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Ministry of Information and Broadcasting refuses to provide comments to broadcast bill

The Broadcast bill, released in November 2023, brings over-the-top (OTT) broadcasting services (streaming services, like Netflix and Amazon Prime) under the scope of regulation.

The Ministry of Information and Broadcasting (MIB) has declined to provide the stakeholder comments received in response to the consultation on the Draft Broadcasting Services (Regulation) Bill, 2023, while responding to to an RTI filed by MediaNama.

The Broadcast bill, released in November 2023, brings over-the-top (OTT) broadcasting services (streaming services, like Netflix and Amazon Prime) under the scope of regulation. It requires streaming services to ensure that their content is certified by a content evaluation committee before it is broadcast. The services also have to comply with a multi-layered regulatory system. The consultation on the bill ended on January 15, 2024.

Why has the MIB refused to provide comments?

In this regard, it is to inform that Section 8(1)(e) of the Right to Information Act, 2005 provides that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. Moreover, while furnishing comments on the draft Broadcasting Services (Regulation) Bill, 2023, some persons/organizations had desired that the comments be treated as confidential [emphasis ours]. In addition to this, the Bill is still at a nascent stage/consultation stage. Given all these factors, there appears to be no overwhelming public interest in disclosing the information [emphasis ours]; hence, information requested for in the RTI application is denied.

Section 8 of the Right to Information (RTI) Act contains exemptions from disclosure of information. Within Section 8, subpart (1) (e) says that there is no obligation to give the citizens information, “available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.”

Why it matters:

Disclosing public feedback enables the public to hold the government accountable for the laws and rules they bring in. As we have previously pointed out, the lack of response to RTIs indicates a worrying trend in the tech policy landscape, where policy decisions are made behind closed doors. In the past, submissions to one of India’s most important laws, the consultation on the Digital Personal Data Protection Act (DPDP Act, 2023), weren’t disclosed to the public.

Why should the responses be disclosed?

While the MIB has said that there is “no overwhelming public interest in disclosing the information”, the publicly available comments paint an entirely different picture. For instance, the Indian Broadcasting and Digital Foundation(IBDF) commented that the bill discriminates against streaming services by treating unequals (broadcasting and streaming) equally. This discrimination is also perpetrated 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.

Similarly, the Editor’s Guild of India has called out the bill saying that if the yet-to-be-prescribed programme and advertising codes are similar to the rules currently in place for Cable TV, they could significantly impede freedom of speech. It points to the Cable Television Network Rules, 1994 which state that no programme should contain anything obscene or anything that offends good taste or decency. Such rules, if implemented for online content, would formalize moral policing and censorship and would also limit users’ access to diverse points of view because the individuals broadcasting news would now only produce content that is palatable to the government.

What about the pre-legislative consultation policy?

In 2014, the Indian government came out with a Pre-legislative Consultation Policy (PLCA) which says that every Department/Ministry must proactively publish proposed legislation both on the interest as well as through other means. The policy also requires government departments and ministries to publish “the summary of feedback/comments received from the public/other stakeholders, ” on their website.

When asked whether the ministry is required to disclose comments, Maansi Verma, the founder of the civic engagement initiative Maadhyam (focused on bridging the gap between people and policy making) said that this policy is only directory in nature and not mandatory as such. The government cannot be taken to court for not following through with it. “So anything that is mentioned within the policy also, just sort of follows the same logic,” she explained, this means that the government cannot be compelled to disclose the summary of comments it received on a legislative consultation.

When asked whether the government can reject RTIs asking for comments to a consultation on grounds of “no overwhelming public interest”, Verma said that there would never be a case where there is no overarching public interest. “I mean its a law that’s being made, it’s a public policy that’s being made, you have the word public in the very name of it so you can’t be making laws and public policies in such secretive manner where you’re doing secret consultations, that’s just not how democracy is supposed to function,” she said. She explained that only in situations where there is a consultation on a defence policy and there’s a real public concern about national security could a lack of disclosure on comments be taken into consideration. She brought up the example of the Telecom Regulatory Authority of India (TRAI) and said that if a statutory body or regulator could do consultations in a transparent manner, others should do the same.

“Any comment that any stakeholder has given to the government on a particular policy, according to me is not in the nature of a private communication as such because it is in response to a public notice and it is for the purpose of making a law which will be publicly applied,” Verma said. When asked whether stakeholders could ask for comments to be kept confidential, she explained that in cases like when parliamentary committees invite comments, they say that such comments would be kept confidential. “There [with parliamentary committees] mostly the concern is that it [the comments] shouldn’t create a circumstance where the committee is being influenced by a certain kind of interest,” she said adding that greater transparency on comments prevents this from happening, “because if you know who is communicating with the government and what they are saying, then counterpressure can be created to make sure that the balance of that influence is balanced out.”

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