Digital Dissent Under Siege

The Bill aims to modernize and consolidate the regulatory framework for broadcasting in India, replacing the outdated Cable Television Networks (Regulation) Act of 1995. The Bill seeks to encompass a wide range of broadcasting services, including traditional cable and satellite networks, as well as over-the-top (OTT) platforms and digital news outlets. Key provisions include the establishment of a Broadcasting Authority of India (BAI) to oversee compliance, a two-tier self-regulation system for broadcasters, and the introduction of Content Evaluation Committees (CECs) that must certify content before it can be aired.

The Bill emphasizes viewer protection, requiring broadcasters to adhere to program codes that address issues like hate speech and misinformation, while also promoting local content. It mandates data localization for certain platforms and includes measures for grievance redressal and transparency in decision-making. However, the Bill has faced criticism for its potential to infringe on free speech and media independence, as its broad definitions and regulatory scope could lead to excessive government oversight and self-censorship among media entities.

The Bill covers a broad range of entities involved in the broadcasting sector in India. Specifically, it applies to traditional broadcasting networks, including cable and satellite services that provide programming to the public. This ensures that established forms of media are subject to the new regulatory framework.

In addition to traditional broadcasters, the Bill also encompasses over-the-top (OTT) platforms. Services like Netflix, Amazon Prime, and similar providers that deliver content via the internet are included under the Bill's purview, particularly if they meet a certain threshold of subscribers or viewers. This inclusion reflects the growing significance of digital streaming services in the media landscape.

Furthermore, the Bill extends its regulatory framework to digital news outlets, ensuring that they adhere to the same standards as traditional broadcasters. This aspect aims to promote accountability and quality in news and current affairs dissemination across various platforms.

Lastly, the Bill covers radio and terrestrial broadcasting, requiring operators in these sectors to register and comply with the established regulations. Overall, the Bill adopts a comprehensive approach to modernize the regulatory framework, addressing the challenges posed by the evolving media landscape while ensuring that a wide range of broadcasting entities are included under its regulations.

Although the Bill is pending and can be re-introduced in the Parliament, it is pertinent to see some of the points raised in it.

i. Programme and Advertising Code

A central feature of the Bill is the introduction of a Programme and Advertising Code empowering the Central Government to regulate content disseminated by broadcast network operators. Compliance with this Code is mandatory for traditional broadcasters as well as OTT platforms and digital news providers, ensuring programmes and advertisements align with prescribed standards of decency, integrity, and public interest. The Bill as such doesn’t mention the Code or any kind of guidelines as such. It just mentions that the Code will be notified in the Official Gazette by the Central Government, which will be mandatory compliance. This approach is harmful to democracy as it bypasses the legislative scrutiny and debate that is fundamental to a transparent and accountable governance process. Furthermore, it indicates an intent by the government to strictly regulate free media, thereby undermining the principles of free speech and press freedom that are essential to a vibrant democracy.

ii. Self-Classification and Access Control

Broadcasters are mandated to classify programmes based on prescribed rating systems to facilitate informed viewing choices for audiences. Stringent access control measures are proposed for restricted content like adult material to safeguard vulnerable viewers, which are pretty much similar to existing regulations.

iii. Content Evaluation Committees (CECs)

The Bill mandates that broadcasters and broadcasting network operators must set up Content Evaluation Committees (CECs) for self-certification of content before it can be aired. The CEC will consist of eminent individuals representing different social groups like women, child welfare, minorities, etc. However, the government will prescribe the details regarding the constitution of the CEC, including the number of members and quorum, raising concerns about its independence.

iv. Accessibility Guidelines

Recognizing the rights of persons with disabilities, the Bill requires broadcasters to ensure accessibility by incorporating features such as subtitles, audio descriptions, and sign language interpretation. Annual accessibility audit reports are mandated to underscore the commitment to inclusivity.

v. Three-Tiered Regulatory Framework

The Bill proposes a three-tier regulatory mechanism comprising self-regulation by broadcasters, oversight by Self-Regulatory Organizations (SROs), and adjudication by a Broadcast Regulatory Authority. However, concerns exist about government involvement in appointing members to the Broadcast Advisory Council, which could potentially compromise the council's independence and impartiality.

vi. No Specific Appellate Mechanism

The Bill has been criticized for lacking a specific appellate mechanism against orders issued by the central government. This absence raises concerns about the avenues available for grievance redressal for broadcasters and digital media platforms that may be adversely affected by government decisions.

