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The Broadcast bill is an attempt to force fit OTTs into broadcasting: Indian Broadcasting and Digital Foundation

In its submission, the IBDF argued that the bill has enlarged the scope of broadcasting to “force fit” over-the-top (OTT) platforms (streaming services like Netflix and Amazon Prime) under its ambit.

“The Draft [Broadcasting Services Regulation] Bill does not lay down any object and purpose of the Bill and the rationale for bringing in the drastic changes suggested under the Draft Bill,” the Indian Broadcasting and Digital Foundation(IBDF) said in its submission to the Ministry of Information and Broadcasting (MIB). It argued that the bill has enlarged the scope of broadcasting to “force fit” over-the-top (OTT) platforms (streaming services like Netflix and Amazon Prime) under its ambit. The foundation consists of many major media organizations including Viacom 18, Zee Media, NDTV and Doordarshan, as such, its submission represents the interests of its member organizations.

IBDF explains the fallacy behind this by saying that unlike broadcasting services which use a push model and deliver content to mass audiences on a pre-determined schedule, OTTs are curated content services. They use a “pull model” — giving customers autonomy over what they want to watch and when.

Why OTTs should be kept outside the scope of the bill:

  • The inclusion of OTTs goes against lawmaking principles: IBDF classifies OTT broadcasting services as online curated content publishers (OCCPs) and are distinct from broadcasting. “Any inclusion of diverse platforms, driven by very distinct technologies, usage, and consumption particularities to be defined and /or treated similar to other activities is contrary to the principles of law-making and policy,” it adds.
  • Online services only operate on the network layer: One of the distinctions between streaming and TV broadcasting is that broadcasters rely on satellite and need broadcasting network operators and streaming services don’t. Instead, telecom companies and internet service providers carry streaming content to the user. Given their lack of control over the underlying network infrastructure, it is unclear how the draft bill expects OTTs to meet the same requirements that broadcasting network operators meet.
  • Discrimination against streaming services: It violates Article 14 of the Indian constitution by treating unequals (broadcasting and streaming) equally. It further does so by disregarding the diverse landscape of online content dissemination and only extending its regulatory ambit to streaming services. “Other platforms like social media, user-generated content hubs, and even websites play a greater and significant role in shaping online experiences of viewers,” it explains. These platforms, however, have not been included in the bill. It urges that streaming services should be kept outside the ambit of the proposed act, thus ensuring that streaming platforms are treated at par with other digital platforms. “This will level the playing field and avoid singling out a specific platform for stricter regulation, which could stifle innovation,” it explains.
  • OTTs are already regulated by IT Rules: IBDF along with others commenting on the bill have pointed out that the IT Rules, 2021 already create a regulatory mechanism for streaming services. The MIB has itself said that the self-regulator mechanism under the IT Rules is “going quite well’ and very few complaints were received at the ministry level”. As such, the foundation says that for the smooth functioning of OTT platforms, they should be kept outside the ambit of the bill.

Issues with the programme and advertising codes:

The codes threaten freedom of speech:
These codes give vest unfettered powers to the Central Government to regulate media. This amounts to a violation of Article 19(1) (a) (which grants people freedom of speech and expression) of the Indian constitution because the bill does not lay down any guiding principles for the two codes. IBDF distills the findings of the constitutional bench in the Sakal Papers case to establish its argument that these codes could violate freedom of speech and expression. It says—

  • Citizens are entitled to propagate their views by publishing them, disseminating them, and circulating them to reach any class and number of readers as they choose.
  • Article 19(1)(a) protects the right to propagate and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication.
  • The right to freedom of speech and expression is only subject to reasonable restrictions as specified under Article 19(2). A Law/executive order that imposes excessive and prohibitive burdens that would restrict the circulation of a newspaper would not be saved by Article 19(2).

While this judgment was in the context of newspapers, the same principle has been extended to linear television and broadcasting as well. “The restrictions sought to be imposed under the Draft Bill are not only unreasonable but travel beyond the circumscribed boundaries of Article 19(2),” IBDF argues. It makes this point by observing the Programme and Advertising codes under the Cable Television Networks (Regulation) Act, 1995, which are both, “overbroad, open-ended, use vague terms and impose unreasonable restrictions on the freedom of speech and expression.”

