Media Regulations in India: Government Overreach Disguised as ‘Parity’

The fresh off-the-desk draft of the Broadcasting Services (Regulations) Bill released on November 10th, 2023 is yet another addition to a recent slew of new media and technology regulations in India. The government has repeatedly used the rationale of ‘parity,’ ‘level playing field,’ and ‘streamlining’ when instituting new laws, executive rules and guidelines for digital media. In light of these, it is important to reflect on the intentions underlying the claims of parity, and to assess if and how the new media regulations can actually achieve these lofty goals?

In an effort to bring regulatory parity across media industries, the BJP government’s interventions in the media space have taken two, often simultaneous, routes.

Revamp and replace

First, the state achieves parity through ‘revamping’ and ‘replacing’ earlier laws that are inept for sufficiently governing current media realities. In this case, parity is achieved by creating a unified law (or rule) for all the different media industries. This umbrella regulatory approach is evident in the draft Telecommunication Bill, proposed in 2022 to replace the Indian Telegraph Act (1885), Indian Wireless Telegraphy Act (1933) and The Telegraph Wire (Unlawful Protection) Act (1950). The Bill brings under one governing umbrella a broad range of telecommunication services which have been redefined to include

“…broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services.”

Here, a wide range of clearly different types of service providers – email, social media, and encrypted messaging and calling, streaming content, and others – would have to acquire expensive licenses like broadcasters, and telecom and internet service providers who have to seek approval from the Department of Telecommunication in order to operate within India.

Mixing the old and the new

The second route to achieve parity is through provisions that mix old and new forms of regulations. This route attempts to align newer media systems with earlier regulatory mechanisms while also attempting to introduce novel, and technology-conscious provisions into existing frameworks. The BJP government claims that this approach would develop a coherent mechanism of content governance.’

This approach of mixing old and new regulatory mechanisms to achieve ‘parity’ was evident in the Information Technology Rules (2021) (IT Rules hereafter) when the Union minister, Prakash Javedkar, underlined this rationale to extend legacy content regulations to digital news. For streaming services, while there is no explicit extension of the broadcast content code to streaming, content limitations resemble the reasonable restrictions to free speech stipulated in Article 19(2) of the Indian Constitution. Interestingly, the content norms relating to religious sensitivity within the Cinematograph Act (1952), and Cable and Television Networks Act (1994) are now extended to streaming.

A more explicit example of extension from broadcast to streaming is through the three-tiered grievance redressal system resembling the broadcast sector’s two-tier self-regulatory mechanism. Nonetheless, the government also mixed some new with the old. This was done by adding a third (and top) tier to the two-tier mechanism, which the government claimed was a soft and light-touch approach. The third tier allots the government oversight powers actualized by an inter-ministerial committee. This committee is intended to decide on complaints that are not resolved at the first two tiers. Additionally, the government also introduced self-content classification guidelines that obligate streaming services to give age appropriate content ratings and proper descriptions to their content. 

Interrogating these strategies

Both these strategies adopted by the government present numerous concerns.

Interventions that attempt to govern a range of diverse technology services through an umbrella approach run the risk of overbroad applicability of unclear rules. Bundling industries under a single provision leads to a lack of nuanced regulations, or ones that address existing regulatory concerns and industrial practices within specific sectors. The umbrella approach instead reflects a stopgap move that allows the government to widen the regimes of control without actually understanding the differences between each technology and its function within the Indian media industry that depends on it for distribution.

This is evident in the government combining public broadcasting and private streaming services under one umbrella of the Broadcasting Services (Regulation) Bill, 2023 (Broadcast Bill, hereafter) even though the two posit very different concerns of content accessibility and agency of consumers. In such a scenario, the purpose of prescribing overarching content governance mechanisms for all broadcasting networks must have clarity of vision that goes beyond using catch-all phrases like ‘ease of doing business’ or ‘leveling the playing field’. It requires clarity about what ‘ease of doing business’ means for different stakeholders and how that is made functional within unifying approaches to regulation.

The institution of unclear laws presents multiple implementation and compliance challenges.

• First, in an environment of confusion as to which clauses under the laws apply to which entity, technology service providers and media producers (both news and entertainment) tend to over comply and self-censor under the fear of regulatory action. 
• Second, lack of clarity leads to wide interpretations of the law to suit government extensions of power. Such a situation necessitates retroactive clarity either from the ministry or within the courts on a case-by-case basis, which inherently creates delays and uncertainty for the industry.
• Third, many unified laws subject a single type of service provider to multiple overlapping conditions. This plays counter-productive to ‘ease of doing business’ and the fervor of creativity, investment and innovation in the media.

