The Ministry of Information and Broadcasting ("MIB") on November 10, 2023, issued the draft Broadcasting Services (Regulation) Bill, 2023 (the "Bill") to receive feedback from public and/or the concerned stakeholders. The Bill certainly attempts to consolidate the existing regulatory laws and regulations that apply across the broadcasting industry in India into a single legislative...
The Ministry of Information and Broadcasting ("MIB") on November 10, 2023, issued the draft Broadcasting Services (Regulation) Bill, 2023 (the "Bill") to receive feedback from public and/or the concerned stakeholders. The Bill certainly attempts to consolidate the existing regulatory laws and regulations that apply across the broadcasting industry in India into a single legislative framework, replacing the nearly three-decade-old Cable Television Networks (Regulation) Act of 1995[1]. The Bill, however, specifically sets forth that the provisions of other legislations, such as the Information Technology Act of 2000[2] and the Telecom Regulatory Authority of India Act of 1997[3], would not be disabled by the Bill, instead will be in addition to them. Along with traditional broadcast networks controlled by the Cable Television Act, the Bill proposes to cover Over-the-Top ("OTT") broadcasting service providers, digital media platforms, and direct-to-home operators.
The rationale behind the bill stems from the realization that the existing legal framework provided by the Cable Television Networks (Regulation) Act, 1995, only addresses television broadcasting, failing to encompass the evolving landscape of the broadcast sector, particularly with the advent of the internet. With the proliferation of Over-the-Top (OTT) platforms like Netflix and Disney+ Hotstar operating without regulatory oversight, concerns arose regarding content regulation in the digital space. While some viewed this lack of regulation positively in terms of free speech, the current government identified it as a gap in the regulatory framework. Instances of contentious content on OTT platforms, often criticized for its potential to incite religious sentiments or its explicit nature, further motivated the government to seek means of regulating online content. Hence, the Broadcasting Services (Regulation) Bill, 2023, was introduced. Officially, the government portrays this move as an effort to modernize and adapt to changing times by updating existing legislation to cover the digital broadcast domain[4].
The crucial provisions of the legislation include, firstly, the establishment of a self-regulatory framework for oversight through 'Content Evaluation Committees' (“CEC”)[5]. This mandates that all broadcasting network operators join the CEC and obtain certifications for their programs. Additionally, the bill imposes obligations on these operators to appoint a grievance redressal officer; implement effective complaint resolution mechanisms, and publicly disclose information about these mechanisms[6]. Furthermore, the legislation outlines the formation of a Broadcast Advisory Council (BAC), responsible for adjudicating grievances related to potential breaches of the Programme Code or Advertisement Code[7]. Secondly, the Bill proposes the establishment of a Programme Code and an Advertisement Code to control the services offered by various broadcast network providers and direct the functioning of the CEC and the BAC[8]. Entities that violate the Programme Code and the Advertisement Code will be liable to pay a penalty as specified by the Bill. Thirdly, the bill aims to guarantee that broadcasting services are also accessible to people with disabilities[9]. It specifies that the MIB may implement standards to guarantee that broadcasting services are accessible to people with disabilities. These operators must undertake necessary actions in order to comply with these standards, which may include incorporating appropriate subtitles, supplementing the information with audio description, translating particular content into sign language[10], and other relevant accommodations. Finally, the Bill imposes statutory penalties for broadcast network operators, such as warnings, censures, and advisories[11]. For grave offences, fines and/or imprisonment may be imposed on a person or business that violates their respective obligations. Notably, the monetary fines that may be levied under the Bill take into account the financial capabilities of the businesses.
However, the bill encountered criticism certainly from all of the stakeholders because of the following reasons:
- The most contentious component is the inclusion of OTT platforms and its intended goal to manage OTT platforms under the same laws as traditional broadcasting providers. While OTT platforms and TV networks appear to be similar in that they provide content to their audience, there are significant differences between the two. A TV network operator 'pushes' fixed content to its viewers, but in the case of OTT platforms, the user 'pulls' the content by selecting what to watch. It is therefore debatable whether censorship restrictions for content that a user chooses to access should differ from those controlling content that is pushed to users.
- The Sections 19 and 20 of the proposed legislation are the actual game changers for independent media. Section 19 requires all broadcasters' programming to be in accordance with the Programme Code and Advertising Code, which have yet to be developed and are one of the circumstances in which the bill gives delegation powers to the government. Section 20 (1) has wide - ranging implications for independent journalists. Tejasi Panjiar and Prateek Waghre of the Internet Freedom Foundation (IFF) refer to the provision as "overbroad" in their articles. They point out that the provision "may have wide-ranging consequences on independent journalists who rely on the digital platforms such as social media to publish news that may typically be viewed as unpalatable to the government."
- Another broad critique of the Bill concerns the potential overlap with existing laws governing online content. If the Bill is passed in its current state, online content platforms, including OTTs, would be subject to two separate sets of regulations. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 already regulate the platforms themselves, while the Bill would govern the content hosted on these platforms. This dual regulatory framework could pose a significant challenge for OTTs and other digital content publishers, creating administrative burdens and potential confusion.
- There are potential concerns regarding the composition of the Broadcast Advisory Council (BAC), particularly regarding the appointment process for its members. The Chairperson of the BAC is required to be an "eminent independent person" with at least twenty-five years of experience in relevant fields such as media, entertainment, and broadcasting. Additionally, the BAC will include five government officers from various ministries and five individuals nominated by the government. However, there is apprehension that the government's involvement in appointing members, including the so-called "eminent persons," could lead to the council being stacked with individuals sympathetic to the government's agenda. This raises fears that the BAC may ultimately serve the interests of the political leadership rather than maintaining true independence and impartiality.
The Broadcasting Services (Regulation) Bill, 2023, despite its purported intentions to modernize regulations in the broadcasting sector, is fundamentally flawed and represents a regressive step towards stifling free expression and independent journalism in India. By extending its reach to encompass Over-the-Top (OTT) platforms under the same stringent laws as traditional broadcast networks, the bill fails to recognize the inherent differences between these mediums. OTT platforms, which operate on a user-choice model, should not be subjected to the same censorship restrictions as traditional TV networks, which push content to viewers. Furthermore, Sections 19 and 20 of the proposed legislation grant excessive power to the government, allowing for potential abuse and censorship of independent journalists who rely on digital platforms for disseminating news and information. The bill's failure to address the existing regulatory framework for online content platforms creates confusion and administrative burdens, threatening the growth and innovation of the digital media industry. Additionally, the composition of the Broadcast Advisory Council raises concerns about its independence and impartiality, with fears that government influence in appointing members could undermine its ability to serve as a fair arbiter. Overall, the Broadcasting Services (Regulation) Bill, 2023, represents a dangerous encroachment on freedom of expression and media independence, and should be reconsidered in favor of a more balanced and inclusive approach to regulation.
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CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995. ↑
INFORMATION TECHNOLOGY ACT, 2000. ↑
TELECOM REGULATORY AUTHORITY OF INDIA ACT, 1997. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 24. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 25. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 27 & 28. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 19. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 23. ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, s. 23 (2). ↑
BROADCASTING SERVICES (REGULATION) BILL, 2023, Schedule 3. ↑