Broadcasting Services Regulation Bill, 2023: Withdrawn Or Revised? – IMPRI Impact And Policy Research Institute

Policy Update
Sana Ansari

Source:- The Hindu

The Broadcasting Services Regulation Bill, 2023, which seeks to replace the three-decade-old Cable Television Networks Regulation Act of 1995 (CTN Act), seeks to broaden the MIB’s regulatory framework by including over-the-top (OTT) and digital news platforms along with TV channels and FM radio besides distribution platforms like cable TV, direct to home (DTH), Internet Protocol Television (IPTV), and head end in the sky (HITS).

Currently, the MIB regulates cable TV operators and TV channels through the CTN Act. Additionally, it administers Part III of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which regulates OTT and digital news content. However, the proposed legislation will not cover social media intermediaries as specified under the Information Technology Act of 2000.

Key Highlights

1. Consolidation and Modernization: It addresses a long-standing need of consolidating and updating the regulatory provisions for various broadcasting services under a single legislative framework. This move streamlines the regulatory process, making it more efficient and contemporary. It extends its regulatory purview to encompass broadcasting over-the-top (OTT) content and digital news and current affairs currently regulated through IT Act, 2000 and regulations made there under.
2. Contemporary Definitions and Future-Ready Provisions: To keep pace with the evolving technologies and services, the bill introduces comprehensive definitions for contemporary broadcasting terms and incorporates provisions for emerging broadcasting technologies.
3. Strengthens the Self Regulation Regime: It enhances self-regulation with the introduction of ‘Content evaluation committees’ and evolves the existing Inter-Departmental Committee into a more participative and broader ‘Broadcast Advisory Council’.
4. Differentiated Programme Code and Advertisement Code: It allows for  a differentiated approach to Programme and Advertisement Codes across various services  and requires self-classification by broadcasters and robust access control measures for restricted content.
5. Accessibility for Persons with Disabilities: The bill addresses the specific needs of persons with disabilities by providing for enabling provisions for issue of comprehensive accessibility guidelines. 
6. Statutory Penalties and Fines: The draft Bill introduces statutory penalties such as: advisory, warning, censure, or monetary penalties, for operators and broadcasters. Provision for imprisonment and/or fines remains, but only for very serious offences, ensuring a balanced approach to regulation.
7. Equitable Penalties: Monetary penalties and fines are linked to the financial capacity of the entity, taking into account their investment and turnover to ensure fairness and equity.
8. Infrastructure Sharing, Platform Services and Right of Way: The bill also includes provisions for infrastructure sharing among broadcasting network operators and carriage of platform services. Further, it streamlines the Right of Way section to address relocation and alterations more efficiently, and establishes a structured dispute resolution mechanism.

Important Features 

1. Registration of broadcasting services:  Broadcasters and broadcasting network operators must register, with each having a different registration process.  For instance, cable or satellite broadcasting networks will have to apply for registration.  OTT platforms will have to intimate the central government after crossing a specific threshold.  
2. Regulation of news and current affairs programmes:  News and current affairs programmes will be required to comply with the prescribed programme code and advertisement code.  Such programmes are defined as newly-received or noteworthy audio, visual or audio-visual programmes or live programmes.  This includes analysis about recent events primarily of socio-political, economic, or cultural nature.  
3. Content evaluation:  Every broadcaster or broadcasting network operator must constitute at least one internal Content Evaluation Committee (CEC).  The CEC will comprise eminent persons from various social groups such as women, child welfare, and Scheduled Castes.  Programmes will be broadcast only after certification by the CEC.  Broadcasting network operators that do not provide platform services (programmes transmitted exclusively for subscribers) will not be required to set up a CEC.
4. Self-regulation:  The draft Bill provides for a self-regulatory structure for complying with the programme and advertisement codes which will be prescribed by the central government.   Broadcasting network operators not providing platform services will be exempt from the regulatory structure.  The first tier of the structure is self-regulation by broadcasters and broadcasting network operators.  This requires the appointment of a grievance redressal officer by the broadcaster/broadcasting network operator.  The second tier is self-regulatory organisations (SROs), to which broadcasters/broadcasting network operators will be affiliated.  SROs will address grievances not addressed by the broadcasters/broadcasting network operators, and issue guidance and advisories for compliance with the programme code and the advertisement code.
5. Broadcast Advisory Council: The Broadcast Advisory Council (BAC) is the third tier of regulation.  It will hear complaints: (i) arising from appeals against decisions of SROs or (ii) referred to by the central government.  The central government will take action based on the recommendations of the BAC.  The BAC shall consist of: (i) a chairperson with at least 25 years of experience in media, broadcasting, and other relevant fields, (ii) five officers nominated by the central government from different ministries, and (iii) five eminent individuals nominated by the central government with experience in various fields.
6. Offences and penalties:  The draft Bill specifies various offences and penalties.   For instance, operating a broadcasting network without a valid registration is punishable with a fine up to Rs 10 lakh or imprisonment up to two years, or both.  Subsequent offences will attract a fine up to Rs 50 lakh or imprisonment up to five years, or both.  Penalties against registered entities will be based on their size, which will be determined as per their turnover and investment.

