Centre extends regulatory oversight to digital media content creators and OTT platforms

The central government has extended regulatory oversight to digital media content creators and OTT platforms in the revised draft of the Broadcasting Services (Regulation) Bill, 2023.

Individuals and entities producing and uploading videos, podcasts, or written content about current affairs, or news online have been classified as ‘digital news broadcasters’ and brought under the purview of the draft bill.

The draft bill has extended government control over ‘digital news broadcasters’ and OTT platforms by requiring mandatory registration, imposing stringent content regulations, and expanding compliance obligations.

However, there’s ambiguity over the definition of ‘digital news broadcasters’.

The government plans to extend oversight in the digital space through the Broadcast Advisory Council and Content Evaluation Committees (CECs) proposed in the draft bill.

However, experts told ThePrint that the draft bill is more ambiguous than clear. It can lead to confusion and uneven enforcement and raises concerns over fairness and transparency in implementation, they said.

Minister of State for Information and Broadcasting L. Murugan, in a reply to a query in the Rajya Sabha on Friday, said that the stakeholders’ consultation on the draft bill is currently underway, but there is no official word yet on when the final bill will be presented in the public domain.

Digital news broadcasters & mandatory registration
The draft bill — a copy of which ThePrint has accessed — defines a ‘digital news broadcaster’ or ‘publisher of news and current affairs content’ as any person who disseminates news and current affairs through online newspapers, news portals, websites, social media intermediaries, or similar platforms as a ‘systematic activity’ as a part of a structured business, professional or commercial activity. Replica e-papers do not count.

The wording makes the definition more open-ended than it might first appear.

For example, the draft bill defines ‘systematic activity’ as any organised or planned activity that shows continuity or persistence. It might sound straightforward but, in practice, could be interpreted very broadly.

Pointing out the potential for confusion, Prateek Waghre from the Internet Freedom Foundation told ThePrint, “Imagine you are a travel blogger, and most of your content is about your trips and experiences. Now, say you post something about a train accident—suddenly, you have touched on current events. Does that single post mean you are now considered a news broadcaster under this law? Could posting just one piece of news make you subject to these new regulations?”

Besides, the definition of ‘person’ in the new draft of the bill has been broadened compared to the earlier version, released in 2023.

The earlier draft limited the term to ‘an individual who is a citizen of India’, ‘an association of persons or a body of individuals, whether incorporated or not, whose members are citizens of India’, ‘a company’, and ‘a limited liability partnership’.

In contrast, the new draft brings ‘an individual’, ‘a Hindu undivided family’, ‘a firm’, ‘a local authority’, and ‘every artificial juridical person’ under its purview. It is not limited to citizens, allowing the definition to encompass a wide range of entities, not strictly Indian citizens or organisations.

This change, journalist and digital rights activist Nikhil Pahwa pointed out, means that the bill could apply to a broader spectrum of individuals and organisations, making its regulatory reach “more extensive”.

The term ‘news and current affairs programmes’ has been updated to ‘news and current affairs content’. Additionally, the new definition includes ‘textual’ content and removes the restriction to ‘broadcasting networks’ as in 2023, broadening the scope to encompass a wide range of media formats and platforms.

According to the draft bill, all digital broadcasters and OTT platforms must register with the central government or provide notification of their operations within one month of the bill’s notification as an Act.

For the OTT platforms, this registration is mandatory if they reach a specified threshold of subscribers or viewers. There is no clarity on whether digital news broadcasters must register regardless of the number of their subscribers or viewers.

Waghre said it can not be assumed, with the bill’s wording leaving uncertainty about the specific obligations of digital news broadcasters.

Under the bill, every registration certificate requires periodic renewal. Moreover, such renewal is contingent upon obtaining or renewing necessary clearances specified by the Centre. The renewal involves paying a prescribed fee and meeting terms and conditions. Any failure to meet these conditions can lead to the cancellation of the registration by the central government.

Additionally, when a broadcaster or broadcasting network operator breaches any terms, a proposed Registering Authority can suspend or revoke their registration. However, before taking such action, the broadcaster or operator must be given a reasonable opportunity to present a case.

Due diligence by social media platforms & intermediaries
The new bill includes due diligence guidelines for social media platforms and other intermediaries. If a digital news broadcaster uses a social media platform to distribute content, the platform must ensure that the intermediary adheres to the regulatory standards prescribed by the bill.

This provision effectively extends government oversight to the platforms that host or distribute digital news content, not just the content creators themselves.

According to the bill, an intermediary, such as a social media platform or an internet service provider, will not be held responsible for the content created or shared by others on its platform as long as they meet certain conditions mentioned in the bill.

These conditions are that the role of the intermediary is only to provide access to a communication system where third-party content is transmitted, stored, or hosted temporarily. The intermediary is not actively involved in creating or controlling this content. The intermediary does not start or initiate the transmission of the content. It only provides the platform for the content to be shared. The intermediary does not choose or alter the content shared unless they are making changes based on instructions from the Centre under the rules of the Act, which the draft bill does not mention.

