On November 10, the ministry of information and broadcasting (MIB) released into the public domain a draft of the Broadcasting Services (Regulation) Bill, 2023, for the purposes of public consultation. The Broadcasting Bill proposes to alter the regulatory landscape with respect to a range of content, both through the medium of television, and online. Until now, television was regulated by the Cable Television Networks (Regulation) Act of 1995, which prescribed conditions for uplinking and downlinking, as well as mandatory adherence to a Programme Code and Advertising Code. However, over-the-top (OTT) content (streaming services such as Netflix or Amazon Prime), was not subject to a specific regulatory regime. For a while now, there have been calls to do so; and these calls have often come at the behest of the government. The Broadcasting Bill — according to its stated objectives — is to provide a comprehensive regulatory regime for all forms of broadcasting content from television to OTT. Consequently, it will repeal and replace the Cable Television Networks Act in favour of a single legal framework.
There is, however, a fine line between regulation and State control. While a mandatory requirement of registration with the State as a prerequisite to providing a broadcasting service can, on the one hand, be a simple matter of administrative convenience, depending on the conditions — and the discretion in the hands of the State to deny or withdraw registration — it can also turn into a fetter. From this perspective, there are a few causes for concern with the Broadcasting Bill.
The first is the references to the Programme Code and the Advertising Code. Under the old Cable Television Networks (Regulation) Act, the Programme Code — which is essentially a set of content restrictions — is extremely broad, and has a vague set of clauses that have been frequently used to censor content (for example, a documentary film about the Sri Lankan civil war was taken down on the basis that it might affect India’s relations with friendly States). The extension of the Programme Code to the domain of OTT risks extending what has essentially become a regime of content restrictions to the OTT space. While the new codes have yet to be notified, it is important that any content restrictions must strictly comply with the narrow grounds of restrictions on speech that are set out under Article 19(2) of the Constitution, and not traverse far beyond them.
In addition to OTT services, the Broadcasting Bill also seeks to bring within its ambit “news and current affairs programmes”. The definitional clause of the Bill defines “news and current affairs” very broadly, thus potentially covering citizen journalists, or even individual podcasters or bloggers. These are very different from big corporations or platforms, which have the wherewithal to organise their affairs to ensure regulatory compliance; when this is combined with the discretion retained in the hands of the State to prescribe the Programme Code, there is substantial concern over the potential impact on free speech online and a possible chilling effect upon individual users.
{{/usCountry}}In addition to OTT services, the Broadcasting Bill also seeks to bring within its ambit “news and current affairs programmes”. The definitional clause of the Bill defines “news and current affairs” very broadly, thus potentially covering citizen journalists, or even individual podcasters or bloggers. These are very different from big corporations or platforms, which have the wherewithal to organise their affairs to ensure regulatory compliance; when this is combined with the discretion retained in the hands of the State to prescribe the Programme Code, there is substantial concern over the potential impact on free speech online and a possible chilling effect upon individual users.
{{/usCountry}}Concerning the infrastructure of regulation, the Broadcasting Bill copies the controversial design of the 2021 IT Rules, which were applied to social media intermediaries (and have been challenged in various courts). This is a three-tiered system with the central government sitting at the top, through a norms-imposing body called the Broadcast Advisory Council, and various self-regulatory structures below. Overall content control is maintained via the Broadcast Advisory Council, while broadcasters are obligated to set up internal dispute redressal mechanisms, grievance officers, and content certification committees. This complicated structure raises concerns around extended State interference in content, exacerbated by the fact that the Broadcast Advisory Council itself is not guaranteed autonomy in terms of appointments of members and tenure.
Finally, there are the default extraordinary powers of the government, which are carried over from the old Cable Television Networks Regulation Act, and extended to OTT platforms. These include the powers to intercept and monitor, seize equipment, deletion of programmes or take them off the air, and completely prohibit broadcast operators or broadcasting services in specified areas. The exercise of these powers has been controversial, to say the least, in the context of television. Given the proliferation of the OTT medium, concerns about the deployment of such powers in other domains are not unfounded. All of this is topped off with extensive delegation through rule-making powers to the executive, including on substantive issues.
Thus, while the Broadcasting Bill aims to provide a modern legislative framework for regulating cutting-edge modern technology, its framework and design replicate the command-and-control model that has been deployed with respect to cinema and television for all these years. Wide and vague conferral of powers upon the government, widely framed content restrictions, onerous compliance procedures, and excessive delegation to the executive, all come together in a cocktail of constraints, which makes it difficult to imagine an autonomous broadcasting and OTT regime. One hopes that as the Bill progresses through Parliament, lessons from the past will be heeded, and the focus will shift back from control to regulation.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal