Committee (CEC). This requirement is perceived as a potential impediment to the creative freedom of TV broadcasters and OTT platforms. Stakeholders argue that the need for CEC approval prior to content dissemination effectively establishes an internal censor board comprising external members from various fields, such as women and child welfare advocates, representatives of scheduled castes and tribes, and minorities. This move is seen as an overreach that could stifle creativity and innovation in content creation.

Regulation of OTT Platforms

OTT platforms are particularly concerned about the application of outdated TV regulations to their sector. The existing program code for TV channels, which prohibits content that “offends against good taste or decency,” could be extended to digital platforms. The broadcasting industry fears that such regulations, if applied to OTT platforms, could undermine the dynamic and diverse nature of digital content. Although the MIB is expected to prescribe different program codes for TV, radio, and digital, the lack of clear guidance on formulating these codes raises concerns about potential overregulation and self-censorship.

Seizure of Equipment

Provisions related to the seizure of equipment by government officials have also raised alarms within the broadcasting sector. The bill grants authorities the power to confiscate equipment from both broadcasting services (TV channels, OTT, digital news) and broadcasting networks (Cable, DTH, IPTV) for violations of the proposed act or its rules. This power is viewed as excessive and could disrupt operations, leading to significant financial and operational challenges for broadcasters.

Regulation of Online Content

The draft bill seeks to regulate online content available on OTT platforms. However, content accessible through other means on the internet, which is regulated differently, remains outside the bill’s scope. This discrepancy could lead to inconsistencies and challenges in enforcement. Additionally, the lack of guidance on formulating the program code for online content may lead to self-censorship by broadcasters, fearing punitive actions.

Governmental Oversight and Conflict of Interest

The central government’s authority to determine whether specific content violates the program code, including news or content critical of the government, poses a significant conflict of interest. This could potentially lead to censorship and suppression of dissenting voices. Furthermore, the absence of an appellate mechanism against government orders exacerbates concerns about fairness and transparency in regulatory decisions.

Differential Frameworks for News

The draft bill establishes distinct regulatory frameworks for broadcast news and print news, raising questions about the appropriateness of different standards for the same content based on the medium of dissemination. This differentiation may create inconsistencies and complicate compliance for media organizations that operate across multiple platforms.

Criminal Punishments

The draft bill reintroduces criminal punishments for certain offenses that were recently decriminalized. Offenses such as operating broadcasting networks without registration, obtaining registration through misrepresentation, and providing incorrect information are punishable by fines, imprisonment, or both. The terms of imprisonment range from up to two years for the first offense to up to five years for subsequent offenses. This reintroduction of criminal provisions, previously decriminalized by the Jan Vishwas (Amendment of Provisions) Act, 2023, represents a regressive step that could impose undue burdens on broadcasters.

Freedom of Speech and Expression

The bill grants the central government the power to prohibit the operation of broadcasting services or broadcasting network operators in the ‘public interest.’ This provision could place restrictions on the freedom of speech and expression, which the Supreme Court has held as a fundamental right under Article 19 of the Indian Constitution. The bill’s allowance for such prohibitions, without aligning with the specific restrictions outlined in Article 19(2), could be seen as overstepping constitutional boundaries.

Impact of the Draft Broadcasting Services (Regulation) Bill, 2023 on the Copyright Act

The proposed Draft Broadcasting Services (Regulation) Bill, 2023 introduces several provisions that could potentially intersect with and affect the existing Copyright Act, 1957, particularly in the context of broadcasting rights and online content regulation.

Broadcasting Reproduction Right

Under the Copyright Act, 1957, broadcasting organizations possess the right to rebroadcast their own broadcasts, ensuring they retain control over the dissemination of their content. The Draft Bill may extend this broadcasting reproduction right to include over-the-top (OTT) services. This extension could lead to a disparity where traditional broadcasters and OTT platforms are treated differently under copyright law, potentially creating a regulatory imbalance.

Regulation of Online Content

The Draft Bill seeks to regulate online content on OTT platforms. However, content accessed through other means on the internet remains subject to different regulatory frameworks. This discrepancy raises concerns about consistency and fairness in copyright enforcement across digital platforms and traditional broadcasting mediums.

Impact on Creative Freedom

Critics argue that the Draft Bill could curtail creative freedom and impose financial burdens on broadcasters. For instance, the requirement for broadcasters to establish Content Evaluation Committees (CECs) to certify content before airing could override existing internal content monitoring processes. This additional layer of regulatory oversight may restrict innovative content creation and impose operational challenges for broadcasters.

Addressing New Challenges

In light of the evolving landscape of digital and online broadcasting, the provisions of the Draft Bill aimed at content standards and digital regulation fill gaps that the Copyright Act alone may not effectively address. By integrating these aspects into broadcasting regulations, the bill attempts to adapt to new technological challenges and ensure comprehensive oversight of content dissemination.

Complementary Enforcement Mechanisms

The regulatory penalties and enforcement mechanisms proposed in the Draft Bill can complement the legal remedies provided by the Copyright Act. This synergistic approach creates a more robust framework for addressing copyright violations in the broadcasting sector. It enhances the ability to prevent unauthorized retransmission and distribution of broadcast content, thereby strengthening copyright protection for broadcasters.

Enhanced Protection for Broadcasters

By bolstering rights and protections for broadcasters, the Draft Bill aims to enhance the enforcement of copyright in broadcast content. This includes mechanisms to safeguard against unauthorized use, reproduction, and distribution of broadcasted material. The bill’s provisions can potentially streamline legal recourse for copyright infringement, offering broadcasters greater security and control over their intellectual property.

Conclusion

In conclusion, while the Draft Broadcasting Services (Regulation) Bill, 2023 introduces regulatory challenges and potential impacts on creative freedom, it also strives to modernize copyright enforcement in the broadcasting sector. By addressing new digital challenges and complementing existing legal frameworks, the bill seeks to create a balanced environment that supports innovation while safeguarding intellectual property rights in broadcasting. while the MIB’s proposed bill aims to modernize and consolidate broadcasting regulations, it also introduces several provisions that raise concerns within the media and entertainment sectors. The potential for overregulation, conflicts of interest, and the reintroduction of criminal penalties could stifle creativity, innovation, and freedom of expression. Stakeholders in the broadcasting industry must engage in constructive dialogue with the government to ensure that the final legislation strikes a balance between necessary regulation and the preservation of fundamental rights and industry dynamism.