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Broadcasting Services Bill: Who Will Ultimately Regulate Digital News Content?

The scope of clause 20 becomes unclear when we look at the definition of “news and current affairs programme.”

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Following his resignation from NDTV (after it was taken over by the Adani Group), Ravish Kumar has taken to YouTube to become one of the most-watched independent journalists in India.

Over the last year or so, his channel, Ravish Kumar Official, has gotten to 78 lakh subscribers, having only seriously begun to add content after he left the NDTV India channel less than 12 months ago.

For a journalist operating with a small team, it’s an indication of his reach and influence. His YouTube subscribership compares favourably with his former employers, NDTV 24x7 and NDTV India, each of whose YouTube channels have 1.28 crore and 1.55 crore subscribers, respectively.

The difference, however, is that while you can still watch the two NDTV news channels on cable television or Direct To Home services, Ravish Kumar can be found only on YouTube.

However, one clause in the new Broadcasting Services (Regulation) Bill, 2023 (specifically clause 20), could upend how we think of the differences between an independent journalist making videos on YouTube and cable TV news.

The potential implications of this clause become clear upon examining the existing, differing regulatory frameworks for cable television and social media platforms such as YouTube.

Broadcasting Services Bill: Who Will Ultimately Regulate Digital News Content?

  1. 1. Examining and Understanding Clause 20 of the Bill

    When he was a broadcast journalist with NDTV, Ravish Kumar was, like all other journalists on television, subject to regulation under the Cable Television Networks (Regulation) Act, 1995 (Cable TV Act).

    The content of his shows was subject to the Programme Code and the Advertisement Code promulgated under the Act. NDTV 24x7 and NDTV India were on air because the Union Government had given them a licence under the Cable TV Act and had to be bound by that law to retain that licence.

    However, on YouTube, Ravish Kumar is bound by neither the Cable TV Act nor the Programme Code or the Advertising Code.

    I am using this example not to say anything specific about Ravish Kumar or the NDTV channels but to point out the way technological changes can render regulatory frameworks out of date. While cable television remains popular and influential, younger Indians seem to be ditching it in favour of social media platforms for their news.

    While this may seem like a welcome development that challenges the corporate control of the media, social media platforms are entirely owned by even bigger corporations.

    Social media’s growth as a source of news (among other things) has also benefited from regulatory arbitrage. Unlike cable television, where an NDTV is responsible for everything that appears on its channels, YouTube as such is not liable for Ravish’s content unless his content violates the Information Technology Act, 2000.

    As an “intermediary”, YouTube enjoys “safe harbour” protection for user-created content – it can’t be held responsible for any of the content on its platform unless someone brings to its notice the problematic nature of the content.

    While the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, was introduced to regulate digital news and current affairs content (among other things) , the proposed Broadcasting Services Bill also seems to want to do the same thing but differently. While the bulk of the effort seems to be to bridge the gap between traditional cable television and over-the-top (OTT) services, Clause 20 adds a confusing and contradictory dimension to the Bill.

    Clause 20 says:

    “(1) Any person who broadcasts news and current affairs programmes through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19.“

    A surface level reading of this would mean that even blogs, news websites, social media handles, and YouTube channels will have to adhere to the Programme Code and Advertisement Code. However, the second part of this clause limits its applications only to those that do it as part of a “systematic business, professional, or commercial activity”.

    This phrase that's also used in a different context to limit the application of the law to broadcasters, is not defined anywhere. E-versions of newspapers are excluded from the ambit of this clause.

    This would suggest that the e-version of The Hindu or The Indian Express would not be governed by this clause and likewise, the personal blogs of a journalist such as the Indian Journalism Review.

    However, would this clause cover a blog written by a lawyer or a law firm since the same could be part of “systematic professional activity”? Would it cover a LinkedIn post by a digital marketer promoting a company since it could be “systematic business activity”?
    Expand
  2. 2. Avoiding Regulatory Arbitrage and Overlapping Regulatory Powers

    The scope of this clause also becomes unclear when we look at the definition of “news and current affairs programme”. As it stands, the definition covers:

    “2(1)(v)... (i) newly-received or noteworthy audio, visual or audio-visual programmes or live programmes, including analysis, about recent events primarily of socio-political, economic or cultural nature, or (ii) any programmes transmitted or retransmitted on broadcasting network, where the context, purpose, import and meaning of such programmes implies so;”

    This definition makes sense in the context of licensing of news channels or even current affairs programmes. Any entity which is setting up a news channel has a clear idea of what its content is going to be, what the regulatory regime is, and what the legal framework governing it is going to be. However, when this definition is applied to content that has never been subject before to the Cable TV Act, it only creates more confusion and doubt about the scope of the law.

    Furthermore, the Broadcasting Services Bill also states that this is in addition to and not in derogation of other laws, including the Information Technology Act, 2000, as well as the Rules framed under it.

    This clause seems to have been drafted without being aware that the 2021 Rules already provide for a Code of Ethics in the Appendix to those Rules. While the Code of Ethics makes a reference to the Programme Code under the Cable TV Act, it makes no reference to the Advertising Code.

    Given that the Programme Code and the Advertising Code are being made by the Union Ministry of Information and Broadcasting (MIB) and the Code of Ethics by the Union Ministry of Electronics, and Information Technology (MeitY), this may lead to tussles between regulators as to who will regulate content.

    However, the Code of Ethics prescribed in the IT Rules were temporarily stayed by the Bombay, Kerala, and Madras High Courts.

