India’s broadcasting sector has experienced significant transformations in recent years due to technological advancements, including the emergence of platforms such as Direct-to-Home (DTH), Internet Protocol Television (IPTV), and Over-The-Top (OTT) services. These developments, along with innovations in advertising, have highlighted the need for updated regulatory laws.
Recognizing this urgency, the Indian government has initiated the development of a comprehensive regulatory framework for the broadcasting sector. In November 2023, the draft Broadcasting Services (Regulation) Bill, 2023, was released, inviting feedback from various stakeholders. This Bill aims to create a unified system for regulating broadcasting services in India, replacing the existing Cable Television Networks (Regulation) Act of 1995 and other related guidelines. Notably, the 2024 draft includes online content creators by introducing a new category called “digital news broadcasters.”
The initial draft, released in November 2023, sought to expand broadcasting regulations to encompass OTT platforms like Netflix and Disney+. It proposed a self-regulation system through content evaluation committees, requiring that OTT platforms only air programs certified by these committees, except for those exempted by the government. Additionally, a Broadcast Advisory Council was proposed to guide the government on violations of programming and advertising codes.
However, the Ministry of Information and Broadcasting has faced backlash after withdrawing the 2024 draft Bill, which raised concerns over government control of online content. Critics argue that the proposed regulations threaten freedom of speech and expression, with claims that the Bill would limit press freedom and allow for excessive governmental oversight of digital media.
Many view this draft as indicative of the government’s anxiety over online diversity and an attempt to formalize potential punitive measures against dissenting voices. The primary issues highlighted include the risk of censorship for OTT platforms, the diminishing independence of digital media, and a lack of clarity in regulatory provisions.
New Broadcasting Bill
The draft Broadcasting Bill, shared with stakeholders recently, broadens its scope beyond over-the-top (OTT) content and digital news to encompass social media accounts and online video creators. This iteration builds on a draft released in November 2023 and introduces a comprehensive definition of “digital news broadcaster,” which requires prior government registration and sets content evaluation standards.
This Bill updates the 2023 draft from the Ministry of Information and Broadcasting, aiming to unify the legal framework for the broadcasting sector while extending it to include OTT content and digital news. The Broadcasting Services Regulation Bill appears to be a move to limit digital news curation and the OTT media landscape.
The revised Broadcasting Services (Regulation) Bill, 2024, suggests that individuals who frequently upload videos to social media, produce podcasts, or write about current events may be categorized as Digital News Broadcasters. This means that YouTubers and Instagram influencers who earn advertising revenue or monetize their presence through affiliate marketing will be subject to regulation as Digital News Broadcasters. This applies to channels, podcasts, and blogs that cover news and utilize Google AdSense, all of which must adhere to a Programme Code and Advertising Code.
The Broadcasting Bill aims to regulate OTT and social media content, such as YouTube, using vague definitions. Unlike traditional television, these platforms operate on a “pull demand” basis, allowing viewers to select content for viewing on their personal devices in private settings. In the Kamlesh Vaswani vs. Union of India case, the Court chose not to ban the viewing of pornography, stating that doing so would constitute “moral policing of what occurs in one’s bedroom,” thereby infringing on the fundamental right to personal liberty. In a similar vein, this Bill may struggle to pass judicial scrutiny.
Key Features
The revised Bill introduces the concept of “digital news broadcasters,” encompassing individuals and entities that create online news and current affairs content, such as newsletters, social media posts, podcasts, and videos. It addresses concerns regarding non-traditional media creators being held to the same obligations as streaming platforms.
Definition of ‘Professional’: The Bill defines a “professional” as anyone engaged in systematic or structured activities and expands the definition of “news and current affairs programs” to include textual content alongside traditional media. This means that individuals providing tax advice on YouTube or regularly posting news updates on Twitter could be classified as digital news broadcasters and subject to the Bill’s regulations.
The Bill also revises the definitions of “program” and “broadcasting” to encompass textual content, ensuring that all online news-related material falls under its scope. These changes aim to keep the legislation aligned with the rapidly evolving digital media landscape.
Change in Definition of ‘Intermediary’: The Bill expands the definition of “intermediary” to include internet service providers, social media platforms, online search engines, and marketplaces. These intermediaries will be required to supply data to the central government regarding OTT broadcasters and digital news broadcasters. Failure to comply could lead to fines and the loss of safe harbor protections as defined by the Bharatiya Nyaya Sanhita, 2023.
Regulating Social Media Accounts as Digital News Broadcasters: YouTubers and Instagrammers who earn advertising revenue, enable paid subscriptions, or monetize their social media presence through affiliate activities will be classified as digital news broadcasters if they cover news and current affairs. This includes any YouTube channel, podcast with news commentary, or blog that features news and uses Google AdSense, all of which must comply with a Programme Code and an Advertising Code. My interpretation of the Bill indicates that online creators will need to adhere to a three-tier mechanism established by the IT Rules, which includes:
- Self-regulation: Mandating a grievance officer as per the IT Rules.
