If a Bill has enough potential to cause continuous uproar and ruckus in Parliament- it either is too good for the stakeholders or comes bearing disappointment for most parties involved, says a key industry stakeholder. Such is the current state of the second draft of the Broadcasting Services (Regulation) Bill 2023.
With the new Bill, the Centre is pushing for a consolidated legal framework to organise the broadcasting sector, including OTTs and online creators – overhauling all the existing policies. The Bill will replace one of the earlier key regulations for cable television, governed by the Cable Television Networks (Regulation) Act of 1995.
Although it is just a draft at this stage, the second draft of the Bill is said to be already underway for public consultation, as confirmed by the Minister of State (MoS) for Information and Broadcasting L Murugan during the ongoing monsoon session of the Parliament on August 2.
The Bill holds significance because it brings not only the over-the-top broadcasting services like Netflix, JioCinema, and Disney+ Hotstar, under its regulatory ambit but also covers content creators. It asks them to comply with a Programme and Advertising Code (which will be notified by the government later) and also to formulate Content Evaluation Committees (CECs). The Bill also imposes criminal liability for those who violate it.
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While the government emphasises that the Bill is still in its drafting stage, the opposition and industry watchers seem to have strong opinions on it.
Senior leaders, including Congress Pawan Khera, have called it out as a direct threat to freedom of speech and the independent media and claimed that the Bill would lead to excessive online surveillance.
It is to be noted that a Bill is a draft statute and no Bill can become a law until it has been passed by both Houses of Parliament and assented to by the President.
Excessive surveillance and ‘almost’ no stakeholder consultation
According to the draft, ‘digital news broadcaster’ or ‘publisher of news and current affairs content’ means any person who broadcasts news and current affairs programs through an online paper, new portal, website, social media intermediary, or other similar medium as part of a systematic business, professional or commerce activity but excluding replica e-papers.
The Bill mandates that OTT broadcasting service operators or digital news broadcasters shall within one month from the publication of the Act provide an intimation to the government of its operations- along with its number of subscribers, and viewers. Additionally, as a user of social media intermediaries, they shall be responsible for ensuring compliance with all the requirements under the Act.
Read more: News influencers to be called ‘digital news broadcasters’, proposes new draft of Broadcasting Bill
Both drafts of the Bill, further add that the ‘broadcasters’ (which by definition of the digital news broadcasters would include online creators) may also have to register under a three-tier regulatory framework similar to OTT services such as Amazon Prime Video and Netflix. Moreover, they will also have to create a ‘content evaluation committee’ at their own cost to screen the content before going live. Those failing to do so will likely face criminal liability.
Another significant aspect is the establishment of a Broadcast Advisory Council, which will include five officers nominated by the Centre and professionals in the industry, to impose monetary penalties in case of violations.
In a post on X, Congress leader Khera alleged that the proposed law increases government control over content creators, from social media influencers to independent news outlets, threatens the independence of the press, and restricts free speech.
“This can unnecessarily regulate individuals and small teams providing independent news coverage. It imposes heavy regulatory burdens on small content creators, treating them like large media corporations, many independent journalists lack resources to comply, leading to potential shutdowns,” the Congress leader said.
He further alleged that the process of drafting the bill “did not include civil society, journalists and key stakeholders, raising concerns about transparency and inclusivity.”
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The similar sentiment seems to be echoing on social media as well with online creators writing to the Ministry of I&B requesting transparency in the consultation process.
The stakeholders who were given copies of the second draft have been asked to submit their comments by August 10.
TMC leaders including Jawahar Sirchar and Mohammed Nadimul Haque also raised a series of questions on the Bill over the last week, including the measures taken by the Government to provide distinction over OTT broadcasters and independent journalists; steps taken to ensure the inclusion of larger public and civil society organisations during the consultation process of the draft bill; and whether small-budget independent journalists on social media have the same obligations as corporates?
Apart from the concerns about the unified regulatory framework for TV and OTT which is said to increase the costs for the industry, observers have also urged for the need for clear guidelines as many responsibilities remain ambiguous with innumerous ‘mays’ and ‘ifs’ in the draft.
Other key highlights under the wrap
Different programming and advertising codes for TV, OTT, and radio
Any program transmitted or re-transmitted as broadcasting services shall conform with the Programme Code. Any ad transmitted or re-transmitted as broadcasting services shall conform with the Advertising Code. Different Programme and advertisement Code may be prescribed for linear broadcasting services, on-demand broadcasting services, radio broadcasting services, and any other category of broadcasting services.
The draft says that any ad not transmitted or re-transmitted as broadcasting services but published online on a website, social media intermediaries or other similar medium shall conform with the Advertisement Code.
On violating Programme Code or Advertisement Code once can face a penalty of Rs 20,000, which can extend up to Rs 1,00,000 for repeated violations.
Central government may establish a dedicated task force or unit to combat piracy
The Bill defines ‘piracy’ as the unauthorised reproduction, distribution, broadcast, transmission, or online publication of any program without explicit consent from the copyright holders. It mandates that no person shall carry or include program in respect of which copyright subsists under the Copyright Act, 1957.
Further, it proposes that Central government may establish a dedicated task force or unit to investigate and combat piracy. Additionally, nothing in this section shall be construed to limit or prejudice the rights and remedies available to rights holders under any other law for the time being in force.
Self-classification and access control measures by broadcasters and broadcasting network operators
The draft Bill states that the Central government may issue guidelines for the broadcaster to classify their programs under the categories specified thereunder, having regard to context, theme, tone, impact and TG of such content with the relevant rating for such categories based on the assessment of the relevant content description specified in such guidelines.
It mandates that such classification should be displayed prominently at the beginning of the program
Accessibility guidelines for people with disability
Every disabled person is entitled to access programs therefore broadcasters may have to follow the guidelines, which may include- supplementing video programs with subtitles of size, color, and font; supplementing video content with audio description; translation whenever necessary; OTTs to use apps which are accessible to all.
The draft Bill further mandates the designation of a disability grievance redressal officer and asks broadcasting services to submit an annual accessibility audit report
If there is any violation of accessibility guidelines, a penalty may be imposed under Section 34.
Inspections, penalties, and appeals
The draft allows the government to conduct inspections without prior permission or notification on broadcasting networks, broadcasting service providers, and other entities covered by the bill, such as content creators, among others.
Read more: Exclusive: Broadcasting Bill – Govt can conduct inspections, seize equipment without intimation
It states that the inspection officer will have the right to carry out inspections without prior permission or notification. Upon the direction of the inspection officer, the broadcasting network or broadcasting services will provide the required equipment, services, and facilities for inspection.
No prior permission or intimation shall be required to exercise the right of the inspecting officer to carry out such inspection. The government may not give reasonable notice in certain cases where they believe it could compromise the investigation or inspections.
According to the draft, the government can also seize and confiscate equipment belonging to cable, radio, or any broadcasting network or service if the authorised officer has reason to believe there has been a violation of the law, rules, or guidelines.
Whoever contravenes the provisions of the Act, Rules or Guidelines causing an offence shall be punishable with imprisonment for a term or with a fine
Also, the Central government can issue an order requiring the broadcaster or the network operators to comply with: to delete or modify program code advertisements; requiring to comply with an advisory or censure; directing channels to go off-air, or imposing a penalty.
Failing to maintain accurate and updated records of subscriber data, including the number of subscribers, will result in a fine of Rs 50 lac for the first offense and Rs 2.5 crore for repeated offenses within three years.