Authors: Rohit Kumar & Srijan Rai

Published: August 6th, 2024 in The Indian Express

A draft version of the Broadcasting Services (Regulation) Bill, 2024 has been recently circulated among a handful of stakeholders from the industry by the Ministry of Information and Broadcasting (MIB). This Bill aims to extend the regulations currently applied to traditional television and radio, to the internet. While seemingly designed to consolidate existing guidelines and increase accountability among broadcasters, the Bill does much more. It is expansive in its remit, covers all large influencers, content creators, and political commentators online, and tries to regulate speech. If introduced and passed in Parliament, the Bill could significantly undermine creative independence and stymie online freedom of expression in India.

Recent elections have shown that digital media can serve as a critical alternative space for creators and commentators to scrutinize government policies and demand accountability. It can enable dissenting voices that don’t find traction in mainstream media and help organize counter-narratives around critical issues – all vital for a well-functioning and vibrant democracy. The Broadcasting Services bill threatens to disrupt this dynamic.

Selective consultation and regulatory overreach

The draft Bill reimagines the term ‘broadcaster’ to include digital news broadcasters, defining them as anyone who ‘systematically’ broadcasts news and current affairs online, including on social media platforms via text, video or audio. What this means is that commentators on YouTube, Twitter, blogging portals or podcasts discussing current affairs and socio-political issues will all get covered under the Bill.

Digital news broadcasters with a certain threshold of subscribers/viewers must notify the government, conform to a Programme Code, set up a grievance redressal mechanism, and adhere to a three-tier regulatory structure. For content other than current affairs (a programme providing historical overview, for instance), broadcasters are also required to get pre-certification by a ‘Content Evaluation Committee’ that they set up. While allowing users to raise complaints against Programme Code violations, the Bill also gives the central government the power to impose penalties, direct broadcasters to go off-air, and even prohibit transmission in the interest of sovereignty, security, public order, decency, morality, or foreign relations.

While some of these requirements may seem benign and perhaps an attempt to equalize TV and internet broadcasters, this view overlooks critical issues and ignores fundamental differences between TV and the internet. Unlike TV where linear programming is disseminated one to many, content on the internet is demand-based and one-to-one. It’s not clear, therefore, why they should be regulated in the same manner. Second, by opening the door for regulating social and political commentators and granting the government broad powers to intervene, we run the risk of serious censorship. Already, constitutional challenges to Part III of the Information Technology (IT) Rules, 2021, which attempted to create government oversight over media, have led to these Rules being stayed by the Courts.

Third, unlike TV broadcasters with significant resources, many commentators on the internet are smaller-scale content creators and independent journalists. Applying the same regulations as TV on these broadcasters and requiring pre-certification of creative content, can unfairly burden these players and significantly increase costs while reducing speed to market.

Extra-territorial application

Unlike the 2023 version of this Bill, the current draft does not restrict the application of the law to broadcasters who are citizens of India or entities registered in India, potentially bringing global content creators, news publishers, and commentators of current affairs within the scope of the Bill. Does this mean that every foreign influencer, journalist or commentator with significant reach in India (think John Oliver, Trevor Noah, Fareed Zakaria as examples) will have to intimate the Indian government of their presence and comply with the Programme Code and adhere to the three-tier governance framework? Given the global nature of the internet, how will this provision even work?

Threatening safe harbour, yet again

The Bill imposes new obligations on social media intermediaries, including compliance with government demands for information about broadcasters on their platforms. The Information Technology (IT) Act, 2000, and the accompanying IT Rules already require social media intermediaries to establish grievance redressal mechanisms, comply with government orders, and operate a notice-and-takedown regime for flagged content. Introducing parallel legislation to regulate social media intermediaries and threatening safe harbour protections will only add to the regulatory quagmire and create a chilling effect on free speech.

Respecting free speech and recognizing the limitations of internet regulation

Regulating content on the internet presents inherent challenges due to the global, decentralized nature of the web. Unlike traditional media, the internet hosts a far greater number of creators and influencers, there is a lot more content being generated, and the dissemination of this content transcends national boundaries, making jurisdictional enforcement complex and often impractical. Attempts to impose stringent regulations – what MIB seems to be doing through the current Bill – can lead to serious consequences. If the government is concerned about fake news or harmful/ misleading content, other mechanisms need to be leveraged, like the IT Act 2000 which already provides for a flagging and takedown regime.

The draft Broadcasting Bill, 2024 needs a serious rethink. At the minimum, it requires thorough deliberation and discussion with a broad and diverse range of stakeholders before it is made into law. This legislation isn’t just about a few companies and media outlets – it is about the future of the internet and the digital citizens on it.

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Rohit is Founding Partner and Srijan is an Associate at The Quantum Hub (TQH) – a public policy firm