In an era marked by rapid technological advancements and evolving media landscapes, the regulation of broadcasting has become a critical aspect of ensuring fair competition, safeguarding public interest, and maintaining ethical standards of content dissemination.
On this line, the Ministry of Information and Broadcasting (‘MIB’) unveiled a draft bill on November 10th called “Broadcasting Regulation Bill, 2023”. This can be a pivotal bill in the ongoing discourse, proposing a set of guidelines to address the complexities of the contemporary broadcasting environment.
As nations grapple with the challenges posed by the convergence of traditional and digital media platforms, understanding the nuances of this proposed legislation becomes essential for stakeholders, policymakers, and the general public.
The Broadcast Regulation Bill, 2023 can be a catalyst for change, responding to the dynamic shifts in media consumption patterns, technological advancements, and the ever-expanding role of broadcasting in shaping public opinion.
But it is not free of flaws so it becomes a critical step to analyze the bill minutely to make sure all the strata of the bill has clarity and understanding, its impact, its compatibility with the constitution and its effect on public policy and people.
So in this article, we will discuss the broadcasting bill, its function and further whether it is needed at the present times, and the loopholes and solutions.
What is the Broadcasting Regulation Bill, 2023?
The Broadcasting Regulation Bill, 2023 unifies regulatory provisions for different broadcasting services under one legislative framework. The bill also incorporates streaming services, or over-the-top (‘OTT’) broadcasting, into the regulatory purview of companies like Disney+Hotstar, Netflix, and Amazon Prime.
This new rule requires streaming service providers to notify the central government if they offer OTT broadcasting services and reach a specific number of Indian subscribers or viewers. This must be completed within 30 days of receiving the bill or within 60 days of the service attracting the required number of users.
The Broadcasting Services (Regulation) Bill, 2023 seeks to replace the Cable Television Networks (Regulation) Act, 1995 and include broadcasting and streaming services under its jurisdiction, such as JioCinema, Netflix, Disney+ Hotstar, etc.
Additionally, it discusses the establishment of Content Evaluation Committees (‘CECs’) under Section 24(2) which talks about that every broadcaster or broadcasting network operator shall constitute one or more CECs, consisting of members who are eminent individuals representing different social groups, including but not limited to women, child welfare, scheduled castes, scheduled tribes, minorities etc to make sure the broadcasters are attesting to the content’s compliance under the new regulatory framework.
The bill also mandates that different broadcast network operators need to comply with the advertisement and programme code which doesn’t affect religious sentiments or ridicule and criticized friendly countries. If it is violated, the broadcaster will be liable to pay a penalty as prescribed by the bill.
Features of Broadcasting Regulation Bill 2023
The bill, which consists of six chapters, 48 sections, and three schedules, defines key technical terms that will be defined in the statute for the first time as well as providing thorough definitions for terms used in broadcasting today.
It has established the “Broadcast Advisory Council” to counsel the national government on violations of the programme and advertisement code. The Bill gives operators and broadcasters the option of statutory fines, such as advisory, warning, censure, or monetary penalties.
There are also provisions for jail time and/or fines, but these are limited to very serious offences, like using a fake affidavit to obtain registration. The bill also seeks to increase accessibility and inclusivity for individuals with disabilities in broadcasting. It encourages the use of sign language, audio descriptors, and subtitles.
Additionally, it includes provisions for platform service carriage where the broadcasters will be responsible for carrying on the whole operations of broadcasting and infrastructure which will act as a medium for broadcasting content to be shared among broadcasting network operators.
Need For Broadcasting Regulation Bill, 2023
It is a pivotal legislation since it attempts to update the legal framework and make it more responsive to the ever-changing landscape of OTT content, digital media, DTH, IPTV, and emerging technologies.
It seeks to achieve a balance between industry autonomy and regulatory oversight by highlighting the fact that the broadcasters under certain guidelines are free to choose which programmes they want to be broadcast but the same can fall under the purview of the “Advisory Council” of the central government to regulate the media for morality, public order, etc.
Regulations can also be adjusted to the specifics of linear and on-demand content by permitting a differentiated approach which consists of giving content creators greater flexibility and relevance which was not done previously. For the sake of fairness, this bill links financial penalties to the entity’s investment and turnover.
Further, the amount of finaincal penalties will be decided proportionately by the entity’s financial situation. Compared to smaller organisations with less financial resources, larger corporations may be subject to higher fines due to their higher investments and turnovers..
Grey Areas Of Broadcasting Regulation Bill, 2023
The bill by any means is not free of loopholes though and it’s important to address this issue. Certain concerns are raised by the bill regarding whether the emphasis is actually on public service or on giving the government more power and regulation. It might increase governmental control over digital infrastructure and the content that citizens can access.
A particular clause in the draft bill, point 36, highlights the vague and broad wording that gives authorities the authority to forbid content and raises concerns about the power of “authorised officers” employed by the government. There are worries that this bill could result in the marginalisation or biased portrayal of Indian minority communities.
The draft’s ambiguous wording could also be used to advance India’s universal majority identity. The 1995 Cable Television Networks (Regulation) Act, which at first sought to suppress illicit cable operators, lacked transparency because of the connections between broadcasters, politicians, business people, and operators and this same applies to the new bill too.
