IFF: New Delhi: Wednesday, 7 August 2024.
MIB released the draft
Broadcasting Bill, 2023 for public consultation on November 10, 2023. The draft
bill includes “Over-the-Top” (“OTT”) content & digital news published by
individuals under the regulatory ambit raising concerns for online free speech
and journalistic freedom. We have been relying on the RTI Act, 2005 to glean
information about stakeholders and their comments on the Bill. In February
2024, we filed an RTI request with MIB, seeking copies of responses received
during the public consultation period (with personal information of responders
redacted). After some friction and resistance from MIB (as mentioned in our
first quarterly transparency report for 2024), we received a limited set of
responses in April 2024. In this post, we are sharing copies of the responses
and releasing a summary of the comments submitted by other stakeholders.
Background:
On December 07, 2023, we submitted our comments on the draft Broadcasting Services (Regulation) Bill, 2023 (“Broadcasting Bill, 2023”). Following this, on February 23, 2024, we wrote a letter to the Ministry of Information and Broadcasting (“MIB”) requesting the publication of all received comments on the Ministry's website, with personal information redacted. Simultaneously, we filed an RTI application with MIB in February 2024, seeking details and copies of the consultation responses with personal information redacted. On March 01, 2024, MIB sent an email to us and other stakeholders who submitted comments, saying they have received RTI requests to disclose their comments, requesting them to give consent for the same within 10 days. We promptly provided our consent as IFF and sent a mailer to our community explaining the process to them and encouraging them to give their consent with personal details redacted, if they so prefer. Simultaneously, we wrote to MIB noting that while seeking the consent of stakeholders before sharing their response under the RTI Act is appreciated, best practice dictates that MIB must proactively publish comments publicly on their website. We reiterated the necessity of transparently sharing all consultation responses, urging the redaction of personal details before publication.
Thereafter, we received an RTI response from MIB in March 2024 through which they made some interesting arguments. First, they claimed that the comments submitted by stakeholders cannot be disclosed without their consent as that would violate their privacy and intellectual property rights. Despite this, MIB requested a sum of Rs. 934 from us to send us copies of the 417 pages of comments it could share with us. We duly paid the sum and MIB shared a set of comments with us in April 2024. Since several comments submitted during the consultation process that were made publicly available by the organisations themselves were not shared with us, it appears that the list of comments shared with us by MIB is not exhaustive. Below, we have summarised a few comments received as part of the RTI response.
Summary of responses by stakeholders:
Civil Society organisations/ not-for-profit policy organisations:
Access Now:
Access Now submitted that the Broadcasting Bill raises concerns about “people's fundamental rights to free speech and expression, the right to information, and the freedom of the press”. They voiced concern regarding the application of uniform regulation for internet-based programmes, including “OTT” and any person providing news or current affairs programmes through any social media intermediary and questioned how this will undermine the ease of access and availability of things on the internet which is characterised by its openness. The organisation also had apprehensions about the strict content regulation policy being imposed on all programmes including news and current affairs programmes and its impact on the ability of the press to report freely and fairly on important issues. They shared concerns about the potential self-censorship of the press.
Access Now expressed worry regarding the expansive powers of the Union government to monitor and evaluate content as well as restrict content on grounds which have been left to be prescribed by executive rulemaking. The organisation noted concerns about the tripartite regulatory framework outlined in Clause 24 of the Broadcasting Bill, 2023 which mirrors the regulatory structure introduced in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). They mentioned that the constitutionality of these aspects of the IT Rules, 2021 has been challenged in various Indian courts and highlighted the lack of independence of the Broadcast Advisory Council (“BAC”) which increases the censorship powers of the Union government. The organisation recommended that the draft Bill be withdrawn in its entirety and “meaningful, multi stakeholder consultations be held” to come up with a reasonable and rights-respecting policy.
Civis:
Civis through its comments on the Broadcasting Bill, 2023 examined the concerns of a wide range of stakeholders and categorised them based on their expertise and professions as has been showcased in the figure below. As per their report, they gathered over 1900+ feedback points through their website (www.civis.vote) and also analyses the public discourse held on various social media paltforms (YouTube, Twitter (X) and LinkedIn) on the Broadcasting Bill, 2023.
They also conducted a sentiment analysis, where they categorised the tone of conversations and opinions expressed across platforms to understand the general sentiment towards the bill and the key concerns expressed are outlined in the figure below [More details on the methodology used by them to gather feedback on the Bill and to conduct these sentiment analysis has been provided in the report.
