In its meeting with the streaming service providers and broadcasters on July 9, the Ministry of Information and Broadcasting (MIB) announced that it has added new provisions to the Draft Broadcasting Services (Regulation) Bill.
The meeting was held to discuss the Bill’s purview concerning social media news content and other concerns raised by the stakeholders in the past.
Acknowledging the impact of the inclusion of OTT and digital news services in the Bill, the Ministry shared with the stakeholders that it has added a new provision that grants the central government power to direct any internet service provider or social media company to take appropriate action for implementation of the Bill. Additionally, OTT and digital news broadcasters have been exempted from criminal penalties for failure to notify the government upon surpassing the statutory threshold.
Further, the Ministry is reviewing the existing program and advertising codes at present, as there is a suggestion to have different program and advertising codes for both linear broadcasters and on-demand broadcasting.
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This is the fourth meeting the Ministry held in the last 45 days; the first meeting was held in May, chaired by the Secretary.
The recent and latest meeting saw representations from broadcasters including Netflix and Hotstar, streaming platforms like Spotify, social media companies with the likes of Google and Meta, and industry associations including FICCI, NBA, and IAMAI.
The Ministry has also requested feedback and comments within three weeks (by July 31) on the latest version of the Bill. Multiple concerns have been raised concerns around the purview of the music streaming services, and AI-generated content.
The last Bill was floated in November last year for public consultation, which stated that the law to regulate the broadcasting sector would also be applicable to the streaming giants. This proposed regulation for OTT platforms, akin to cable TV, has raised concerns about the impact on creative content and freedom of expression.
The Bill suggested official certification and a regulatory committee, potentially stifling artistic freedom, stakeholders have earlier said while raising their concerns.
The draft proposed the formation of individual content evaluation committees with members from various social groups who will review and sign off on shows before they are released. It is to be noted that all films in Indian cinemas are reviewed and certified by a government-appointed board, whereas streamed content is not.
Also, this draft, providing broadcasting services without registration or after its expiry attracted a fine of ₹10 lakh and/or a jail term of up to two years for a first offence, and a fine of ₹50 lakh and/or a jail term of up to five years for subsequent offences.
Key concerns and MIB comments
During its meeting with the stakeholder on May 29th, 14 major concerns were discussed; wherein the major points of concerns remained the impact of inclusion of OTT and digital news services in the draft Bill.
It was discussed that the content on linear platform are fundamentally different from the content on on-demand platforms. Inclusion in the Bill will obliterate this fundamental difference and impose same regulations.
“The draft Bill recognises the inherent differences b/w linear and on-demand broadcasting services. This is evident by enabling provisions for differential programme and advertising codes for them in the draft Bill. For OTT and digital news services reaching prescribed threshold, only intimation is required. Further, these services have been subjected to feather touch regulatory framework. Additionally, there is a provision in the draft Bill for the MIB to frame guidelines which can relax application of any provision of the Bill on OTT and digital news services below threshold. Therefore, these provisions will not be applicable on the small entities,” the Ministry said.
The Ministry also shared its intentions of reviewing the existing Programme code and Advertisement Code.
“The terms used in the existing codes shall be thoroughly reviewed during the review process. The Ministry will frame rules under BSR only after thorough Public Consultation. Till the new rules are framed, status quo shall be maintained as far as application of codes are concerned,” it said.
If by mistake OTT and digital news broadcaster fails to register themselves on reaching the threshold, the Ministry highlighted there will be no criminal penalties/imprisonment applicable on them. “For OTT and digital news broadcasters, only intimation and not registration is required. Further, for this particular ground, OTT and digital news broadcasters have been exempted from application of criminal penalties,” it said.
MIB noted that all the provisions currently governing broadcasting services shall be subsumed in the draft BSR Bill and there shall be no simultaneous application of laws.
Inclusion of user generated curated content on social media intermediaries
At present, content regulation on social media platforms lies with the Ministry of Electronics and Information Technology (MeitY). News and current affairs on any digital media platform is regulated under Part III of the IT Rule, 2021 whereas non-news curated content by users of social media intermediaries ( YouTube, Facebook) is governed under Part II of the IT Rules. Further, non-news curated content by online publishers (Netflix, Amazon Prime) are regulated under Part III of the IT Rules, 2021.
Read more: Govt mulls new proposal to regulate UGC on social media under broadcast services bill
However, under the new proposal, when passed, such content created by creator “professionals” on social media platforms like YouTube will be regulated by both the Ministry of Information and Broadcasting (MIB) and MeitY.
Ambiguities regarding the role and responsibilities of platforms like Google and Meta, definitions of who or what constitutes professional creators and content, and scope and scale of the regulation that would potentially require millions of creators to be registered under the BSR act, have raised concerns among stakeholders.
During the transition period, the existing framework under the IT Rules, 2021 shall continue to govern the non-news curated content by users of social media intermediaries.
Now, the Ministry has notified that provisions has been inserted in the draft Bill which grants power to the Central Govt. to direct any ISP or social media intermediary to take appropriate action for implementation of provision of the draft Bill.
Another concern for the stakeholders was that the Bill restricts free speech and hinders creativity by granting broad seizure powers. It also violates the Article 19 of the Constitution. Stakeholders have also raised that penalty provisions in the draft Bill are excessive and discouraging to the creativity and collaboration in the industry. Further, they have suggested that all the penalty provisions may be reviewed to ensure compatibility with the intent of the Jan Vishwas (Amendment of Provisions) Act, 2023.
To this MIB said that any law by the parliament can not be ultra vires to the constitution. The draft Bill have been framed keeping this aspect in considertation.
Authorities can only seize equipment for reasons to be recorded and such power of seizure is available only in the case of Cable and Radio operators, it said. There is provision for Appeal against the order of seizure and confiscation.
“There is wide range of penalties like Warning/advisory/censure and Monetary Penalty. Maximum Monetary Penalty is based on the financial Capacity of the entity. The penalty for violation of Programme Code and Advertisement Code are reasonable and just,” it informed.
In the recent meeting, broadcasters’ concerns regarding pre-censorship costs (CEC) and a third oversight layer (BAC) were also discussed. The composition of CEC has already been left to be decided by the Broadcasters in the updated draft of the Bill. Once the self regulating structures are grand-fathered in the BSR Bill, they are likely to be withstand the legal scrutiny more firmly.
Draft Bill specifies that no entities registered under the Act shall be deemed as licensee under the TRAI Act unless notified by the MIB. The draft Bill also recognises differences b/w audio and audio-visual content and prescribes separate Programme Codes and Advertisement Codes for them.
OTT broadcasting services have been exempted from carrying mandatory channels. The issues related to DD Free Dish are being examined separately in the Ministry.
The Ministry also noted the suggestion on renaming the draft Bill to include OTT services.
Some of the recommendations by TRAI on BSR Bill, such as the creation of a regulatory sandbox and a technology development fund for the broadcasting sector, and provisions for the obligations of broadcasting service providers for disaster management have also been included in the new draft.