- Membership in a self-regulatory organization.
- Establishment of a government-constituted Broadcast Advisory Council.
Regulation of Online Content Creators: Online content creators who don’t cover news but provide programming above a certain threshold will be classified as OTT broadcasters if their content is licensed or streamed through websites or social media. These creators must establish a content evaluation committee (CEC) with diverse representation, and if deemed digital news broadcasters, they must notify the Ministry of Information and Broadcasting (MIB) and share CEC member names.
The Bill maintains general obligations for broadcasters, like adhering to foreign investment policies, but also introduces relaxations, such as exemptions from criminal penalties for not reporting subscriber thresholds. The government can issue guidelines to exempt certain operators from specific provisions to ease compliance burdens.
Regulation of Social Media Intermediaries: The Bill imposes criminal liability on social media intermediaries that fail to provide user information about OTT and digital news broadcasters. Users, rather than the intermediaries, bear the compliance burden. Future iterations of the Bill may require varying levels of “due diligence” from intermediaries. The latest version adopts the IT Rules’ definition of social media intermediaries, emphasizing their role in facilitating online interactions. This regulatory landscape suggests increased scrutiny and accountability for social media platforms in the digital ecosystem.
Provisions for Self-Regulation
- Mandatory Registration: The regulations mandate registration and the creation of Content Evaluation Committees to promote self-regulation on digital platforms, along with the establishment of programme and advertising codes and a three-tier regulatory framework.
- Anti-Piracy Measures: The Bill acknowledges self-regulatory organizations for streaming platforms and digital news broadcasters previously registered under the IT Rules, 2021. It enhances anti-piracy laws by criminalizing the unauthorized use of copyrighted content and empowering the government to form a task force against piracy.
- Regulatory Sandboxes: The Bill proposes the creation of ‘regulatory sandboxes’ by the federal government, allowing for the testing of new broadcasting technologies and business models in a controlled environment with relaxed provisions for experimentation.
Penalties for Non-Compliance
- Monetary Fines: Failing to appoint a Content Evaluation Committee can lead to significant penalties. News creators who do not inform the Central Government about their CEC members will face fines of ₹50 lakh for the first violation and ₹2.5 crore for subsequent violations within three years. The draft Bill allows the government to exempt certain entities to prevent genuine hardship.
- Revocation of Broadcasting Rights: The government can prohibit a programme or broadcaster’s operation for reasons of public interest or national security. The Bill specifies that any content promoting disharmony or disturbing public peace may be banned.
Scope of Control and Its Challenges
The Bill’s broad definition of “broadcasters” could encompass anyone from high-profile figures with millions of followers to individual YouTubers, including non-citizens curating news or digital content. All broadcasters reaching an undisclosed viewership threshold must notify the Central Government. A key concern is how the government intends to enforce these registration requirements, particularly for non-citizens. The Bill mandates that OTT platforms adhere to the programme and advertising codes set by the Centre, yet the same content might be accessible on intermediary platforms and websites not subject to these regulations.
Impact on Freedom of Speech
Certain provisions of the Bill clash with Article 19 of the Constitution, raising concerns about a potential erosion of press freedoms akin to an Emergency situation. India’s press freedom ranking has already fallen to 159 out of 180 countries. For the first time, the draft Bill requires general entertainment and documentary channels to pre-certify their programmes before airing, an unprecedented move in Indian television. Channels must establish Content Evaluation Committees for each language in addition to the existing three-tier self-regulatory model. This contradicts the government’s previous assertions that the current system is functioning well. If pre-certification remains, it could severely undermine independent and creative expression, exemplified by the challenges faced by documentaries like those aired by the BBC on sensitive topics.
The High Cost of Compliance
The proposed self-regulatory framework imposes an undue financial burden on small news outlets and content creators. Requirements such as extensive paperwork, appointing a grievance officer, and forming a Self Evaluation Committee apply equally to all broadcasters, regardless of size. This disproportionate burden stifles competition and innovation, hindering the growth of alternative media and negating the internet’s democratizing potential. Ultimately, these costs are likely to be passed on to consumers, limiting the free flow of information and silencing diverse perspectives that differ from the government’s narrative.
Effect on Free Speech
The Bill grants the Central Government extensive powers, including the ability to confiscate broadcasting equipment and conduct warrantless raids. The Centre can override the recommendations of the Business Advisory Council, and most self-regulatory bodies are dominated by executive members. Content deemed a threat to “public interest” could lead to severe penalties, promoting self-censorship among broadcasters and further narrowing the space for dissenting views.
