In a clear-cut and strong submission to the union minister for Information & Broadcasting, Anurag Thakur, the Editors Guild of India has detailed how the provisions of the Broadcasting Services (Regulation) Bill, 2023 are both vague and excessively intrusive, adverse to both the freedom of expression and freedom of press.
Presenting its detailed submissions on the Bill, a press statement of the EGI states that it is “concerned that many of the provisions of the draft are vague and excessively intrusive. Since the bill will cover all broadcasting services, including news broadcasting, and also extend the regulatory framework to cover digital news platforms, the Guild is deeply concerned that the bill will therefore be adverse to the spirit of freedom of speech and freedom of press guaranteed by the constitution. Some of the salient points of concern are:
- The draft outlines an overbearing system of self-regulation by mandating creating of content evaluation committees in ways that can allow the government to exercise a great degree of control on these
- The draft further allows the Union Government to monitor and block content by establishing a Broadcast Advisory Council, to be headed by a bureaucrat, and therefore create an over-arching censorship
- The bill allows the government to regulate, or even prohibit the transmission of channels or programmes on vague
- Provisions that allow government excessive delegation of rule-making are also problematic as they lead to uncertainty for the stakeholders who may be impacted by the draft bill and prevent individuals from being fully informed so as to meaningfully engage in the consultation process”
Details of the Guild’s objections to specific clauses are contained in the annexure that has been prepared with support from the Internet Freedom Foundation. For the purposes of these comments, the term “broadcasters” will be used to mean “broadcasters and broadcasting network operators.”
Hence, the Guild has requested that the Modi 2.0 government puts the draft in abeyance and undertake meaningful consultation with all the stakeholders.
The Editors Guild of India [“EGI”] is an organisation established in 1978 to protect freedom of the press and to raise the standards of editorial leadership of newspapers and magazines. It was on November 10, 2023, that the I & B ministry had released the draft of the Broadcasting Services (Regulation) Bill, 2023, and invited comments and feedback from the public on the same.
Clause by Clause Objections raised by the Editor’s Guild of India
| S. no. | Particulars | Views/Comments/Suggestions/Remarks/Recommendations | |||
| Clause 4(5) | Clause 4(5) allows the Union Government to “make provisions for the regulation of services other than broadcasting services that are intricately linked to broadcasting networks or broadcasting services”. Such excessive delegation of rule-making leads to uncertainty for the stakeholders who may be impacted by the draft bill and prevents individuals from being fully informed so as to meaningfully engage in the consultation process. This instance of delegated legislation gives extensive powers to the Union Government for future rule-making. In the absence of relevant safeguards to protect against arbitrary rule-making, such instances of delegated legislation may lead to uncertainty in the industry. | ||||
| Clause 19 | Clause 19 states that the Programme Code and Advertisement Code (“Codes”), “as may be prescribed” by the Union Government, will be different for different broadcast services mentioned in the draft bill as well as any other category of broadcasting service notified by the government. Clause 5(1)(b) imposes an obligation on broadcasters to transmit or re- transmit broadcasting service in conformity with the Codes. Contravention of the Codes by the “OTT” broadcasters will amount to up to Rs. 20,000 for the first contravention, and up to Rs. 1,00,000 for the subsequent contravention. The prescription of the Codes at a later stage may introduce difficulties for companies to foresee the extent of their compliance burden.
