Broadcasting Services (Regulation) Bill, 2023

Introduction:

Keeping with the Prime Minister’s vision for ‘ease of doing business’ and ‘ease of living’, the upcoming digitization of the broadcasting sector and with the growing need to streamline the regulatory framework, the Ministry of Information and Broadcasting (“MIB”) recently on 10^th November, 2023, floated the much- anticipated draft Broadcasting Services (Regulation) Bill, 2023 (“Bill”) for public consultation. The Bill comprises of 6 (six) chapters, 48 (forty-eight) sections and 3 (three) schedules.

The Bill modernizes the broadcasting sector’s regulatory framework by replacing the Cable Television Networks (Regulation) Act of 1995¹ (“CTNR Act”) and other policy guidelines currently governing the broadcasting sector in India. CTNR Act has been in effect for three decades now, serving as the primary legislation overseeing content on linear broadcasting including cable networks, however the same is now deemed inadequate to address the dynamic changes as brought by technological advancements and with the rise of platforms such as DTH, IPTV, OTT etc., there is a pressing need to modernize the regulatory framework. The Bill streamlines regulatory processes, extends its purview to cover the Over-the-Top (OTT) content and digital news, and introduces contemporary provisions for emerging technologies.  The Bill further seeks to provide for content evaluation committees and a broadcast advisory council for self-regulation, different program and advertisement code for different broadcasting network operators, Accessibility measures for persons with disabilities, and statutory penalties, etc. Recognizing the need for a unified and future- focused approach, MIB has proposed a draft of the Bill to replace the existing fragmented framework with a new and comprehensive law.

Applicability:

This Bill shall become applicable on all cable broadcasting networks, satellite broadcasting networks, radio broadcasting networks, internet broadcasting networks, and terrestrial broadcasting networks as evident from Section 4 and definitions of the Bill, reproduced herein below:

• “Broadcasting” means one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network, intended to be received or made available for viewing, by the general public or by subscribers of the broadcasting network as the case may be, and the expression “broadcasting services” shall be construed accordingly.

• “Broadcasting network operator” means any person who operates a broadcasting network, and has been granted a registration or license or permission or who has provided an intimation as required under this Act, to provide services using a broadcasting network.

• “Broadcasting network” means a system used for the transmission of programmes, including cable broadcasting networks, satellite broadcasting networks, internet broadcasting networks, radio broadcasting networks and terrestrial broadcasting networks.

• “Programme” means any audio, visual or audio-visual content, sign, signals, writing, images which is transmitted using a broadcasting network, and includes (i) Exhibition of films, features, dramas, documentaries, advertisements and serials; (ii)Any audio or visual or audio-visual live performance or presentation and the expression ‘programming service’ shall be construed accordingly.

Key Features Of The Draft Bill:

1. Obligations of the Broadcaster and Broadcasting Network Operator

• Registration: No person can provide broadcasting services or operate a broadcasting network unless he is registered or has provided an intimation (for internet broadcasting network operators) in accordance with the Bill. However, any person to whom registration or permission for broadcasting service is granted under the CTNR Act, the Telegraph Act, 1885, and other guidelines/rules as listed out in Section 41 of the draft Bill shall be deemed to have been registered under the draft Bill, provided the Central Government may ask for a notification to self-certify their compliance with the provisions of the Bill.²

• General obligations³: (i) the broadcaster and broadcasting network operator should transmit programmes in compliance with terms and conditions as prescribed; (ii) the transmission or re-transmission shall be in conformity with the Programme Code and Advertisement Code; (iii) the broadcasting service does not interfere with the functioning of the authorised telecommunication systems; (iv) equipment to be used for broadcasting service shall be as per applicable standards; (v) any advertisements or programme should be in compliance with the orders or direction under sections 35 (Penalties) or 36 (Prohibition); and (vi) to provide information to the Central Government or the State Government or any agency authorized by the Central Government.

• Compulsory Transmission: The Central Government will have the authority to notify the broadcasting network operators to compulsorily transmit such Doordarshan channels or channels operated for or on behalf of Parliament to be mandatorily carried out without any deletion or alteration of any programme transmitted on such channels.