Civis noted the need for precise definitions in Clause 2 of the draft Bill, specifically referring to terms like 'broadcasting' and 'broadcasting network', stating concerns around wide definitions inadvertently encompassing a wide range of digital content, including smaller “OTT” platforms and independent digital creators. They also expressed the need to strengthen provisions of Clause 19, relating to the Programme Code to ensure that safeguards are incorporated for free speech to prevent any form of indirect censorship.
The organisation raised concerns regarding the framework of the BAC mentioned in Clause 27 and Self-regulatory Organisations in Clause 26, and the need for independent oversight bodies, separate from government influence for ensuring unbiased enforcement of the Bill's provisions. Civis also noted the need for broader and more inclusive consultation processes, as outlined in Clause 25 to ensure engagement with independent media platforms as well as civil society so that a diverse range of voices are heard.
Deepstrat:
Deepstrat voiced their concerns on the definitions of certain terms under Section 2 of the Bill like "news and current affairs programs" and “OTT” which have a broad scope and expressed the need to redefine these terms to address the ambiguity and to safeguard freedom of speech and expression. They also noted that Clauses 19 and 20 of the Bill impose similar codes for “OTT” streaming and cable television which may result in increased compliance requirements for a variety of digital media, create legal disparities, and provide obstacles to entry for new digital businesses. The organisation highlighted the risks of granting regulators the power to censor online content and news, in light of preserving and protecting the fundamental right of free speech. Additionally, the ambiguity of detailed guidelines raises concerns about how these Codes will be applied, interpreted, and enforced for diverse digital news platforms. They recommended that “OTT” and broadcasting services should not be regulated in the same manner and the obligation under Clause 16 (2) on “OTT” services to inform the Union government must be reconsidered on grounds of minimal oversight.
The organisation also noted that Clause 27 of the Bill outlines the composition of the BAC but it lacks balanced representation, raising concerns about its independence and impartiality due to the high number of government members. Deepstrat also raised concerns regarding the absence of widespread public consultation which undermines the legitimacy and accountability of the BAC, echoing concerns about its constitutional validity. It had concerns about the tripartite regulatory framework outlined in Clause 24 of the draft Bill, which mirrors the regulatory structure introduced in the IT Rules, 2021. The organisation expressed concern regarding the Union government’s power to inspect broadcasting networks and services as they do not meet the standards of necessity, proportionality, and legality as outlined in Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.
Internet and Mobile Association of India (“IAMAI”):
IAMAI expressed their concerns around Clause 2 and its sub-clauses which give a wide definition for ‘broadcasting networks’ and ‘broadcasting network operators’ and include “OTT” broadcasting service operators within its ambit, along with traditional broadcasters, leading to the regulation of starkly different activities by the same rules. They noted that “OTT” platforms are already regulated under the IT Rules, 2021 and the proposed framework in the Bill which mandates self-certification and composition of the Content Evaluation Committee (“CEC”) will hinder the already existing self-regulatory structure and lead to complicated overlaps. They also suggested that News and Current Affairs Programmes should be kept outside the purview of the draft Bill and persons broadcasting these should continue to be exclusively regulated under the IT Rules, 2021 and excluded from the ambit of the Bill. Another suggestion was that the “OTT” platforms must be kept outside the purview of the Bill.
The organisation also raised concerns about the Union government's ability to bypass the first two tiers of grievance redressal and refer matters to the BAC which implies that they have overbroad powers and this may further restrict the rights provided by Article 19 of the Constitution to publish content as a form of freedom of speech and expression and right to carry on trade or occupation.
IAMAI expressed concerns with the microregulation of the broadcasting sector and compared it with the light touch regulatory practices of other foreign jurisdictions like Australia, Japan and other countries. They also raised concerns regarding Clause 35 of the Bill and its expansive phrasing which could give the central government unbridled blocking powers and can have a serious impact on artistic freedom. The organisation additionally recommended that the draft Bill should include the principles that will have to be followed for rulemaking under Clause 43 and that the Rules be made open for public consultation before they are finalised.