The intermediary also must follow all necessary precautions and guidelines while performing their duties under the Act. Later, the Centre may issue specific due diligence guidelines for different types of intermediaries, such as social media platforms or online advertising services.

In short, if intermediaries act as neutral platforms and follow government rules, they will not be held liable for the content users post on their platforms.

Besides, the draft bill requires intermediaries to provide relevant information, including details about OTT broadcasters and digital news broadcasters on their platform, to the Centre when required under the Act.

Since the definition of social media intermediaries in the draft bill is similar to that in the Information Technology Act 2000, the rules will extend to WhatsApp, Telegram and Signal, which provide end-to-end encryption for messages and calls.

This is controversial, with Meta-owned WhatsApp informing the Delhi High Court in April this year that it would halt operations in India if required to compromise its message encryption.

In July 2022, social media platform X, formerly Twitter, challenged government orders to block certain accounts and tweets by approaching the court. The lawsuit was significant because it was the first time a social media company had legally contested government demands to remove content — demands often criticised as unclear and unfair.

But a year later, the Karnataka High Court ruled against X, imposing fines of Rs five million on the company for not complying with government orders for over a year.

At the time, Rajeev Chandrasekhar, the then minister of state for electronics and information technology, emphasised that all foreign internet platforms must adhere to Indian laws.

In line with that, the revised draft bill has provisions for penalties, including financial ones, for non-compliance with government orders, as the earlier draft did.

“It does not have to go as far as shutting down the channel,” said Waghre. “The government can simply issue penalties — monetary penalties, to be exact. The bill indicates that for subsequent violations, the fines will increase. So, there is no need to shut down software entirely — instead, impose penalties repeatedly. That can lead to significant self-censorship or a chilling effect, where people might avoid discussing topics considered critical of the government.”

According to one of the clauses under this provision for fines, the Centre may issue ‘directions’ to the internet service providers or other intermediaries to ‘enforce compliance’ to provisions of the Act in the cases of OTT broadcasting operators and digital news broadcasters.

Nikhil Pahwa, the founder of MediaNama, a mobile and digital news portal, labelled this as the “censorship clause”.

“So, what is happening here is that the Government of India is saying it can direct an internet service provider to block any content on the internet if it did not comply with regulations,”.

Powers and obligations
The bill also grants the Centre discretionary powers to relax requirements for distinct classes or groups of digital news broadcasters. However, it does not specify the criteria or process for exercising these powers.

While this may seem like a measure to alleviate hardships, it also gives the central government considerable control over which entities might receive leniency and under what conditions.

The general obligations remain consistent with the previous draft, with two notable additions. First, broadcasters and broadcasting network operators must adhere to standard operating procedures set by the Centre during disasters and natural calamities. Second, they must comply with the provisions of the Foreign Direct Investment (FDI) policy.

Content Evaluation Committees & Broadcast Advisory Council
As in the 2023 draft, the self-regulatory structure remains in the revised draft bill.

Every broadcaster or broadcasting network operator must establish one or more Content Evaluation Committees (CECs). The committee must be diverse and include members knowledgeable about various social groups, including women, children, and scheduled castes and tribes.

However, the new draft bill does not specify the total number of committee members, unlike the earlier version, which allowed the Centre to prescribe the number of members, the quorum required, and other details to facilitate the formation of the CEC.

According to the bill, the CEC must notify the Centre of the names and credentials of CEC members. Only programmes the CEC certifies will get broadcast, but content such as news, current affairs, educational programmes, live events, and animations for children are exempt from this certification requirement.

Moreover, the central government, state governments, or other public authorities may request the certification issued by the CEC.

A broadcaster or broadcasting network operator has to form the CEC within 180 days of the Act coming into force.

Moreover, they need to appoint a grievance redressal officer to handle complaints and must prominently publish information about their complaint redressal process. If a complainant is dissatisfied with the officer’s decision or the officer does not decide within a specified timeframe, the complainant can appeal to a self-regulatory organisation such as the Press Council of India or the Centre-governed Broadcast Advisory Council proposed in the bill. These bodies can suspend broadcaster memberships.

The proposed Broadcast Advisory Council will be constituted by the central government and chaired by an eminent independent person with at least twenty-five years of experience in media, entertainment, broadcasting, or related fields.

Based on the recommendations of this council, the Centre can issue a range of orders to broadcasters or broadcasting network operators, asking them to delete or modify programmes/ advertisements, adhere to advisories, or display an apology. The Centre can also take the channel off-air for a specified duration.

In cases of repeated and persistent non-compliance, where broadcasters or broadcasting network operators have already been penalised, the Centre may cancel any registration granted to the broadcaster or broadcasting network operator after giving the entity a reasonable opportunity to present its case.

These measures suggest a move towards a more regulated and controlled digital news environment, with digital media operating under a structured, government-regulated framework similar to traditional media outlets. ThePrint