Do not include streaming platforms in Broadcasting Bill, IBDF

The Indian Broadcasting & Digital Foundation (IBDF), an industry body of TV broadcasters whose members include Star, Viacom 18, Times Television Network amongst others, wants online streaming platforms like Netflix and Amazon Prime Video to be removed from the scope of regulation of the contentious Broadcasting Services (Regulation) Bill, 2023 which was introduced by the Ministry of Information and Broadcasting (MIB) in November 2023.

The IBDF has criticised the bill for granting unfettered powers to the central government to control what is broadcast and potentially censor content; for impinging on content creators’ and broadcasters’ right to freedom of speech and expression through different provisions; and for relying on excessive delegated legislation which creates an environment of regulatory uncertainty and makes it hard for stakeholders to engage in effective consultation on the Bill.

“The TRAI recently floated a Pre-Consultation Paper on a proposed National Broadcast Policy (NBP), and this Draft Bill has been circulated for consultation, immediately, without concluding that process or even paying heed to some fundamental issues raised by various stakeholders. … We believe that the Draft Bill, if any, must be based on principles, goals and objectives outlined in a coherent Broadcast Policy, laying out values on which the sector is proposed to be managed and developed. The Draft Bill must consider the various prevailing legislations, to cull out unnecessary regulation and address the inadequate support and provision for the same,” the IBDF said in its submission to the MIB. The consultation ended on January 27.

Don’t include streaming platforms
The IBDF said that the Bill should be limited to linear broadcasting distribution services only. It said that in the current Bill, the definition of broadcasting is too expansive, even though broadcasting is transmission of predetermined content, which is ‘pushed’ to viewers while streaming platforms grant viewers greater autonomy to ‘pull’ content of their choice. The industry body said that the draft bill is broader than the extant Cable Television Networks (Regulation) Act, 1995.

It highlighted that the Bill recognised the distinction between traditional broadcasters and streaming platforms because it differentiates between “one to many” transmission and “available on demand,” and allows for different programme and advertising codes for them and yet lumps streaming platforms under this regulation.

“IBDF, therefore, recommends that there is no need to introduce a new framework more so when the existing self-regulatory framework has been functioning efficiently,” the IBDF said.

The IBDF said that by equating linear broadcasters with online curated content publishers (that is, streaming platforms), the Bill was engaging in “reverse discrimination”, because it then becomes a case of unequal being treated equally.

No need for Programme Codes, Advertising Codes
The industry body wants the Bill to scrap provisions related to prescribing programme codes and advertising codes. It instead wants the bill to specify that no content that violates applicable law can be transmitted.

It has two main problems with these provisions: since the codes aren’t described in the bill and will be described in the subordinate legislation, it creates “uncertainty amongst the stakeholders”; and the codes give “unfettered powers” to central government to regulate media and thus impinge on the freedom of speech and expression, guaranteed under Article 19(1)(a). This leaves room for “arbitrary and discretionary enforcement of law” and is so widely framed that it could include “innocent and legal satire, comedy”.

It also pointed out that restrictions on Article 19(1)(a) can only be placed through laws, not rules. It also criticised existing programme code under the Cable Television Networks Act, which have been described as “highly subjective”, “over broad, open-ended, using vague terms and imposing unreasonable restrictions of the freedom of speech and expression” beyond Article 19(2).

The industry body said that an effective self-regulatory organisation for advertising already exists, that is, the Advertising Standards Council of India (ASCI) rendering advertising codes unnecessary.

Content Evaluation Committees will lead to censorship
The IBDF wants the MIB to scrap the content evaluation committee — which, as per the Bill, must certify all content before it is broadcast — so that artistic expression and creative freedom are not unduly curbed. This could lead to “potential censorship” and “pre-censorship”. It called the sections on the CEC “unguided” which give too much power to the central government to “prescribe and proscribe” content.

This will lead to a narrow interpretation of what content is deemed acceptable which will be “fatal to the functioning of democracy”, the IBDF wrote.

The CECs are “unnecessary”, “impractical”, “economically not feasible” and “burdensome”, and will cause administrative hurdles and unnecessary delays. The body said that the current practice of getting content reviewed by in-house Standards and Practices Department is enough.

The body also said that the Bill does not describe the criteria under which programmes can be exempted from needing CEC certification which thus gives “unbridled and unguided discretion to central government” and gives “carte Blanche to discriminate”, making it susceptible to misuse.

When the government had released the Bill on November 10 for public consultation, I&B secretary Apurva Chandra had said that the government would come up with a “negative list”, that is, content that will not require certification or vetting by the CEC, HT had earlier reported. This could include live sports, informative content on channels such as Discovery and National Geographic, he said. However, the Bill makes no mention of such a list.

The IBDF said that content creators have no way to challenge CEC’s decision, leaving them “remediless”.

Broadcast Advisory Council defeats the point of self-regulation
The IBDF said that the creation of the central government-appointed Broadcast Advisory Council on top of the grievance redressal system is too “prescriptive” and defeats the stated aim of self-regulation.

As it is, the three-tier self-regulatory mechanism prescribed for online streaming platforms under IT Rules, 2021, is under challenge in the Madras High Court. The streaming platforms will have two parallel self-regulatory mechanisms because of the IT rules, the IBDF said.

The BAC, IBDF says, controls the programmes of the broadcasters and is antithetical to the prime minister’ vision of “minimum government maximum governance”. Through the BAC, the central government gives itself “final say” over what is disseminated, especially because the central government has been given too much power over the appointment and functioning of BAC members.

It is also not clear if the BAC’s recommendations to the central government are binding, the IBDF said. The BAC “violates the basic structure of the Constitution, and is contrary to the doctrine of separation of powers”.

The body instead wants the government to prescribe guardrails in the form of governance standards and transparency requirements.

Excessive penalties, too much delegated legislation
The IBDF said that the excessive penalties under the Bill will “[stifle] creativity, [hinder] content diversity, [undermine] constructive dialogue” and lead to self-censorship and lack risks and experimentation in the content.

The provision for imprisonment is “harsh” and contradicts amendments to decriminalise offences under the CTN Act via the Jan Vishwas (Amendment of Provisions) Act, 2023, the body said.

It also said that relying on 65 sets of delegated legislation is “excessive” because it hinders them from effectively giving feedback on a draft legislation which is missing crucial information.

No infrastructure sharing, stick to BARC
The IBDF said that allowing infrastructure sharing between broadcast network operators will have a “disastrous effect” on the industry, as it will allow proliferation of piracy, and under reporting of subscriber numbers.

It also said that the existing system of audience measurement through BARC should continue because it represents all stakeholders and is best equipped to set audience research guidelines. No government intervention is required, the IBDF said. Hindustan Times