The Broadcasting Services Regulation Bill, 2023 has raised major concerns about its potential infringement on the fundamental right to freedom of speech and expression. This paper critically analyses the implications of the bill on independent journalism, digital publishers, Ott platforms and online content platforms, considering its parallels with historical instances of media censorship and considering judicial view on freedom of speech and expression. Article 19 of the Indian Constitution guarantees the fundamental right to freedom of speech and expression, recognizing its pivotal role in fostering democratic discourse and social progress. Nations with strict limits on free speech and expression tend to exhibit a lack of basic democratic principles. Ministry of information and broadcasting introduces draft of broadcasting services (regulation) bill,2023 which will replace three decades old the cable television network act,1995 if passed. It poses a significant dilemma for the executive to extend the program code, originally designed for cable television networks, to the expansive realm of the internet in the contemporary era. This raises concerns about another instance of delegated legislation, potentially adding to uncertainty.
KEYWORDS
Broadcasting, speech and expression, censorship, Ott platform, journalism
INTRODUCTION
The Big brother is watching you; the new proposed bill is a reminiscent of Orwellian surveillance, is the latest addition to the regulatory landscape governing media in India. Despite claims of regulation being necessary, concerns arise regarding potential overreach and curbing of freedom of speech and expression, particularly affecting digital publishers and independent news platforms. Now by the ambit of the bill a wide power was handed over to the executive in censorship and regulations.
Article 19 of the Indian Constitution enshrines the fundamental right to freedom of speech and expression, recognizing its essential role in democratic societies. This section elaborates on the significance of Article 19 as a cornerstone of democracy, emphasizing the need to safeguard this fundamental right from legislative encroachments. By contextualizing the debate within constitutional frameworks, this section underscores the gravity of any measures that threaten freedom of speech and expression. So, if we look in to our constitution and various precedents it emphasizes in the importance of the freedom of speech and expression in a democratic society.
RESEARCH OF METHODOLOGY
This paper employs a critical analysis approach to evaluate the Broadcasting Services Regulation Bill, 2023. The paper relies upon the both primary and secondary sources. primary source such as the proposed bill and constitution of India and for secondary source of information, journals, and internet publications .
REVIEW OF LITERATURE
The UK’s Online Safety Act may unintentionally open a Pandora’s Box by giving platforms a statutory justification to censor speech that doesn’t conform to their objectives, potentially resulting in increased censorshipi.
Discussions about online regulation often emphasize the potential benefits of holding social media platforms responsible for curbing hate speech. However, focusing on societal benefits alone overlooks potential threats to free speech. Using Germany’s Network Enforcement Act as an example, this analysis explores whether increased legal liability and fines under the UK’s Online Safety Act could lead platforms to censor more speech. This censorship might not just target hate speech but also other expressions that diverge from platform goals. When crafting laws to fight hate speech, we must be careful not to inadvertently give platforms more power over what information is shared. This could have unforeseen negative effects on freedom of speech.
The article begins by explaining recent laws about online safety in Europe and other places. It talks about the Online Safety Bill’s inspiration and how it’s similar to NetzDG. Then it analyzes how the Bill will work once it becomes law, looking at how it might affect free speech and comparing it to NetzDG. Finally, it discusses what happened in Germany after NetzDG was put into effect.
The Problematic Nature of the Bill:
The Broadcasting Services Regulation Bill, 2023 poses several challenges to freedom of speech and expression. By categorizing digital publishers as broadcasters, the bill extends regulatory control to online content platforms, potentially stifling artistic freedom and independent journalism. The bill has raised some valid concerns among broadcaster’s and legal experts about how it may censor online content. OTT platforms such as Netflix and Amazon Prime, as well as news platforms like The Print and The Wire, will fall within the purview of the regulatory framework established by the bill. The incorporation of these platforms into the regulatory framework is expected to have a substantial impact on both artistic expression and independent journalism.
Impact on OTT and Entertainment Sector:
The primary issue under debate revolves around whether OTT platforms can be classified as broadcasting. Broadcasting typically involves public exhibition or push content, where users have limited control over what they view. The bill aims to encompass OTT platforms within its scope, but they differ as they offer a private viewing experience and provide pull content, allowing users to select what they wish to watch. THE REGULATORY HOMOGENISATION OF THE
CABLE TV AND OTT CONTENT MAY STIFLE INNOVATION AND GROWTH IN THE ONLINE CURATED
CONTENT INDUSTRY,” SAID TEJASI PANJIAR, ASSOCIATE POLICY COUNSEL AT THE INTERNET
FREEDOM FOUNDATION, A DIGITAL RIGHTS ORGANISATION. “THE IMPACT ON DYNAMIC, DIVERSE,
EXTENSIVE CREATOR COMMUNITY AND THEIR ARTISTIC AS WELL AS CREATIVE FREEDOM IS ii.
