Will MIB’s draft broadcasting bill curtail creative freedom & raise costs?

The government’s recent announcement introducing a new unified broadcasting law has received bouquets and brickbats.

The Ministry of Information and Broadcasting has proposed the Broadcasting Services (Regulation) Bill, 2023, with an aim to replace the existing Cable Television Networks (Regulation) Act 1995. The bill has been brought to keep up with the evolving digital changes in the information and broadcasting sector and the shift from cable television networks to the dynamic world of OTT, digital media, DTH, IPTV and other emerging technologies.

Experts from the legal fraternity feel that with this bill, compliance will become more straightforward, leading to operational and business ease. However, some experts are certain that the proposed bill would constrain creative freedom on broadcast platforms and drive up the content costs.

exchange4media spoke to some legal experts to dive deeper into what the bill proposes.

Does the draft bill threaten creative content freedom?

A potential issue in the bill is that every broadcaster or broadcasting network operator will have to broadcast only those programmes which are duly certified by Content Evaluation Committee (CEC), except for the programmes prescribed by the government.

According to Sonam Chandwani, Managing Partner KS Legal & Associates, “The proposed bill might constrain creative freedom, particularly if it imposes overly restrictive regulations. It's essential to maintain a regulatory environment that fosters innovation and diverse content creation.”

As per Utsav Trivedi, Managing Partner, TAS Law, there are enabling chances that the proposed bill may seek to curb the creative freedom of the broadcasters & OTT platforms, and may act as a double-edged sword.

“Increased governmental interference may lead to selected broadcasting and it may also increase the trend of oligopoly in the media and broadcasting sector. The ministry has to draft the proposed bill in such a way that it strikes a balance between the governmental and legislative intent behind the upcoming act and also caters to the creative freedom of the broadcasters and OTT,” Trivedi said.

The experts also believe that the draft bill could drive up content costs due to the need for compliance with new regulations.

“These additional costs might be passed to consumers, potentially affecting content affordability and variety. Ensuring that regulations don't overly burden content creators or limit accessibility for viewers is critical,” Chandwani said.

Legal experts said that a key development is the establishment of a committee tasked with reviewing channel content to determine if its suitable for all ages or only for adults.

“Simultaneously, the ministry plans to create a 'negative list' for all broadcasting agencies, outlining types of content exempt from certification by the content evaluation committee. This dual approach aims to streamline the certification process, providing clarity on what content requires committee assessment and what can bypass it based on predefined criteria.

“Despite the positive outlook, the effectiveness of this measure remains uncertain, with only time revealing its impact. Drawing parallels with the experience of ASCI, a non-statutory body successfully maintaining advertising standards, raises cautious optimism,” said Aslam Ahmed, Partner, Singhania & Co.

He said that broadcasters are expected to self-classify their material under the proposed law, and robust access control mechanisms are proposed for prohibited information. The legislation also enables cross-platform age-gating of content, addressing societal problems caused by certain content.

“A notable aspect of the bill is the constitution of an evaluation committee, tasked with ensuring that misleading content leading to hatred is not promoted. This proactive step enhances the regulatory framework's ability to address content concerns.

“Moving to the constitutional perspective, the legislation acknowledges that freedom of speech/expression is not absolute. While creative freedom is fundamental for societal progress, a delicate balance is necessary to prevent the promotion of hatred, ill will, or defamation,” Ahmed said.

The bill seeks to replace the existing Cable TV Networks Act

According to Anushkaa Arora, Advocate, Principal & Founder, ABA Law Office, the bill which proposes to replace Cable TV Networks Act, fails to address the loopholes and issues in the implementation of the existing Act.

“In my opinion the new draft broadcasting bill replacing Cable TV Networks (Regulation) Act,1995 fails to address loopholes and issues in the implementation of the existing act including conflict of interest and clandestine practices within the Indian media platforms and arena,” Arora said.

She said that it just outsources the existing Act in a different way rather than analysing and sorting out the problems in the existing act.

“I agree that the bill introduces statutory penalties, such as advisory, warning, censure or monetary penalties, for operators. The bill implements a robust content classification and rating system to provide clear guidelines for audiences. This ensures that viewers can make informed choices, and it helps in regulating content based on appropriateness. Overall, in my opinion this new bill has introduced new plans but also lack in addressing solutions or new strategies for problems faced through OTT platforms and broadcasters,” Arora said.

Experts said the replacement of the Cable TV Networks Act is a double-edged sword depending on how the ministry evaluates and drafts the bill taking into consideration various other aspects.

“One of the arguments against the proposed bill is that consolidating all the information and broadcasting service providers under a single legislative framework will increase the control and regulation of the government over the digital infrastructure and people’s viewing choices. Also, the Cable TV Networks Act, was aimed to regulate and restrict illegal cable operators, however, the new proposed bill fails to address such issue(s),” Trivedi said.

As per Chandwani, modernizing regulations by replacing the Cable TV Networks Act could reflect the evolving media landscape, including digital and OTT platforms.

“However, it's vital to ensure that new regulations remain flexible and sensitive to modern media dynamics and viewer preferences,” she said.

Bringing OTT and digital news in the purview of the new bill and punishing violators with monetary penalties

As per Utsav Trivedi, Managing Partner, TAS Law, this move has been proposed by the ministry for providing a single legislative framework by consolidating and regulating the provisions for various broadcasting services.

“This move has been adopted by the ministry to keep pace with the emerging broadcasting services development and to bring them under a single legislative purview, which is a good move considering the recent advent and upsurge in the OTT content providers in the recent years,” he said.

According to Chandwani, implementing a unified framework for linear networks, OTT content, and digital news could streamline regulations, but it “risks oversimplifying the distinct needs of each platform. It's crucial to tailor regulations to respect the unique aspects of these diverse media channels.”

On monetary penalties that the proposed bill entails, the lawyers believe that the bill lands correctly there.

“In terms of fairness, the proposed bill lands correctly, as it contains advisory, warning, censure, or monetary penalties, for operators and broadcasters, depending on the turnover/valuation of that particular entity. Hence, the proposed bill, though providing for an exemplary punishment, also seeks to balance in terms of equity and fairness,” Trivedi said.

Chandwani, too, said that introducing monetary penalties alongside warnings for non-compliance adds seriousness to regulation.

“Establishing a Content Evaluation Committee and Broadcast Advisory Council could balance self-regulation and industry oversight. Yet, the success of these bodies hinges on their impartiality and the reasonableness of the advertising codes and penalties,” she said.

Experts said that while the intention of standardizing and updating broadcast regulations is commendable, it's important to balance this with the need to preserve creative freedom, ensure affordability, and respect the unique characteristics of different media platforms.

Experts feel that the move towards a unified law on broadcasting is welcomed from both regulatory and regulated perspectives, but the expectation is that compliance will become more straightforward, leading to operational and business ease.

The proposed law defines broadcasting as the transmission of audio or audio-visual content in the public domain or for the public through electronic mediums.

Experts said that this clarification sets the stage for the comprehensive regulatory approach proposed by the legislation.