• Renewal, Suspension and Appeals for registrations of Broadcasters: Every certificate issued by the authority, shall be renewed after such period and payment of fee as may be prescribed by the authority. Further, in case of any violation of the terms and conditions of such registration, the Central Government may cancel the renewal of such Broadcaster, or may suspend or revoke the registration as it may be deemed fit by the authority. Any aggrieved applicant will have a right to appeal against the order of the registering authority.

• Cable and Satellite Broadcasting Networks specific obligations:

• Any person who intends to operate as a broadcaster by uplinking or downlinking of programmes or channels may apply for registration for such uplinking or downlinking to the registering authority.

• The cable and satellite broadcasting network operators will have to transmit or re-transmit programmes in an encrypted form through a digital addressable system, publicise the information related to subscription rates, standards of quality of service and mechanism for redressal of grievances, and maintain records of subscriber data in such manner as laid out in the Bill. In addition, cable and satellite operators will have to maintain records about the programmes transmitted by them.

• Under this Bill, cable and satellite broadcasting network operators cannot require any subscriber to have a receiver set of a particular type to receive programmes or signals of their broadcasting network.

2. Consolidation and Modernization:

• The Bill addresses a longstanding need of consolidating and updating the regulatory provisions for various broadcasting services i.e., satellite, terrestrial, internet and radio, under a single legislative framework.

• It extends its regulatory purview to encompass broadcasting over-the-top (OTT) content, digital news and current affairs which are currently regulated through the Information Technology Act, 2000 (“IT Act, 2000”).

• The CTNR Act, on the other hand, was solely limited to cable television networks and did not extend to other forms of transmission which led to various other regulations / guidelines governing the broadcasting sector.

3. Consolidation and Modernization:

• Section 19 of the Bill provides for programme code and advertising code which will be prescribed by the Central Government, and any programme and/or advertisement transmitted or re-transmitted as broadcasting services has to be in conformity with the prescribed programme code and/or advertising code.
• Therefore, any OTT broadcasting network, any person who broadcasts news and current affairs programs through online papers, news portal, website, social media intermediary or other similar medium (excluding publishers of newspapers and replica e-papers of such newspapers) shall be required to adhere to the programme code and advertisement code.
• Further, different programme code and advertising code might be prescribed for different categories of broadcast done through linear broadcasting services; on-demand broadcasting services; radio broadcasting services; and any additional category as may be notified by the Central Government.

Whereas the programme code and advertising code as laid down under Section 5 and Section 6 of the CTNR Act is limited to only such programmes as transmitted or re transmitted through a cable service only⁴

4. Self-Regulation Regime:

• In order to ensure compliance with the requirements/obligations as set under the draft Bill particularly compliance with the programme code and advertising code⁵, the Bill has introduced a self-regulatory framework consisting of:

• • Self -certification by Content Evaluation Committee⁶ (“CEC”): Broadcasters and broadcasting network operator shall set up a CEC for self- certification of programmes and only those programmes shall be broadcasted which are duly certified by the
  • Self – regulation by broadcasters and broadcasting network operators⁷: This compliance shall be done by broadcasters and broadcasting network operators by (a) appointing a grievance officer; (b) becoming a member of the self-regulatory organizations (SRO); (c) establishing and maintaining suitable mechanisms for the filing and redressal of complaints; and (d) publishing information related to complaint redressal mechanisms.
  • Self-regulatory organizations⁸(“SROs”): Broadcasters and broadcasting network operators to form SRO and register with the Central Government within 90 (ninety) days. The SROs will handle grievances and hear appeals filed against the decisions of broadcaster as under Section 25 of the Bill, and issue compliance guidelines.
  • Broadcast Advisory Council⁹: It consists of an independent chairperson, government officials, and independent experts. The council will hear complaints related to violations of the programme code or advertisement code, examine them, and make recommendations to the Central Government, after which the Central Government will take appropriate orders and directions. It has the authority to co-opt additional members for specific expertise but without voting rights.

