Broadcasting Bill: Back to first principles

Governments worldwide seek to control digital media, particularly social media, which poses greater challenges than the relatively manageable streaming services

The Indian government's draft Broadcast Services (Regulation) Bill, aimed at regulating all forms of digital media, has sparked widespread discussion. Civil society groups have expressed concerns about applying legacy TV-style content regulation to the new media environment, characterised by the free flow of information. Industry stakeholders worry about the impact of content pre-certification on highly personalised and dynamic digital products. Opposition members in parliament have criticised the secrecy surrounding the bill's drafting process.

The internet currently offers diverse content for all users. (HT Photo)

The bill, drafted by the information and broadcasting ministry (MIB), has three additional flaws: (a) it categorises over-the-top (OTT) streaming services alongside TV broadcasting, an exceptional measure globally that may allow the Telecom Regulatory Authority of India (TRAI) to intervene in digital commerce; (b) it brings users posting news and contemporary affairs on social media within its purview, meaning a committee could judge posts from users with large followings, (c) it criminalises certain offences, contradicting the government's commitment to reverse this trend in commercial laws.

The internet currently offers diverse content for all users. A bill that places online content under MIB control and potentially gives TRAI the power to set prices for audio-visual services could dramatically alter this landscape. This mirrors the situation in India's TV markets, where the combined influence of MIB and TRAI has significantly impacted a once-thriving industry. Advertisers are now shifting to digital platforms, broadcasting businesses are consolidating to survive, and viewers are increasingly considering cutting their cable subscriptions.

Policymakers can hardly deny that television's golden era has passed when viewers of all ages found appealing content. Successive governments have maintained content regulations that exceed permissible speech restrictions and intervened in TV pricing. For instance, the MIB requires TV programmes to be of 'decent taste', while TRAI caps prices for TV channels offered in bouquets.

TV market-style regulation is a misfit in the digital age. If the bill aims to modernise legislation and enhance digital media supervision, more fundamental legal and institutional reforms are necessary.

Let's address the elephant in the room: Governments worldwide seek to control digital media, particularly social media, which poses greater challenges than the relatively manageable streaming services. China has effectively eliminated free speech online, Europeans must navigate numerous consent checkboxes to access basic information, and Americans rely heavily on their courts to enforce boundaries in an otherwise laissez-faire system. It seems no country has found an ideal model.

The British appear to have reached a compromise with Ofcsom, an independent media regulator recently given oversight of all online content services, including social media. OfCom is admired in Indian public policy circles.

Policymakers appreciate its horizontal oversight across content mediums, providing a semblance of control over the decentralised internet. Civil society and industry stakeholders see merit in a well-designed institutional mechanism to oversee content, free from government whims.

However, the OfCom template faces challenges in the Indian context. There seems to be little political will to grant the level of institutional independence enjoyed by the British regulator. While India has created several market regulators since liberalisation, the Reserve Bank of India remains perhaps the only one with true autonomy, largely due to international financial market pressures. No such compulsion exists for content regulators.

Ofcom is primarily funded by licence fees from the entities it regulates. The Advertising Standards Council of India comes closest to this model in India, but it can only influence its own members and lacks accountability to citizens as it doesn't report to parliament as Ofcom does.

In the UK, while the secretary of state for culture, media, and sport appoints the Ofcom Board, their actions are subject to a strict code of practice overseen by the independent commissioner for public appointments. This regulator can conduct spot checks, consider public complaints about appointments, and even require ministers to justify exceptional hires. Such transparency is difficult to envision in a developing country context. Would any Indian government relinquish its discretionary powers to appoint favoured retired bureaucrats or judges?

Another challenge with the Ofcom model is that horizontal oversight over diverse online services risks treating very different forms of media uniformly. Moreover, the British are not exemplars of free speech. Keir Starmer is increasing citizen surveillance and content censorship in response to recent riots. Ofcom, with its power to request services like Telegram and Signal to break end-to-end encryption, is an integral part of this toolkit.

Despite the absence of a systematic commitment to reform and the lack of a perfect global model, including Ofcom, we shouldn't lose hope. India often surprises even the most sceptical observers, while other South Asian countries have over-regulated their information ecosystems, leading to civic unrest and political upheavals. There's a reason why no major media companies have emerged in Pakistan, Bangladesh, or Sri Lanka, and why these countries are not beacons of free society.

The path to balanced content regulation lies in fostering a societal conversation on the legal and institutional redesign needed for the digital age. Global experience suggests this process should not be rushed, regardless of perceived urgencies. The broadcasting bill, perhaps unintentionally, has catalysed this necessary dialogue.

Vivan Sharan is a partner in Koan Advisory Group, New Delhi. These are his personal views.