Enhanced Censorship? Concern Over The Broadcasting Services (Regulation) Bill 2023

Over the last month, many concerns have been raised over the introduction of the draft Broadcasting Services (Regulation) Bill, 2023. This, many experts believe, will bring censorship to the OTT platforms.

The abbreviation OTT stands for “over-the-top” and refers to technology (OTT services or platforms) that delivers streamed content via internet-connected devices.

Last month, the Ministry of Information and Broadcasting government introduced the Bill, which is said to be the “new version” of a nearly 30-year-old law called the Cable Television Networks (Regulation) Act, 1995.

The MIB claims to have introduced the Broadcasting Bill to cater to the evolving needs of the broadcasting sector and in light of the technological advancements in the sector.

Earlier as the OTT platforms did not exist, rules formulated catered to what kind of content will be aired on television. According to the old law, content should reflect ‘Indian values’ and if there were three complaints against a channel’s content, the government’s committee could simply revoke the licence.

However, according to the proposed Bill regulatory processes will be streamlined and will extend its purview to cover the OTT content and digital news.

Explaining how the Bill is a huge concern, especially in term of censorship, senior editor at The Wire Seema Chisti wrote, “As a charter for censorship, the Broadcasting Services (Regulation) Bill, 2023 (Broadcast Bill) drafted by the Ministry of Information and Broadcasting (MIB) is a remarkable instrument.

“Released for public comment on November 11, this is an omnibus set of rules aimed at shutting down any news or views even mildly not in the service of those who happen to be in government. Comments can be given until January 15.”

The deadline was initially December 8 and was later extended to January 15.

The Bill comprises six chapters, 48 sections, and three schedules. As per the Broadcasting Bill, a broadcasting services or network will only be allowed to provide service or operate if the Union government has registered or provided an intimation to the broadcaster or broadcasting network operator.

This means, that with respect to the “OTT” broadcasting service, they will be required to provide an indication to the Union government of its operations, if their number of subscribers or viewers fall within the prescribed threshold. The threshold as well as the form and manner of intimation will be prescribed by the Union government at a later stage.

Three major pointers proposed in the Bill are:

• Self-regulation by broadcasters and broadcasting network operators
• Self-regulatory organisations (SROs)
• Broadcast Advisory Council (BAC)

According to the ‘self-regulation’ it will become mandatory for each broadcaster or operator to set up a grievance redressal cell. In addition to that, each broadcaster must have a Content Evaluation Committee (CEC), which will have to certify all material going out.

“The composition of this committee, its size, quorum and other details, will all be decided by the government. Editorial boards are passe, clearly, as a ‘committee’ would now be required to pre-certify, for example, whether a Ravish Kumar can do a show on the BCCI on Friday afternoon,” Chisti added.

As per the functions listed under the Broadcasting Bill, the “SROs will address grievances which have not been addressed by the broadcaster or broadcasting network operators within the prescribed time period, hear appeals filed by complainants against the decision of the latter, and issue guidance or advisories to its members for ensuring compliance to the Codes”.

According to a report by the Internet Freedom Foundation (IFF), an Indian digital rights organisation, SRO will also be required to make governing norms and articles for its members, which would include punishment for non-compliance with the norms or the Codes. The punishment includes temporary suspension, expulsion from membership, advisory, warning, censure, and/or monetary fine up to Rs 5 lakhs.

Apar Gupta, the Executive Director of IFF while talking about the censorship on OTT platforms under the current Bill said, “You cannot compare cinema with the internet. There are merely 60 to 80 OTT platforms out there. What I want to understand is whether the government is going to tell us what language is correct or not. Isn’t it our right to decide what language is coercive and which is not in our homes.”

In 2021, the government had introduced the Information Technology Act, which the Supreme Court had stayed.

According to the Internet Freedom Foundation (IFF), the IT Rules, 2021 “have far-reaching consequences on online privacy, freedom of speech and expression… ”

A statement by the platform pointed out that the government is trying to take considerable control over social media platforms, digital news publications, and on-video entertainment services, making these services seriously prone to censorship.