CCAOI:
CCAOI raised concerns regarding several provisions in the Bill that introduce a CEC under Clause 24; harsh penalties under Clause 24(4), 33(1), 33(2), 34(1), 36 and broad language regarding the blocking of broadcasters and shows on the grounds of "public interest" under Section 36(2) as it impacts artistic freedom, and can lead to censorship. The organisation recommended that the BAC’s wide regulatory ambit should not be allowed and the Inter-Departmental Committee (“IDC”) under the IT Rules, 2021 should continue to be the regulatory authority. Another recommendation pertained to the harmonisation of the penalties provided under the draft Bill with the pre-existing legislation like the IT Rules 2021.
CCAOI expressed concerns regarding clubbing regulation of conventional broadcasters with “OTT” broadcasting services and recommended separate regulations for the different services and industries. The organisation noted that certain new terminologies have been added to the draft Bill which can potentially clash with the terms of the IT Rules, 2021 and recommended harmonising these terms for uniformity and clarity. They voiced their apprehensions regarding the excessive delegation of power and pointed out that “close to 64 items in the draft bill have been delegated to the executive under Clause 43”. The organisation recommended that the principles which will be followed for rulemaking should be included in the Bill itself and the Rules must be made open for public consultation before they are finalised.
DIGIPUB:
DIGIPUB voiced their concerns regarding some impediments in the consultation process, mainly the draft bill and its accompanying explanatory note being exclusively released in English, posing a linguistic barrier for public involvement. They noted that to ensure transparency the Ministry should publish all of the submitted comments and the allowance of counter comments during the public consultation. The organisation also expressed its concerns regarding the broad scope of applicability, its potential widespread impact on independent journalists, particularly those disseminating news that may be perceived as unfavourable by the government, and the significant risk and liabilities individuals may be exposed to due to non-compliance with the prescribed ethical codes and government directives.
DIGIPUB raised concerns about the ambiguous definitions and the dependence on future rulemaking by the executive which makes the Bill susceptible to misuse through subjective and selective application. This is in light of the rising scrutiny of streaming platforms, and the oversight roles of the BAC and CEC, which highlights the Union government's substantial involvement and evokes apprehensions of censorship.
Indian Newspaper Society:
Indian Newspaper Society expressed their concerns on certain ambiguities which is created by Clause 20(1) of the Bill which excludes publishers of newspapers and replica e-papers from adhering to the Programme code as there is a lack of clarity if this exclusion includes news portals, websites that are operated by newspaper publishers. The organisation noted that articles published on the online news portals are identical to the ones published in printed newspapers and the only difference could be that these portals operate in languages distinct from newspaper publications. They also highlighted that newspaper publishers are already subject to various regulations and facilitating an explicit exemption for online newspapers and news portals owned and operated by these publishers would ease the regulatory burden.
This post has been drafted with assistance from Shravani Nag Lanka, Freedom Innovation Fellow at IFF.
Background:
On December 07, 2023, we submitted our comments on the draft Broadcasting Services (Regulation) Bill, 2023 (“Broadcasting Bill, 2023”). Following this, on February 23, 2024, we wrote a letter to the Ministry of Information and Broadcasting (“MIB”) requesting the publication of all received comments on the Ministry's website, with personal information redacted. Simultaneously, we filed an RTI application with MIB in February 2024, seeking details and copies of the consultation responses with personal information redacted. On March 01, 2024, MIB sent an email to us and other stakeholders who submitted comments, saying they have received RTI requests to disclose their comments, requesting them to give consent for the same within 10 days. We promptly provided our consent as IFF and sent a mailer to our community explaining the process to them and encouraging them to give their consent with personal details redacted, if they so prefer. Simultaneously, we wrote to MIB noting that while seeking the consent of stakeholders before sharing their response under the RTI Act is appreciated, best practice dictates that MIB must proactively publish comments publicly on their website. We reiterated the necessity of transparently sharing all consultation responses, urging the redaction of personal details before publication.
Thereafter, we received an RTI response from MIB in March 2024 through which they made some interesting arguments. First, they claimed that the comments submitted by stakeholders cannot be disclosed without their consent as that would violate their privacy and intellectual property rights. Despite this, MIB requested a sum of Rs. 934 from us to send us copies of the 417 pages of comments it could share with us. We duly paid the sum and MIB shared a set of comments with us in April 2024. Since several comments submitted during the consultation process that were made publicly available by the organisations themselves were not shared with us, it appears that the list of comments shared with us by MIB is not exhaustive. Below, we have summarised a few comments received as part of the RTI response.