An obligation on “OTT” and digital news broadcasters to adhere to the ethical Codes has the potential to significantly impede online free speech, as the Codes currently applicable to Cable TV entail notably restrictive instructions. For instance, the Codes prescribed under the Cable Television Network Rules, 1994 states that no programme should be carried in the cable service which “Offends against good taste or decency”, “Contains attack on religions or communities….”, “Contains anything obscene…”, “Denigrates women….”, “Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups”, and “Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country”.1 Subjecting online curated content to such constraining Codes, which contains exceedingly vague and ambiguous grounds for restricting speech, will forever inhibit the creative and artistic freedom currently exercised by artists. This will work towards formalising the ‘moral policing’ and censorship of content currently imposed informally and indirectly.2 Limiting our comments and suggestions to | ||||
| “OTT” broadcasters and individuals/ companies publishing digital news media, we urge the Ministry to acknowledge the dangers of empowering the regulators, including the executive, with such a hazardous tool of censorship and request them to exclude the online content curation space as well as the news/ current affairs publishers from being subject to these Codes. | |||||
| Clause 20 | Adherence to the Codes extends to any person who broadcasts news and current affairs programs through a digital medium (such as online paper, news portal, website, social media intermediary, or other similar medium) as part of a systematic business, professional, or commercial activity. This excludes publishers of professional or commercial newspapers and online replicas of such newspapers. Clause 20 fails to precisely and specifically define “news and current affairs programme” and “systematic business, professional, or commercial activity”, making it a vague, overbroad, and worrisome provision. Clause 20(2) states that the provision of the Act applicable to “OTT” broadcasters shall also apply to news and current affairs broadcasters. What is unclear is if a threshold for number of subscribers or viewers will also be prescribed for this category of broadcasters. As per the First Schedule, contravention of the Codes by the “OTT” broadcasters will amount to up to Rs. 20,000 for the first contravention, and up to Rs. 1,00,000 for the subsequent contravention. Clause 20 along with the penalty stated under the First Schedule may have wide ranging consequences on independent journalists who rely on the digital platforms such as social media to publish news that may typically be viewed as unpalatable to the government. This over broad provision will apply to not only journalists, but even individuals who choose to share news through online blogs or platforms. Regulatory powers to censure or prohibit content published by news broadcasters extend beyond the permissible restrictions on free expression allowed under Article 19(2) of the Indian Constitution. This Clause raises alarm as an individual sharing news on social media platforms may become liable if the broadcaster/ broadcasting network, self regulatory organisation, or a government appointed council believe that they have not complied with the Codes. If a Code similar to the ones notified under the Cable TV Rules, which includes excessively vague and overbroad restrictions on free speech on grounds such as “Contains anything affecting the integrity of the Nation”, “ promote anti-national attitudes”, etc., is applied to individuals sharing news and current affairs through digital mediums, it will cause an irreparable impact on online free speech as well as the freedom of journalistic expression of a news broadcaster or an independent news disseminator. In the Bennett Coleman & Co. v. Union of India (1972) judgement, regarding restrictions and regulations on newspapers and its effect on free speech, the Supreme Court of India found that freedom of the press was an essential element of Article 19(1)(a) and the absence of an express mention of such freedoms |
| as a special category was irrelevant.3 In Romesh Thappar vs The State Of Madras (1950), the Supreme Court noted that “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.”4 Thus, only such reasonably defined, specified, and narrow restrictions must be included in Codes which fall under the reasonable restrictions under Article 19(2). Further, such regulation may also threaten a users’ right to access multiple, diverse points of view because the individual broadcasting news will likely only produce content which is palatable to the Union government so as to avoid non-compliance penalty. It is worth noting that the definition of “OTT broadcasting service” [Clause 2(y)] does not include a “social media intermediary, or a user of such intermediary, as defined in rules under the Information Technology Act, 2000 or such other entities as may be notified by the Central Government”. However, Clause 20(1) clearly states that individuals broadcasting programs through a social media intermediary will be liable to adhere to the Codes. This contradiction creates ambiguity over the application of the bill to such platforms. This is also indicative of the discriminatory application of the bill, wherein only news and current affairs programs broadcasted on social media platforms are brought under regulation. Given that social media platforms are a means for journalists, especially independent and small scale journalists, to disseminate relatively uncensored news, the extension of regulation to such platforms may deepen restrictions to free speech.The summary of the 1995 Supreme Court Judgement on Airwaves in the case between the Union of India & Cricket Association of Bengal clearly outlines the need to maintain impartiality while regulating broadcasting media, especially the delivery of news, to preserve the right to receive and impart information.5 Part 3(b) of the summary states, “The right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an “aware” citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgement on all issues touching them. This cannot be provided by a medium controlled by a monopoly – whether the monopoly is of the State | |||||
