MIB’s Proposal to Regulate Digital Media Vis-à-Vis IT Rules, 2021

In India, the operation of linear television networks is regulated under provisions of the Cable Television Networks (Regulation) Act, 1995, the Cable Television Network Rules, 1994, Uplinking and Downlinking Guidelines for TV Channels, etc. Consequently, cable operators have to comply with programme codes, registration requirements, and other conditions. When it comes to digital media, the publishers of online curated content and digital news and current affairs have been excluded from the CTN Act and Rules.

To consolidate the regulatory provisions for the broadcasting sector and all publishers, including those of digital media, the Ministry of Information and Broadcasting has come out with the draft Broadcasting Services (Regulation) Bill, 2023.

It can be gathered that this draft Bill has been formulated in furtherance to the Government of India (Allocation of Business) (Three Hundred and Fifty Seventh Amendment) Rules, 2020, notified on November 9, 2020, which brought films and audio-visual programmes made available by online content providers and news and current affairs content on online platforms within the purview of the Ministry of Information and Broadcasting (through the introduction of entries 22A and 22B). Entry 22A was subsequently amended on July 28, 2023, to include films and audio-visual programmes/ content made available by online content providers/ publishers. The notification from July also brought online advertisements within the Ministry’s ambit by the addition of entry 22C.

This Bill, once enacted, will replace the Cable Television Networks (Regulation) Act, 1995. The Ministry has sought comments or suggestions on the draft Bill by December 9, 2023.

OTT broadcasting service operators

Under the draft Bill, the definition of broadcasting network operators encompasses over-the-top (OTT) broadcasting service operators as well. Accordingly, such operators would have to comply with the provisions pertaining to programme code and advertisement code, self-certification, regulatory mechanism, etc.

According to Section 16(2) of the draft Bill, OTT broadcasting service providers have to provide an intimation of their operations to the Central Government if they meet the prescribed subscriber or viewer thresholds. In case OTT broadcasting service operators do not meet the threshold limits, the Government may relax the applicability of any provision in favour of such operators.

If content transmitted is not in consonance with the programme code and advertisement code, the OTT services network operators would be liable for a penalty of up to Rs. 20,000.00 for the first contravention. For subsequent contraventions, such operators would face a penalty of up to Rs. 1 lakh.

The obligations of OTT platforms under the Bill would be in addition to those existing under the IT Rules, 2021.

Regulatory mechanism to ensure compliance with the programme code and advertisement code

As per the draft Bill, the broadcasters and broadcasting network operators would be required to appoint a grievance redressal officer to address complaints regarding non-compliance with the programme code and advertisement code. The decision of the said officer can be challenged before the self-regulating organisation.

To hear appeals against decisions of the self-regulating organisation, and also complaints that are referred to it by the Central Government, the draft Bill envisages setting up a Broadcast Advisory Council consisting of a chairperson, 5 ex-officio members and 5 independent members. After assessing the complaints, the Council would present its recommendations before the Central Government, which would then pass an appropriate order.

Such a three-tier mechanism bears resemblance to the mechanism provided under the IT Rules, 2021. While the proposed structure deals with complaints pertaining to programme code and advertisement code, the existing mechanism is concerned with grievances relating to content, duties of intermediaries or publishers under the Information Technology Act, 2000, or matters pertaining to the intermediary or publisher’s computer resource.

Digital news and current affairs programmes

The draft Bill has also brought digital news and current affairs programmes within its ambit, requiring persons who broadcast such programmes to not only comply with the programme code and advertisement code but also ensure adherence to provisions applicable to OTT broadcasting network operators. Here, the programmes broadcasted through mediums such as news portals, websites, social media intermediaries, etc., are covered. However, publishers of newspapers and replica e-papers of such newspapers are excluded from the purview of the Bill’s provisions.

This proposal follows the stay imposed by the Bombay High Court on the operation of Rules 9(1) and (3) of the IT Rules, 2021, which require digital news publishers to adhere to the code of ethics and follow a three-tier grievance redressal framework. The said interim order was issued in the case of Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors. vs. Union of India & Anr. [WP(L) No.14172 of 2021]. The code of ethics refers to:

  • Programme Code under Section 5 of the Cable Television Networks (Regulation) Act, 1995;
  • Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978;
  • Bar on publication of content prohibited under any law for the time being in force.

The Central Government’s attempt to extend the applicability of said provisions to digital news publishers through subordinate legislation was thwarted by the Bombay High Court in August 2021, as mentioned above, and the draft Bill appears to have been formulated with a view to ensure that regulations governing digital news publishers are introduced within the contours of law.

Other key aspects of the draft Bill

  • Self-certification of programmes – The broadcasters or broadcasting network operators have to set up a Content Evaluation Committee (CEC), and only programmes certified by such a Committee can be broadcast by them.
  • LLPs have to comply with the provisions – The applicability of the draft Bill has been extended to limited liability partnerships (LLPs). Under Section 2(1)(z)(iv), “person” would include an LLP as defined under Section 3 of the LLP Act, 2008. Further, the draft Bill provides for the punishment applicable in case of offences committed by LLPs.
  • Limit on penalty based on turnover and investment thresholds – Registered persons are categorised based on the turnover and investment thresholds and the maximum penalty applicable to such persons is restricted to 50%, 5% and 2% of the prescribed fee, for medium, small, and micro categories of registered persons. When it comes to the major category of persons or entities, or unregistered persons, the maximum fine imposable is 100% of the prescribed fee.
  • Punishment in the form of imprisonment – Though the Cable Television Networks (Regulation) Act, 1995, was decriminalised in October 2023, the draft Bill provides for punishment in the form of imprisonment for offences such as operating broadcasting networks or providing broadcasting services without registration, etc. with the explanatory note deeming them as “serious” offences.

As the government has sought suggestions from the stakeholders on the proposed Bill, the changes have to be reviewed closely, keeping the evolving needs of society in mind. With the evolution of digital media and OTT content, it was just a matter of time before the government brought such a regulatory mechanism. If passed, the proposed Bill will bring sweeping changes to the media industry. While the ideal regulation should foster innovation, safeguard the public interest, and promote a vibrant and responsible media, the government needs to ensure that the voices of all the stakeholders are heard and considered before bringing out any such change, which is going to be historical.

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Under the draft Bill, the definition of broadcasting network operators encompasses over-the-top (OTT) broadcasting service operators as well. Accordingly, such operators would have to comply with the provisions pertaining to programme code and advertisement code, self-certification, regulatory mechanism, etc.

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