On 10th November 2023, the Ministry of Information and Broadcasting (“MIB”) published, and invited stakeholder comments on, the Broadcasting Services (Regulation) Bill, 2023(“the Broadcasting Bill”). As per the Explanatory Note to the Broadcasting Bill, the Government has “recognized the need to streamline the regulatory framework and provide a cohesive legal framework for the diverse broadcasting services”. It is, ostensibly, with this broader goal in mind that the MIB has sought to overhaul the existing legal framework vis-à-vis, inter alia, linear and terrestrial broadcasting, internet broadcasting and over-the-top (“OTT”) services, and put in place this legislative ‘one stop shop’ to regulate ‘broadcasting’ in India.
Given that the Broadcasting Bill seeks to cater to a vast and diverse nature of services in the M&E industry through a common legislative source, there are bound to be, and prima facie are, discrepancies and lacunae in the proposed regulatory framework which may be a cause for considerable concern. In light of the extensive regulatory changes and additions proposed vide the Broadcasting Bill, this article does not venture into a comprehensive analysis of each and every provision sought to be included thereunder. Rather, the aim of this article is to highlight a few prominent and glaring issues in the Broadcasting Bill which definitely warrant a revisit.
With the above caveat out of the way, the first, and perhaps the most concerning, aspect of the Broadcasting Bill is the attempted expansion of ‘broadcasting’ services into the realm of OTT services. To wit, a “broadcaster” is defined, as per clause 2(1)(h) of the Broadcasting Bill, to include, inter alia, operator of an OTT service. The inherent unworkability of this attempted expansion of ‘broadcasting’ services is borne out from the proposed definition of “broadcasting” (see, clause 2(1)(f)), viz:
“(h) ‘Broadcasting’ means one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network, intended to be received or made available for viewing, by the general public or by subscribers of the broadcasting network, as the case may be, and the expression “broadcasting services” shall be construed accordingly.”
The above definition, and the Broadcasting Bill as a whole, fails to acknowledge the rudimentary differences in the manner in which content is disseminated through traditional broadcasting services, which ascribe to the modus operandi of ‘pushing’ content through a ‘one-to-many transmission’, as opposed to OTT services, which are ‘0n demand’ services wherein content is ‘pulled’ by subscribers. Based on such an erroneous premise which inexplicably equates two completely distinct modes of dissemination of content, the Broadcasting Bill proceeds to put forth various obligations which are completely alien to and/or inapt vis-à-vis OTT services, and are hence bound to result in structural issues in regulation and significantly increase compliance burdens on providers of OTT services.
The above issues are further compounded by the ambiguous definition of “OTT broadcasting service” under clause 2(1)(y) of the Broadcasting Bill, viz:
“(y) “Over-the-top broadcasting service” or “OTT broadcasting service” means a broadcasting service (i) made available on-demand or live to subscribers or users in India, and (ii) where a curated catalogue of programmes owned by, licensed to, or contracted to be transmitted, over the internet or a computer resource, not being a closed network; and(iii) where additional hardware or software or combination thereof including a set-top-box, or dongle and software keys may be required to access content on non-smart televisions or viewing devices,
Provided that OTT broadcasting services shall not include a social media intermediary, or a user of such intermediary, as defined in rules under the Information Technology Act, 2000 (21 of 2000) or such other entities as may be notified by the Central Government;”
To qualify as an “OTT broadcasting service”, an entity / service must satisfy all three sub-clauses above, given the usage of the word ‘and’ between the said sub-clauses. What this definition however fails to account for is that all OTT broadcasting services may not simultaneously satisfy the requirements under all three sub-Clauses, as there may be variance in terms of accessibility, additional hardware or software requirements, etc. Thus, not only does the Broadcasting Bill erroneously seek to place traditional broadcasting services and OTT services on a level playing field, whilst doing so, it also fails to accurately delineate what may or may not constitute OTT services, thereby causing further regulatory uncertainty and leaving providers of OTT services in a state of limbo.
Another pressing concern for providers of OTT services is the Broadcasting Bill’s failure to acknowledge and work around the existing obligations on OTT service providers, as ‘publishers of online curated content’ under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the IT Rules”), thereby causing considerable regulatory overlap and imposing duplicitous compliance burdens on OTT service providers (for instance, the self-regulation of the proposed Content Evaluation Committee akin to self-classification of content by OTT service providers, the institution of a three-tier grievance redressal mechanism akin to that under the IT Rules 2021, etc.). Given that the IT Rules are evidently more cognizant of the scope and nuances of ‘on demand’ services, such as OTT services, and over the past few years, have enhanced self-regulation and incremental monitoring of online curated content, the MIB’s attempt to force-fit OTT services under the Broadcasting Bill remains shrouded in uncertainty and, if pushed through, will inevitably hamper the ease-of-doing-business for providers of OTT services in India.