In 2022, the government also introduced the Indian Telecommunication Bill, 2022 to maintain and regulate internet-based OTT telecom services where the OTT platforms need to have license/registration called “Unified Access Service License (UASL)” where only those content can be broadcasted which are granted under the license in their respective domain. Further, they need to comply with Section 7 of Telecommunication Bill 2022 which talks about the breach of terms and conditions of the license and action that can be taken by the government.
Howver, this might lead to clash with the provision Section 24(d) of the broadcasting regulation bill which talks about broadcasters can only broadcast content that has been certified by the CEC. This might lead to confusion about whether the broadcasters need certification or license or both. And regards to violation which authority will have jurisdiction regarding that matter and can lead to conflict and the government did not address this issue either.
The bill is similar to the contentious IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as it has a similar three-tiered regulatory structure i.e. (a) Self-regulation by the publishers, (b) Self-regulation by the self-regulating bodies of the publishers, and (c) Oversight mechanism by the Central Government for the benefit of the country. This will lead to confusion regarding which regulatory system should be followed and under which rules.
The bill also mandates that the CECs have different social groups including women, scheduled castes, scheduled tribes, child welfare and minorities to evaluate the content, however, it would put a substantial load on OTT platforms. This is especially true given that CECs would now be able to scrutinise their licensing of foreign content. This might have an effect on the platforms as well as the general user experience.
Further, in discussions about “cultural invasion” and “anti-national” programming, the relationship between public servants and media companies could encourage media ownership oligopoly.
The shortcomings and problems with the current bill implementation, such as conflicts of interest in its provisions with other acts and bills and opaque practices such as “paid news” where real news is sidelined by the news which is published for monetary benefits, or “private treaties” where a newspaper enters into ad-for-equity deals with private firms. This gives an advantage to publishing companies for getting favourable coverage in the Indian media sector, which is not addressed by the new bill. The bill looks at how the current government has regulated the media in the past, showing a trend of broken promises and dubious results.
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Solutions
As the loopholes are discussed above I will be providing some of the solutions regarding the same in this section, for the first issue of vague and ambiguous wording in point 36 the government should revise the point by providing clarity and if necessary narrow the wording of the sub-points mention in point 36 along with this conduct a public consultation by an independent body to make sure it’s free of biases and have transparency.
Regarding the second issue, the overlapping of the Indian Telecommunication Bill and Broadcasting Regulation Bill regarding their respective jurisdiction over OTT platform regulation, the government needs to conduct a thorough review of both bills to identify areas of conflict and redundancy, seek input from legal experts, stakeholders, and the public to gather diverse perspectives on the conflicting provisions, also amend the bills to harmonize conflicting provisions and ensure consistency in the legal framework simultaneously define the scope and applicability of each provision to avoid ambiguity.
For the third issue, regarding the burden on OTT platforms under the supervision of various strata present in CECs, the government can implement the requirement for diverse representation in CECs gradually, allowing OTT platforms to adjust to the changes without a sudden and overwhelming impact and also providing a transition period during which platforms can adapt their processes to meet the new requirements.
The government should also invest in capacity building for CEC members from diverse social groups, providing training on content evaluation criteria, cultural sensitivity, and industry standards. This can enhance the effectiveness of CECs and minimize the burden on OTT platforms. The content evaluation processes can be streamlined to make them more efficient and less burdensome for OTT platforms.
For the fourth issue, regarding opaque practices of paid news, and private treaties they can regulatory oversight where the regulatory bodies overseeing media practices need to be strengthened and ensure these bodies have the authority to investigate and penalize instances of paid news and opaque private treaties.
Further, enact strict penalties for media organizations who are found guilty of unethical practices, including fines, suspension of licenses, or legal action. Also, media houses need to mandate clear and prominent disclosure of any financial arrangements, including private treaties, between media organizations and advertisers.
Conclusion
To sum up, the Broadcasting Regulation Bill, 2023 is a big step towards guaranteeing an equitable, accountable, and varied media environment. By tackling the obstacles presented by the rapidly changing digital era, the bill aims to establish a regulatory structure that protects the public interest while simultaneously encouraging competition and innovation in the broadcasting sector.
As we proceed, it is crucial to keep an eye on how the bill is being implemented to make sure that the regulations are properly applied without restricting expression or creativity and make sure all this is done not for just some political vendetta who wants to control the broadcasting for their own benefit as it would be detrimental for the society.
But, to address the new issues of regulatory framework which needs to be modified in light of the media landscape’s constant change. It will be essential for regulators, industry stakeholders, and the general public to have ongoing conversations on the principles of a contemporary, democratic society.
Further, they must shows a dedication to creating a media environment that promotes diversity, serves the public interest, and adjusts to the difficulties presented by the digital age.
The goal must be to foster an atmosphere that promotes development, innovation, and fair access to communication services.Not just to ensure compliance but also to make sure that India can strategically position itself for long-term success by striking the right balance between regulatory oversight and industry autonomy.
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Authored by Utsav Biswas, a 1st year Law Student at National Law University Odisha.