A conflict with content broadcasters is no excuse for the Union government to restrict their creative expression and free speech.
Bandaged mouth of a man with the word censored in English
What should have been a routine upgrade of legislation to regulate India’s ever-expanding broadcast sector has raised alerts about the Union government pouncing upon an yet another opportunity to control the communications industry.
The Ministry of Information and Broadcasting recently released the draft of the Broadcasting Services (Regulation) Bill, 2023, giving a 30-day window for public consultations.
The Bill proposes to bring all OTT services under the purview of the programming and advertising rules of the government. All streaming platforms and online media organisations, deemed publishers to date, are being re-defined as broadcasters so that they come directly under the supervision of the Union government.
Even individuals uploading news or current affairs content online or on platforms like YouTube will be considered broadcasters. Anything or anyone releasing content “as a part of a professional, systematic or commercial activity” will be subjected to the new rules.
If the Bill becomes law, the broadcasters will need content certification from the Union government’s evaluation committee. They will also have to subscribe to a new regulatory system that will come into being.
Will new rules restrict freedom of speech and what human rights activists call creative expression?
The question is pertinent, considering the “control” and the current atmosphere of “intolerance” that dislikes free expression long before the new draft Bill.
We have the infamous example of Fabindia. It had issued an advertisement before Diwali titled Jashn-e-Riwaz, depicting models without a vermilion mark on their foreheads. The ad was trolled viciously for its anti-Hindu character even though the company clarified it was celebrating Indian festivals in general. Finally, the advertisement had to be replaced with a neutral one, Jhil Mil Si Diwali.
The technical intent of the draft Bill is to replace the Cable Television Networks (Regulation) Act of 1995, the present regulator of the broadcast sector. The aim is to bring all media dissemination platforms under one wing, whether digital media, DTH, IPTV or OTT.
A government release says: “It extends its regulatory purview to encompass broadcasting over-the-top (OTT) content and digital news and current affairs currently regulated through IT Act, 2000, and regulations made there under.”
It is the regulatory aspect of the Bill that is problematic. It proposes to control all digital news. It has a programming and advertising code with punishments for violations, many of which are questionable.
A Broadcast Advisory Council (BAC) and Content Evaluation Committees (CEC) will scrutinise all moves by the platforms and identify code breaches. The Union government will finally have the power to decide on cases of violation.
The committees are supposed to be self-regulatory, though perusing the draft tells you otherwise. The draft says every broadcaster or broadcasting network “shall constitute one or more Content Evaluation Committee’ and the broadcasters “shall broadcast only those programmes which are duly certified by the CEC”.
The rider, according to the draft Bill: “Provided that the Central Government may prescribe the programmes on which requirement of certification from CEC shall not apply.” The government has the veto.
The BAC will entirely be a government baby. The government will constitute it. It will have one ”eminent independent person” as chairperson.
The Union government will nominate five persons to “represent the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Home Affairs, Ministry of External Affairs, and Ministry of Social Justice and Empowerment”.
The government will also nominate five “eminent independent persons” with experience in “media, entertainment, broadcasting, child rights, disability rights, rights of women, human rights, law”.
The Union government will have “the right to inspect broadcasting networks and services”. The inspections can be random and happen anytime without notice. “No prior permission or intimation shall be required to exercise the right of the Central Government or its authorised officers or agency so authorised by it to carry out such inspection.”
The inspecting team also has powers to “seize the equipment of such broadcasting network or broadcasting services” if required.
The most controversial aspect of the draft Bill is the Union government’s “power” to “prohibit from transmitting or re-transmitting any programme or channel if it is not in conformity with the prescribed programme code and advertisement code”.
The ban will apply to any content “if it is likely to promote, on the grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity”.
These provisions are highly vague, undefined, and subject to any interpretation and, therefore, a Sword of Damocles on broadcasters.
The ban can come into force under another circumstance the draft refers to: “Where the Union government thinks it necessary or expedient so to do in the interest of the — (i) sovereignty or integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign state; or (iv) public order, decency or morality, it may, by order, regulate or prohibit the transmission or re-transmission of any Television channel or programme.”
Over the last few years, the government has been forcing itself on television channels to remove content that was apparently not in sync with cultural traditions espoused by the ruling party’s ideology. The draft Bill reinforces such convictions.
Worse, the power to define and interpret these conditions and oversee compliance lies with government officials who will never go against government interests.
The government has on several occasions pointed out media “excesses” in terms of “unfair” reporting or presenting a “coloured” interpretation of facts.
The media has a self-regulatory mechanism in place. The news broadcasters would not mind these self-regulatory bodies having the authority to monitor and enforce compliance so long as they are independent and not under government control. That is the only way to ensure transparency, fairness, and accountability of the decisions made by such bodies.
The entertainment broadcasters are worse off. Given the production costs involved, they cannot afford to challenge the government if restrictions are imposed on them openly.
The draft Bill provisions have the potential to ensure that the broadcasters do not have an independent voice or choice if the government objects to their free expression.
The debate on the need for curbs on private broadcasting to check hegemonic news dissemination is quite active in India. However, the checks are the responsibility of a self-regulatory authority.
The authority can be strengthened, but by no stretch does it mean the government can take over control of the means of mass communication.
Such regulation will reduce broadcasters’ freedom of expression — whether messaging organisations, groups, or individuals.
At the same time, the regulation also impedes the right of Indians to receive information freely.
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