Summary of responses by stakeholders:
Civil Society organisations/ not-for-profit policy organisations:
Access Now:
Access Now submitted that the Broadcasting Bill raises concerns about “people's fundamental rights to free speech and expression, the right to information, and the freedom of the press”. They voiced concern regarding the application of uniform regulation for internet-based programmes, including “OTT” and any person providing news or current affairs programmes through any social media intermediary and questioned how this will undermine the ease of access and availability of things on the internet which is characterised by its openness. The organisation also had apprehensions about the strict content regulation policy being imposed on all programmes including news and current affairs programmes and its impact on the ability of the press to report freely and fairly on important issues. They shared concerns about the potential self-censorship of the press.
Access Now expressed worry regarding the expansive powers of the Union government to monitor and evaluate content as well as restrict content on grounds which have been left to be prescribed by executive rulemaking. The organisation noted concerns about the tripartite regulatory framework outlined in Clause 24 of the Broadcasting Bill, 2023 which mirrors the regulatory structure introduced in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). They mentioned that the constitutionality of these aspects of the IT Rules, 2021 has been challenged in various Indian courts and highlighted the lack of independence of the Broadcast Advisory Council (“BAC”) which increases the censorship powers of the Union government. The organisation recommended that the draft Bill be withdrawn in its entirety and “meaningful, multi stakeholder consultations be held” to come up with a reasonable and rights-respecting policy.
Civis:
Civis through its comments on the Broadcasting Bill, 2023 examined the concerns of a wide range of stakeholders and categorised them based on their expertise and professions as has been showcased in the figure below. As per their report, they gathered over 1900+ feedback points through their website (www.civis.vote) and also analyses the public discourse held on various social media paltforms (YouTube, Twitter (X) and LinkedIn) on the Broadcasting Bill, 2023.
They also conducted a sentiment analysis, where they categorised the tone of conversations and opinions expressed across platforms to understand the general sentiment towards the bill and the key concerns expressed are outlined in the figure below [More details on the methodology used by them to gather feedback on the Bill and to conduct these sentiment analysis has been provided in the report.
Civis noted the need for precise definitions in Clause 2 of the draft Bill, specifically referring to terms like 'broadcasting' and 'broadcasting network', stating concerns around wide definitions inadvertently encompassing a wide range of digital content, including smaller “OTT” platforms and independent digital creators. They also expressed the need to strengthen provisions of Clause 19, relating to the Programme Code to ensure that safeguards are incorporated for free speech to prevent any form of indirect censorship.
The organisation raised concerns regarding the framework of the BAC mentioned in Clause 27 and Self-regulatory Organisations in Clause 26, and the need for independent oversight bodies, separate from government influence for ensuring unbiased enforcement of the Bill's provisions. Civis also noted the need for broader and more inclusive consultation processes, as outlined in Clause 25 to ensure engagement with independent media platforms as well as civil society so that a diverse range of voices are heard.
Deepstrat:
Deepstrat voiced their concerns on the definitions of certain terms under Section 2 of the Bill like "news and current affairs programs" and “OTT” which have a broad scope and expressed the need to redefine these terms to address the ambiguity and to safeguard freedom of speech and expression. They also noted that Clauses 19 and 20 of the Bill impose similar codes for “OTT” streaming and cable television which may result in increased compliance requirements for a variety of digital media, create legal disparities, and provide obstacles to entry for new digital businesses. The organisation highlighted the risks of granting regulators the power to censor online content and news, in light of preserving and protecting the fundamental right of free speech. Additionally, the ambiguity of detailed guidelines raises concerns about how these Codes will be applied, interpreted, and enforced for diverse digital news platforms. They recommended that “OTT” and broadcasting services should not be regulated in the same manner and the obligation under Clause 16 (2) on “OTT” services to inform the Union government must be reconsidered on grounds of minimal oversight.
The organisation also noted that Clause 27 of the Bill outlines the composition of the BAC but it lacks balanced representation, raising concerns about its independence and impartiality due to the high number of government members. Deepstrat also raised concerns regarding the absence of widespread public consultation which undermines the legitimacy and accountability of the BAC, echoing concerns about its constitutional validity. It had concerns about the tripartite regulatory framework outlined in Clause 24 of the draft Bill, which mirrors the regulatory structure introduced in the IT Rules, 2021. The organisation expressed concern regarding the Union government’s power to inspect broadcasting networks and services as they do not meet the standards of necessity, proportionality, and legality as outlined in Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.