| or any other individual, group or organisation. As a matter of fact, private broadcasting stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media, as explained in the body of the judgement. The broadcasting media should be under the control of the public as distinct from Government. This is the command implicit in Article 19 (1) (a). It should be operated by a public statutory corporation or corporations, as the case may be, whose constitution and composition must be such as to ensure its/ their impartiality in political, economic and social matters and on all other public issues. It/they must be required by law to present news, views and opinions in a balanced way ensuring pluralism and diversity of opinions and views. It/they must provide equal access to all the citizens and groups to avail of the medium.” Thus, the MIB must not transgress this Supreme Court judgement and restructure the regulatory mechanism such that the independence of the broadcasters and news publishers are safeguarded from executive intrusion. | |||||
| Clause 21 | The obligation on broadcasters to self-classify and rate content based on its context, themes, tone, impact, and target audience will significantly increase compliance burden on their part. Moreover, depending on the guidelines issued by the Union government on classification of these categories, the visibility, reach, and consumption rate of the content may be adversely affected. | ||||
| Clause 22 | Similar concerns around visibility, reach, and consumption of the content arise around the suggested access control measures given the obligation to restrict viewing for certain programmes categorised as such. What kind(s) of, how frequently, and on what basis content will be restricted depends on guidelines issued by the government. | ||||
| Clause 24 (1) | A three-tiered regulatory structure has been proposed for ensuring compliance and for grievance redressal. Quite similar to the structure proposed under the Cable TV Act, it claims to be reliant on an predominantly ‘self-regulatory’ structure. However, the executive oversight and government interference, especially at the third tier, reflects the language of ‘co-regulation’, but in a much more skewed power dynamic. Such a three-tiered regulatory system was introduced under Part 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). This structure was created without any statutory basis or any public consultation. The allotment of such wide powers to the Union government in the absence of any constitutional or parliamentary backing posed a grave threat to the freedom of speech and expression of content creators and publishers, as well as to the right of free access to information of the consumers of such content. The constitutionality of this part of the IT Rules, 2021 has been |
| challenged in several Courts.6 The bill does not explicitly state if it is meant to replace or overhaul this part of the IT Rules, 2021. Given the challenge to Part 3 of the IT Rules, which is administered by the MIB, we must question the attempt to bring a similar model of regulation and grievance redressal for “OTT” content and digital news media as well as the imposition of other obligations on broadcasters such as the need to ‘intimate’ the Union government. A similar obligation was imposed on publishers of news media by the Ministry, to furnish information under Rule 18 of the IT Rules, 2021, despite a stay on the Rules that lay out the 3-tier regulatory mechanism.7 While there was no stay on the Rule that allows the MIB to seek this information, there is a stay on the Rules that lay out the 3-tier regulatory mechanism, which is the purpose of seeking such information in the first place. The extent to which the Broadcasting Bill will alter the discourse and landscape of the IT Rules challenge remains to be observed. | |||||
| Clause 24 (2) | In addition to this, every broadcaster or operator would be required to constitute one or more “Content Evaluation Committee” (“CEC”), the size, quorum, and operational details of which would be determined by the Union government. As per the draft bill, broadcasters could only broadcast programmes that have been certified by the CEC. Broadcasting un- certified programmes will lead to a penalty of Rs. 100 lakhs and Rs. 500 lakhs for subsequent contravention within 3 years [First Schedule]. Clause 24(2)(a) requires the CEC to have members representing social groups such as “women, child welfare, scheduled castes, scheduled tribes, minorities etc.” While the intention to have diversity in the Committee is appreciated, the technical competence and expertise of these members to evaluate a diverse range of curated content may be questioned. It is fair to assume that most companies already have in place a mechanism to evaluate content. Thus, the State’s involvement in the certification process seems unnecessary and dangerous. Additionally, the burden to mandatorily disclose names and other details of the members of the CEC may put these members under considerable safety risks, both online and physical spaces. Documented instances of platforms proactively censoring content in order to avoid conflict with the Union government sheds light on potential threats to free speech resulting from such mandated disclosure.8 As per the First Schedule, failure to | ||||
