Self-regulation in draft broadcasting Bill draws mixed reactions

Legal experts point to potential drawbacks in personal data protection of evaluation committee members, overlap in the powers of the regulatory authorities, grey areas with respect to OTT platforms, and concerns over artistic freedom.

The proposed provisions in the draft Broadcasting Services (Regulation) Bill, 2023 pertaining to self-regulation by broadcasters and broadcasting network operators have elicited diverse views from legal experts.

“It is heartening to see a proposal for a self-regulatory mechanism in the first instance — which appears to be very similar to the original proposal under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This will accord a greater sense of responsibility accountability for broadcasters and broadcasting networks in relation to the content made available by them to the general public,” Shreya Suri, partner at the law firm IndusLaw, said.

However, Ms. Suri expressed surprise over some of the details given in the Bill itself, which involve intimation to the government, and making public the personal details of members of an internal certification body, the Content Evaluation Committee (CEC), particularly in the backdrop of the new Digital Personal Data Protection legislation, “which would call one to question why this is even necessary”.

Ms. Suri said while that might have been well-intended in terms of encouraging responsibility being taken for content being posted across different media, such mandatory disclosures could also potentially put the individuals involved in the CEC at a personal risk of harm and injury, depending on the content being approved by them.

“…particularly considering the sensitivities of a very diverse audience and the fact that audiences do tend to react when certain content is sensationalised (be it with or without valid reasons),” she said, adding that the draft Bill was currently open for comments from the public and would likely undergo several changes following stakeholder consultations. “This particular aspect will hopefully merit some reconsideration as well,” Ms. Suri said.

She said that in terms of the self-regulatory organisations (SRO) stepping up to the task of overseeing regulation and compliance of the proposed Bill, it was a welcome step towards elimination of bias. However, a lot would also turn on the independence of the Broadcast Advisory Council in exercising its powers under the Act.

“It will also be interesting to see whether there is any scope for overlap of its powers with those of the Registering Authority with respect to revocation and suspension of any registration granted to broadcasting networks,” Ms. Suri said.

Supreme Court lawyer Virag Gupta said self-regulation was the next stage. “For that, there has to be registration of the entity and applicability of rules. However, there appear to be a few grey areas in the draft Bill with respect to the position of OTT (over-the-top) platforms and satellite services,” Mr. Gupta said.

“The question is whether OTT platforms, which currently claim exemption from safe harbour under Section 79 of the Information Technology Act, and satellite services not registered under the Companies Act, will be able to escape the proposed legislation. In that case, how will they be regulated ?” he asked.

Section 79 provides that an intermediary will not be liable for any third party information, data, or communication link made available or hosted by it.

Mr. Gupta said in the draft Bill, “company” as an entity has been included in the definition of “person”, but the term company had not been defined. “Therefore, there is no clarity on whether foreign persons and foreign companies would be out of the purview of the definition of ‘person’,” he said.

Another potential issue is that every broadcaster or broadcasting network operator will have to broadcast only those programmes which are duly certified by CEC, except for the programmes prescribed by the Central government. Some media executives are of the view that the provision may adversely impact the “artistic freedom”.

The government has invited feedback and comments on the draft Bill from stakeholders within 30 days from the its release date of November 10, 2023. The Hindu