Meanwhile, the Broadcasting Bill allows the Union government to constitute the BAC consisting of an independent member with 25 years of experience in the media industry as the Chairperson, five ex officio officers representing MIB, Ministry of Women and Child Development, Ministry of Home Affairs, Ministry of External Affairs, and Ministry of Social Justice and Empowerment and five additional eminent independent persons.

The terms and conditions related to the appointment of members to the BAC, the manner of their selection, tenure, and the manner of performance of their functions are yet to be prescribed. The BAC may refer any appeal or reference to review panels constituted by it. The current composition of the BAC raises concerns around the Council's autonomy.

The Bill also proposes that the Broadcast Advisory Council may hear appeals filed by complainants against the decision of the SROs as well as the complaints regarding violation or contravention of the Codes referred to it by the Union government.

After examining complaints, the BAC has to make recommendations to the Union government, which will then issue appropriate orders and directions.

“The ability of the Union government to refer a complaint to a government-appointed body as well as the power to issue final order is likely to pave the way for censorship as well as self-censorship,” the IFF said in a statement.

One of the clauses in the Bill, namely, clause 31, allows the Union government’s power to inspect, intercept, monitor, and seize the equipment of broadcasting networks and services.

Meanwhile, the IFF explains that the broadcasting network and services will have to be provided a notice in writing informing them of the grounds of confiscation, a reasonable opportunity of making a representation in writing, as well as an opportunity to appeal the decision of the authorised officer to the court.

“The application of such powers on “OTT” broadcasting services raises concerns around the executive’s indirect control over the platforms,” IFF stated.

Clause 35 further strengthens these concerns as it allows the Union government to order the broadcaster or the network to delete or modify programme or advertisement and even direct the channel to be off-air for a specified number of hours as a penalty for violating the Codes.

“The most egregious over-reach in the draft is the clubbing of news (independent news websites, individuals now established as popular points for news and views, explainer videos, other audio-visual material available online) with OTT content, shows, serials, documentaries and other features traditionally subject to a certification norm.

“By introducing this as a “combo-pack” as Jawhar Sircar, an ex-CEO of Prasar Bharti put it, news for the first time is being put into a Central Board of Film Certification or CBFC inspired regime reserved for cinema. These are the first steps to establish a blueprint for pre-censorship,” Chishti wrote.

In an investigative report by the Washington Post, it was revealed that there is a culture of “self-censorship” in the streaming industry, which has emerged with the rise of the current regime.

The same can be seen with various media organisations. Speaking to The Citizen, an editor of an alternative media house, who did not want to be named said that self-censorship among newsrooms has become a new norm.

“What else can we do? They will shut us down or file a case against us. This should not have been an issue as this is part of the job, the fear prevails from fake cases and the ED raids that will drag on for months,” they said.

According to the ‘Washington Post’ report, Executives at the India offices of Netflix and Prime Video and their lawyers “ask for extensive changes to rework political plots and remove passing references to religion that might offend the Hindu right wing or the BJP” they wrote citing industry insiders.

“Projects that deal with India’s political, religious or caste divisions are politely declined when they are proposed, or dropped midway through development. Even completed series and films have been quietly abandoned and withheld by Netflix and Prime Video from their more than 400 million combined viewers worldwide,” it wrote.

This came after director Anurag Kashyap revealed that his adaptation of Suketu Mehta’s ‘Maximum City’ for Netflix was shelved by the platform.

Prior to entering pre-production, Netflix withdrew from the project, after the debacle over ‘Tandav’ and failed to give "clear reasons", as per the report by ‘Washington Post’. “Why greenlight it, then change your mind? It’s invisible censorship,” Kashyap told Washington Post.

An insider in the industry, on the condition of anonymity, told The Citizen that many projects catering towards certain issues were shelved. “There was a TV series on Amazon Prime catering towards one particular conflict state, while the show did come out, the episode was completely cut out. Other episodes witnessed various scrutiny,” they said.

Meanwhile, according to various national and international reports, OTT platforms like Netflix and Jio are trying to lobby the government in delaying the Bill or changing some aspects of it.

A ‘Reuters’ report released last month revealed that the OTT giants are collectively lobbying with the Indian government to delay or revamp the Broadcast Bill. Citing sources, the report averred that platforms like Viacom18 owned by Mukesh Ambani said they fear the Bill will be onerous for the sector.