| publicise the names, credentials and other details of members of CEC will amount to an initial penalty of Rs. 50 lakhs and a subsequent penalty of Rs. 250 lakhs if the contravention is repeated within 3 years. The risk of facing such high monetary penalties further accentuates the risks arising from disclosing personal details. Given the wide ranging compliance requirements under this provision, it may result in creation of entry barriers, increased compliance cost, and disruptions in the ease of doing business, especially for small and medium scale broadcasters. Thus, the feasibility and practicality of such a compliance heavy provision must be viewed with caution. Moreover, such disclosure requirements should be encouraged, rather than mandated, only after conducting necessary risk assessments, instead of penalising non-compliance with heavy penalties. | |||||
| Clause 25 | Under the Broadcasting Bill, a broadcaster or operator would be required to appoint a grievance redressal officer for the purpose of receiving and hearing complaints in contravention of the Codes, become a member of an SRO, establish and maintain suitable mechanisms for the filing and redress of complaints, and publish information related to complaint redressal mechanisms prominently [Clause 25(1)]. | ||||
| Clause 26 | As per the functions listed under the Broadcasting Bill, the SROs will address grievances which have not been addressed by the broadcaster or broadcasting network operators within the prescribed time period, hear appeals filed by complainants against the decision of the latter, and issue guidance or advisories to its members for ensuring compliance to the Codes [Clause 26(3)]. An SRO will also be required to make governing norms and articles for its members, which would include punishment for non-compliance with the norms or the Codes. The punishment includes temporary suspension, expulsion from membership, advisory, warning, censure, and/or monetary fine up to 5 lakhs [Clause 26(4)]. Through the standards and practices formulated and adopted by the BAC, the Union government will be able to exercise indirect control over curated content. | ||||
| Clause 27 | The Broadcasting Bill allows the Union government to constitute the BAC consisting of an independent member with 25 years of experience in the media industry as the Chairperson; 5 ex officio officers representing MIB, Ministry of Women and Child Development, Ministry of Home Affairs, Ministry of External Affairs, and Ministry of Social Justice and Empowerment; and 5 additional eminent independent persons [Clause 27(1)]. The BAC, in essence, replicates a structure similar to the Inter Ministerial Committee (IMC) constituted by the MIB for the regulation of Cable TV.9 Also substantively composed of government officials, the IMC | ||||
| functions in a recommendatory capacity and has the power to suggest penalty and other content modification decisions to the Union Government. The composition of the BAC, which predominantly includes government representatives, raises questions around its decision making expertise with respect to online curated content, its transparency and accountability, and its diversity. The terms and conditions related to the appointment of members to the BAC, the manner of their selection, tenure, and the manner of performance of their functions are yet to be prescribed. The BAC may refer any appeal or reference to review panels constituted by it. The current composition of the BAC raises concerns around the Council’s autonomy. Clause 27(5) gives the BAC the power to co-opt any number of additional members, who shall have the right to attend the meetings and take part in its proceedings but shall not have the right to vote. Notably, no criteria or qualifications have been provided for co-opting such members, opening the position to possibly anyone who the BAC members may deem fit. Interestingly, members co-opted with the approval or recommendation of the Union Government, shall have the right to vote. Thus, through this provision, the Union Government will be able to directly influence and even change the decision of the BAC, while also being able to evade the accountability and transparency obligations applicable to other non-co- opted BAC members. The apparent executive control paves the way for a toothless and unaccountable BAC. | |||||
| Clause 28 | The BAC may hear appeals filed by complainants against the decision of the SROs as well as the complaints regarding violation or contravention of the Codes referred to it by the Union government [28(1)]. After examining complaints, the BAC has to make recommendations to the Union government, which will then issue appropriate orders and directions [Clause 28(2),(3)]. The ability of the Union government to refer a complaint to a government-appointed body as well as the power to issue final order is likely to pave the way for censorship as well as self- censorship. In light of increasing scrutiny of streaming platforms, the Union government oversight over the BAC and CEC raise censorship concerns.10 Here, the MIB’s Expert Committee recommendation for a more liberalised regime even for film certification and its caution against the Central Board of Film Certification acting as a ‘moral compass’ must be remembered and applied. The Union government must take inspiration from the recommendation given by the Expert Committee and steer away from dictating modifications and deletions. | ||||
