Draft bill sparks fear of micro-managing content across platforms
Most people argue the bill will curb the creative freedom of OTT (over-the-top) video platforms like Netflix, Amazon Prime and Disney+Hotstar
Ever since the draft Broadcasting Services (Regulation) Bill, 2023, was made public by the Ministry of Information and Broadcasting (MIB) seeking comments, many of its provisions have been red-flagged by media industry and legal experts. The bill will replace the Cable Television Networks (Regulation) Act, 1995, which regulates the broadcasting sector.
Most people argue the bill will curb the creative freedom of OTT (over-the-top) video platforms like Netflix, Amazon Prime and Disney+Hotstar, but the truth is it will end up micro-managing content across media platforms. Even digital news platforms of independent journalists will be impacted as all news and current affairs broadcast through “online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19”.
Ranjana Adhikari, partner, INDUSLAW, said the draft bill’s provisions for news and current affairs broadcasters (including those broadcasting through internet mediums), especially, the requirement to adhere to the Programme and Advertising Codes, raise serious concerns in relation to their impact on free speech and the freedom of the press. “It is pertinent to note that when the IT Rules 2021 had attempted to impose the Programme Code of the Cable Television Networks (Regulation) Act, 1995 on publishers of digital news, the same was stayed by the Bombay High Court in August 2021, and the stay continues to be in force,” she added.
The draft bill also requires all shows on television and OTT to be pre-certified by a Content Evaluation Committee (CEC) which is seen as another retrograde step. The CEC will have representation from women, child welfare, scheduled castes, scheduled tribes, minorities, and others as specified by the Government from time to time and may override the established internal content monitoring processes of OTT and TV firms, adding to their financial burden too.
“The requirement under the draft Bill to set up Content Evaluation Committees (CECs) as per government-prescribed criteria to self-certify every piece of content is a step backwards and is likely to impose significant hurdles on the ease of doing business for OTTs,” said Adhikari. “The IT Rules 2021 have rightly recognized the need for a light-touch approach to regulation of internet-based content platforms and thus the draft Bill’s additional set of compliances for OTT platforms are unnecessary and impractical. In addition to original domestic content, most OTT platforms license content from abroad, subjecting each such creative content to CEC scrutiny will definitely impose burdens on the platforms and impact user experience, too,” she added.
A senior executive at a large media company said, speaking on the condition that they not be named, television broadcasting has already suffered heavily on account of over-regulation. The industry’s decline accelerated because broadcasters imposed onerous self-censorship to avoid breaching the programme code. The sameness of TV shows drove viewers to adopt OTT for its fresh approach to content.
The government is now keen to regulate OTT for its sheer size and influence. A recent Ormax OTT Audience Report pegged the current Indian OTT viewer universe at 481.1 million people. It defines OTT audience as one who watched at least one online video (free or paid) in the last one month. The OTT audience base grew 20% from 2021 to 2022, but registered a slower growth of 13.5% over the last one year.
Another key concern in the draft bill relates to the quantum of punishment. The penalty goes up to Rs. 50 crore and it makes senior executives of broadcast companies liable to imprisonment, fines, and personally issuing apologies.
“It is surprising that the draft bill proposes to bring back criminal penalties for the broadcasting sector when the central government itself had just a few weeks ago decriminalized the existing Cable Television Networks (Regulation) Act, 1995 through the Jan Vishwas (Amendment of Provisions) Act, 2023. The government had officially stated that the existing law was being decriminalised to make it more business-friendly and to boost the investor confidence in the sector. Also, the monetary penalties proposed by the draft bill (even though they have been reduced for MSME entities) are excessive and go against the government’s focus on ease of doing business,” Adhikari said.
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