What does the Broadcasting Services (Regulation) Bill, 2023 do?

First, it extends the regulatory scope of government to cover over-the-top (OTT) Content, digital news, and current affairs. It also has expansive and almost all-encompassing definitions for stakeholders. It requires Broadcasters and Broadcasting Network Operators to “register with or give intimation to the government before providing their services.” In the Regulatory sphere, the bill first requires Broadcasters and Broadcasting Network Operators to appoint a grievance officer who will listen to any complaints.

If the complainant is not satisfied with the decision of the grievance officer, an appeal could be made to a Self-Regulatory organisation in which the Broadcaster should be a part of. For example, if there is a complaint against Netflix’s content, a complaint would be first raised, with Netflix and if dissatisfied with Netflix’s response, one can appeal to this Self-Regulatory organisation which will constitute people represented by organisations like Netflix, Prime Video, Zee5 etc. In the TV news and Digital news sphere, this kind of structure already exists with organisations like News Broadcasters & Digital Association and the DIGIPUB News Media Foundation. 

The Bill requires that every Broadcaster and Broadcasting network operator to constitute Content Evaluation Committees whose certification is necessary for the broadcast of the content or programmes and the Central Government does have the power to prescribe the programmes for which the certification is not required. 

The Bill introduces the government oversight via the Broadcast Advisory Council (BAC) with five officers from various ministries, nominated by the Central Government and five independent persons nominated by the Central Government with experience in the fields of Media, entertainment, broadcasting, Child rights, disability rights, and rights of women, human rights, law and other relevant fields. This Advisory Council’s first function is to hear appeals arising out the complaints that have been heard by Self-Regulatory Organisations. 

The council however only provides its recommendations while the Central Government retains the power to issue orders and directions based on such recommendations. It is unclear as to how much independence can members of the Broadcasting Advisory Council have when they have been appointed by the government itself, in matters that are related to criticisms of the government itself!  Section 29 of the Act states that the BAC may constitute review panels with such number of members as may be prescribed to carry out the functions mentioned above and the decision by these review panels will be as good as the decisions by the BAC itself.

For example, the 11 members of the BAC can choose 5 members to review a particular case. This is problematic due to the excessive powers given to the members without any pointers as to qualification of members of the review committees. Given that the Central Government has power to prescribe rules to cover the assignment of case to a review panel by the BAC, the bill gives Central government an arbitrary power to form committees as it wishes- committees that can give recommendations affecting freedom of speech.

Section 19 of the Bill states that any programme or an advertisement transmitted or re-transmitted as broadcasting services shall be in conformity with the Programme and Advertisement codes respectively. Section 20 of the Bill states that any person who broadcasts news and Current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium- as a part of systematic business, professional or commercial activity shall adhere to the Programme and Advertisement Codes. Essentially, not only YouTube news channels such as Akash Banerjee’s Desh Bhakt but also individual based YouTube news channels –such as those run by Punya Prasun Bajpeyi, Ravish Kumar and Navin Kumar (Article 19) will also come under this section’s purview. 