It is to also be understood that though all films in Indian cinemas are reviewed and certified by a government-appointed board, streamed content is not.

Platforms like Netflix, Amazon (AMZN.O), Disney (DIS.N) and JioCinema have become hugely popular in India, which is set to grow into a $7 Billion market for the sector by 2027, according to Media Partners Asia.

The IFF further explains that the Broadcasting Bill has left a lot of the specific provisions to be determined in the future by the executive. “Such excessive delegation of rule-making leads to uncertainty for the stakeholders who may be impacted by the draft Bill and prevents individuals from being fully informed so as to meaningfully engage in the consultation process,” its report said.

Spanning over 70 pages, the Bill includes 60 instances of "as may be prescribed" and 17 instances of "as notified by the [Union] Government”.

“While we recognise that in some instances specificity is needed to be or must be left to future rulemaking, these must be accompanied by relevant safeguards to protect against arbitrary rule-making. However, a number of the instances of delegated legislation in the Broadcasting Bill contribute to increased uncertainty, vagueness, and raise concerns,” it added.

The experts have raised concerns over the following parts in the Bill:

• The Central Government, may, for the fulfilment of such social objectives, as may be prescribed, allow registration or intimation as a broadcaster or broadcasting network operator..... [Clause 4(4)]
• Every broadcaster and broadcasting Network Operator shall ensure that: (a) he transmits programmes in compliance with such terms and conditions and in such manner as may be prescribed. [Clause 5(1)(a)]
• Any cable broadcasting network operator, satellite broadcasting network operator, IPTV network operator or such other broadcasting network operator, as may be prescribed, who intends to provide Platform Services on their registered broadcasting network may apply for permission to broadcast Platform Services to the registering authority in such form, manner and containing such particulars as may be prescribed. [Clause 7(1)]
• Any programme transmitted or re-transmitted as broadcasting services shall be in conformity with the Programme Code, as may be prescribed. [Clause 19(1)]
• Any advertisement transmitted or re-transmitted as broadcasting services shall be in conformity with the Advertisement Code, as may be prescribed. [Clause 19(2)]
• Any person providing an OTT broadcasting service in India, with such number of Indian subscribers or viewers as may be prescribed, shall, within a period of one month from the notification of this Act or its meeting the prescribed threshold, provide an intimation to the [Union] Government of its operations, in such form and manner as may be prescribed. [Clause 16(2)]
• The Broadcast Advisory Council, may constitute review panels, with such number of members and such composition, as may be prescribed, to carry out its functions referred in section 28. [Clause 19(1)]
• The terms and conditions related to the appointment of members to the Broadcast Advisory Council, the manner of their selection, tenure and the manner of performance of their functions shall be such as may be prescribed. [Clause 27(4)]

“Previous attempts to suggest self-regulation for on-demand video streaming platforms have been viewed with skepticism in light of increasing censorship, both self-imposed and through legal requests. The unfortunate consequence of such censorship is a negative impact on the fundamental right to freedom of speech and expression.

“Exerting executive control over “OTT” content will lead to over-compliance and self-censorship on part of platforms, who will be keen to avoid the wide discretion allowed to the government when it comes to punishments,” the IFF report stated.

Many legal experts believe that all independent YouTube journalists and news analysts would come within the ambit of certain definitions in the law.

“This is a bigger attempt to censorship that includes news media and entertainment. People with different cultures, religion and unfortunately even the caste system that exists are forced to watch content under the garb of one religious ideology. This is part of a bigger ideology,” Gupta said.

Chisti, on the other hand, wrote that the draft Bill is a “clear reflection of the government’s panic over diversity online”.

Clause 20 of the Bill says “any person who broadcasts news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19”.

“If newspapers and TV channels are controlled by restricting ads or giving the proprietor a phone call, the Broadcast Bill is an attempt to formalise the threat of punitive government action and also extend its reach to digital media,” Chisti wrote.

With the deadline extended to January 15, there is already a lot of buzz concerning the Bill with legal experts raising the issues with the Bill as OTT platforms try to negotiate with the government on exclusion of some provisions.

However, if all the above expert comments are to be believed, then the new Bill is going to regulate heavy censorship and will give more or almost all power to the government in not just the entertainment sector but media content as well.