Besides raising a plethora of regulatory concerns for OTT service providers (of which, the above issues are merely illustrative), the Broadcasting Bill is also loaded with provisions which could potentially have a chilling effect on freedom of creative speech and expression and also lead to a system of arbitrary over-governance of the M&E industry by the executive.
To wit, clause 19, read with clause 5, subjects all broadcasters to a Programme Code and an Advertisement Code, which shall purportedly govern the content sought to be transmitted through any particular programme and/or advertisement. While this is not an alien concept (see, the Programme Code and an Advertising Code under the extant Cable Television Network Rules, 1994, or the Code of Ethics under the IT Rules 2021), delegating such critical provisions, which have a direct nexus to and bearing on the fundamental right to creative speech and expression, to the executive’s will and rule-making power, with no guidance in the statute itself, is a cause for concern. The extension of this proposed Programme Code and Advertisement Code, vide clause 20, to any person who broadcasts news and current affairs programs through, inter alia, any social media intermediary could also have a chilling effect on various journalists or news reporters who take to popular social media platforms (such as an X or an Instagram) to voice unpopular or non-majoritarian opinions or views which are critical of the incumbent government. This is specifically because any contravention of the said Programme Code and/or Advertisement Code may also attract, inter alia, disproportionate monetary fines, such as fines upto INR 5 lacs (for registered broadcasters) or INR 1 lac (for OTT service providers or any other person), etc., or even serve as grounds for the government to prohibit the transmission of the impugned programme altogether. Needless to say, given the wide-ranging implications of such excessive powers to act against and impose penalties for purported contraventions of, inter alia, the Programme Code and/or the Advertisement Code (which would directly impinge upon one’s fundamental right to speech and expression, including commercial speech, or one’s fundamental right to carry on trade / business), it is imperative that the Broadcasting Bill itself provide for narrow and clearly delineated grounds to regulate such acts, as opposed to giving the executive, in essence, carte blanche in dealing with such allegedly contravening acts.
Similar considerations come into play while assessing the sheer number of provisions under the Broadcasting Bill which merely defer to the executive’s rule-making power, without providing any substantive guidance or laying down the broad contours within which delegated rules are to be made. As highlighted by the Internet Freedom Foundation, there are 60 instances under the Broadcasting Bill of “as may be prescribed”, and likewise, 17 instances of “as notified by the government”! This is rendered more egregious by the fact that even seminal provisions under the Broadcasting Bill have been drafted in such a barebones manner – for instance, the eligibility criteria and conditions for a broadcaster to procure registration under clause 11 has been left completely open-ended. Another such glaring instance of excessive delegated legislation under the Broadcasting Bill is clause 4(5), which allows the Central Government to “make provisions for the regulation of services other than broadcasting services that are intricately linked to broadcasting networks or broadcasting services”. Conspicuously, the Broadcasting Bill does not give any guidance vis-a-vis the various services that may be considered to be “intricately linked” to broadcasting networks / services, nor does it lay down any objective criteria on the basis of which such a classification may be made. This provision, akin to several others in the Broadcasting Bill, is thus ex facie ambiguous and vests wide and untrammeled rule-making powers with the Central Government, to bring any services that it deems as being “intricately linked” to broadcasting within the ambit of the Broadcasting Bill. In light of the foregoing the Broadcasting Bill is an unfortunate paradigm of excessive delegation of legislative function, and leaves ample scope for arbitrary application and abuse of the provisions thereof.
This is not to say that the Broadcasting Bill has no positive or progressive inclusions whatsoever – for instance, the proposed insertion of accessibility guidelines to enhance accessibility of broadcasted content for persons with disabilities is a commendable step which seeks to further the objective of the Rights of Persons with Disabilities Act, 2016. However, as stated, this article seeks to highlight prominent and glaring issues under the Broadcasting Bill, such as the aforementioned, and thereby emphasise upon the need to scrutinise such provisions with due caution and foresight as to the implications thereof. For, as can be gathered from the above critiques, if the Broadcasting Bill is enacted in its current form, it will certainly fail in its self-proclaimed objectives of being a “streamlined regulatory framework (which) will bring clarity, consistency, and flexibility to regulations, while strengthening consumer protection and promoting ease of doing business”.
This article was first published on IPRMENTLAW