Without a defined appellate process, entities facing unfavorable orders have limited options for recourse. This situation could lead to a lack of accountability and transparency in the regulatory framework, as affected parties may not have a clear path to challenge government decisions. Critics argue that this could result in arbitrary enforcement of regulations and potential overreach by the government, undermining the principles of fair governance and due process.

The lack of a specific appellate mechanism is particularly concerning in a media landscape that requires a balance between regulation and freedom of expression. Stakeholders have called for the establishment of an independent appellate body to ensure that decisions made by the central government can be contested, thereby enhancing the regulatory framework's credibility and fairness.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were introduced by the Government of India to regulate digital media platforms, including social media intermediaries, digital news publishers, and over-the-top (OTT) platforms. These rules, which came into effect on May 26, 2021, aim to ensure accountability and transparency in the digital ecosystem while protecting user rights. The Bill requires additional compliances which are mandatory in nature, and below table differentiates both the regulations in brief.

Aspect	Broadcasting Services Regulation Bill	Digital Media Ethics Code, 2021
Scope	Regulates traditional broadcasters, OTT platforms, and digital media platforms.	Regulates digital news publishers, OTT platforms, and social media intermediaries.
Regulatory Body	Ministry of Information and Broadcasting (MIB) and Broadcast Advisory Council (BAC).	Ministry of Electronics and Information Technology (MeitY) and self-regulatory bodies.
Self-Regulation	Requires broadcasters to set up Content Evaluation Committees (CEC) and adhere to Programme and Advertisement Codes.	Requires digital news publishers and OTT platforms to adhere to a three-tier self-regulatory mechanism.
Content Guidelines	Enforces Programme Code and Advertisement Code for broadcast content.	Enforces Code of Ethics for digital news and OTT content, including age-based content classification.
Grievance Redressal	Establishes a grievance redressal mechanism with designated officers and BAC for adjudication.	Establishes a three-tier grievance redressal mechanism with self-regulatory bodies and an oversight mechanism by MeitY.
Penalties	Imposes penalties for non-compliance with Programme and Advertisement Codes.	Imposes penalties for non-compliance with the Code of Ethics and other guidelines.
Accessibility	Mandates accessibility features for persons with disabilities, such as subtitles and audio descriptions.	Does not specifically mandate accessibility features.
Appeal Mechanism	No specific appellate mechanism against orders of the central government.	Provides for appeals to self-regulatory bodies and oversight mechanism.

The increasing regulation of Over-The-Top (OTT) platforms through censorship has significant implications for consumer choice, particularly in how it hampers the selective viewing of content. The proposed Bill aims to bring over-the-top (OTT) platforms under the ambit of broadcasting regulations, in addition to traditional broadcasting services. This represents a significant shift from the current legal framework, where OTT platforms are governed by provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) under the IT Act.

One of the primary concerns with censorship on OTT platforms is that it imposes a filtering mechanism that limits the diversity of content accessible to audiences. Traditionally, OTT platforms have thrived on their ability to offer a wide range of programming, including bold narratives and unfiltered perspectives that challenge societal norms as an on-demand service to adults and children’s controls. However, as content must now pass through the stringent filters of censorship committees, the variety of media consumed will be inevitably reduced. This shift undermines one of the key advantages of OTT platforms over traditional media, which is their capacity to present diverse viewpoints and creative expressions without the constraints of conventional broadcasting standards.

Moreover, the selective censoring of content can lead to a homogenization of available media. When a third party, such as a censorship board, determines what is appropriate for public consumption, it risks creating a biased representation of reality. Consumers may find themselves exposed only to a narrow spectrum of ideas and narratives, which can foster a onesided understanding of complex issues. This limitation not only diminishes the richness of content but also impacts the audience's ability to engage critically with varying perspectives.

The implications of censorship extend beyond mere content availability; they also affect consumer autonomy. Many OTT platforms operate on a subscription model, where users pay for access to content. This financial investment implies that consumers should have the freedom to choose what they want to watch. However, when censorship dictates what is permissible, it effectively removes this choice from the viewer. Instead of being able to tailor their viewing experience according to personal preferences, consumers are left with a curated selection that may not align with their interests or values. Television industry already suffers this restriction.

Additionally, the rationale behind censorship often hinges on protecting societal norms and preventing exposure to inappropriate content, particularly for younger audiences. While this concern is valid, it raises questions about the role of parental guidance and individual responsibility in content consumption. Many consumers argue that they should have the agency to make informed choices about what they watch, especially when they are aware of the content's nature before subscribing to a service.

