The Ministry of Information and Broadcasting has drafted the Broadcasting Services (Regulation) Bill, 2024, which will replace the Television Network Act of 1995. Reports indicate that the Bill will classify influencers and social media pages that produce content or discuss current affairs or news online as ‘digital news broadcasters’.
What is the Broadcasting Bill?
The draft Bill, shared with stakeholders a few weeks ago, extends its scope beyond over-the-top (OTT) content and digital news to include social media accounts and online video creators, expanding on a version of the draft law released in November 2023. The new version broadly defines ‘digital news broadcaster’, requiring prior registration with the government and establishing content evaluation standards.
This Bill revises the 2023 draft released by the Ministry of Information and Broadcasting, aiming to consolidate the legal framework for the broadcasting sector and extend it to OTT content and digital news.
What are its key features?
The updated Bill introduces ‘digital news broadcasters’, covering individuals and entities producing online news and current affairs content, including newsletters, social media posts, podcasts, and videos. The Bill addresses concerns about non-traditional media creators being subject to obligations similar to those for streaming platforms.
Definition of ‘professional’: It defines ‘professional’ as anyone engaged in systematic or structured activities and expands the definition of ‘news and current affairs programmes’ to include textual content alongside traditional formats. Thus, individuals offering tax advice on platforms like YouTube or frequently posting news updates on Twitter could be classified as digital news broadcasters and subjected to the Bill’s regulations.
The Bill revises the definitions of ‘programme’ and ‘broadcasting’ to include textual content, ensuring it covers all online content related to news. For instance, a chartered accountant providing financial advice on YouTube or a journalist sharing updates on Twitter could fall under this regulatory framework. These updates aim to ensure the legislation keeps pace with the evolving digital media landscape.
Change in definition of ‘intermediary’: The Bill also broadens the definition of ‘intermediary’ to include internet service providers, social media platforms, online search engines, and marketplaces. It requires these intermediaries to provide data to the central government about OTT broadcasters and digital news broadcasters. Non-compliance could result in fines and the loss of safe harbour protections as outlined by the Bharatiya Nyaya Sanhita, 2023. Importantly, if digital news broadcasters or OTT services use these platforms, the compliance burden shifts to them rather than the intermediary.
What will be the legal obligations for independent creators?
If a creator is classified as a digital news broadcaster, they must notify the Ministry of Information and Broadcasting (MIB) about their work. They are also required to form content evaluation committees (CEC) at their own expense, with diverse representation, including individuals knowledgeable about various social groups, women, child welfare, scheduled castes, scheduled tribes, and minorities. The names of CEC members must be shared with the government.
All digital news broadcasters must inform the MIB. The 2023 version allowed the government to set a subscriber/ viewer threshold that triggers notification and content code obligations, but this provision is absent from the latest version.
What are the penalties for non-compliance?
Monetary: The penalties for failing to appoint such a committee can be severe. News creators who do not inform the Central Government about the members of their CEC will be fined Rs 50 lakh for the first violation and Rs 2.5 crore for subsequent violations within three years. The draft Bill allows the government to exempt certain players or groups from these requirements to avoid genuine hardship.
Revocation of broadcasting rights: The Centre may prohibit the transmission of a programme or the operation of a broadcaster or broadcasting network by citing public interest or national security reasons. The draft Bill states that any programme or channel likely to promote disharmony or feelings of enmity, hatred, or ill-will between different religious, racial, linguistic, or regional groups or castes or communities, or likely to disturb public tranquillity, can be prohibited by order.
Why is the govt bringing this Bill?
It is believed that some prominent Indian creators of current affairs and news content on YouTube are under government scrutiny. The expansion of the draft Bill’s scope compared to the version released in November 2023 is attributed to the role independent content creators played in the lead-up to the 2024 Lok Sabha elections.
A senior government official stated that there were instances where creators made videos on current affairs with sensational claims about the government and its leaders during the election period. This prompted the decision to introduce accountability measures for these creators to create a level playing field between the mainstream press and independent creators.
How will the Bill impact online advertising?
The Bill also introduces regulations for online advertising, establishing a new category of ‘advertising intermediaries’ responsible for overseeing ad space on digital platforms. All online advertisements must comply with the Advertising Code, though it is unclear whether the responsibility for ensuring adherence falls on the platform, the intermediary selling the ad space, or the ad creator. The Bill also considers regulating sponsored posts by influencers, which are already covered under the Consumer Protection Act of 2019.
