Legal analysis and industry implications-Draft Broadcasting Bill

On November 10, 2023, the Ministry of Information and Broadcasting (“MIB”) released the draft Broadcasting Services (Regulation) Bill, 2023 (the “Bill”) seeking comments from the general public and/or any stakeholders. The Bill aims at consolidating the present regulatory guidelines that apply to the broadcasting industry in India under one legal framework and replace the long-standing Cable Television Networks (Regulation) Act, 1995. The Bill however explicitly states that provisions of other acts such as the Information Technology Act, 2000, and the Telecom Regulatory Authority of India Act, 1997, will not be barred by the Bill but in addition to the provisions of the Bill. Along with traditional broadcast networks that were governed under the Cable Television Act, the Bill also intends to bring under its purview Over-the-Top (“OTT”) broadcasting service operators, digital media platforms and direct-to-home operators. The first half of this Article highlights some of the key provisions of the draft Bill. In the latter half, it discusses some of the hurdles that the Bill possess in its current form and the consequential impact it could have on the Indian broadcasting industry.

Critical Provisions of the Bill
Self-Regulation
One of the most vital components of the Bill is the introduction of a self-regulatory mechanism for regulation through ‘Content Evaluation Committees’ (“CEC”)1. All broadcasting network operators will be required to become a member of the CEC and must procure certifications from the CEC, for all programmes it seeks to broadcast. Moreover, the Bill places on broadcast operators the obligation to:

(i) Designate a grievance redressal officer; (ii) Implement an appropriate grievance redressal mechanism for filing complaints; and (iii) Disclose the information on the grievance redressal mechanism as may be prescribed2.

Furthermore, the Bill also stipulates the constitution of a Broadcast Advisory Council (“BAC”) which shall adjudicate any grievances regarding potential violations of the Programme Code or Advertisement Code3.

Programme Code and Advertising Code
The Bill envisages the implementation of a Programme Code and an Advertisement Code to regulate the services of different broadcast network operators and guide the functioning of the CEC and the BAC4. Entities which are in violation of the Programme Code and the Advertisement Code will be liable to pay a penalty as prescribed by the Bill.

Provisions for Persons with Disabilities
The Bill strives to ensure that broadcasting services are accessible to persons with disabilities5. It states that the MIB may enforce guidelines to ensure that broadcasting services are accessible to persons with disabilities. These operators must undertake necessary actions in order to fulfil this mandate by incorporating appropriate subtitles, supplementing the content with audio-description, translate certain content into sign language, etc6.

Penalties and Fines
The Bill provides statutory penalties which including warning, censures, advisories, etc. for broadcast network operators. For grave offences, fines and/or imprisonment could also be imposed on a person or an entity contravening their respective obligations7. Interestingly, the monetary fines that may be imposed under the Bill take into consideration the financial capacity of the entities which encapsulates the fundamental principles of the Bill which are i.e., transparency, equity, and fairness.

Concerning Facets of the Bill
The foremost controversial aspect of the Bill is the inclusion of OTT platforms under its ambit and the proposed intent to govern OTT Platforms under the same regulations as used for traditional broadcasting services. While prima facie, OTT platforms can be compared to broadcasting networks because both provide content to its viewers, on closer scrutiny OTT platforms and broadcasting services have a stark difference. A broadcasting network operator ‘pushes’ certain fixed content to its viewer, while in the case of OTT platforms, it is the viewer who ‘pulls’ the content by way of deciding what to view. It is therefore arguable that censorship regulations for content that a user decides to view should differ from regulations governing content that is pushed to users. Accordingly, a uniform legislation for all content, whether on traditional broadcasting services or on OTT platforms is noteworthy.

Another overarching analysis of the Bill is with respect to the different laws that may regulate online content. If the Bill is enacted in its current form, there will be 2 (two) regulations governing an online content platform including OTTs. One would be the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which regulate the platform itself and the other would be the Bill which would regulate the contents of the platform. This could possibly be a laborious obstacle for OTTs and other entities publishing digital content.

Conclusion
In conclusion, the Bill, aimed at laying down a comprehensive legal framework for the Indian broadcasting industry, presents both beneficial provisions and notable challenges. The emphasis on self-regulation through the CECs and the establishment of a BAC depicts an attempt to address industry complexities. However, the inclusion of OTT platforms within the regulatory ambit, governed by the same regulations as traditional broadcasting services, remains a contentious issue. The inherent differences in content delivery methods between traditional broadcasting and OTT platforms raise questions about the appropriateness of a uniform legislative approach. Moreover, the interplay between the proposed Bill and the existing laws, introduces potential hurdles related to implementation. As stakeholders deliberate on public comments, addressing these concerns will be pivotal to ensuring a balanced regulatory framework. Obhan & Associates Blog