New draft of broadcasting bill: News influencers may be classified as broadcasters

Individuals who routinely upload videos to social media, make podcasts or write about current affairs online could be classified as digital news broadcasters, according to the new draft of the broadcasting bill that the government shared with stakeholders.

When the Bill was first released for public consultation in November 2023, it set out to combine all regulation for broadcasters under one law. From the beginning, it has been dogged by concerns around whether or not news content creators online, who are not associated with legacy media or registered digital media, can attract obligations imposed on streaming platforms (‘OTT broadcasting services’). The 2024 version proposes to bring them under the ambit of the law by introducing the new category called digital news broadcasters.

It attempts to address the ambiguity created by the first draft on this aspect by defining “professional” — a person engaged in an occupation or vocation — and “systematic activity” as “any structured or organised activity that involves an element of planning, method, continuity or persistence”.

The new version also defines “news and current affairs programmes” to include “texts” apart from the existing “audio, visual or audio-visual content, sign, signals, writing, images” which are “transmitted directly or using a broadcasting network”.

The definitions of ‘programme’ and ‘broadcasting’ have also been revised to include “texts” and “textual programmes”, respectively.

In short, all news and news adjacent content online — videos and commentary on social media, websites, newsletters, podcasts — is covered by this bill.

To be sure, the bill is still in public feedback stage, and all changes it will have go through the Union Cabinet before it is tabled in Parliament.

These proposed provisions are part of a broader approach that also introduces new obligations for intermediaries and social media intermediaries related to streaming services and digital news broadcasters, and, in a major change from the last version circulated in 2023, provisions targeting online advertising.

In the context of streaming services, OTT broadcasting services are no longer a part of the definition of ‘internet broadcasting services’.

The definition of OTT broadcasting service has also been revised due to which not only Netflix and Amazon Prime Video , but also content creators who regularly upload their content to social media can arguably be OTT broadcasting services.

For instance, a chartered accountant who posts videos on YouTube and Instagram about how to file IT returns is a ‘professional’ under the Bill and can attract provisions of the Bill if they have enough followers/subscribers. A journalist who tweets regularly is covered by it too.

Due diligence for intermediaries
The new definition of an ‘intermediary’, given in the context of any programme, includes social media intermediaries, advertisement intermediaries, internet service providers, online search engines and online market places.

The new Bill also allows the government to prescribe different due diligence guidelines for social media platforms and online advertisement intermediaries, and requires all intermediaries to “provide appropriate information, including information pertaining to the OTT broadcasters and Digital News Broadcasters on its platform” to the central government to ensure compliance with the act.

If the intermediary does not comply with the government’s directions, it stands to lose its safe harbour (exemption from liability for third party content) and can attract penal provisions under the Bharatiya Nyaya Sanhita, 2023, the Bill says.

The bill clarifies that if an OTT broadcasting service or a digital news broadcaster is a user on a social media platform, the two broadcasters will be responsible for complying with the act, not the social media company

Online advertising to be regulated
A crucial change pertains to provisions aimed at regulating online advertising by creating the category of ‘advertising intermediaries’ which refer to “an intermediary which primarily enables buying or selling of advertisement space on the internet or placement of advertisements on online platforms without itself endorsing the advertisement, and shall not include an advertiser or broadcaster as defined under the rules”. All ads published online on a website, social media, or similar medium must conform with the Advertising Code. It is not clear who will be responsible for ensuring the compliance — the ad creator or the intermediary that enables the sale of the ad space or the intermediary that finally displays it for the user.

It is not clear if sponsored posts by influencers, which are considered ads under the Consumer Protection Act, 2019, are also covered under this bill.

In July 2023, the allocation of business rules were amended to allocate regulation of ‘online advertisements’ to the MIB.

General obligations for all broadcasters and network operators
General obligations for broadcasters and network operators now also include compliance with the government’s foreign direct investment policy and standard operating procedures during disasters and natural calamities, at par with how such regulations have existed for conventional broadcasters.

Certain relaxations given
The new Bill exempts OTT and digital news broadcasters from criminal penalties for failing to inform the government of reaching the prescribed threshold (‘intimation’). Under the new Bill, if OTT and digital news broadcasters do not meet the prescribed threshold of subscribers of viewers, they shall be deemed to have provided intimation.

In the 2023 Bill, the government was empowered to exempt OTT broadcasters from provisions of the law if they did not meet the prescribed threshold of subscribers or active users. In the 2024 bill, the central government, “if it considers or expedient so to do for avoiding genuine hardship on such other OTT broadcasting service operators or Digital News Broadcasters, who constitute any distinct class or group, or relax, through Guidelines, any requirement contained in any of the provisions of this Act”.

As HT reported on July 14, the negative list, that is, content that will not require certification or vetting by the in-house content evaluation committee (CEC) of the broadcaster, has been included in the updated draft. These include programmes already certified for public viewing in India by any statutory body (like movies certified by CBFC), news and current affairs, programmes, educational programmes, live events, and animations for children.

The broadcasters are no longer required to publicise the names and credentials of the members of the CEC. They are only required to intimate them to the central government.

The new bill also states that self-regulatory organisations for streaming platforms and digital news broadcasters, that were previously registered by the central government under the IT Rules, 2021, will be deemed to have been registered under the Broadcasting Act as well.

The power to seize and confiscate equipment has now been limited to cover only cable broadcasting networks, radio broadcasting networks and any other broadcasting network or service notified in the gazette. The section on right of way for broadcasters has also been shortened significantly.

Anti-piracy provisions
The 2024 bill also includes a section on anti-piracy provisions which prohibit everybody from carrying any content in their programmes that violates someone else’s copyright. The Bill also empowers the central government to establish “a dedicated task force or unit” to investigate and combat piracy.

Regulatory sandbox to test new broadcasting technologies
Under the new bill, the central government can also create one or more ‘regulatory sandboxes’ to “encourage and facilitate innovation and technological development in broadcasting”. A regulatory sandbox is a ‘live testing environment where new products, services, processes and business models” can be deployed on a limited set of users for a specified period of time with relaxations from the provisions of the act. Hindustan Times