Navigating the OTT landscape in broadcasting bill

The Ministry of Information and Broadcasting (MIB) on 10 November 2023 released the draft Broadcasting Services (Regulation) Bill, 2023 (bill), for public comments. The bill will replace the decades-old Cable Television Networks (Regulation) Act, 1995, recognising the significant changes in the broadcasting industry that have occurred since that legislation was enacted. However, a number of stakeholders have already levelled extensive adverse criticism against the bill, raising concerns with regard to overregulation and censorship. One of the more significant changes the bill seeks to introduce is to bring over-the-top (OTT) streaming platforms within the definition of “broadcast service operators”. As a consequence, OTT platforms and any other digital media platform that broadcast their content online would be required to comply with the same regulatory framework as traditional broadcasting service providers.

Experts have argued that the very idea of having a common regulatory mechanism for traditional broadcasting services and online streaming platforms is problematic. In the case of OTT streaming, for example, an individual is free to decide the type of content they want to consume out of the many options available. This cannot be said for traditional broadcasting platforms that offer only fixed and scheduled programming. Thus, the concept of uniform legislation for all broadcasting platforms could prove to be an obstacle to the continuation of consumer choice.

The bill stipulates for establishment of a Content Evaluation Committee (CEC) and a Broadcast Advisory Council (BAC) that would be responsible for scrutinising all broadcasting content in accordance with government-prescribed standards for programmes and advertising. The BAC is to consist of government officials representing the MIB, the Ministry of Women and Child Development, the Ministry of Home Affairs, the Ministry of External Affairs and the Ministry of Social Justice and Empowerment. There would also be five eminent independent persons appointed to the BAC by the government. The government’s involvement in determining violations of the programme and advertisement rules instead of that of an independent body has led to concerns being raised. OTT content by its nature offers diverse and unconventional storytelling, which may not fit into future permissible content categories set out in broadcasting regulations.

Under the bill, the central government or an authorised agency would have the right to examine OTTs and their services. Such agencies would have the power to carry out inspections without giving prior notice. They would also have the authority to seize and confiscate the equipment of OTTs that have failed to comply with relevant government orders. Non-adherence to the programme and advertising code may result in the OTT content being pulled off the air and also lead to the cancellation of the registration of the OTT. The bill also provides for monetary and punitive damages to be meted out to the individuals responsible for non-compliance. In the case of grave offences, individuals would also be liable to be imprisoned for up to two years.

The concerns surrounding censorship not only raise arguments regarding free speech, but also worries about the deep impact it will have on the ease of doing business. The OTT and digital media industry in India have already expressed their concerns regarding the bill. News articles have reported that representatives of some of the leading OTTs in India have decided to request the MIB to redraft some of the more worrying provisions of the bill.

To sum up, the bill in attempting to provide new uniform regulatory oversight for both traditional broadcasters and emerging OTT platforms has drawn widespread adverse criticism concerning the threat to artistic freedom of speech and the creative liberties that are guaranteed in the constitution of India. The setting up of the CEC and the BAC underscores the complex and delicate balance between artistic expression and regulation. The onerous requirements and the strict penalties for non-compliance are likely to have significant repercussions for OTT platforms looking to expand their operations in India. As stakeholders engage in discussion and seek amendments, the fate of the bill will significantly shape the future landscape of India’s digital broadcasting industry.

Ashima Obhan is a senior partner and Arnav Joshi is an associate at Obhan & Associates.