By Our Correspondent
NEW DELHI – The draft Broadcasting Services (Regulation) Bill, 2023, published recently by the Union Ministry of Information and Broadcasting with the stated objective of creating a consolidated legal framework for the country’s broadcasting sector, has led to the fears of censorship and clampdown on the press. The Bill has the potential for censorship of over-the-top (OTT) platforms, erosion of digital media’s independence and the lack of clarity over regulation.
The proposed legislation aims to replace the nearly three-decade-old Cable Television Networks Regulation Act, 1995, and bring under its ambit the OTT media providers and digital news platforms. The draft Bill introduces a system of self-regulation through content evaluation committees and mandates that OTT platforms can only broadcast programmes certified by these committees, except for those which the government exempts from such certification.
The Bill also proposes to establish a Broadcast Advisory Council to advise the Union Government on violations of the programme code and advertisement code. The Union Ministry, which had earlier announced that it would accept feedback from stakeholders on the Bill till December 9, 2023, later extended the deadline till January 15, 2024, in response to the representation received from various quarters.
According to the media experts, the most disturbing overreach in the draft is the clubbing of news, including the independent news websites, individuals now established as popular points for news and views, explainer videos, and other audio-visual material available online, with OTT content, shows, serials, documentaries and other features traditionally subjected to a certification norm. For the first time, the news will be put into a Central Board of Film Certification-inspired regime reserved for cinema and these may be the first steps to establish a blueprint for pre-censorship.
The Editors Guild of India (EGI), an organisation established in 1978 to protect freedom of the press and raise the standards of editorial leadership of newspapers and magazines, has expressed serious concerns over the proposed law and shot off a letter to Union I&B Minister Anurag Thakuar, describing the draft Bill “vague and excessively intrusive”.
The EGI letter, signed by its president Anant Nath, said the new Bill would prove adverse to the spirit of freedom of speech and freedom of the press guaranteed by the Constitution and lay the ground for the creation of an “overarching censorship framework” through the establishment of a broadcast advisory council.
Outlining four major concerns, the EGI said the Bill would result in an overbearing system of self-regulation mandating the creation of content evaluation committees in a manner that allows the government to have a greater degree of control on those committees. The press body said the Bill allows the government to regulate, or even prohibit, the transmission of channels or programmes on vague grounds.
“The provisions which allow government excessive delegation of rule-making are also problematic as they lead to uncertainty for the stakeholders who may be impacted by the draft Bill and prevent individuals from being fully informed so as to meaningfully engage in the consultation process,” the EGI stated in the letter.
There are certain provisions in the Bill by which the government can prohibit the transmission of channels or programmes on grounds relating to protecting the sovereignty, integrity or security of India, friendly relations with other nations, public order, decency and morality. These same grounds have been used by the government in the recent past to censor online contents under the Information Technology Act.
Digital media platform Newsclick was booked the Unlawful Activities Prevention Act (UAPA) by taking recourse to these grounds. The presence of these grounds in the recently enacted Digital Personal Data Protection Act, 2023, as exceptions to allow data collection by the state has also led to concerns that they will be abused by the government to conduct surveillance.
Under the draft Bill, failure to comply with the provisions may lead to penalties ranging from censorship of content and having to air an apology to the broadcaster being kept off-air for some hours or days, in addition to a fine. Repeated instances of non-compliance may lead to the broadcaster’s registration being cancelled.
The definition of news and current affairs programmes in the Bill as “newly received or noteworthy programmes, including analysis, about recent events primarily of socio-political, economic or cultural nature” is vague and broad enough to include under its scope even content creators that may not fit the traditional notion of broadcasters. All independent YouTube journalists and news analysts will come within the ambit of this definition. Similarly, the digital news websites will also be covered because the Bill defines the term “programme” to include writing.
The regulatory structure under the proposed legislation is similar to the one established under the Information Technology Rules, 2021, which is currently being challenged before various High Courts and has already been stayed on grounds of unconstitutionality by the Bombay High Court and the Madras High Court. The experts have opined that instead of content moderation, the government must look at the concentration of ownership and the potential for monopolies by corporate entities in media and broadcasting.
In view of all of these challenges, ambiguities and anomalies, the EGI has urged the Union I&B Ministry to put the draft in abeyance and undertake meaningful consultations with all the stakeholders. Anant Nath said the EGI’s concerns with some of the specific clauses of the draft Bill had also received support from the Internet Freedom Foundation.