    It would be simple to say that Clause 20 should just be removed and MIB should stick to regulating cable news and MeitY to the internet. However, while this is a reasonable classification as far as medium is concerned, for content, this is a rather meaningless distinction.

    With increasing internet penetration and the availability of cheap data plans, cable television is not the only means to watch video content. If the proposal to allow for smartphones to receive TV signal goes through, the distinction between what’s a phone and what’s a TV may also go out the window.

    Addressing this potential regulatory confusion might require a complete rethink on how the Union Government should regulate news content. Whether it adopts a self-regulatory approach or not, the idea should be to avoid regulatory arbitrage and overlapping regulatory powers.

    (Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

    (At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

    Expand

Examining and Understanding Clause 20 of the Bill

When he was a broadcast journalist with NDTV, Ravish Kumar was, like all other journalists on television, subject to regulation under the Cable Television Networks (Regulation) Act, 1995 (Cable TV Act).

The content of his shows was subject to the Programme Code and the Advertisement Code promulgated under the Act. NDTV 24x7 and NDTV India were on air because the Union Government had given them a licence under the Cable TV Act and had to be bound by that law to retain that licence.

However, on YouTube, Ravish Kumar is bound by neither the Cable TV Act nor the Programme Code or the Advertising Code.

I am using this example not to say anything specific about Ravish Kumar or the NDTV channels but to point out the way technological changes can render regulatory frameworks out of date. While cable television remains popular and influential, younger Indians seem to be ditching it in favour of social media platforms for their news.

While this may seem like a welcome development that challenges the corporate control of the media, social media platforms are entirely owned by even bigger corporations.

Social media’s growth as a source of news (among other things) has also benefited from regulatory arbitrage. Unlike cable television, where an NDTV is responsible for everything that appears on its channels, YouTube as such is not liable for Ravish’s content unless his content violates the Information Technology Act, 2000.

As an “intermediary”, YouTube enjoys “safe harbour” protection for user-created content – it can’t be held responsible for any of the content on its platform unless someone brings to its notice the problematic nature of the content.

While the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, was introduced to regulate digital news and current affairs content (among other things) , the proposed Broadcasting Services Bill also seems to want to do the same thing but differently. While the bulk of the effort seems to be to bridge the gap between traditional cable television and over-the-top (OTT) services, Clause 20 adds a confusing and contradictory dimension to the Bill.

Clause 20 says:

“(1) Any person who broadcasts news and current affairs programmes through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica e-papers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19.“

A surface level reading of this would mean that even blogs, news websites, social media handles, and YouTube channels will have to adhere to the Programme Code and Advertisement Code. However, the second part of this clause limits its applications only to those that do it as part of a “systematic business, professional, or commercial activity”.

This phrase that's also used in a different context to limit the application of the law to broadcasters, is not defined anywhere. E-versions of newspapers are excluded from the ambit of this clause.

This would suggest that the e-version of The Hindu or The Indian Express would not be governed by this clause and likewise, the personal blogs of a journalist such as the Indian Journalism Review.

However, would this clause cover a blog written by a lawyer or a law firm since the same could be part of “systematic professional activity”? Would it cover a LinkedIn post by a digital marketer promoting a company since it could be “systematic business activity”?
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Avoiding Regulatory Arbitrage and Overlapping Regulatory Powers

The scope of this clause also becomes unclear when we look at the definition of “news and current affairs programme”. As it stands, the definition covers:

“2(1)(v)... (i) newly-received or noteworthy audio, visual or audio-visual programmes or live programmes, including analysis, about recent events primarily of socio-political, economic or cultural nature, or (ii) any programmes transmitted or retransmitted on broadcasting network, where the context, purpose, import and meaning of such programmes implies so;”

This definition makes sense in the context of licensing of news channels or even current affairs programmes. Any entity which is setting up a news channel has a clear idea of what its content is going to be, what the regulatory regime is, and what the legal framework governing it is going to be. However, when this definition is applied to content that has never been subject before to the Cable TV Act, it only creates more confusion and doubt about the scope of the law.

Furthermore, the Broadcasting Services Bill also states that this is in addition to and not in derogation of other laws, including the Information Technology Act, 2000, as well as the Rules framed under it.

This clause seems to have been drafted without being aware that the 2021 Rules already provide for a Code of Ethics in the Appendix to those Rules. While the Code of Ethics makes a reference to the Programme Code under the Cable TV Act, it makes no reference to the Advertising Code.

Given that the Programme Code and the Advertising Code are being made by the Union Ministry of Information and Broadcasting (MIB) and the Code of Ethics by the Union Ministry of Electronics, and Information Technology (MeitY), this may lead to tussles between regulators as to who will regulate content.

However, the Code of Ethics prescribed in the IT Rules were temporarily stayed by the Bombay, Kerala, and Madras High Courts.

It would be simple to say that Clause 20 should just be removed and MIB should stick to regulating cable news and MeitY to the internet. However, while this is a reasonable classification as far as medium is concerned, for content, this is a rather meaningless distinction.

With increasing internet penetration and the availability of cheap data plans, cable television is not the only means to watch video content. If the proposal to allow for smartphones to receive TV signal goes through, the distinction between what’s a phone and what’s a TV may also go out the window.

Addressing this potential regulatory confusion might require a complete rethink on how the Union Government should regulate news content. Whether it adopts a self-regulatory approach or not, the idea should be to avoid regulatory arbitrage and overlapping regulatory powers.

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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