Thus, the new Bill is moving from a "pull" mechanism to a more controlled "push" mechanism akin to traditional broadcasting which is heavily regulated. Under the existing regime, OTT platforms operate as intermediaries, allowing users to select content based on personal preferences, which fosters a diverse media landscape. However, the new Bill classifies OTT platforms as broadcasters, subjecting them to mandatory compliance with governmentprescribed content regulations and oversight.

This transition creates a disbalance, as the inherent nature of OTT platforms—where users actively choose what to watch—contrasts sharply with the model of traditional broadcasting, where content is delivered without user discretion. As a result, the new regulatory framework could undermine the unique advantages of OTT platforms, diminishing user choice and adversely affecting the creative liberties of content creators.

Article 19(1)(a) and Article 19(1)(g) of the Indian Constitution are both crucial in understanding the implications of content regulation on individual creators on social media platforms as they are now covered under the scope of the Bill.

Article 19(1)(a) guarantees the right to freedom of speech and expression, which encompasses online content creation as a vital form of expression. However, the concerns surrounding this right are similar to those related to Article 19(1)(g). Vague content rules and opaque takedown procedures imposed by platforms and the government can lead to over-censorship of legitimate creative expression. This environment may restrict creators' rights to communicate with their audience and share their viewpoints freely. Moreover, a chilling effect on free speech may arise as creators may fear penalties for expressing unpopular opinions or for using copyrighted material, even in cases that could be considered fair use. While Article 19(2) allows for restrictions on free speech in the interest of sovereignty, integrity, security of India, public order, decency, or morality, these restrictions must be reasonable and clearly defined.

Article 19(1)(g) guarantees the fundamental right to practice any profession or carry on any occupation, trade, or business. For many individual creators, their activities on social media platforms represent a significant form of livelihood and professional engagement. However,recent regulations, including the IT Rules 2021 and proposed amendments aimed at further regulating digital media, pose potential threats to this right. Overly restrictive content regulations and takedown requirements may compel creators to self-censor their work to avoid penalties, thereby limiting their ability to freely express themselves in their professional capacities. Additionally, the lack of transparency and due process in content moderation decisions by platforms can lead to arbitrary restrictions, hindering creators' ability to share their work and earn a living from it. Compliance burdens associated with these regulations may disproportionately impact smaller creators, restricting their participation in the digital economy. While reasonable restrictions are permissible under Article 19(6), it is essential to scrutinize current and proposed regulations to ensure they do not excessively infringe on creators' rights to practice their profession online.

To strike a balance between creative liberty and reasonable restrictions, the Hon’ble Supreme Court from time to time discussed the concept of doctrine of proportionality in various cases. It plays a critical role in assessing the validity of reasonable restrictions imposed under Part 3. This legal principle requires that any restriction on fundamental rights must be proportionate to the objective sought to be achieved. The Supreme Court of India has upheld this doctrine in various landmark cases, ensuring that any limitations on free speech are justified and do not infringe upon the essence of the right itself

One such famous case, where the Supreme Court adjudged the applicability of freedom of speech and expression over social media platform is Shreya Singhal v. Union of India (2015), where the Court struck down Section 66A of the Information Technology Act, which penalized offensive messages sent via communication service. The Supreme Court ruled that the provision was unconstitutional as it imposed unreasonable restrictions on free speech, highlighting the importance of the doctrine of proportionality in protecting individual rights.

Individual news anchors and eminent content creators will be significantly affected by the proposed Broadcasting Services (Regulation) Bill, 2023, as it classifies them as "digital news broadcasters" and imposes stringent regulations that could limit their creative freedom and ability to share critical information. Under the new law, these influencers will be required to register with the government, establish content evaluation committees, and adhere to mandatory compliance standards, which may lead to increased operational costs that many independent creators cannot afford. This regulatory burden risks stifling their ability to provide fearless journalism and diverse viewpoints, as they may self-censor to avoid penalties or government scrutiny. Consequently, the shift towards a more controlled media environment could undermine the role of these influencers in shaping public discourse and holding power to account, ultimately affecting the quality and diversity of news available to the public.

Simultaneously, Article 19(1)(g) protects the right to practice any profession or carry on any occupation, trade, or business. The imposition of censorship can hinder creative liberty, as content creators may feel compelled to conform to restrictive guidelines, thus limiting their ability to innovate and express unique perspectives. This not only affects the quality and diversity of content available to consumers but also constrains the economic opportunities for creators, who rely on the freedom to explore and present a wide array of ideas and expressions in their work. Ultimately, the interplay of selective censorship undermines both individual rights and the vibrancy of the creative economy

The restrictions and censorship of news and current affairs influencers on social media platforms can significantly affect users in several ways, impacting their access to information, the diversity of viewpoints, and the overall quality of public discourse.

