Letter with comments on the draft Broadcasting Services (Regulation) Bill, 2023 | Editor’s Guild of India

December 7, 2023

Shri Anurag Singh Thakur
The Union Minister for Information and Broadcasting Government of India
Shastri Bhawan
New Delhi

Subject: Comments on the draft Broadcasting Services (Regulation) Bill, 2023, Hon’ble Minister

Editors Guild of India [“EGI”] is an organisation established in 1978 to protect freedom of the press and to raise the standards of editorial leadership of newspapers and magazines. Since our establishment, we have consistently defended the freedom of speech and expression of publishers and the right to information of the citizens of India. We have continued our efforts even after newspapers started publishing over the internet.

On 10th November 2023, your ministry had released the draft of the Broadcasting Services (Regulation) Bill, 2023, and invited comments and feedback on the same.

The Guild is concerned that many of the provisions of the draft are vague and excessively intrusive. Since the bill will cover all broadcasting services, including news broadcasting, and also extend the regulatory framework to cover digital news platforms, the Guild is deeply concerned that the bill will therefore be adverse to the spirit of freedom of speech and freedom of press guaranteed by the constitution. Some of the salient points of concern are:
 The draft outlines an overbearing system of self-regulation by mandating creating of content evaluation committees in ways that can allow the government to exercise a great degree of control on these bodies.

 The draft further allows the Union Government to monitor and block content by establishing a Broadcast Advisory Council, to be headed by a bureaucrat, and therefore create an over-arching censorship framework.
 The bill allows the government to regulate, or even prohibit the transmission of channels or programmes on vague grounds.
 Provisions that allow government excessive delegation of rule-making are also problematic as they lead to uncertainty for the stakeholders who may be impacted by the draft bill and prevent individuals from being fully informed so as to meaningfully engage in the consultation process
We have spelled out our concerns with some of the specific clauses in the annexure below, which has been prepared with support from the Internet Freedom Foundation

For the purposes of these comments, the term “broadcasters” will be used to mean “broadcasters and broadcasting network operators.”

In view of the concerns raised below, we request you to put the draft in abeyance and undertake meaningful consultation with all the stakeholders.
Wishes,

Anant Nath

President Address: 4/7- A, INS Building, Rafi Marg, New Delhi-11000

S. Particulars no.
Clause 4(5)

Views/Comments/Suggestions/Remarks/Recommendations
Clause 4(5) allows the Union Government to “make provisions for the regulation of services other than broadcasting services that are intricately linked to broadcasting networks or broadcasting services”. Such excessive delegation of rule-making leads to uncertainty for the stakeholders who may be impacted by the draft bill and prevents individuals from being fully informed so as to meaningfully engage in the consultation process. This instance of delegated legislation gives extensive powers to the Union Government for future rule-making. In the absence of relevant safeguards to protect against arbitrary rule-making, such instances of delegated legislation may lead to uncertainty in the industry.

Clause 19 states that the Programme Code and Advertisement Code (“Codes”), “as may be prescribed” by the Union Government, will be different for different broadcast services mentioned in the draft bill as well as any other category of broadcasting service notified by the government. Clause 5(1)(b) imposes an obligation on broadcasters to transmit or re- transmit broadcasting service in conformity with the Codes. Contravention of the Codes by the “OTT” broadcasters will amount to up to Rs. 20,000 for the first contravention, and up to Rs. 1,00,000 for the subsequent contravention. The prescription of the Codes at a later stage may introduce difficulties for companies to foresee the extent of their compliance burden.

An obligation on “OTT” and digital news broadcasters to adhere to the ethical Codes has the potential to significantly impede online free speech, as the Codes currently applicable to Cable TV entail notably restrictive instructions. For instance, the Codes prescribed under the Cable Television Network Rules, 1994 states that no programme should be carried in the cable service which “Offends against good taste or decency”, “Contains attack on religions or communities....”, “Contains anything obscene...”, “Denigrates women....”, “Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups”, and “Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and [1] moral life of the country”. Subjecting onlinecurated contenttosuch
constraining Codes, which contains exceedingly vague and ambiguous grounds for restricting speech, will forever inhibit the creative and artistic freedom currently exercised by artists. This will work towards formalising the ‘moral policing’ and censorship of content currently imposed
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informally and indirectly. Limit your comments and suggestions to

Clause 19

1 Programme and Advertising Codes prescribed under the Cable Television Network Rules, 1994. https://mib.gov.in/sites/default/files/pc1_0.pdf
2 Gerry Shih and Anant Gupta, “Facing pressure in India, Netflix and Amazon back down on daring films”, The Washington Post, November 20, 2023. https://www.washingtonpost.com/world/2023/11/20/india-netflix-amazon-movies-self-censorship/.