A welcome move within the bill is the Accessibility guidelines for persons with disabilities. The accessibility guidelines, which would be later published by the Ministry of Information and Broadcasting may include requirements to supplement video programs with subtitles of size colour and various fonts and with audio description for the blind in various languages, translation of audio content of videos, whenever appropriate, to sign language, making the applications of broadcasting services to be accessible by persons with disabilities whenever appropriating to sign language making the applications of broadcasting services accessible in terms of their usage by persons with disabilities etc.

Impact

The Broadcasting Services (Regulation) Bill, 2023, has drawn significant criticism from various stakeholders, including media organisations, for its potential to severely undermine press freedom, free speech, and creative expression in India. Two months after the government released the draft for public consultation, the Network of Women in Media, India (NWMI) submitted that the proposed Bill could “irreparably damage the free press, free speech, and creative freedom in India.” The Bill, which seeks to replace the Cable Television Networks (Regulation) Act, 1995, introduces a comprehensive set of norms covering all broadcasting content, from traditional television to streaming platforms.

The NWMI has expressed serious concerns about the Bill’s “vaguely worded provisions,” including its broad definition of “news and current affairs programmes.” These provisions could potentially encompass content creators, social media accounts of professional journalists, and even citizen journalists, leading to a chilling effect on free expression. The lack of clarity in these definitions threatens to undermine the foundational principles of media freedom that are crucial in a mature democracy. NWMI warned that the Bill could drastically alter the media landscape in India.

Media and Entertainment sectors

While the MIB believes that the proposed legislation will strengthen the self-regulatory mechanism for ensuring compliance with the programme and advertising codes, the broadcasting industry is worried about the introduction of clauses like self-certification of content by the Content Evaluation Committee (CEC), which they believe will impede the creative freedom of TV broadcasters and OTT players alike.

Stakeholders also claim that by requiring CEC approval before disseminating content, the MIB is establishing a body akin to an internal censor board composed of external members from diverse fields such as women, child welfare advocates, scheduled castes, scheduled tribes, and minorities. OTT platforms fear that the MIB will apply outdated TV regulations to their sector through the programme code. For example, the existing programme code for TV channels prohibits content that “offends against good taste or decency.” The MIB is expected to prescribe different programme codes for TV, radio, and digital.

The broadcasting sector is also concerned about the provisions relating to the seizure of equipment by government officials of both broadcasting services (TV channels, OTT, digital news) and broadcasting networks (Cable, DTH, IPTV) for violating the proposed act or the rules framed under it.

Will the proposed legislation impact independent journalists and common citizens?

The legislation proposes to bring not just independent journalists but also individuals sharing news and information on digital platforms under the regulatory framework by prescribing that those individuals who broadcast news and current affairs programmes through digital means, excluding publishers of newspapers and replica e-papers of such newspapers, must adhere to the Programme and the Advertisement Code.

The definition of news in the law is identical to the one in IT Rules 2021, and legal experts have described it as ambiguous and broad. News has been defined as newly received or noteworthy audio, visual, or audio-visual programs or live programs, including analysis, about recent events primarily of a socio-political, economic, or cultural nature, or any programs transmitted or retransmitted on a broadcasting network, where the context, purpose, import, and meaning imply so.

Concerns 

The Draft Broadcasting Services (Regulation) Bill, 2024, has sparked widespread concern due to its implications for freedom of speech, regulatory overreach, and the potential for increased government control over broadcasting and online content. Below is an in-depth exploration of the key concerns and themes identified:Freedom of Speech and Expression