While the Cable Television Network (Amendment) Rules, 2021 (“CTNR Rules”) previously introduced a similar complaint redressal structure to the CTNR Act, wherein a three-level structure was provided for addressing complaints and grievances for programme code and advertising code. The three-level structure included (i) self – regulation by broadcasters (through the grievance officer); (ii) self-regulatory body of broadcasters; and (iii) inter-departmental committee established pursuant to the oversight mechanism provided under Rule 19 of the CTNR Rules.

A similar grievance redressal mechanism was also introduced by The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 for ensuring adherence to Code of Ethics and to address grievances in relation to the publishers.

5. Self-Classification by Broadcasters:

• It provides that the Central Government might issue guidelines for broadcasters to classify their programmes, having regard to the context, theme, tone, impact and target audience of such content.
• The relevant classification has to be displayed prominently at the beginning of the programme, in such form and manner as specified.
• It also provides that the broadcasting network operators shall implement access control measures, in such form and manner as prescribed, for programmes which are classified as being appropriate for restricted viewing.

CTNR Act, on the other hand, empowers the Central Government to regulate or prohibit the transmission or re- transmission of any channel/programme in order to ensure that the content is in line with public decency, morality, and order.

6. Accessibility for Persons with Disabilities:

• Section 23(1) of the Bill lays down that the broadcasters or broadcasting network operators may be required to undertake certain mandatory measures under the Accessibility Guidelines (as defined under Section 2 (1) (a) of the Bill) and certain directory measures to make broadcasting services incrementally more accessible to persons with disabilities. Such measures may include, inter alia, supplementing video programmes with subtitles, audio-description, translation into sign language, etc.
• A disability grievance redressal officer will be appointed by the Central Government to address complaints of any violation of the Accessibility Guidelines in such manner and within such time as may be specified in the said Accessibility Guidelines.

7. Power of Inspection and Seizure:

• The Central Government has the right to inspect broadcasting networks and services in order to ensure compliance with provisions of the CTNR Act. The inspection has to be carried out after giving reasonable notice, except in circumstances where giving of such a notice would defeat the purpose of the inspection.¹⁰
• The Central Government also has the right of seizure under Section 31 of the Bill. Any authorized officer may seize and confiscate the equipment of such broadcasting network or broadcasting services (specified in the Second Schedule of the Bill) if it has reason to believe that any provisions of the Bill, or rules or guidelines are being contravened.

8. Statutory Penalties and Fines:

• The Bill is consistent with the provisions of Jan Vishwas (Amendment of Provision) Act, 2023 (“Jan Vishwas Act”)¹¹, an amendment to de – criminalize certain provisions of the existing CTNR Act as introduced by the MIB with the aim of making the CTNR Act more business friendly and to encourage compliance with the CTNR Act rather than resorting to harsh punishments.
• It provides for statutory penalties such as advisory, censure, warning or monetary penalties such as a fine which can extend upto rupees fifty lakhs for the first offence and one crore for subsequent offences, for operators and broadcasters.
• Further, in order to ensure a balanced approach, fines (as mentioned above) and imprisonment extending upto two years for first offence and imprisonment of upto five years for subsequent offences, are limited to only serious offences.
• It addresses subsequent contraventions and in addition to the provision for higher penalties, includes the provisions for suspension or cancellation of registration. Also, the inclusion of an appeal mechanism ensures fair and transparent process and safeguard against potential abuse of power.
• However, unlike the provisions as laid down in the Jan Vishwas Act, the Bill takes in consideration the financial capacity of the entities and provides that the quantum of monetary penalty and fines are dependent on the financial capacity of the entity or individual.

8. Infrastructure Sharing and Right of Way:

• Under Section 37 of the Bill, it also includes provisions for infrastructure sharing among broadcasting network operators and carriage of platform services.
• Further, under Section 38 of the Bill, the Bill streamlines the ‘Right of Way’ to address relocation and alterations/repair of the broadcasting network more efficiently, and establishes a structured dispute resolution mechanism.