| Clause 30 and 31 | Clause 30 empowers the Union Government or agency so authorised by it or authorised officer, with the right to inspect broadcasting networks and services. Upon instruction, the operator of broadcasting network or broadcasting services will be required to provide the necessary “equipment, services and facilities at designated place or places for lawful interception or continuous monitoring at its own cost under the supervision of the Central Government or agency so authorised by it or authorised officer.” Clause 31 allows the Union government’s power to inspect, intercept, monitor, and seize the equipment of broadcasting networks and services. The power to inspect, intercept, and monitor cable network and services and to seize equipment used for operating cable television networks were added to the Cable TV Act by way of an amendment in 2011. Clause 30 in the Broadcasting Bill is more or less identical to Section 10(A) of the Cable TV Act. Interestingly, the Cable TV Act includes a safeguard in the confiscation provision (Section 12), which states that the cable operator from whom the equipment has been seized may be liable to confiscation unless the operator registers himself as a cable operator. However, the exemption provision appears to be considerably narrower in the Broadcasting Bill, under which the broadcasting network will not be considered liable for confiscation only if they demonstrate ‘compliance with the provisions of this Act’. Thus, a broadcasting network will be required to comply with each and every direction of the regulatory authorities as well as the Union government directions, orders, and/or penalties, in addition to intimating/ registering with the Union government. The plethora of compliances introduced under the Broadcasting Bill will thus make it extremely difficult for such broadcasters to become exempt from confiscation. Both Clauses include a safeguard provision of the obligation to provide reasonable notice, and under Clause 31, the obligation to do so in writing, informing them of the grounds of confiscation, a reasonable opportunity of making a representation in writing, as well as an opportunity to appeal the decision of the authorised officer to the court. The application of such powers on “OTT” broadcasting services raises valid questions and concerns around the executive’s indirect control over the platforms. Moreover, the Union Government’s or their appointed officer’s power to intercept, monitor, inspect, and seize equipment may be misused to create a chilling effect and an environment of fear among the broadcasters, including news creators. The ambiguity around the scope of these powers, i.e. to what kinds of equipment and for how long can they be intercepted, monitored, inspected, and seized, especially in the context of “OTT” broadcasters and new publishers, further augments our fears around imposition of speech restrictions through indirect coercion or fear. In the absence of explicit safeguards and specificities, such provisions may be misused to create an environment of fear and forced adherence among broadcasters. The existence of such extreme powers along with the overbroad penalties for non-compliance will inevitably lead to self- censorship. |
| Clause 35 and 36 | Clause 35 allows the Union government to order the broadcaster or the network to delete or modify programme or advertisement and even direct the channel to be off-air for a specified number of hours as a penalty for violating the Codes. The Union government cements its censorship powers under the draft bill through Clause 36(2), read with Clause 5(1)(d), under which it may, in public interest, prohibit the operation of any broadcasting services or broadcasting network operators in the areas notified. The Union government cements its censorship powers under the draft bill through Clause 36(2) under which it may, if it deems it necessary or expedient to do so in public interest, prohibit the operation of any broadcasting services or broadcasting network operators in the areas notified. The language in Clause 35 and 36 is very similar to the language in Section 19 of the Cable TV Act, which also empowers the authorised officer or Union Government with such draconian powers. In early 2022, the Union Government blocked the broadcasting of the popular Malayalam language news channel, Media One, for the second time, citing ‘security reasons’.11 The government failed to state, both publicly and directly to the channel, the reasons and grounds for the blocking. This is an example of how such draconian powers can be misused in the absence of relevant safeguards and checks. While on one hand the judiciary has protected speech, by quashing the ban on Media One citing concerns around “chilling effect on free speech and particularly on press freedom”, on other instances, artistic creativity and freedom has also been unfairly stifled by the judiciary, wherein it chose to block certain provocative or dissenting pieces of content while not blocking other propaganda pieces, displaying an inconsistent application of grounds for blocking.12 The Broadcasting Bill is unfortunately indicative of a missed opportunity of liberalisation, with a clear inclination towards paternalistic approach of regulation resulting in censorship and government control.13 |
- Programme and Advertising Codes prescribed under the Cable Television Network Rules, 1994. https://mib.gov.in/sites/default/files/pc1_0.pdf
- Gerry Shih and Anant Gupta, “Facing pressure in India, Netflix and Amazon back down on daring films”, The Washington Post, November 20, 2023. https://www.washingtonpost.com/world/2023/11/20/india-netflix-amazon-movies-self-censorship/.