Freedom of Speech and Expression 

• Self-Censorship Among Broadcasters: The Bill introduces a regulatory framework that could lead to self-censorship by broadcasters. The three-tier system involves self-regulation by broadcasters, collective self-regulation through Self-Regulatory Organisations (SROs), and oversight by a government-influenced Broadcast Advisory Council (BAC). The BAC, which lacks true independent representation, can recommend punitive measures such as taking channels off-air or imposing fines based on alleged violations of a “Programme Code.” This structure places significant pressure on broadcasters to avoid content that might provoke government action, leading to a chilling effect on free speech. Broadcasters may choose to avoid controversial topics altogether rather than risk penalties, resulting in a less diverse and critical media landscape.
• Impact on Individual Creators: The Bill also extends its reach to individual digital news publishers and online content creators, including those on social media. These individuals, who often rely on the low entry barriers of the internet to share their views, would be subjected to the same stringent regulations as large broadcasters. The requirement to comply with the Programme Code and other regulatory burdens could stifle independent voices and discourage new entrants, particularly those with limited resources. This raises serious concerns about the suppression of diverse perspectives and the overall impact on democratic discourse.

Regulatory Overreach

• Expansive Scope of Regulation: The Bill broadly categorises all Over-The-Top (OTT) platforms, radio services, and terrestrial broadcasting as “broadcasters,” regardless of whether they are content creators or merely provide content distribution services. This broad definition blurs the lines between content creators and carriers, subjecting platforms that only provide access to content produced by others to the same regulatory obligations as those that create original content. The lack of distinction could lead to overregulation, placing unnecessary burdens on platforms that merely serve as intermediaries. This may result in increased operational costs and reduced flexibility for these platforms, ultimately affecting the content available to consumers.
• Criminal Penalties: The Bill reintroduces criminal penalties for offenses such as operating without registration, which had been decriminalised by the Jan Vishwas (Amendment of Provisions) Act, 2023. This move is seen as a regressive step that could deter new players from entering the broadcasting market. The potential for imprisonment for minor regulatory infractions is particularly concerning, as it could be used as a tool for harassment or to suppress dissenting voices. The reintroduction of these penalties raises questions about the government’s intentions and its commitment to fostering a vibrant and open media environment.

Government Control and Conflict of Interest

• Government Influence on Content Regulation: The central government’s control over the final decisions regarding content violations introduces a significant conflict of interest. Given that the government itself could be the subject of criticism by broadcasters, its role as the ultimate arbiter of what constitutes a violation of the Programme Code is problematic. The risk of biased or politically motivated decisions is high, particularly in cases involving content that is critical of government policies or actions. This setup undermines the principle of free and fair media, which is essential for a functioning democracy.
• Lack of Independent Oversight: Unlike other content regulatory bodies, such as the Press Council of India or the Central Board of Film Certification, the BAC lacks true independence from government influence. The absence of a neutral, quasi-judicial appellate body to review government decisions further exacerbates the potential for abuse. Historical precedents, such as the Supreme Court’s 1970 ruling that led to the establishment of an appellate tribunal for film certification, highlight the need for independent oversight in matters of content regulation. The current Bill’s failure to provide such a mechanism is a significant shortcoming that could lead to arbitrary censorship.

Legal and Administrative Clarity

• Ambiguity in the Programme Code: One of the most significant concerns is the lack of clear guiding principles for the Programme Code, which will be prescribed by the central government. The Bill does not provide any concrete criteria for determining what content may violate the code, leaving broadcasters in a state of uncertainty. This ambiguity could lead to inconsistent enforcement and make it difficult for broadcasters to understand their legal obligations. In turn, this could foster a culture of excessive caution, where broadcasters preemptively censor themselves to avoid potential penalties.
• Broad and Vague Grounds for Censorship: The Bill permits the government to prohibit the operation of broadcasting services on the grounds of “public interest,” a term that is not clearly defined within the legislation. This vague criterion is not aligned with the specific and limited restrictions on free speech allowed under Article 19(2) of the Indian Constitution, which include security of the state, public order, decency, or morality, among others. The broad application of “public interest” as a justification for censorship could lead to overreach and the suppression of legitimate content, further undermining freedom of expression.