Drawbacks Of The draft Bill:

1. Conflict with other laws:

• There are various laws whose application is not barred to the Bill under Section 42, which list includes, inter alia, the IT Act, 2000. Further, there may be various conflicts which may arise keeping in mind Section 21 of the Bill which provides for self-classification.
• While on the other hand, the, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”) constituted under the IT Act, 2000 already contains Code of Ethics with similar guidelines, although its enforcement is stayed by the High Court of Bombay in Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors., vs. Union of India,¹² wherein Rule 9(1) and Rule 9(3) of the IT Rules, 2021 were stayed, and this order was observed to have a pan-India effect by the High Court of Madras in the case of Digital News Publishers Association and Mukund Padmanabhan vs. Union of India and Other Connected Matters.¹³ The Code of Ethics already provides guidelines for classification of curated content including the restrictions, display of the classification, and other factors affecting such classification.
• This may be a point of conflict considering the draft Bill indicates that the Central Government may introduce guidelines to classify the programmes under various categories, which already seem to exist under the IT Act, 2000 for publishers of news and current affairs and online curated content, thereby rendering the same devoid of any meaning.
• There is additionally no clarity over whether in case of any conflict with any statute mentioned under Section 42 of the draft Bill, which statute would have an overriding effect.

2. Regulation of OTT Platforms:

• Section 2(1) (h) of the Bill defines, ‘Broadcasting Network Operator’ as “any person who operates a broadcasting network, and has been granted a registration or license or permission or who has provided an intimation as required under this Act, to provide services using a broadcasting network, and includes over-the-top broadcasting service operator”. Further, Section 2(1)(i) of the Bill defines ‘Broadcaster’ as “a person who provides programming services and has been provided a registration under Section 11 for uplinking or downlinking of programmes, and in relation to Radio, OTT and Terrestrial broadcasting network, means the operator of such service.”
• From the above definitions, it is evident that the Bill has brought OTT within its regulatory framework , which further raises important questions as to will these regulations lead to OTT content being subject to over-compliance and self-censorship on part of platforms, as the OTT platforms will be keen to avoid the wide discretion allowed to the government when it comes to punishments.
• Earlier, the OTT service providers/operators did not require any specific license to carry on business however the Bill only recognizes such broadcasting network which has been granted a registration or license or permission or has provided an intimation to the Central Government.
• Digital streaming services operate on the pull model which empowers viewers with choice, allowing them to curate their viewing experience based on personal preferences and interests. However, this, in principle, is a direct contradiction to the nature of cable TV or radio services, wherein consumers cannot choose to stop the airing of a programme.
• Applying stringent rules and codes to OTT broadcasting services may increase the financial and compliance burden for such broadcasters, and negatively impact user experience, choice, and even costs borne by the users.
• Under the three tier self-regulation regime under the Bill, through the standards and practices formulated and adopted by the Broadcast Advisory Council, the Union government will be able to exercise indirect control over curated content. The allotment of such powers to the Union government in the absence of any constitutional or parliamentary backing and the application of such powers on “OTT” broadcasting services raises concerns around the executive’s indirect control over the platforms.

3. Ambiguous provisions in the draft Bill:

• The Bill raises concerns that the Bill might lead to the erasure or selective representation of Indian minority communities and normalise a universal unifocal identity of India, as in times of heightened communal conflicts, the artists and creators face the challenge of balancing government appeasement and societal reflection. Historical precedents show governments forcing channels to remove content under vague threats of cultural invasion. Section 36 of the draft Bill which states that “Where any authorised officer, thinks it necessary or expedient so to do in the public interest, he may, by order, prohibit any cable broadcasting network operator, radio broadcasting network operator, terrestrial broadcasting network operator and IPTV broadcasting network operator from transmitting or re-transmitting any programme or channel if, it is not in conformity with the prescribed programme code and advertisement code referred to in section 19 or if it is likely to promote, on 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”, emphasizes the broad and ambiguous language that grants the authorities the power to prohibit transmission and/or re- transmission of any program or channel which is not in conformity with the programme code and advertisement code¹⁴, or if it is likely to promote disharmony, feeling of enmity etc and/or any other ground whatsoever.
• The proposed draft Bill could lead to a direct interference of Central Government as hiring an authorised officer i.e. the term “authorized officer means,- (i) in relation to cable broadcasting network operator, Radio broadcasting network operator, terrestrial broadcasting network 2 operator and IPTV broadcasting network operator, within his local limits of jurisdiction, – (a) a District Magistrate, or (b) a Sub-divisional Magistrate, or (c) a Commissioner of Police, (ii) in relation to broadcasters and broadcasting network operators other than those referred in sub-clause (i), Joint Secretary to the Government of India; and (iii) any other officer notified in the Official Gazette, by the Central Government, to be an authorised officer for such services within such territorial area, as may be determined.”¹⁵, working under the government’s directions cannot be separated from the government’s sphere of influence.
• The applicability of the draft Bill seems to be vague considering the use of the word “includes” and then listing out the service providers such as OTT platforms and IPTV service providers under the definition of internet broadcasting networks. Clarity is required on the aspect of whether music distribution services and other services not similar to IPTV or OTT platforms such as Spotify, Wynk, Apple Music, would fall under the ambit of the Bill, as even though the audio distributed may fall within the definition of Programme, the intent of the definitions and the Bill seems to be to regulate only Audio-Visual Content broadcasted through the broadcast networks. The applicability of the Bill is vague and needs to be limited, especially by exhaustively listing out internet broadcast networks that may fall within the ambit of the Bill.

