Introduction
The Broadcasting Services (Regulation) Bill, 2024, often referred to as the Broadcasting Bill is a new governmental regulation to bring under its regulatory purview both conventional broadcast media and Over-The-Top (OTT) platforms.
In this review, we shall consider the aims of the Bill, the elaborate structures for dealing with grievances, the process of its introduction, and how it is likely to impact upon the broadcasting environment.
Purpose of the Bill
In essence, the Broadcasting Services (Regulation) Bill, 2024 is an attempt at bringing forth homogenized standards across diversified media platforms. The objects and reasons of the Bill state that the Bill seeks to secure uniformity in the regulation of content for various media. These different media are traditional broadcasting on TV and radio, OTT platforms such as Netflix and Amazon Prime, and digital news outlets. The Bill also would take into account changing technologies and adapt the regulatory framework to suit present needs.
One main objective of the Bill is to establish a harmonized regulatory regime within which all media platforms are to operate under centrally developed standards and codes. This approach aims at the promotion of equality in content provision across digital news broadcasters and social media influencers: basically, all content provisions must meet similar regulation criteria. The general intent is to modernize the broadcasting sector with one approach to regulating content.
Fears of Centralized Power
One big defect in the Bill is that it mandates all broadcasting services to abide by a centralized program code. A program code spells out the standards to which program content must adhere. The formative process of such program code under the Bill, however, remains unspecified. This may lead to a series of serious issues. Without precise laws or doctrines, most of the power is still left to the central government to decide what is acceptable content. In the implementation of that, there may be blurred and inconsistent enforcement since the program code would be different for the different categories of broadcasting services. The absence of precise boundaries set by the code may lead to legal battles and uncertainties over what constitutes a breach.
The Bill also provides for various possible actions upon the failure of compliance with the program code, such as deleting or modifying content, issuing advisories or warnings, suspension from broadcasting for a certain time frame, and further state financial penalties. Because the Bill is devoid of particular principles for the program code, there is ample potential that the government will take extreme and ad hoc actions. This could be directed against constitutional values and principles of being fair.
As the Supreme Court of India observed in its judgment in Satwant Singh Sawhney v. D. Ramarathnam, the problems of centralized authority have been addressed in previous decisions by the clear proposition it made that executive acts must be based on clear legislative authority. Arbitrary actions, the court pointed out, simply amount to a violation of equality before the law.
The present provisions in the Bill with such wide and undefined powers being conferred on the central government appear to be running afoul of these well-recognized principles.
Four-Tier Grievance Mechanism – Is It Effective?
The Bill has a grievance redressal mechanism with four-tier hierarchical levels. Issues that pertain to content compliance can be at the following outlined levels:
- Self-Regulation by Broadcasters: Individual broadcasters are encouraged to comply with the proscribed codes and self-regulate their content. It is the first line of regulation in which the broadcaster is expected to moderate their content by predetermined standards.
- Self-Regulatory Organizations (SROs): An SRO is a collection or group of broadcasters that regulate content amongst themselves. It is such a body that would provide an extra layer to enhance self-regulation and hold up the quality of content to industry standards.
- Broadcast Advisory Council (BAC): A statutory authority body constructed to address complaints that the individual SRO has not attended to, and it can penalize, recommend action, or ensure that standards of the code that apply to content are being followed. 4. Review Panel: The Review Panel is an appellate body, and appeals to it lie against the decisions of the BAC. Decisions on grievances shall be final and binding upon all parties.
However, while there is clarity in the hierarchal approach to addressing grievances in this four-tier structure, there is an indication of a high potential for failure. Red tape is expected to delay the redress of grievances and thus a possible inefficiency. The external bodies may be used to request decisions from departments lower down the hierarchy. There can be a possibility of decisions not being uniform and introducing complexity into the grievance redress procedure.
The composition of BAC has individuals from the government, so it is questionable how impartial the commission can be. Subsequent compromises to the fairness of the grievance resolution process by the influence of the government at whatever level compromise the objectivity of the BAC. Self-regulation and SROs rely on broadcasters to adhere to standards without bias, which may not always be the case, more so under competitive and politically charged media environments.
It was in this context that the question of the need for a special quasi-judicial tribunal to hear appeals was taken up, given that the Cinematograph Act, 1952, had vested the power to hear such appeals on the certificate grant on the government. The Supreme Court held that the independent quasi-judicial authority would command greater confidence than a government official.
This in turn made amendments in the Act to incorporate an appellate tribunal, which has been again changed to a High Court vide amendment of 2021. The seeming lack, under the present Bill, of a separate and independent appellate body, due to appeal provisions now having to go through the BAC and still further to the central government as a non-binding recommendation, puts the grievance mechanism in suspicion on the fairness yardstick.
Regulating Influencers
Another area in the Bill that remains contentious is the regulation of social media influencers. The influencers are transversal on all digital platforms and have become very pivotal voices in modern-day media, thus they bank on the freedom to produce and publish content without the restriction that often defines traditional media.
The rules for influencers under this Bill can be seen as governmental overreach that dangerously threatens freedom of speech and stifles digital innovation. In a way, this Bill risks stiffening very strict rules on these digital content creators in ways that might just curb creativity and a myriad of viewpoints now typical of the online landscape. The very broad and vague definitions used within its lines could lead to arbitrary enforcement, with effects hitting generally smaller creators who lack the resources to wade through complex regulations.
Notably, in this digital era, YouTube, Instagram, and TikTok have captured public conversation. Perhaps what is needed is a fear of over-regulation, which may hamper the democratized spirit of the internet. The Bill’s approach could very well lead to holding back digital entrepreneurship and limit the free exchange of ideas on such online platforms.
Lack of transparency
The Bill had a non-transparent process in its introduction since it was forwarded to the relevant stakeholders exclusion of most key stakeholders and the public’s interest groups. This approach is therefore secretive and hence several issues can be raised in the process.
Transparency is one of the most important aspects of democratic law-making, especially for legislation affecting fundamental rights such as the freedom of expression. The close-door situation of the Bill did not allow comprehensive analysis and criticism from different angles, which may have helped in better shaping the Bill by including relevant inputs. The lack of broader stakeholder participation would deteriorate trust in the entire lawmaking process, and hence reduce the legitimacy of the Bill. A more open and inclusive approach might guarantee that the Bill really goes through comprehensive scrutiny and that its possible impacts are thoroughly understood.
Conclusion
The Broadcasting Services (Regulation) Bill, of 2024, is an important step toward contemporary regulation of the broadcasting sector in India. An amalgam of its ambitious objectives coupled with potential issues of constitutionality, practical implementation hurdles, and a convoluted grievance mechanism has already come under debate. Worse, the manner of introduction of the Bill has not been transparent. The Bill, therefore, needs to take a more open and inclusive approach with clearer guidelines for regulatory standards along with mechanisms that balance regulation imperatives with the protection of media freedom. These issues need to be addressed urgently if the bill is going to work in the interest of modernizing the broadcasting sector without stepping on fundamental rights or stifling creativity and innovation.