As social media platforms increasingly impose restrictions on content, users may find themselves with limited access to diverse news sources and perspectives. Influencers often play a crucial role in disseminating information, particularly on current affairs, and their ability to share insights can be curtailed by censorship. This limitation can lead to a narrow understanding of important issues, as users may only be exposed to a filtered version of events that aligns with the prevailing narratives allowed by the platforms. Consequently, individuals might miss out on critical information that could inform their opinions and decisions.

Users may become skeptical of the information they encounter, questioning the motives behind the censorship. This skepticism can lead to a reliance on alternative sources, which may not always provide accurate or credible information. As influencers face restrictions, their credibility can be undermined, particularly if users perceive them as complicit in the censorship process. This erosion of trust can diminish the effectiveness of influencers as sources of information and guidance.

The selective censorship of content can result in encouraging similar viewpoints on social media. When certain narratives are favored while others are suppressed, the diversity of opinions available to users diminishes. This lack of variety can stifle healthy debate and critical thinking, as users are not exposed to contrasting perspectives that challenge their beliefs. The resulting echo chambers can reinforce existing biases and limit the opportunity for constructive dialogue on important societal issues.

The selective censorship of content under Articles 19(1)(a) and 19(1)(g) significantly impacts consumers and creators alike, affecting both freedom of expression and business operations. Article 19(1)(a) guarantees the right to freedom of speech and expression, allowing individuals to access diverse viewpoints and information. However, when content is selectively censored, consumers are deprived of the ability to make informed choices about the media they engage with, leading to a homogenized narrative that stifles critical discourse.

The Broadcasting Services Regulation Bill 2024 represents a significant step in modernizing India's broadcasting regulatory framework. However, its implementation and impact require careful consideration to balance the need for responsible governance with the fundamental rights of free speech, media independence, further deliberation and judicial scrutiny.

As the Bill progresses through the legislative process, it is crucial to engage in robust public discourse and ensure that any regulatory measures are proportionate, transparent, and uphold the principles of free speech and media independence. Striking this balance is vital for fostering a vibrant and pluralistic media environment that respects freedom of expression while addressing legitimate concerns related to content regulation.

The government's persistent efforts to censor content across various platforms raise significant concerns regarding freedom of expression in India. While the Constitution guarantees the right to free speech under Article 19(1)(a), this right is subject to restrictions outlined in Article 19(2), which allows for censorship in the interest of public order, morality, and national security. Recent legislative changes, including content compliance measures, intermediary guidelines, and the Digital Personal Data Protection Act (DPDPA), reflect an increasing trend towards regulating digital content.

As the government intensifies its focus on content regulation, it is crucial to consider the implications for individual rights and the broader media landscape. The push for censorship not only limits the public's right to access diverse information but also impacts industries reliant on creative expression, such as journalism, entertainment, and digital media. This creates a chilling effect, where content creators may self-censor to avoid potential repercussions, ultimately stifling innovation and diversity in the digital space.

Moreover, the lack of a specific appellate mechanism against government orders exacerbates these concerns, as affected parties may find it challenging to contest decisions that restrict their rights. As the discourse around content regulation continues, it is essential to balance the need for responsible governance with the fundamental rights pursuant to the Constitution. Striking this balance is vital for fostering a vibrant and pluralistic media environment that respects freedom of expression while addressing alleged concerns related to harmful content.

In conclusion, the Broadcast Services (Regulation) Bill, 2024, marks a substantial shift in India's broadcasting landscape, extending its regulatory reach to include digital news broadcasters and independent content creators on social media platforms. While the Bill aims to modernize and consolidate the existing framework, its broad definitions and stringent compliance requirements have raised significant concerns regarding freedom of speech and media independence.

The introduction of mandatory registration, content evaluation committees, and the imposition of heavy fines for non-compliance present potential challenges for independent creators. These provisions could lead to increased operational costs, self-censorship, and similar content, ultimately undermining the diverse and vibrant media environment essential for a healthy democracy.

The government's motivation for these regulations, rooted in the accountability measures following the 2024 Lok Sabha elections, must be balanced against the fundamental rights enshrined in the Indian Constitution. The lack of a specific appellate mechanism further complicates the situation, as affected parties may have limited recourse to challenge government decisions, risking arbitrary enforcement and overreach.

As the Bill progresses through the legislative process, it is crucial to engage in robust public consultations and ensure that any regulatory measures are proportionate, transparent, and uphold the principles of free speech and media independence. Only through careful consideration and balanced governance can India foster a non-autonomous country that respects freedom of expression, while addressing legitimate concerns related to content regulation.