4. Apprehensions of control and regulation:

• The draft Bill raises concerns about whether the focus is genuinely on public service or on increasing control and regulation by the government.
• There are apprehensions that the Bill may intensify government control over digital infrastructure and citizens’ viewing choices.

5. Restriction on artistic freedom:

• The requirement for all broadcasters to have their content certified by the CEC, except for programmes prescribed by the Central government, raises concerns about artistic freedom and the extent of government control over content.
• Further, while the self – regulatory mechanism as proposed in the draft Bill was incorporated with the intention of enhancing responsibility and accountability among broadcasters and networks regarding the content they provide to the public however the effective implementation of the same hinges on the clarity and practicality of the regulatory framework, ensuring it enhances content quality without stifling creative expression.
• The Content Evaluation Committee (CEC) shall consist of members who are eminent individuals representing different social groups, including but not limited to women, child welfare, scheduled castes, scheduled tribes, minorities etc., and with such other relevant criteria. Every broadcaster or broadcasting network operator shall broadcast only those programmes which are duly certified by the CEC.
• The CEC obligation is only applicable, in case of cable broadcasting network operators, satellite broadcasting network operators and IPTV Network operators, to only such operators, who provide Platforms services on their network, and limited only to the content broadcasted on such platform services. Platform Services are defined as:

“Platform Service” means programs, including advertisements transmitted by following Broadcast Network Operators exclusively to their own subscribers and does not include Doordarshan channels, registered television channels or foreign television channels that are not registered in India: (i) Multi-System Operator; (ii) Direct To Home operator; (iii) Headend-In-The-Sky operator; (iv) Internet Protocol Television operator; (v)Terrestrial broadcasting network operator; and (vi) Any other broadcast network operator notified by the Central Government

• Certain industry experts have pointed out that all major broadcasters and streaming platforms already have standards and practices (S&P) departments to ensure their content are in compliance with rules. With the introduction of the Bill, there is little clarity on the new CEC layer is inclusive of the existing S&P practices at the broadcaster level or exclusive of it.
• With regards to CEC, the Bill should take into account that the criteria for evaluation for programmes will be different in case of states or regions and therefore should allow different criteria to be set by the CEC for different regions and states, including to allow regional committees, in order to appropriately cater to the demands of various viewers and subscribers in different regions and states.
• This means that production houses will ultimately have to follow the requirements set by CEC in case of any broadcast through cable, satellite or IPTV, of the relevant broadcaster or broadcasting network in order to comply with its obligations under various agreements with the broadcasters, as there will be a trickle down effect from broadcasters onto the creators to comply with CEC guidelines to safeguard the broadcasters against any claims in relation to the programme.

6. Independence of the Broadcast Advisory Council (BAC):

• The effectiveness of self-regulation depends largely on the independence and impartiality of the Broadcast Advisory Council. Their role in overseeing regulation and compliance is crucial but must be free from bias and external influences to ensure fair and just oversight of broadcasting content.