The 1995 Supreme Court ruling in Union of India vs. Cricket Association of Bengal highlighted that the right to free speech includes the right to receive and share information. For democracy to flourish, citizens must access a range of views and opinions. A monopoly on information—whether by the state or an individual—harms democratic principles. If this Bill is enacted, the vision of an informed citizenry may become increasingly unattainable.
Controlling Nature
Prominent Indian creators of news and current affairs content on YouTube are reportedly under government scrutiny, particularly due to their influence during the lead-up to the 2024 Lok Sabha elections. A senior official noted that some creators made sensational claims about the government, prompting the need for accountability measures to level the playing field with mainstream media.
The rise of individual news curators has significantly shaped public opinion, especially among young voters, with YouTube reaching an audience of nearly 46 million. Creators like Dhruv Rathee have amassed millions of views, indicating a shift away from traditional media.
While these platforms have internal content evaluation mechanisms and legal recourse for issues like defamation, the Bill’s excessive delegation of power and potential for preemptive censorship threaten democracy. Content such as political satire may require certification, limiting checks and balances essential for a democratic society.
The Ministry of Information and Broadcasting’s Broadcasting Services (Regulation) Bill, 2024, aims to replace the Television Network Act of 1995. It will classify influencers and social media pages discussing news as ‘digital news broadcasters.’ Additionally, the Bill introduces regulations for online advertising, creating a new category of ‘advertising intermediaries’ responsible for compliance with the Advertising Code, though it remains unclear who will bear the enforcement responsibility.
Criticism of New Broadcasting Bill
- Excess State Control: The Network of Women in Media, India (NWMI) has raised alarms about the Broadcasting Services (Regulation) Bill, 2024, arguing that it could result in excessive regulation of both traditional and digital media.
- Impact on Creators: Nikhil Pahwa, founder of Medianama, criticized the Bill for potentially requiring international creators, like MrBeast, to register as OTT broadcasters, establish grievance systems, and form content evaluation committees before uploading content. This burden would also extend to prominent Indian figures like Virat Kohli and smaller creators, impacting their ability to produce content freely.
- Threat to Free Speech: The Internet Freedom Foundation (IFF) has called for a thorough review of the Bill, highlighting its similarities to cable TV regulations and the potential for increased censorship. This could compromise online free speech, journalistic freedom, and artistic creativity, pressuring creators to align their work with government preferences.
- Uncertainty for Stakeholders: The IFF points out that the Bill’s numerous provisions requiring future clarification by the government create uncertainty for stakeholders. With over 70 pages and multiple references to unspecified regulations, there are concerns about arbitrary rule-making.
- Ambiguous Interpretations: Technology policy expert Shruti Shreya has cautioned against the requirement for all online content creators to follow a programme code, noting that vague terms like “good taste” and “decency” could lead to subjective interpretations. This raises questions about the Bill’s impact on the creative and dynamic nature of the digital landscape.
- Personal Risks for Individuals: Shreya Suri from IndusLaw noted that while the proposed self-regulatory mechanisms aim to enhance accountability, mandatory disclosures—such as notifying the government and publicly revealing the personal details of committee members—could put individuals at risk.
Censorship Fears: Experts warn that the proposed Bill provides the government with a powerful tool to censor content on over-the-top platforms. Kamya Pandey, a journalist at Medianama, noted that the Bill allows the government to dictate the size and operational details of Content Evaluation Committees for broadcasting platforms, effectively granting it significant control over these bodies. This, coupled with the government’s ability to regulate or prohibit content based on vague criteria, raises serious censorship concerns.
The grounds for prohibiting content—such as national security, public order, and morality—have previously been misused under existing laws, heightening fears of surveillance and repression. Tejasi Panjiar from the Internet Freedom Foundation emphasized that the regulatory framework could stifle innovation and limit the diversity of voices in the creator community.
Moreover, the Bill’s vague definitions could encompass a wide range of content creators, including independent journalists and bloggers. This could lead to a chilling effect on free speech, as creators might self-censor to avoid penalties. The potential for hefty fines and the risk of being taken off-air could deter many from producing critical content.
Lawyer Apar Gupta asserted that with this Bill, “censorship is not a concern but a certainty.” The inclusion of independent digital news under regulatory oversight poses a direct threat to journalistic freedom and the public’s right to access diverse viewpoints.
In summary, the Broadcasting Services (Regulation) Bill, 2024, if enacted, risks undermining the very fabric of democratic expression by imposing stringent controls on content creators. The overarching regulatory environment may create a significant barrier for independent voices, ultimately curtailing free speech in the digital landscape.