As such, there is a real danger that the proposed Programme Code and the Advertisement Code to be brought through the rule-making power, will bear similarities to the existing codes. IBDF further points out that the law has a clear position on the fact that freedom of speech can be restricted only by way of a law and not by way of a rule-making power. As such, it urges that the codes (which are yet to be prescribed) should be included in the draft bill and put up for consultation.

Advertising is already regulated by a self-regulatory organization: The Advertising Standards Council of India (ASCI), which was established in 1985, was formed with the support of all four sectors connected with advertising—advertisers, advertising agencies, media, and others like PR Agencies, market research companies, etc. The self-regulatory mechanism put in place by ASCI has also been affirmed by the Supreme Court of India.

Only regulate OTT content that violates laws: Instead of imposing the two codes, IBDF advocates for a “statutory requirement that prohibits content that violates applicable laws” on OTT platforms. This approach would align with the distinct nature of OTT services and respects viewer choice. Age rating and content descriptors used by OTTs render the two codes unnecessary. The foundation suggests doing away with the two codes and instead specifying that no content that violates applicable laws should be transmitted.

Excessive regulation via content evaluation committees (CECs):

Delegation to rules: The details regarding the constitution of CEC, its quorum, its manner of functioning and ‘other relevant criteria’ and ‘such other details’ are to be prescribed later by the Central Government, which leaves room for arbitrary exercise of power.

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CEC could lead to pre-censorship: The CEC’s proposed composition and decision-making processes may be susceptible to biases, leading to unfair treatment of content/ expression and/or concerning certain genres. It is possible that diverse or conflicting opinions could get suppressed by the CEC “which is fatal to the functioning of democracy.” The foundation also expresses concern about the fact that CEC could act as a mini-censor board having unrestricted power to regulate content.

Government’s powers of exemption could lead to discrimination: The bill allows the Central Government to exempt certain Programmes from seeking certification from CEC. It, however, doesn’t specify what the criteria for this exemption would be. “This amounts to giving unbridled and unguided discretion to the Central Government and may amount to a carte blanche to discriminate,” the foundation argues.

Creating new hurdles for content production: CEC approvals could introduce significant delays and administrative hurdles for the broadcasters. IBDF says that its existing self regulatory framework already provides guidelines for responsible content broadcasting. CECs could add an “unnecessary layer of bureaucracy” delaying the delivery of content. The foundation also emphasizes the financial burden of creating CECs. It says that given the multi-lingusitic nature of India, the evaluation of content in diverse languages would be “practically impossible”. Members of the CEC would have to be well-versed to a range of languages, adding to broadcasters’ financial burden. As such, the CEC would “impinge upon the fundamental rights of the broadcasters under Article 19(1)(g) of the Constitution which allows freedom of business.”

What happens to content that CEC refused to certify? The bill lacks any mechanism to appeal against the decision of the CEC. This leaves content producers remediless, restricting their freedom of speech and expression.

IBDF suggests that instead of bringing in the CEC, the content evaluation should continue with the Standards and Practices Department of the concerned broadcaster. It says that the existing self-regulatory framework comprising Standard & Practices (S&P) teams within media companies, content grievance officers and industry-level associations has “demonstrably proven effective in handling the vast majority of content-related issues.”

The Broadcast Advisory Council (BAC) defeats the purpose of self-regulation:

Self-regulation already exists: IBDF points out that the self-regulatory structure proposed under the bill is “antithetical to the Prime Minister’s vision of ‘Minimum Government Maximum Governance.” A key objective of this vision is to reduce regulatory barriers and state intervention in conduct of day-to-day business. It also highlights its own existing self-regulatory framework stating that all its members have appointed grievance redressal officers. The foundation has further formulated a Broadcasting Content Complaints Council— a self-regulatory body for non-news and current affairs channels and a Digital Media Content Regulatory Council for non-news online content producers.