Impact on Industry and Innovation

• Burden on Small and Independent Broadcasters: The regulatory requirements imposed by the Bill could disproportionately affect smaller and independent broadcasters, including digital news creators and individual content producers. These entities often lack the resources to navigate complex regulatory frameworks and may struggle to comply with the Programme Code, registration requirements, and other obligations. The increased cost of compliance could drive some out of the market entirely, reducing competition and limiting the diversity of content available to the public.
• Stifling Innovation: The Bill’s provisions, particularly the reintroduction of criminal penalties and the broad definition of broadcasters, could stifle innovation within the broadcasting industry. The fear of punitive action could discourage broadcasters from experimenting with new formats, topics, or perspectives, leading to a more homogenised and less dynamic media landscape. This would be detrimental not only to the industry but also to the public, who benefit from a vibrant and diverse media ecosystem.

Recent Developments and the Way Forward

In response to the widespread criticism and backlash, the Ministry of Information and Broadcasting has decided to either withdraw or revise the Draft Bill. On August 12, 2024, it was reported that the draft has  been recalled, and the few industry stakeholders who received the document were asked to return it without providing feedback.

The Ministry is expected to issue a revised draft after further consultations with stakeholders, with an extended timeline for feedback until October 15, 2024. This development indicates that the government may be rethinking its approach in light of the concerns raised, offering a potential opportunity for a more balanced and inclusive regulatory framework.The Ministry of information and broadcasting has issued a link Jsb-moib@gov.in for feedback from various stakeholders .

Conclusion

The Draft Broadcasting Services (Regulation) Bill, 2024, in its current form, presents significant risks to freedom of speech, media independence, and the future of digital content creation in India. While regulation of the broadcasting industry is necessary, it must be balanced with the protection of fundamental rights and the promotion of a diverse and innovative media landscape. The government’s decision to reconsider the Bill is a positive step, but careful attention must be paid to ensure that the revised legislation addresses the concerns raised and upholds the principles of free expression and fair competition. 

References 

1. The Ministry of Information and Broadcasting proposes the Broadcasting Services (Regulation) Bill, 2023. (n.d.). https://pib.gov.in/PressReleasePage.aspx?PRID=1976200 
2. MINISTRY OF INFORMATION AND BROADCASTING. (2023). Broadcasting Services (Regulation) Bill, 2023. In MINISTRY OF INFORMATION AND BROADCASTING. https://mib.gov.in/sites/default/files/Public%20Notice_07.12.2023.pdf 
3. Maniyar, Z., & Maniyar, Z. (2024, February 20). Proposed Broadcasting Services (Regulation) Bill, 2023: threat to free speech and media independence. CJP. https://cjp.org.in/proposed-broadcasting-services-regulation-bill-2023-threat-to-free-speech-and-media-independence/ 
4. Draft Broadcasting Services (Regulation) Bill, 2023. (n.d.). PRS Legislative Research. https://prsindia.org/billtrack/draft-broadcasting-services-regulation-bill-2023 
5. NL Team, & NL Team. (2024, January 27). Proposed Broadcasting Bill will ‘irreparably damage free speech’, says journalists’ body. Newslaundry. https://www.newslaundry.com/2024/01/27/proposed-broadcasting-bill-will-irreparably-damage-free-speech-says-journalists-body 
6. Control + all or delete: The draft broadcast bill is a blueprint for censorship. (n.d.). The Wire. https://thewire.in/government/control-all-or-delete-the-draft-broadcast-bill-is-a-blueprint-for-censorship 
7. Farooqui, J. (2023, November 28). Broadcasting regulation bill and its impact on content world. Economic Times.   https://m.economictimes.com/industry/media/entertainment/media/broadcasting-regulation-bill-and-its-impact-on-content-world/amp_articleshow/105571742.cms 
8. S, Barik. (2024, August 12). Withdrawal of the draft broadcast bill raises more questions. The Indian Express. https://indianexpress.com/article/explained/explained-economics/withdrawal-draft-broadcast-bill-more-questions-explained-9511684. 
9. I&B Ministry extends window for feedback on draft Broadcasting Bill till October 15. 13th August 2024. The Hindu. https://www.thehindu.com/news/national/ib-ministry-extends-window-for-feedback-on-draft-broadcasting-bill-till-october-15/article68517936.ece 

About the contributor- Sana Ansari, pursuing Master’s in Public Policy at St Xavier’s College Mumbai.

Special Acknowledgement to Dr. Arjun Kumar and IMPRI for the opportunity.

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