Conclusion
The Broadcasting Services (Regulation) Bill, 2024, represents a significant shift in the regulatory landscape for digital media in India, encompassing not only OTT platforms but also social media accounts and individual content creators. While the intention may be to establish a unified legal framework, the extensive scope of regulation raises serious concerns about excessive state control and the potential for censorship.
Critics argue that the Bill could stifle innovation, hinder the growth of independent media, and create an environment where creators feel pressured to self-censor to avoid penalties. The vague definitions and broad classifications of “digital news broadcasters” risk ensnaring a diverse range of content creators, thereby limiting the richness of public discourse.
Moreover, the proposed self-regulatory mechanisms and mandatory compliance measures impose a heavy burden, particularly on smaller creators, potentially leading to a chilling effect on free expression. The Bill’s alignment with existing laws that have been misused for censorship further exacerbates fears of governmental overreach and surveillance.
If enacted in its current form, the Broadcasting Services (Regulation) Bill, 2024, may not only restrict individual voices but also compromise the fundamental principles of democracy by curtailing the free flow of information and diverse perspectives essential for an informed citizenry. As the debate continues, the balance between regulation and freedom of expression remains a critical issue for the future of digital media in India.
References:
- https://www.medianama.com/2024/07/223-india-broadcast-bill-online-creators/#:~:text=Online%20content%20creators%20that%20do,or%20a%20social%20media%20platform.
- https://www.hindustantimes.com/india-news/new-draft-of-broadcasting-bill-news-influencers-may-be-classified-as-broadcasters-101721961764666.html
- https://www.hindustantimes.com/india-news/broadcasting-bill-still-in-drafting-stage-mib-tells-rs-101722058753083.html
- https://www.newslaundry.com/2024/07/29/indias-new-broadcast-bill-now-has-compliance-requirements-for-youtubers-and-instagrammers
- https://m.thewire.in/article/media/social-media-videos-text-digital-news-broadcasting-bill
- https://mib.gov.in/sites/default/files/Public%20Notice_07.12.2023.pdf
- https://news.abplive.com/news/india/centre-withdraws-draft-of-broadcasting-services-regulation-bill-1709770
Frequently Asked Questions (FAQs):
1. What is the Broadcasting Services (Regulation) Bill, 2024?
The Broadcasting Services (Regulation) Bill, 2024 is a proposed regulatory framework for India’s broadcasting sector, including OTT platforms, digital news broadcasters, and social media content creators. It aims to unify the laws governing digital and traditional broadcasting, replacing the outdated Cable Television Networks (Regulation) Act of 1995. The Bill also introduces self-regulation and content evaluation systems for digital news creators, including social media influencers and independent journalists.
2. What are the key changes introduced in the revised Bill from 2023 to 2024?
The 2024 version of the Broadcasting Services (Regulation) Bill broadens its scope to include social media influencers and online content creators, categorizing them as “digital news broadcasters” if they cover news and current affairs. The Bill also revises definitions, like “news programs” and “intermediaries,” to cover all forms of online news, including textual content. Additionally, it mandates self-regulation via Content Evaluation Committees (CECs) for digital broadcasters, including smaller creators like YouTubers.
3. What are the concerns raised about the Bill?
Critics argue that the Bill may lead to excessive government control over digital content, threatening free speech and journalistic independence. The requirements for registration, content evaluation, and compliance with government-set codes could stifle creativity, innovation, and diversity in media. The Bill’s broad and vague definitions of “digital news broadcasters” and its provisions on censorship are seen as potential threats to press freedom and democratic discourse.
4. How does the Bill impact social media influencers and content creators?
Social media influencers, YouTubers, and podcasters who discuss news and current affairs could be classified as “digital news broadcasters” under the Bill. This would require them to register with the government, create Content Evaluation Committees, and comply with programme and advertising codes. The Bill’s provisions could impose significant regulatory and financial burdens on these creators, particularly smaller ones who may struggle with compliance.
5. What are the penalties for non-compliance with the Bill?
The Bill imposes severe penalties for non-compliance, such as fines up to ₹50 lakh for the first violation and ₹2.5 crore for subsequent violations within three years for news creators who fail to notify the government about their Content Evaluation Committee members. It also grants the government the authority to revoke broadcasting rights or prohibit specific content in the interest of public order, national security, or morality.
6. What are the broader implications of the Broadcasting Services (Regulation) Bill for freedom of speech in India?
The Bill has raised concerns about the erosion of freedom of speech in India. By expanding government oversight and allowing for content censorship under vague terms like “public interest” or “national security,” the Bill could limit diverse viewpoints and lead to self-censorship among creators. Critics argue that the Bill could create a chilling effect, stifling independent media and press freedom, which is essential for a vibrant democracy.
Author: Prachi, Law Centre II Faculty of Law DU