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How can a government-appointed body be considered “self-regulatory”? The foundation submits that the cannot be a self-regulatory body since it is constituted by the Central Government. “The Central Government has given to itself the final say in what is being disseminated over the broadcasting platform which defeats the object and purpose of the self-regulation,” it explains.

BAC’s conflicts with the constitution: The self-regulatory bodies formulated by broadcasters (like the ones created by IBDF), are headed by a retired judge of the higher judiciary. However, the BAC’s decision supersedes that of the self-regulatory bodies. “Once a self-regulatory body of broadcasters is headed by a retired judge, there is no question of adding a BAC being headed by the executive to sit in appeal over the decisions of such a judicial body. This is in direct conflict of the doctrine of separation of powers,” IBDF points out.

Are BAC’s recommendations final? It is unclear whether the BAC’s recommendations are binding upon the central government. Let’s say the BAC decides that there has been no violation of the Programme or the Advertisement Code, it is not clear whether the government can still penalize the broadcaster for non-compliance. This could potentially leave the content creators vulnerable to arbitrary decisions by the Central Government.

Two parallel regulatory regimes for OTTs: IBDF notes that the Draft Bill is in addition to the IT Act and will therefore require the OTT platforms to have two parallel self-regulatory mechanisms. This will have major cost implications for OTTs and will also create a risk of conflicting and overlapping decisions by the two self-regulatory bodies under the two statutes.

Given all this, IBDF suggests that the Government should prescribe guardrails in the form of governance standards and transparency requirements to aid effective self-regulation.

Concerns surrounding accessibility guidelines under the bill:

Clashes with pre-existing regulation: The guidelines clash with Right of Persons with Disabilities Act (RPwD Act) 2016. This act already specifies how accessibility is to be provided. Compliance with certain provisions under the RPwD Act concerning ensuring accessibility for persons with disabilities (PwD) is sub-judice before the Hon’ble Delhi High Court. “Therefore, to ensure that legal certainty is maintained, the provisions with respect to PwD should solely be regulated by the RPwD Act,” the foundation suggests. Any other provisions/mirroring of the RPwD Act will create duplicity and conflict.

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What’s absent from the bill:

  • It doesn’t define persons with disability.
  • The bill is also silent on the criteria provided for the designation of ‘disability grievance redressal officer’.
  • It requires broadcasters/broadcasting network operators to adopt certain mandatory measures for accessibility but does no specify what these measures would be.
  • It doesn’t have details on the language, colour, font, choice of form of accessibility that must be implemented.
  • It lacks a grievance redressal mechanism for broadcasters to dispute claims of non-compliance with accessibility guidelines.

Following the guidelines could result in copyright infringement: The foundation highlights that broadcasters do not own subtitling rights for all films and that the inclusion of subtitles/closed captions without proper rights could lead to copyright infringement. Further, broadcasters cannot make edits to the film or add subtitles unless the film is re-certified by the Central Board of Film Certification (“CBFC”) post such changes.

IBDF’s suggestions on accessibility:

IBDF suggests that broadcasters should be allowed to add subtitles in the language of the channel or such language as may be deemed feasible by the broadcasters. The foundation says that if a channel fails to get an average audience of less than 1% of all households over 12 months, it should be exempt from complying with accessibility guidelines. It further suggests that the following formats should be exempt from complying with the guidelines—

  • Live and deferred live content/ events such as sports and news channels;
  • Events like live music shows, award shows, live reality shows etc.;
  • Content like music shows, debates, scripted/ unscripted reality shows etc.;
  • Advertisements/teleshopping content.
  • Channels having single video feed and multiple audio/language feeds like animated/cartoon channels;
  • all archival content and programme;
  • regional channels;
  • infotainment channels.

Excessive penalties under the bill:

“The threat of severe penalties is bound to discourage open and honest dialogue between all relevant stakeholders, hindering efforts to address any content concerns collaboratively,” IBDF says. It recommends a more balanced approach that emphasizes prevention and awareness, adding that proportionate penalties should be imposed in such a way that they do not compromise the vitality of the broadcasting industry.

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