The centre has withdrawn the recently introduced Draft Broadcasting Services (Regulation) Bill, 2024 (hereinafter ‘Bill’) which raises pressing concerns about the potential shortcomings of the Bill. While some may see the Bill as an attempt to modernise the redundant Cable Television Networks (Regulation) Act of 1995, others may also see it as a way to restrict independent journalism and Freedom Of Speech on the Internet. This article will illustrate the potential shortcomings of the Bill, likely Impact on Freedom of Speech, Regulatory Provisions Proposed and Future Suggestions.
Highlights of the bill
Digital news broadcaster
A noteworthy aspect of this Bill was the definition of the term “Digital News Broadcaster” and the attempt to bring them within the ambit of the regulatory powers of the Ministry of Information and Broadcasting (hereinafter ‘MIB’). As per the Bill, any person who publishes or distributes “News” or “Current Affairs” via an online medium will fall under this category. For example, a person uploading a video on YouTube or a reel on Instagram talking about Current Affairs will fall under the proposed definition.
The provisions of this Bill attempt to cover a wide range of creators by also including any individual or organisation who earns revenue by monetisation of their content through ads, subscriptions etc.
For the first time, individual creators are explicitly covered under the Bill which is opposite from the 2021 IT Rules which does not cover individuals.
Online creators other than news broadcasters
Broadcasters that publish content other than News or Current Affairs will be treated as Over-The-Top (OTT) Broadcasters if they provide “Programming Or Curated Content” licensed or live through a website or social media and have reached a certain threshold of viewership. Curated Content means providing content through the use of one’s skill or knowledge.
This further widens the scope of the Bill as now even a person sharing knowledge of the Law or someone demonstrating Cooking a particular recipe will also fall under this category.
Regulatory provisions
Another drastic concern regarding the Bill is the regulatory requirements to be fulfilled by online content creators. Firstly, if a creator falls within the ambit of a digital news broadcaster, they must ‘intimate’ the MIB about their work and existence within a month of notification of the Bill. Secondly, the creator must now establish a Content Evaluation Committee (hereinafter ‘CEC’) which will ensure that the content is at par with the bill’s standards. The CEC must also be “diversified” by including members from various social groups whose details must be submitted to the government and this committee must be established at the expense of the creator. If a creator fails to adhere to this, INR 50 Lakhs will be penalised for the first offence and subsequent failure may increase the amount up to INR 2.5 Crore.
For creators other than newscasters they will also have to comply with the Advertising Code prescribed as per the MIB which broadly mandates that all the advertisements carried in the cable service shall be decent, and moral and should not hurt the religious sentiments of the viewers.
Three tier compliance mechanism
To monitor the content effectively, the Bill proposes the creation of a three-tier mechanism by the News Broadcasters and Content Creators.
1. Self-Regulatory Mechanism: Creators must establish an internal grievance redressal mechanism which offers the people a chance to raise their grievances regarding the content, also it must have a Grievance Redressal Officer as mandated by the IT Rules, 2021.
2. Self-Regulatory Body: Content creators must join a self-regulatory organisation responsible for overseeing member compliance with the Bill’s standards.
3. Broadcast Advisory Council: This will be constituted by the Government of India to issue guidelines and regulations which must be adhered to by the Creators.
This causes further unnecessary fiscal burden on the creators who may struggle to establish and maintain such infrastructure without the requisite monetary resources.
Freedom of speech concerns
The paramount issue which sparked concerns regarding this Bill was the potential censorship which may be applied to the creators due to vague provisions and stringent requirements. Due to the expansion of government regulation to individual creators, the Bill may cause self-censorship among creators due to fear of mammoth fiscal penalties.
In today’s world of Digital Dominance, the impact of online platforms and digital influencers is quite evident. This was also evident in the 2024 General Elections wherein some influencers on Platforms such as Instagram or X openly discussed political matters and criticised some government officials as well. The attempt to expand the definitions under the Bill may also be seen by some critics as an attempt to hold the creators “accountable” and further censor the content which may be seen as offensive by the government in their view. The proposed penalties to be levied are also substantial which particularly affects the small creators who lack the necessary resources to comply with the provisions. Also, to avoid the risk of getting penalised many creators may resort to the process of Self-Censorship rather than attract unnecessary government attention, while this may be a favourable solution for creators that spread hate online via digital mediums on the other hand it may also be seen as an unreasonable restriction on the Fundamental Right to Speech and Expression guaranteed to every citizen under Article 19(1)(a) of the Constitution of India. This may also hurt the People’s Fundamental Right to Dissent and will limit discussions on sensitive matters which in reality demand the accountability of the Government.
Other aspects
Similar concerns were also raised when the government initially released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 wherein Rules 9(1) and 9(3) were stayed by the orders of Bombay and Madras High Courts. Rule 9(1) states that the publishers must necessarily comply with the Norms of Journalistic Conduct and the Programme Code. In the draft Bill, Digital News Broadcasters are required to comply with a Programme Code as well as an Advertising Code. Considering the above judgements, this provision of the Bill could also be scrapped due to the element of compulsoriness as envisaged in the Bill.
International aspects
Similar concerns are addressed in international jurisprudence as well;
Indonesia: In 2017, a draft ministerial regulation on OTT Services was released by the relevant Ministry which defined OTT services within the ambit of applications or content services accessed through the internet.
USA: Currently no dedicated laws are framed concerning OTT Services, therefore the content provided on these platforms is currently unregulated.
Singapore: A much more comprehensive and inclusive approach has been adopted in this county wherein, in the year 2018 an amendment was passed to the Domestic Act to integrate the content of OTT platforms within the ambit of content regulations.
Suggestions and conclusion
The Author proposes some suggestions to be looked upon when the revised Bill will be presented in the Assembly after some time. Firstly, clarification must be given regarding terms such as “curation” or “systematic activity” to reduce the element of vagueness and include only professional news broadcasters, thereby protecting smaller, non-commercial creators. Secondly, the formation of the CEC should be replaced by simpler means to reduce financial burdens on hobbyist creators with sparse viewers. Thirdly, the content about health or fitness or genres which are fundamentally divergent from current affairs may be subject to some exceptions in the revised Bill. Fourthly, the revised Draft about to be released should be released for public consultation which will evenly voice the concerns of digital creators as well and bring their needs at par with the government.
The withdrawn draft of the Bill had more issues about it rather than the impediments in the digital media and broadcasting sector which it was aiming to fix. It had cast a wide net on the online content creators to engulf them within the regulatory framework of the MIB which is necessary but also unrestrained at the same time. It also included part-time creators who possess neither the requisite resources nor capabilities to adhere to the proposed regulations. This withdrawn bill can be seen as a double-edged sword which highlights the need for content evaluation and integrity and liability on the part of creators but also the stringent requirements may impede freedom of expression and free speech which is seen as the foundation of democracy in a country.
Author: The article has been written by Kartikey Agrawal, a 2nd Year student at National Law Institute University, Bhopal.