7. Issues with Cable and Satellite broadcast network regulations:

• The CTNR Act initially aimed at curbing illegal cable operators, lacked transparency due to the nexus involving operators, politicians, entrepreneurs, and broadcasters.
• The draft Bill fails to address the loopholes and issues in the implementation of the existing CTNR Act including conflicts of interest and opaque practices within the Indian media industry.

8. Programme Code and Advertisement Code:

• The requirement for all programmes to adhere to the Programme Code and Advertising Code requires careful analysis by the Central Government. There are various factors that could lead to ambiguous interpretations under the Programme Code and Advertising Code, the penalties for which are significant under the present Bill as per first schedule therein. It is crucial to lay down proper procedures in order to consider the various standards and factors to be followed while programmes or advertisements are transmitted or re-transmitted as broadcasting services.

9. Issues with regard to the General Obligations of the broadcasters and broadcasting network operators:

• There are a few challenges arising out of the general obligations that are required to be followed by the broadcasters and broadcasting network operators such as:
  • Cost of infrastructure and cost of business for the Cable TV broadcasters may rise in order to comply with the equipment requirements for conforming to the applicable standards. The Central Government should make a phase wise plan to implement technology degradation.
  • All broadcasters, will have to share information with the Central Government and State Government as and when requested. The Central Government should list out criteria wherein they can demand for such information to prevent arbitrary usage of this provision.

Conclusion:

To sum it up, with the draft Bill MIB is committed to ushering in a new era of transparency, self-regulation and future – ready broadcasting services in the country as the proposed legislation modernizes the broadcasting sector’s regulatory framework. Further, this move of MIB is expected to be a game changer for the country’s bustling segment i.e., the over-the-top (OTT) market as the draft Bill seeks to take all such OTT platforms under its purview.

By finding the optimal equilibrium between regulatory supervision and industry autonomy, India can strategically position itself for long-term success in the swiftly advancing telecommunications sector. It would also be interesting to see the industry’s response and adaptation to the proposed changes as the same will play a pivotal role in determining the draft Bill’s impact in the broadcasting sector in the country.

However, the Bill suffers from excessive delegation, as it does not lay down the specifics of implementation due to a lot of sections reserving further rule marking powers by inclusion of the words “as may be prescribed” and “as notified by the Government”. It is essential that the rules are clarified in the Bill itself in order to avoid any arbitrary rule making which may lead to losses, overwhelming compliances, and impairment of rights to freedom of speech for various broadcasters and broadcasting service providers.

The copy of the draft Bill has been attached here for ease of reference.

 

Authors:

Neha More, Associate

Savan Dhameliya, Associate

Anushree Rauta, Partner

 

Footnotes

1 https://www.indiacode.nic.in/bitstream/123456789/15345/1/the_cable_television_networks_%28regulation%29.pdf

2 Section 41 of the Broadcasting Services (Regulation) Bill, 2023.

3 Section 5 of the Broadcasting Services (Regulation) Bill, 2023.

4 Section 5 of the Cable Television Networks (Regulation) Act of 1995, “Programme code — No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.”

Section 6 of the Cable Television Networks (Regulation) Act of 1995, “Advertisement code — No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code.”

5 Section 19 of the Broadcasting Services (Regulation) Bill, 2023.

6 Section 24(2) of the Broadcasting Services (Regulation) Bill, 2023.

7 Section 25 of the Broadcasting Services (Regulation) Bill, 2023.

8 Section 26 of the Broadcasting Services (Regulation) Bill, 2023.

9 Section 27 of the Broadcasting Services (Regulation) Bill, 2023.

10 Section 30 of the Broadcasting Services (Regulation) Bill, 2023.

11 Section 30 of the Broadcasting Services (Regulation) Bill, 2023.

12 Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors., vs. Union of India, W.P. (L.) No. 14172 of 2021.

13 Digital News Publishers Association and Mukund Padmanabhan vs. Union of India and Other Connected Matters, W.P.Nos.13055 and 12515 of 2021.

14 Section 19 of the Broadcasting Services (Regulation) Bill, 2023

15 Section 2(1) (d) of the Broadcasting Services (Regulation) Bill, 2023.