Draft broadcast bill unleashes concerns around creative freedom | Mint - Mint

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Several provisions appear to border on censorship, which OTT (over-the-top) services have so far been exempted from. Further, while there is no clarity on penalties for non-compliance with several draft provisions loosely worded for now, risks for platforms have increased manifold with seizure of equipment of broadcasting services also included in the Bill. The formation of the Broadcast Advisory Council—to hear complaints regarding violation of the Programme Code or Advertisement Code—is also being questioned, since it shall comprise representatives of the government itself.

“Given that this Council will be the last port of call for recommending any decisions to be taken by the central government against any violation of the proposed draft, it is very critical to get the composition right in order to ensure sustained independence of any recommendations flowing to the government," Shreya Suri, partner, INDUSLAW, said.

The concerns and the lack of clarity have caused most broadcasters to ask for an extension beyond the deadline of 10 December proposed by the information and broadcasting (I&B) ministry.

“While the mandate so far was one of self-regulation, there will be great repercussions on the creative front now. Even basic things such as whether an ‘A’ rated film can run on a streaming platform given that it has to adhere to programme and advertisement codes, is a concern. The same would apply to liquor, gambling or condom ads. We understand the intention is to consolidate all media platforms but the compliances coming in will make sure OTT bleeds," said the legal head of a streaming platform on the condition of anonymity.

A lot of the content on an OTT platform is acquired from third-party sources and producers, but they could be held liable for something they may not have originally made, the person said, adding that genres such as English entertainment or documentaries could take a major hit, given that they are anyway not suited to the palate of common audiences in India and can feature explicit content. Further, while audit records on subscriber count and so on means additional work for platforms, unlike satellite television, lobby groups in the OTT ecosystem aren’t unified enough right now to even make representations to the government.

A senior executive at a broadcast network pointed out that the Bill requires OTT platforms to come together to create a Content Evaluation Committee, which will pre-certify content before it can be released, essentially functioning as an internal censor board. A pre-certification process will have an adverse effect on the novelty of OTT content, in turn stifling creative expression. “At a time when there is already international focus and reportage on the lack of freedom for streaming platforms in India, this isn’t good news," the person added.

According to the draft Bill, every broadcaster and broadcasting network operator shall ensure that “the transmission or re-transmission of any broadcasting service provided by them is in conformity with the Programme Code and the Advertisement Code". Further, if any authorised officer has reason to believe that “provisions under this Act, rules or guidelines are being contravened by the operator of broadcasting network or broadcasting services... they may seize the equipment of such broadcasting network or broadcasting services".

Vikrant Kumar, senior partner at Saraf and Partners, agreed penalties and enforcement powers in the draft Bill do appear to be more rigorous than previous laws. “The proposed provisions currently include the power to inspect and seize equipment of networks including OTT services, ordering content takedown, deletion and censorship powers, in addition to substantial fines," Kumar said, adding that while the Bill does encourage autonomy within the broadcasting industry, the penal provisions could lead to a cautious approach to content creation and dissemination.

Ruby Singh Ahuja, senior partner at Karanjawala & Co., agreed that the draft Bill walks precariously on the thin line of censorship.

“Be it registration of broadcasting services with the government or providing information of an OTT platform to the government, these have the potential to curb freedom of speech and expression," she said.

“The Bill goes so far as to say that a broadcasting network operator not only has to keep updated records of subscriber data, but this data needs to be provided to the government at periodic intervals. The broadcasting organisations need to be registered by the government of India and shall run the risk of cancellation of registration in case of any contravention of the governing norms, Programme Code or Advertising code," Ahuja added.

To be sure, there are several concerns around the Broadcast Advisory Council the central government aims to create via the Act. This would consist of an independent person with experience in the fields of media, entertainment and broadcasting, besides five officers nominated by the Central government to represent the ministries of information and broadcasting, women and child development, home affairs, external affairs, and social justice and empowerment.

Additionally, five other persons with experience in the fields of media, entertainment, broadcasting, child rights, disability rights, rights of women, human rights, law and other fields would also be nominated by the government.

“There is genuine concern in the market on the independence of the Broadcast Advisory Council in exercising its powers under the Act, given that the composition of all 11 members is proposed to entirely be constituted by the Central Government. Moreover, five of the members will be direct representatives nominated from different Central Ministries. There are further powers given to the council to co-opt additional members with approval of the Central Government to enable them to vote – which could have a potential impact on voting majorities," INDUSLAW’s Suri said.

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