What are the exemptions?
The Bill retains several general obligations for broadcasters, such as compliance with foreign direct investment policies and disaster management procedures. However, it introduces some relaxations, including exemption from criminal penalties for failing to report a subscriber threshold for OTT and digital news broadcasters. The central government also has the authority to issue guidelines to exempt certain operators from specific provisions to prevent undue hardship.
Provisions of self-regulation
Mandatory registration: The regulations include mandatory registration, the creation of Content Evaluation Committees to encourage self-regulation on digital platforms, the establishment of programme and advertising codes, and a three-tier regulatory mechanism.
Anti-piracy: The Bill recognises self-regulatory organisations for streaming platforms and digital news broadcasters that were previously registered under the IT Rules, 2021. It also strengthens anti-piracy laws by criminalising the use of copyrighted content without authorisation and empowering the government to form a task force to combat piracy.
Regulatory sandbox: The Bill includes the establishment of ‘regulatory sandboxes’ by the federal government, allowing for the testing of new broadcasting technologies and business models in a controlled environment, with some provisions of the Act relaxed for experimentation.
Why is the Bill being criticised?
Allegations of excess state control: The Network of Women in Media, India (NWMI), has expressed concerns about the Broadcasting Services (Regulation) Bill, 2024. In its submission to the Information & Broadcasting Ministry, as reported by The Indian Express, the NWMI argued that the Bill could lead to excessive control and over-regulation of both traditional and digital media.
Driving out dreams: In a strong-worded criticism, Nikhil Pahwa, the founder of Medianama, said that if India’s attempt to mass-regulate online content via the draft broadcast Bill becomes law, international creators like MrBeast may need to register as OTT broadcasters with the Government of India, set up a grievance redressal system, join a self-regulatory organisation chaired by a retired Indian judge, and establish a content evaluation committee with diverse representation before uploading content on YouTube.
The compliance burden would increase on others, such as Virat Kohli on Instagram, Technical Guruji on YouTube, Anand Mahindra on Twitter, and even smaller content creators on YouTube, as well if their activities are classified as part of a systematic business activity. This could also affect Prime Minister Narendra Modi, who recently crossed 100 million followers on X, where he posts about government initiatives, Pahwa said.
Affects free speech: Digital rights organisation Internet Freedom Foundation (IFF) has called for careful examination of the Bill due to the proposed codes’ similarity to those applicable to cable TV and the potential for increased censorship of TV programmes, The Hindu reported. The IFF argues that this could affect online free speech, freedom of journalistic expression, and artistic creativity, compelling publishers to produce content that aligns with the government’s preferences.
Uncertainty for stakeholders: The IFF further notes that the Bill leaves several provisions to be determined later by the Centre, arguing that such excessive delegation of rule-making creates uncertainty for stakeholders. The Bill spans over 70 pages and includes 60 instances of “as may be prescribed” and 17 instances of “as notified by the [Union] Government.” While some specificity may be necessary for future rulemaking, the IFF emphasises the need for safeguards to protect against arbitrary rule-making, the national-daily cited IFF as saying.
Ambiguous interpretations: Regarding the impact of the legislation on digital platforms, technology policy expert Shruti Shreya of think-tank The Dialogue believes that the requirement for all online content creators to adhere to a programme code requires careful consideration. While ensuring content quality is essential, the subjective nature of terms like ‘good taste’ or ‘decency’ could lead to ambiguous interpretations. She questions how this legislation will affect the dynamic nature of the digital space, which thrives on creativity and expression.
Individuals at personal risk: Shreya Suri of the law firm IndusLaw told The Hindu that the proposed self-regulatory mechanism is expected to enhance responsibility and accountability among broadcasters and networks regarding their content. However, she notes that mandatory disclosures, such as notification to the Centre and public disclosure of CEC members’ personal details, could put individuals at personal risk.
How does the Bill compare to other countries?
Both traditional broadcasters and OTT content providers fall under the country’s broadcasting law in Singapore. Under the nation’s copyright law, OTT platforms require a licence from a regulator, though licensees do not have the same obligations as other television services.
The Federal Communications Commission (FCC) and its media bureau regulate broadcast radio and television stations in the United States. Currently, OTT platforms are not directly regulated by US federal laws or government authorities.
