Proposed broadcasting Bill raises concerns about creative freedom, OTT content

Media experts argue that the recommendations of the draft Broadcasting Services Bill may lead to content cuts and pricing changes and hinder the independence of OTT platforms, impacting both creators and consumers.

The Central Government, after taking into consideration the recommendations of the BAC, will issue appropriate orders and directions under Section 35, which defines penalties and measures for contraventions of the Programme Code and Advertisement Code.

The Indian government’s proposed regulation, Broadcasting Services Bill 2023, for Over-the-Top (OTT) platforms, akin to cable TV, has raised some concerns about the impact on creative content and freedom of expression. The bill suggests official certification and a regulatory committee, potentially stifling artistic freedom.

Media experts argue that these measures may lead to content cuts and pricing changes and hinder the independence of OTT platforms, impacting both creators and consumers.

“The regulation of the OTT platforms in India is an extremely ambitious project. Most importantly, because this medium of broadcast is global and includes international content governed by the laws pertaining to the internet and information technology. The objective of bringing it within the same umbrella as cable TV may hamper the creativity and flow of engaging content on these platforms,” said Ekta Rai, advocate, Delhi High Court. Rai specialises in media laws.

Explaining how this move could hamper creative freedom, Rai said OTT and social media content offer freedom of expression that does not fall under the censorship of the Telecom Regulatory Authority of India (TRAI) and hence presents a larger picture for those who wish to broaden their horizons beyond the content available on cable TV.

“Regulating OTTs will certainly hamper the growth of these platforms in India as the power of determining what the public can watch will be snatched from the hands of the public and vested in the hands of a council, which may end up micro-managing the creative content available for consumption by the general public,” she added.

The draft recommendations talk about a Content Evaluation Committee (CEC) and a Broadcast Advisory Council (BAC). While the CEC will be responsible for self-certification, the BAC will hear complaints regarding violations or contraventions of the Programme Code or Advertisement Code. They will also examine the complaints or grievances received by it and make recommendations to the Central Government.

The Central Government, after taking into consideration the recommendations of the BAC, will issue appropriate orders and directions under Section 35, which defines penalties and measures for contraventions of the Programme Code and Advertisement Code.

Another key problem area pointed out by experts is the lack of clarity in defining terms that might add to apprehensions, with potential repercussions for the creative industry and public access to diverse content.

Kunal Sharma, Partner, Singhania & Co., explains how. Unlike films shown in cinemas certified by the Central Board of Film Certification, content on OTT platforms currently undergoes no review.

“The proposed Bill seeks to alter this situation by requiring content on platforms to be officially certified by an evaluation panel. For those most impacted, including the general public relying on digital services both as consumers and creators, the government’s call for feedback presents an opportunity to discuss key aspects. Ambiguous terms / expressions like ‘half-truths,’ ‘good taste’, and ‘decency’ need clarification,” said Sharma.

“While the Central Government is trying to regulate the OTT space, the same will lead to cutting down on content as well as possible pricing measures, along with hampering the independence of these platforms and their artistic creativity,” he added.

Having said that, Sharma added that if the content on OTT is rich and persuasive, then any such Bill should not affect the viewership and, therefore, the revenue of the OTT operators and content creators.

The Ministry of Information and Broadcasting (MIB) is also banking on the same hope. Pointing this out in an interview with Storyboard18, Secretary Apurva Chandra said that the ministry is open to incorporating valuable feedback into the final version.

“We have released the draft Broadcast Services (Recommendation) Bill, for public comments, inviting a healthy and informative debate,” Chandra said.

He also cleared the air about being prescriptive and assured that the ministry is a believer in self-regulation. The new Bill, according to Chandra, consolidates regulations into different chapters, recognising the unique aspects of each domain, wherein the regulation for OTT platforms is light-touch in nature and not like others. StoryBoard18