Matters are further complicated when technology companies offer more than one type of service, and are, therefore, liable to multiple clauses of the same law. News aggregators under the IT Rules were also met with ambiguous framing. Per the rules, if an entity engages in editorial and curatorial practices, they are publishers; but if they only transmit third-party content, they are intermediaries. Given that aggregators share content produced by news publishers but also engage in algorithmical curation, summarizing, and recommending articles, their position under the IT Rules creates regulatory confusion. The decision regarding the status of such entities is now to be decided on a case-to-case basis by the Ministry of Information and Broadcasting (MIB), as clarified retroactively by the Ministry of Electronics & Information Technology (MEITY) in a non-legal FAQ about the IT Rules.

Similarly, the strategy of mixing old and new forms of regulations results in a two-fold problem.

Firstly, extending old laws to new technologies runs the risk of extending problems with old laws to new distribution technologies without rectification. In the case of online news, the Code of Ethics under IT Rules currently extend the government’s power under the existing Programme & Advertisement Code to restrict or remove any news online that “offends against good taste or decency” or “contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths” or “Criticises maligns or slanders any individual in person or certain groups, segments”, and/or any other vaguely worded clauses. Obscure clauses afford the government a vast leeway for interpretation, thereby legitimizing action that impinges on free speech and dissenting content on the internet. In the case of streaming, while content restrictions are derived from the Constitution, the application of reasonable restrictions have been exploited for political censorship because of overbroad interpretation. This kind of adverse experience and memory with content norms is difficult to dispel if new production practices and distribution technology are put under similar scrutiny without empowering creators.

Secondly, laws that do not benefit from a precedent and are introduced without proper consultation and market knowledge pose their own complications. For example, the three-tier grievance mechanism from IT Rules is replicated in the Cable and Television Network Rules (2021), and in the newly proposed Broadcast Bill. However, its implementation does not have precedent yet, and it poses the risk of extending unprecedented challenges to an entire media landscape. Moreover, there is uncertainty about how new models would play with the political and social pressures of the country. In India’s case, this risk is very pertinent as evidenced by political pressures faced by the Central Board of Film Certification (CBFC). 

The Broadcast Bill also proposes an unprecedented model of the Content Evaluation Committee (CEC). This is just another step in the loop of parity, where the CEC is supposed to oversee content (like the three-tier mechanism), and certify (like CBFC) all content before it is publicly available. Rather than evaluating an unprecedented three-tier model and unaddressed challenges of CBFC, the government merely mixes the old and new systems to bring coherence.

It’s all about content governance

Within these strong calls for regulatory parity to achieve ‘ease of doing business’ and a ‘level playing field’, one aspect that jumps out is the focus on content governance measures. There is a constant effort to establish parallel content governance mechanisms through the routes discussed above. However, a focus on content governance doesn’t necessarily make it easier to do business for any stakeholders involved. Instead, it only creates a scenario where lofty measures are routinely proposed that prioritize the executive power to decide on the admissibility of content across mediums.

Owing to these developments, it also becomes particularly important to ask whether the media industry in India demands measures that bring parity of content governance across different mediums. Evidently, news publishers opposed the introduction of an online news-specific regulation under the pretext of a regulatory vacuum and non-alignment with print and TV (as pursued in 2018 by then MIB minister, Smriti Irani). They believed that online news was different from news publishing and broadcast as it entailed two-way communication, and was already covered by existing laws of the land. 

Despite this, the government continued to argue for parity and legally (albeit still in question in the courts) unified news with other types of online content under the IT Rules, and extended to it legacy era content regulations for newspapers and news channels. This brings parity in the government’s watchful eye over news content, but the industry concerns of sustainable revenue, market concentration, and journalistic safety are yet to be addressed.

Similarly, incumbent players in the broadcasting sector, in their response to ‘ease of doing business in cable and telecom sector’ and pre-consultation on National Broadcast Policy, emphasized bringing more efficiency in the licensing process, interconnection regulations, tariff orders and quality of service norms. All of these do not reflect a desire for parity in content governance. Notably, the only industry-led suggestion for parity in content governance was in the consultation on the OTT (over-the-top) Regulatory Framework in 2018 by television distributors who were arguably threatened by the phenomenon of cord-cutting and were possibly using content-related rhetoric to get the government’s attention. 

Most importantly, while the government vociferously proclaims the goal of ‘parity,’ protections for free speech and creative expression rarely find any mention in Indian media regulations. Further, as established above, the method of parity through content governance does not foster the goals of achieving economic ease and efficiency. Instead, the lack of any explicit recognition for free and creative speech, or the desire to correct regulatory misgivings, creates a scenario of strict and centralized censorship by the BJP government that invariably hinders both media businesses and the freedoms of citizens.