- Bennett Coleman & Co. v. Union of India [1973] 2 S.C.R. 757,
https://globalfreedomofexpression.columbia.edu/cases/bennett-coleman-co-v-union-of-india/.
- Romesh Thappar vs The State Of Madras [1950] AIR 124, https://indiankanoon.org/doc/456839/.
- Union of India & Cricket Association of Bengal (1995). https://mib.gov.in/document/supreme-court- judgement-airwaves
- Amala Dasarathi and Tanmay Singh, “Supreme Court stays proceedings before High Courts challenging IT Rules, 2021, interim orders to continue”, Internet Freedom Foundation, May 09, 2022.
https://internetfreedom.in/supreme-court-stays-proceedings-before-high-courts-challenging-it-rules-2021-interim-orders-to-continue/.
- Tanmay Singh, “News publishers furnish their details voluntarily, MIB claims in RTI Appeal”, Internet Freedom Foundation, March 15, 2022. https://internetfreedom.in/rule-18-it-rules-rti-appeal/.
- Lata Jha, “OTT platforms in a fix over offensive int’l content”, Mint, May 27, 2023.
https://www.livemint.com/industry/media/afwaahon-ka-safar-sunny-deol-reacts-on-drunk-viral-video- 11701855316424.html.
- See also: Gerry Shih and Anant Gupta, “Facing pressure in India, Netflix and Amazon back down on daring films”, The Washington Post, November 20, 2023. https://www.washingtonpost.com/world/2023/11/20/india- netflix-amazon-movies-self-censorship/.
- See also: Apar Gupta and Anushka Jain, “Tandav is a Case Study for OTT censorship under the IT Rules, 2021 #LetUsChill”, March 27, 2021. https://internetfreedom.in/tandav-case-study/.
- Rajya Sabha Unstarred Question No. 869 answered by the MIB dated 09, February, 2017. https://sansad.in/getFile/annex/242/Au869.pdf.
- Reuters, “Worried about obscenity, India asks OTT platforms for content checks”, Business Standard, July 14, 2023, https://www.business-standard.com/industry/news/worried-about-obscenity-india-asks-ott-platforms-for-content-checks- html.
- “Centre blocks MediaOne broadcasting over unspecified security reasons”, Madhyamam, January 31, 2022. https://english.madhyamam.com/india/keralas-mediaone-news-channel-blocked-by-the-union-govt-922548.
- Ananthakrishnan G, “SC quashes ban on Media One: ‘Chilling effect’ on free press”, The Indian Express, April 6, 2023. https://indianexpress.com/article/india/malayalam-news-channel-media-one-ban-supreme-court-
- See also: “Supreme Court refuses to ban Sudarshan TV show for now”, The New Indian Express, August 29, 2020. https://www.newindianexpress.com/cities/delhi/2020/aug/29/supreme-court-refuses-to-ban- sudarshan-tv-show-for-now-2189828.html.
- Mohul Ghosh, “Govt Wants To Regulate Netflix, Prime, Hotstar & Other OTTs; New Bill Also Allows Govt To Run Ads On Digital & OTT Platforms”, Trak.in, November 19, 2023. https://trak.in/stories/govt-wants-to- regulate-netflix-prime-hotstar-new-bill-also-allows-govt-to-run-ads-on-digital-ott-platforms/#google_vignette.