Analysing Regulatory Overlap Concerns Amidst the Draft Broadcasting Bill’s Attempt to Revive Digital News Content Regulation

[By Anupama Reddy Eleti]

The author is a student of Gujarat National Law University.

 

Introduction 

2023 has been a significant year for the Indian Data Privacy Landscape. From the passage of the Digital Personal Data Protection Act, 2023 in April to the recent release of the Draft Telecommunication Bill 2023, MIB and MeitY have rolled out several legislations reshaping India’s personal data use. Amidst these developments, the Broadcasting Services (Regulation) Bill, 2023 (Draft Bill) was released in early November to repeal the Cable Television Networks (Regulation) Act, 1995 (Cable TV Act), and provide a uniform legislation regulating all forms of broadcasting networks. However, like any other legislative effort, the possibilities of the Bill have been scrutinised, with Chapter III gathering the most attention. While the bill tries to retain key aspects of the Cable TV Act and associated Rules, Chapter III comes as a distinct new development.  Titled “Content Standards, Accessibility and Access Control Measures”, a cursory reading of the Chapter reveals clear parallels with Part III of the IT Rules which is presently facing scrutiny at the Apex Court. 

Drawing parallels 

The similarity in question is essentially Section 20 of the draft bill, which casts an obligation on certain online broadcasters to adhere to a programme code and advertisement code and notes, “Any person who broadcasts news and current affairs programs 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.” Further, Section 19 gives way for the introduction of a completely new Programme Code and Advertisement Code to be prescribed by the Central Government.  

Parallelly, the IT Rules of 2021 showcase a previous attempt of the Ministries at introducing similar obligations. Rule 9(1) of the IT Rules introduced an obligation upon publishers of “news and current affairs” and “online curated content” to follow a code of ethics which consisted of the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable TV Act. 

However, specific provisions of the IT Rules were shortly set aside by the Bombay High Court in the case of Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors. vs. Union of India & Anr. Firstly, the court contended that they imposed obligations under a statutory framework that was alien to the Information Technology Act, 2000 (IT Act). The court pointed out that the two provisions referred to in the “Code of Ethics” i.e. the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under Section 5 of the Cable Act, belong to independent legislative frameworks. The court questioned how these distinct legislations could be incorporated under the impugned rules of the IT Act and form the basis for substantive action in case of violation. Secondly, the court noted that such rules are contrary to the Rule-making powers conferred to the Central Government under Section 69A, Section 87(2)(z) and (zb) of the IT Act.  

Furthermore, the court while commenting upon the obligations imposed by the Programme code noted that it exceeds the reasonable restrictions under the Fundamental right to speech and expression. In this regard, the bench noted, “ If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticising an individual in respect of his public life [see: Rule 6(1)(i)]. It is, therefore, quite possible that the writer/editor/publisher on contravention of the provisions of clause (1) of Rule 9 of 2021 Rules, but without even transgressing the boundaries set by clause (2) of Article 19 of the Constitution, may expose himself/itself to punishment/sanction under the 2021 Rules.” This reasoning highlights how inappropriately excessive it was to obligate such publishers to adhere to the Programme Code, meant for traditional cable TV network operators. Thereby, the current bill which repeats this obligation for news and current affairs broadcasters raises questions as to the constitutionality of the move. However, this is seemingly resolved by the inclusion of Section 19 in the Draft Bill which prescribes a new and differentiated programme and advertisement code for different broadcasters.  

Global Comparision – Digital News Regulation 

In a report by Oxford Pro Bono Publico, digital news content regulation was observed across seven different nations. The report indicated that media regulation in most countries struck a balance between press freedom and the delineation of publisher responsibilities. A common pattern of emerging legislation was seen, particularly in South American and European countries, where there was a prioritization of journalistic freedom and human rights in media regulation approaches. For instance, Argentina’s legislation, aligned with the American Convention on Human Rights, protects various forms of expression, especially political discourse, speech concerning public officials, public interest matters, and personal identity. Similarly, the Canadian Government emphasizes balancing its legislation with considerations for freedom of expression, privacy protections, and the open exchange of ideas and debate online. 

In contrast, India’s Programme code under the Cable TV Act which was previously attempted to apply to news publishers was severely criticised for imposing excessive constraints. Not only was the code inappropriately applied, but it was also extremely broad in its sweep, including vague terms like ‘good taste’ and ‘decency’ which are inherently subjective. Further, the previously voluntary Journalistic Code of Conduct was exalted to the status of mandatory application under the IT Rules. The new bill retains the mandatory nature by making any violation of the codes subject to severe monetary penalties. This essentially introduces new statutory obligations in this domain. In this regard, it is recommended to align India’s new codes with global practices, with standards that are drafted with clarity and limited to manifestly illegal material. 

Conclusion 

The overall approach taken by MIB bypasses the reasoning of the Bombay High Court in its stay order. This it does by embedding the obligations within an independent legislation. It also allows for the creation of a new programme code and advertisement code, potentially tailored for different operators as per Section 19, thereby adding an element of variability.  

However, this move is not without its concerns. It resurrects the same censorship issues that were under scrutiny before, this time contingent on the specifics of the newly framed codes. Further, If the Bill is enacted, the government will have to face the complex task of striking a balance between press freedom and necessary regulation. In this regard, the Bill also provides insufficient guidance to the Executive in drafting of the codes, constituting a case of excessive delegated legislation.  

Herein, it is pertinent to note that the future of both the IT Rules and the draft bill now hinges on the Supreme Court’s perspective, especially since the stay order has been challenged there through transfer petitions. The apex court’s forthcoming decisions will be instrumental in defining the regulatory framework for digital news publishers, balancing the need for regulation while upholding the freedom of speech and expression.  

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