Internet and Mobile Association of India (“IAMAI”):
IAMAI expressed their concerns around Clause 2 and its sub-clauses which give a wide definition for ‘broadcasting networks’ and ‘broadcasting network operators’ and include “OTT” broadcasting service operators within its ambit, along with traditional broadcasters, leading to the regulation of starkly different activities by the same rules. They noted that “OTT” platforms are already regulated under the IT Rules, 2021 and the proposed framework in the Bill which mandates self-certification and composition of the Content Evaluation Committee (“CEC”) will hinder the already existing self-regulatory structure and lead to complicated overlaps. They also suggested that News and Current Affairs Programmes should be kept outside the purview of the draft Bill and persons broadcasting these should continue to be exclusively regulated under the IT Rules, 2021 and excluded from the ambit of the Bill. Another suggestion was that the “OTT” platforms must be kept outside the purview of the Bill.
The organisation also raised concerns about the Union government's ability to bypass the first two tiers of grievance redressal and refer matters to the BAC which implies that they have overbroad powers and this may further restrict the rights provided by Article 19 of the Constitution to publish content as a form of freedom of speech and expression and right to carry on trade or occupation.
IAMAI expressed concerns with the microregulation of the broadcasting sector and compared it with the light touch regulatory practices of other foreign jurisdictions like Australia, Japan and other countries. They also raised concerns regarding Clause 35 of the Bill and its expansive phrasing which could give the central government unbridled blocking powers and can have a serious impact on artistic freedom. The organisation additionally recommended that the draft Bill should include the principles that will have to be followed for rulemaking under Clause 43 and that the Rules be made open for public consultation before they are finalised.
CCAOI:
CCAOI raised concerns regarding several provisions in the Bill that introduce a CEC under Clause 24; harsh penalties under Clause 24(4), 33(1), 33(2), 34(1), 36 and broad language regarding the blocking of broadcasters and shows on the grounds of "public interest" under Section 36(2) as it impacts artistic freedom, and can lead to censorship. The organisation recommended that the BAC’s wide regulatory ambit should not be allowed and the Inter-Departmental Committee (“IDC”) under the IT Rules, 2021 should continue to be the regulatory authority. Another recommendation pertained to the harmonisation of the penalties provided under the draft Bill with the pre-existing legislation like the IT Rules 2021.
CCAOI expressed concerns regarding clubbing regulation of conventional broadcasters with “OTT” broadcasting services and recommended separate regulations for the different services and industries. The organisation noted that certain new terminologies have been added to the draft Bill which can potentially clash with the terms of the IT Rules, 2021 and recommended harmonising these terms for uniformity and clarity. They voiced their apprehensions regarding the excessive delegation of power and pointed out that “close to 64 items in the draft bill have been delegated to the executive under Clause 43”. The organisation recommended that the principles which will be followed for rulemaking should be included in the Bill itself and the Rules must be made open for public consultation before they are finalised.
DIGIPUB:
DIGIPUB voiced their concerns regarding some impediments in the consultation process, mainly the draft bill and its accompanying explanatory note being exclusively released in English, posing a linguistic barrier for public involvement. They noted that to ensure transparency the Ministry should publish all of the submitted comments and the allowance of counter comments during the public consultation. The organisation also expressed its concerns regarding the broad scope of applicability, its potential widespread impact on independent journalists, particularly those disseminating news that may be perceived as unfavourable by the government, and the significant risk and liabilities individuals may be exposed to due to non-compliance with the prescribed ethical codes and government directives.
DIGIPUB raised concerns about the ambiguous definitions and the dependence on future rulemaking by the executive which makes the Bill susceptible to misuse through subjective and selective application. This is in light of the rising scrutiny of streaming platforms, and the oversight roles of the BAC and CEC, which highlights the Union government's substantial involvement and evokes apprehensions of censorship.
Indian Newspaper Society:
Indian Newspaper Society expressed their concerns on certain ambiguities which is created by Clause 20(1) of the Bill which excludes publishers of newspapers and replica e-papers from adhering to the Programme code as there is a lack of clarity if this exclusion includes news portals, websites that are operated by newspaper publishers. The organisation noted that articles published on the online news portals are identical to the ones published in printed newspapers and the only difference could be that these portals operate in languages distinct from newspaper publications. They also highlighted that newspaper publishers are already subject to various regulations and facilitating an explicit exemption for online newspapers and news portals owned and operated by these publishers would ease the regulatory burden.
This post has been drafted with assistance from Shravani Nag Lanka, Freedom Innovation Fellow at IFF.
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