Confusion persists over digital news content in proposed broadcasting bill

Govt's latest talks with industry on new broadcasting regulation unclear on social media news content obligations.

The government’s latest, and till now the most comprehensive, round of talks with the industry on the proposed new regulation of broadcasting services was unable to reach clarity on whether individuals posting news content on social media will be subjected to obligations that apply to broadcasters and streaming platforms, and if commercial and professional activity online included influencers who did not post news content.

Image for representation.(Digpu)

HT had reported in November that Clause 20 of the Broadcasting Services (Regulation) Bill, taken with the definitions of “programme” and “news and current affairs programmes”, means that independent journalists who have their own YouTube channels and Instagram accounts, where they post news content as a professional activity, will attract the same obligations as that of an OTT broadcaster such as Netflix or Amazon Prime Video.

The ministry of information and broadcasting (MIB) held talks with industry stakeholders on Tuesday. Information and broadcasting (I&B) secretary Sanjay Jaju, who chaired the meeting, instructed ministry officials to share the latest version of the bill with stakeholders, requesting comments within three weeks by July 31. There has been no new draft released since the initial one was floated for public consultation on November 10.

To be sure, a law goes through many iterations during the drafting stage and the government typically releases an early draft before going through the consultation process, and eventually tabling it in parliament where the version next becomes widely available.

According to seven people aware of the matter, ministry officials told stakeholders that definitions have been revised in the new draft to provide greater clarity on what constitutes news and current affairs content. Despite that, executives from social media companies told the MIB that distinguishing between news and news adjacent content on social media is not easy.

A Spotify executive raised concerns about how music streaming platforms would be regulated under the bill, and if the platform would need to pre-certify its existing music library as well.

The ministry rejected demands from direct-to-home (DTH) operators to treat streaming platforms on par with broadcasters. MIB officials told stakeholders that the new draft would differentiate between the programme code for traditional broadcasters (such as Sony, Star and Zee) and online streaming services. An MIB official said that the existing Code of Ethics, prescribed by Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, would continue to govern streaming platforms.

Tuesday’s was the fourth meeting convened by the ministry on the bill in the past 45 days. Previous consultations involved broadcasting companies, streaming platforms, industry associations and social media firms.

The first meeting, chaired by the secretary, was held on May 29 and was attended by participants from broadcasting companies, streaming platforms and industry associations. The June 14 meeting was chaired by joint secretary (broadcasting) Sanjiv Shankar and was attended by streaming platforms. It was also supposed to be attended by social media companies but only a representative from Meta (Facebook, Instagram, WhatsApp) attended the meeting in person. Google and Meta later met MIB officials on June 18.

The meeting on July 9 saw the highest attendance with everybody from streaming platforms and broadcasters (Netflix, Hotstar, Amazon Prime Video, Jio Cinemas/Viacom, Zee, etc.), social media companies (Google/YouTube, Meta, Snap), audio streaming services (Spotify), DTH operators (Airtel, Tata Play), industry associations (IAMAI, FICCI, All India Digital Cable Federation, News Broadcasters Association), and private consultancy (Koan Advisory).

Scope of regulation remains unclear

The draft released in November 2023 stated that "any person who broadcasts news and current affairs programmes through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code".

This clause, combined with definitions of "programme" and "news and current affairs programmes", could potentially impose obligations on independent journalists with their own social media channels, as well as citizen journalists posting news content as a systematic activity.

In recent meetings, discussions centered on "professionally curated content" and "user-generated curated content". However, stakeholders expressed confusion about whether these terms applied only to news content or could include influencers and content creators in other domains who posted non-news content as a professional and/or commercial activity.

Both in the June 14 and the July 9 meetings, stakeholders asked for the definitions of these terms. In the June 14 meeting, questions were raised about whether “professional curation” only meant content for which the user was paid. Concerns were raised if social media users, who are deemed as “professionals”, would need to register with a self-regulatory body.

In the July 9 meeting, Shankar said that the MIB would rely on existing case law that defines the term “professional”.

In the July 9 meeting, both Snap and Meta executives highlighted the difficulty in distinguishing between news and non-news content on social media, saying that the current draft could arguably encompass all social media content as news. Jaju maintained there is a clear distinction, though the Meta representative countered that while the difference may be clear to the ministry, confusion persists on social media platforms.

Questions were raised about how the ministry would treat content created using AI tools and whether the use of an AI tool itself would be considered a professional act.

There was a brief discussion on when a social media user posting news content might attract obligations as an over-the-top (OTT) broadcaster. A ministry official clarified that a following of 5 to 15 users would not matter, but those with "wide reach" would be considered. The definition of "wide reach" remains unclear.

A Google/YouTube executive argued that existing laws already govern internet-based content, and the new bill acts as parallel legislation.

Jaju stated that the bill's aim is to bring all news content under a single law regulated by the MIB. He explained that curated content on streaming platforms and digital news publishers would fall under MIB and the new bill, while user-generated content on social media would remain under the Ministry of Electronics and Information Technology (MeitY) and the IT Act, unless it dealt with news and current affairs.

To be sure, under the IT Rules, 2021, all user generated content is dealt with by MeitY in Part II of the Rules, while all streaming platforms, digital news publishers, and news and current affairs content on social media are regulated by the MIB under Part III. In spite of that, even under the IT Rules, MIB has issued blocking orders against non-journalists while MeitY has issued Section 69A blocking orders against news content posted by individuals.

Spotify raises concerns

A Spotify representative highlighted three main issues affecting music streaming platforms in the meeting: one, whether platforms licensing entire music libraries from producers would need to establish content evaluation committees to scan and pre-certify all content; two, how to handle non-Indian language content; and three, the status of user-generated podcasts and whether safe harbour protections would continue to apply.

Jaju responded that intermediaries are excluded from the bill's scope. For licensed music, Spotify would be considered a publisher of online curated content, responsible for the content they licence and curate, like Netflix and Amazon Prime Video are. He added that if foreign-language content is flagged by an Indian listener or threatens national security, the Indian government could hold Spotify responsible. The same obligation is imposed through part III of the IT Rules, 2021, so it is not a new obligation, Jaju said in the meeting.

Regarding user-generated podcasts, an MIB official stated the same logic as YouTube would apply. However, news and current affairs podcasts would still be covered under Clause 20 of the bill.

MIB will not treat streaming platforms and broadcasters on par

The ministry assured stakeholders that the new draft would differentiate between the programme code for traditional broadcasters (such as Sony, Star and Zee) and online streaming services. An MIB official stated that the existing Code of Ethics, prescribed by IT Rules, 2021, would continue to govern streaming platforms.

A top Airtel official argued this could lead to regulatory arbitrage between broadcasters and streaming platforms, suggesting they should be treated equally. This would result in streaming platforms becoming licensed entities, fully regulated by the Telecom Regulatory Authority of India (TRAI), including on subscription rates.

Jaju rejected this demand, using an analogy that content, like potatoes, can be made into different products priced differently.

At least one stakeholder suggested decoupling OTT platforms from the definition of broadcasting and broadcasters to avoid unintended consequences.

In response to some of the concerns raised by executives from Airtel and Tata Play, the secretary reminded them to not mix TRAI’s National Broadcasting Policy (which is under consultation) and the BSRB.