A Critical Examination of the Draft Broadcasting Services (Regulation) Bill, 2023

The proposed Draft Broadcasting Services (Regulation) Bill, 2023, released on November 10, 2023, for public feedback, represents a significant shift in India’s media regulatory landscape. While ostensibly aimed at streamlining and modernizing broadcasting regulations, the bill raises serious concerns about media freedom, diversity, and the democratic fabric of the nation.

Scope and Key Provisions

The bill seeks to regulate multiple types of broadcasters and broadcast network operators, including:

• Television broadcasting networks
• Over-the-Top (OTT) platforms
• Radio broadcasters
• Digital news platforms

Key provisions include:

1. Mandatory registration for television broadcasting networks.
2. Intimation requirement for OTT platforms upon reaching a certain subscriber threshold.
3. Compliance with prescribed programme and advertisement codes for news and current affairs programmes.
4. Establishment of a three-tier self-regulatory structure.

Consolidation of Power and Regulatory Framework

The bill aims to replace the Cable Television Networks (Regulation) Act, 1995, and consolidate various regulations governing the broadcasting sector into a single law. While this approach may seem logical in an increasingly digital world, it potentially concentrates immense power in the hands of the central government.

Self-Regulatory Structure

The bill proposes a three-tier regulatory mechanism:

1. Self-regulation by individual broadcasters and broadcasting network operators.
2. Self-regulatory organizations (SROs) of broadcasters and network operators.
3. Broadcast Advisory Council (BAC) to hear complaints and appeals.

While this structure appears to promote self-regulation, the final decision-making power rests with the central government, based on BAC recommendations.

Disproportionate Impact on Smaller Players

One of the most concerning aspects of the bill is its potential to disproportionately affect smaller media houses and independent content creators. The proposed regulations include:

1. Mandatory establishment of Content Evaluation Committees (CECs) for all broadcasters.
2. Requirement to join self-regulatory organizations (SROs).
3. Compliance with programme and advertisement codes.

These requirements may prove financially and logistically burdensome for smaller entities, potentially stifling the plurality of voices crucial for a healthy democracy.

The Ambiguity of the “Programme Code”

The bill mandates that all broadcast content must comply with a programme code to be prescribed by the central government. However, the bill provides no guidance on the formulation of this code, raising several concerns:

1. Lack of clear standards may lead to self-censorship by broadcasters.
2. Absence of parliamentary oversight in defining the grounds for censorship.
3. Potential for restrictions that may not align with the constitutional grounds specified in Article 19(2).

This ambiguity could lead to a ‘chilling effect’ on freedom of speech and expression, as noted by the Bombay High Court in a related case.

Digital Regulation Challenges

The bill attempts to regulate online content, particularly on OTT platforms, by:

1. Requiring OTT platforms to intimate the government after crossing a specific subscriber threshold
2. Mandating compliance with programme and advertisement codes

However, it fails to address:

1. The borderless nature of the internet, where content can be easily accessed through unregulated channels.
2. The differential treatment of similar content on different platforms (e.g., OTT vs. intermediary websites).

This disparity could put regulated entities at a competitive disadvantage and potentially infringe on citizens’ right to access information.

Government Oversight and Conflict of Interest

The central government’s role in enforcing the programme code and imposing penalties raises serious concerns:

1. Powers to pass orders on content violations, including for news critical of the government.
2. Ability to delete or modify programmes, or take channels off-air.
3. Lack of an independent appellate mechanism against government decisions.

This structure contrasts with other content regulation models, such as:

• The Press Council of India for print media.
• The Board of Film Certification for films.
• Ofcom, an independent statutory body, in the United Kingdom.

Differential Treatment of News Media

The bill creates a distinct regulatory framework for broadcast news, separate from print news:

1. Online news portals and websites must comply with programme and advertisement codes.
2. Requirement to set up CECs and join SROs.
3. No differentiation based on the size of the news entity.

This raises questions about whether the same content should be regulated differently based on the medium of dissemination.

Reintroduction of Criminal Penalties

The bill reintroduces criminal penalties for certain offences that were recently decriminalized by the Jan Vishwas (Amendment of Provisions) Act, 2023. Offences such as operating broadcasting networks without registration or obtaining registration by misrepresentation can now result in:

• Fines up to Rs 10 lakh for first offences.
• Imprisonment up to two years for first offences.
• Fines up to Rs 50 lakh for subsequent offences.
• Imprisonment up to five years for subsequent offences.

This reversal seems regressive and could create an environment of fear in the broadcasting sector.

Epilogue

The Draft Broadcasting Services (Regulation) Bill, 2023, while aiming to modernize India’s broadcasting regulations, risks centralizing control over media in a way that could fundamentally alter the country’s information ecosystem. As it stands, the bill could lead to a less diverse, less critical, and ultimately less democratic media landscape.

It is imperative that policymakers, media professionals, civil society, and citizens engage in a robust debate about the future of broadcasting in India. The goal should be to create a regulatory framework that ensures responsible broadcasting while fiercely protecting the plurality of voices and the media’s ability to speak truth to power. Only through such a balanced approach can we hope to preserve the vibrancy of India’s democracy in the digital age.