The New Draft Broadcast Bill Could Have A Chilling Effect On Journalistic Freedom Of Expression

The recently proposed Draft Broadcast Bill is feared to be a chain which shall bind those, who may speak their minds freely and without censor. The bill was intended to regulate new-age broadcasting mediums, however, bringing ‘news-broadcasting’ social media intermediaries within its ambit has ushered this debate of whether the bill is another ploy to curb freedom of expression.

In November 2023 the government proposed a new Broadcasting Bill, which was painted as an initiative to regulate the new-age broadcasting mediums and the content which these platforms could release for their viewers. Some experts say that in these times, when in the name of creative discretion – violence and oversexualisation is glorified, this Bill is a welcome change. The draft Bill mandates, in clear words, that only the content which adheres to ‘public morality’ and does not offend ‘public decency’ shall be released.

For now let us assume that this flawed reasoning and vague standards are indeed a noble effort by the government, still the loosely-worded provisions and its unnecessary overarching reach paints a fearsome picture – that ultimately the government intermediaries may decide the content we are allowed to watch.

WHY THE NEW BILL ?

The Draft Broadcasting Services (Regulation) Bill, 2023 has been introduced to retire its, three decades old, predecessor – Cable Television Networks (Regulations) Act, 1995 which is the governing statute to regulate cable networks and the content put forth by them. But akin to everything else, our way of consuming content too has changed drastically. With the advent of OTT (Over-The-Top) and On-demand media platforms, watching entertainment/informative media has become simpler, and naturally cable networks have become more or less redundant.

Thus, the Act has been put forth to govern OTT and any similar platforms, along with the old-broadcasting mediums, so that all the content which is released in public domain is compliant with a set ‘Programme Code’. Although these new-age broadcasting platforms are already supervised by the Information and Technology Rules, 2021, yet the government felt the need to have a single code under which all broadcasting avenues are ‘organised’ and ‘structurally governed’. Which begs a question – Is the Bill really an effort to organise and govern, or is it another bogus addition in a long line of statutes purported to curtail freedom of speech.

THE FEAR OF BEING UNHEARD

The problem, which has evolved into a dreadful notion – that the Draft Bill curbs freedom of speech, lies in conflicting interpretation of S.2(y)Definitions and S.20 News and Current Affairs Programme of the Draft Broadcast Bill. The former section is tasked with defining what ‘OTT platforms’ shall mean, and in doing so the clause makes an exception wherein it states – that social media intermediaries or a user of such intermediary shall not be included within ‘OTT Broadcasting Services’. It may seem at first that the government aptly understood the plight of small digital content creators and gave them this relief, however, it is on reading the latter section that perhaps a more alarming intention is unearthed.

[Image Sources: Shutterstock]

Freedom of Press

S.20 of the draft Broadcast Bill says that – Any person who broadcasts news and current affairs through an online paper, website, or social media; Such a person is bound to follow the guidelines as are set by the Central Government and thus they come within the purview of the proposed Act. To many experts it seems absurd, that on one hand the Draft Bill grants a blanket exclusion to social media content and its creators, but on the other hand it categorically includes ‘news-broadcasting’ social media channels.

It is no news that this government has been alleged, time and again, to curtail freedom of speech and expression. Not long ago it was sedition which was wielded as a sword to cut down voices which made too much unwanted noise, and now it is a string of statutes which shall do the job – The Telecommunications Act 2023, Information and Technology Rules 2021, and now this Draft Broadcast Bill.

Now since all social media channels which broadcasts news and current affair programmes as a means of business have been included within the purview of the Draft Bill, it is expected, rather mandated that they shall comply with a ‘Programme Code’. As is envisaged by S.19(1) of the Broadcasting Services Bill – that any programme which is transmitted on any of the broadcasting platforms shall be in conformity with the ‘Programme Code’.

It is these two words – ‘Programme Code’ which has the legal fraternity and many social media journalists on the edge. And yes these are merely words, for there exists no Programme Code as of yet, and perhaps that is what makes the whole scheme indeed very frightening. The only ‘Programme Code’ which is in force contemporarily is one which was notified by the Ministry of Information and Broadcasting (MIB) in 1994, under the Cable Television Network Rules.

Now whether the broadcasting channels have to follow the old ‘Programme Code’ – which has many contentious clauses, or will there be a new code that remains unclear. What is clear though that the government has absolute power to form the ‘Programme Code’ as it sees fit, and not just one code, it may form different code for different broadcasting mediums – S.19(3) of the bill. Thus, soon enough we may see only what the government may want us to see.

WE SEE WHAT THEY WANT US TO SEE

With having unrestricted power in forming the ‘Programme Code’ the government can decide what kind of content will us viewers be allowed to watch or read. The code will apply to not just movies and web-shows on our Netflix, Prime or Disney+ Hotstar accounts but also to every person, journalist or not, who shares any news programme in public domain. The term news programmes have been afforded a vast definition by S.2(v) of the draft bill – it shall include any audio, visual, or live performance, analysis of any recent event of socio-political, economical or cultural nature.