Clause 20

“OTT” broadcasters and individuals/ companies publishing digital news media, we urge the Ministry to acknowledge the dangers of empowering the regulators, including the executive, with such a hazardous tool of censorship and request them to exclude the online content curation space as well as the news/ current affairs publishers from being subject to these Codes.
Adherence to the Codes extends to any person who broadcasts news and current affairs programs through a digital medium (such as online paper, news portal, website, social media intermediary, or other similar medium) as part of a systematic business, professional, or commercial activity. This excludes publishers of professional or commercial newspapers and online replicas of such newspapers. Clause 20 fails to precisely and specifically define “news and current affairs programme” and “systematic business, professional, or commercial activity”, making it a vague, overbroad, and worrisome provision. Clause 20(2) states that the provision of the Act applicable to “OTT” broadcasters shall also apply to news and current affairs broadcasters. What is unclear is if a threshold for number of subscribers or viewers will also be prescribed for this category of broadcasters.
As per the First Schedule, contravention of the Codes by the “OTT” broadcasters will amount to up to Rs. 20,000 for the first contravention, and up to Rs. 1,00,000 for the subsequent contravention. Clause 20 along with the penalty stated under the First Schedule may have wide ranging consequences on independent journalists who rely on the digital platforms such as social media to publish news that may typically be viewed as unpalatable to the government. This over broad provision will apply to not only journalists, but even individuals who choose to share news through online blogs or platforms. Regulatory powers to censure or prohibit content published by news broadcasters extend beyond the permissible restrictions on free expression allowed under Article 19(2) of the Indian Constitution.
This Clause raises alarm as an individual sharing news on social media platforms may become liable if the broadcaster/ broadcasting network, self regulatory organisation, or a government appointed council believe that they have not complied with the Codes. If a Code similar to the ones notified under the Cable TV Rules, which includes excessively vague and overbroad restrictions on free speech on grounds such as “Contains anything affecting the integrity of the Nation”, “ promote anti-national attitudes”, etc., is applied to individuals sharing news and current affairs through digital mediums, it will cause an irreparable impact on online free speech as well as the freedom of journalistic expression of a news broadcaster or an independent news disseminator. In the Bennett Coleman & Co. v. Union of India (1972) judgement, regarding restrictions and regulations on newspapers and its effect on free speech, the Supreme Court of India found that freedom of the press was an essential element of Article 19(1)(a) and the absence of an express mention of such freedoms

3 [2]
as as pecial category wa sirrelevant. In Romesh Thappar vs The State Of
Madras (1950), the Supreme Court noted that “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.”4 Thus, only such reasonably defined, specified, and narrow restrictions must be included in Codes which fall under the reasonable restrictions under Article 19(2).
Further, such regulation may also threaten a users’ right to access multiple, diverse points of view because the individual broadcasting news will likely only produce content which is palatable to the Union government so as to avoid non-compliance penalty.

It is worth noting that the definition of “OTT broadcasting service” [Clause 2(y)] does not include a “social media intermediary, or a user of such intermediary, as defined in rules under the Information Technology Act, 2000 or such other entities as may be notified by the Central Government”.
However, Clause 20(1) clearly states that individuals broadcasting programs through a social media intermediary will be liable to adhere to the Codes. This contradiction creates ambiguity over the application of the bill to such platforms. This is also indicative of the discriminatory application of the bill, wherein only news and current affairs programs broadcasted on social media platforms are brought under regulation. Given that social media platforms are a means for journalists, especially independent and small scale journalists, to disseminate relatively uncensored news, the extension of regulation to such platforms may deepen restrictions to free speech.

The summary of the 1995 Supreme Court Judgement on Airwaves in the case between the Union of India & Cricket Association of Bengal clearly outlines the need to maintain impartiality while regulating broadcasting media, especially the delivery of news, to preserve the right to receive and
5 [3]
impart information. Part3 (b) of the summary states,“Therightoffree
speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an “aware” citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgement on all issues touching them. This cannot be provided by a medium controlled by a monopoly – whether the monopoly is of the State

3 Bennett Coleman & Co. v. Union of India [1973] 2 S.C.R. 757, https://globalfreedomofexpression.columbia.edu/cases/bennett-coleman-co-v-union-of-india/.

4 Romesh Thappar vs The State Of Madras [1950] AIR 124, https://indiankanoon.org/doc/456839/.

5 Union of India & Cricket Association of Bengal (1995). https://mib.gov.in/document/supreme-court- judgement-airwaves