On November 10, 2023, the Union Ministry of Information and Broadcasting (MIB) released the draft Broadcasting Services (Regulation) Bill, 2023, ushering in a potential paradigm shift in India’s media regulatory scenery. The bill, currently open for public commentary, aims to regulate the broadcasting services in the country and seeks to replace the existing Cable Television Networks (Regulation) Act, 1995, and other Policy Guidelines currently governing the broadcasting sector in the country.
The Bill, designed to streamline regulatory procedures, extends its jurisdiction to cover Over-the-Top (OTT) content and digital news, introducing contemporary definitions and provisions to accommodate emerging technologies. The bill seeks to directly regulate streaming platforms such as Netflix, Amazon Prime Video and Disney+ Hotstar as over-the-top, or OTT, broadcasting services.
It may even include social media platforms like WhatsApp, and signal messaging companies.
However, the release of this new draft has sparked skepticism, primarily due to its provisions that not only target broadcasting companies but also bring OTT platforms, digital news entities, and applications under its regulatory purview.
A major focal point of the controversy lies within Clause 20 of the bill, which stipulates that “any person who broadcasts news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19.”
As per a Hindustan Times report, prominent legal voices, including Gowree Gokhale of Nishith Desai Associates and Nikhil Narendran of Trilegal, contend that the bill’s provisions may redefine streaming platforms and online news organizations as ‘broadcasters’, a departure from their previous recognition as ‘publishers’ and, therefore, will bring them solely under the domain of MIB.
It may be noted that the streaming platforms and online publishers of news and current affairs were governed by Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 thus far. However, Gokhale is of the view that Part III [of the IT Rules] will have to go although in the savings and repeal clause, the Broadcasting Bill does not mention repealing Part III of the IT Rules.
It was also reported that Clause 20, in conjunction with the definitions of “programme” and “news and current affairs programmes,” introduces potential implications for independent journalists operating on platforms like YouTube and Instagram. The bill’s language, as analyzed by experts, suggests that these journalists may incur the same obligations as OTT broadcasters.
The bill posits that any individual engaging in the “systematic business, professional, or commercial activity” of broadcasting news content could be subject to its provisions. It means, a citizen journalist could be covered if they post news content as “a systematic business, professional or commercial activity.”
According to Gokhale, “Professional activity here would include professional journalists who are employed or engaged as consultants by news organizations.”
A notable gray area is the treatment of journalists’ X (Twitter) accounts. While it remains unclear if such accounts would attract OTT broadcaster obligations, it largely depends on the threshold definitions set by authorities. Gokhale suggests that the government may adopt distinct measures for journalists, especially regarding their online presence.
The bill mandates OTT broadcasters to inform the MIB upon reaching a yet-to-be-determined threshold of Indian subscribers or viewers. The government reserves the authority to relax provisions for OTT broadcasters falling short of this threshold.
Gokhale underscored the government’s intention to control the virility of content, especially in cases where individuals with limited followers engage in “de minimis activity.” The distinction between financial influencers, newspapers, and their digital replicas is noteworthy, with exemptions for the latter category.
YouTube, deemed a social media intermediary, is excluded from the bill’s compliance requirements. However, the paid version, YouTube Premium, is positioned to qualify as an OTT broadcasting service, subject to the bill’s stipulations.
The bill’s potential reach extends even to unconventional entities, including the Prime Minister’s WhatsApp channel, potentially subjecting it to similar obligations as major streaming platforms like Netflix and Amazon Prime Video. As discussions continue, the nuanced implications of the proposed bill on India’s media scene await clarification as many believe that the BJP’s history with media regulation suggests anything but public service for its media regulation policies have never achieved what they promised.