Tejasi Panjiar and Prateek Waghre from the Internet Freedom Foundation (IFF) characterize the clause as “overbroad,” contending that it could potentially yield far-reaching implications for independent journalists. These individuals heavily depend on digital platforms, including social media, to disseminate news that might be perceived as disagreeable by the government.

Although it would be too soon to affirm that the government has any nefarious motive to propose this bill, but what can be said conclusively is that this legislation is filled with sections and clauses which gives the government unbridled autocratic power. The ‘Programme Code’ problem is just the tip of the iceberg. There is another compliance issue in the Draft bill – as dictated by S.24(2), every broadcaster shall constitute a Content Evaluation Committee (CEC), whose job would be to categorise content into different segments. This becomes a problem for both small digital ‘news-broadcasters’ and giant OTT platforms.

Many digital creators usually either draft and put out their content themselves, or they are a part of a small team. In both cases constituting a CEC would be a hurdle that many creators might not overcome. This mandatory compliance might render  a lot of creators helpless and ultimately make them abandon their ventures. Does this not sound like curbing creative discretion. And for OTT platforms, experts believe, the draft bill may raise content costs as compliance with new regulations becomes mandatory. These added expenses could be transferred to consumers, impacting both content affordability and variety.

Saying that the draft bill is a tool to curb freedom of expression could be a far stretch for now, but the Broadcasting Services (Regulation) Bill, 2023 surely will have one effect – to burden the broadcasters with enough compliance requisites, that many creators and small OTT platforms will have to close their shops.

 WE SEE WHAT WE CHOOSE, SO WHY REGUATE IT

Nearly a decade ago, a very controversial movie (supposedly) was released in the theatres. It was the Amir Khan starrer PK. The movie was vehemently opposed and the All India Human Rights and Social Justice Front (AIHSJ) had even filled a petition against the movie and its filmmaker and demanded that the movie should be banned from theatres. They argued that the movie offended ‘public morality’ and threatened ‘public peace’. To this the Supreme Court replied – “Our society is a very mature society. Nobody will get agitated with it.”

The SC bench headed by Justice RM Lodha reprimanded such petitions and said – “If you don’t like something, don’t watch it. Any restrictions on filmmakers, sought by you, would affect their rights.”

When the Ministry of Information and Broadcasting proposed this bill, they said that the draft Act was an effort to regulate the OTT platforms and Other Media Programmes, because the shows and movies released on these platforms, more often than not, have hurt the cultural or religious sentiments of one community or the other.

If one were to observe closely, it would become clear that the petition filed by AIHSJ almost a decade ago, and the Broadcasting Services (Regulation) Bill, 2023, although maybe different in form but are similar in substance. The draft bill too is a code which seeks to decide what we can and cannot watch.

Reiterating and adding on to the words of the honourable SC – Our society is mature. It can decide for itself what content should be consumed and what should be discarded. In the matters of Media, overregulation will always lead to a suppressed freedom of speech. Instead of minutely scrutinizing the ‘broadcasters’ the government shall endeavour to promote creative freedom by regulating the monopolies. Lastly, all that is left to be said is that maybe this is the first step on the right path, but still there’s a long road ahead before the draft bill can be enacted.

Author: Aryan Agarwal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

List of References

1) Author – Madhur Sharma, New Draft Broadcast Bill Raises Fears For Independent Digital Media’s Freedom, Outlook India, Date of Publication – 27 Dec 2023. https://www.outlookindia.com/national/new-draft-broadcast-bill-raises-fears-for-independent-digital-media-s-freedom-news-338939

2)  Programme and Advertising Code prescribed under Cable Television Network Rules, 1994, Issued by Ministry of Information and Broadcasting. https://mib.gov.in/sites/default/files/pc1_0.pdf

3) Draft Broadcasting Services (Regulation) Bill, 2023, Issued by Ministry of Information and Broadcasting, Date of Publication – 10 Nov 2023. https://prsindia.org/files/parliamentry-announcement/2023-12-09/Draft_Broadcasting_Services_(Regulation)_Bill,_2023.pdf

4) Author – Aditi Gupta, Will MIB’s draft broadcasting bill curtail creative freedom & raise costs?, exchange4Media, Date of Publication – 21 Nov 2023. https://www.exchange4media.com/media-tv-news/will-mibs-draft-broadcasting-bill-curtail-creative-freedom-raise-costs-131050.html

5) Author – Express News Service, No ban on PK, SC says ‘If you don’t like then don’t watch it’, The Indian Express, Date of Publication – 15 Aug 2014. https://indianexpress.com/article/entertainment/bollywood/supreme-court-dismisses-plea-filed-against-aamir-khan-over-pk-poster/

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