UNFATHOMABLE
| APPLYING STRINGENT RULES AND CODES TO “OTT” BROADCASTING SERVICES |
OTT platforms serve as expansive networks spanning the vast expanse of the internet, providing a platform for the expression and dissemination of artistic values from various corners of the world. However, censorship on OTT platforms restricts their full potential and grants executive authorities the power to intervene in people’s viewing choices, potentially aligning with their political interests.
MAY INCREASE FINANCIAL AND COMPLIANCE BURDEN FOR SUCH BROADCASTERS, NEGATIVELY
IMPACT USER EXPERIENCE, CHOICE, AND EVEN COSTS BORNE BY THE USERS. THUS, WE QUESTION THE VERY NEED TO BRING “OTT” BROADCASTING SERVICES UNDER REGULATION AND AT PAR
WITH TERRESTRIAL, CABLE, AND RADIO BROADCASTING SERVICESiii.
If we look in to the provisions of the proposed bill in the act, section 16(2)ivANY PERSON
PROVIDING AN OTT BROADCASTING SERVICE IN INDIA, WITH SUCH NUMBER OF INDIAN
SUBSCRIBERS OR VIEWERS AS MAY BE PRESCRIBED, SHALL, WITHIN A PERIOD OF ONE MONTH FROM
THE NOTIFICATION OF THIS ACT OR ITS MEETING THE PRESCRIBED THRESHOLD, PROVIDE AN
INTIMATION TO THE CENTRAL GOVERNMENT OF ITS OPERATIONS, IN SUCH FORM AND MANNER AS MAY BE PRESCRIBED. In this context, the bill appears ambiguous regarding the determination of the threshold limit and the specific format of intimation, both of which are expected to be determined by the executive in the future. This uncertainty raises concerns about the potential for arbitrariness inherent in the proposed legislation. The bill has clear reminiscence of the cinematography act,1918 which was introduced by Britishers to curb anti national establishment feelings.
Threats to Independent Journalism:
In democratic societies, independent journalism holds immense importance. The proposed bill seems to impose constraints on the freedom of independent journalism. In the bill single provision within Clause 20, labeled ‘News and Current Affairs Programs,’ could potentially have significant implications for independent journalists who depend on digital platforms like social media to disseminate news that may be deemed unfavourable by the government . THE
NWMI FLAGGED CONCERNS THAT THE BILL’S “VAGUELY WORDED PROVISIONS”, INCLUDING ITS
DEFINITION OF “NEWS AND CURRENT AFFAIRS PROGRAMMES”, ARM IT WITH THE POTENTIAL TO COVER CONTENT CREATORS, SOCIAL MEDIA ACCOUNTS OF PROFESSIONAL JOURNALISTS AND EVEN
CITIZEN JOURNALISTS. IT SAID THE LACK OF CLARITY COULD HAVE A “CHILLING EFFECT”v .by the proposed bill persons who broadcast news and current affairs programme through online paper ,website and any other social media intermediary have to adhere to the programme code and advertisement code.
In the current era, there’s been a notable shift in news consumption habits, with approximately 80% of Indians now turning to social media for news rather than traditional newspapers, as reported by The Economic Times. The proposed bill grants the executive branch the authority to determine which news reaches the public, potentially undermining the foundational principles of democracy. This could significantly alter the landscape of journalism, impeding its ability to act as a watchdog in society. Furthermore, the bill may hinder fact-checking efforts and enable the executive to promote its own agenda. The prospect of extending censorship to news platforms is a concerning aspect of the legislation.
Case Laws on the Importance of Speech and Expression:
Legal precedents play a big part in shaping how important free speech and expression are in democratic societies. There have been a few key cases that really reinforce this idea and keep our democratic values strong. Here are a few of the big ones:
Rajagopal v. State of Tamil Nadu (1994)vi – This Indian Supreme Court case said that the right to privacy is part of the right to free speech and expression, which is protected by Article 19(1)(a) of their constitution. The court made it clear that people have a right to keep some parts of their lives private, and that this right helps keep our freedom of expression strong.
Maneka Gandhi v. Union of India (1978)vii – This case expanded the meaning of free speech and expression by saying that it means more than just being able to express yourself. It also means having the right to get information and ideas. The court said that any law or action that limits this right has to be reasonable and fair.
Sakal Papers (P) Ltd. v. Union of India (1962)viii – This case really emphasized the importance of a free press in a democracy. The court struck down government rules that limited the number of pages and size of newspapers, saying that it’s important for people to have access to a variety of sources of information. They also said that any limits on press freedom should only be used when absolutely necessary and should be as narrow as possible.
Indian Express Newspapers (Bombay) Private Ltd. v. Union of India (1985)ix – This case made it clear that freedom of the press is a vital part of freedom of speech and expression. The court said that the press has the right to report news and opinions without being censored or punished by the government, unless there’s a good reason to do so, like protecting national security or public order.
Shreya Singhal v. Union of India (2015)x – This case was a big deal because it got rid of a law that made it illegal to post “offensive” or “menacing” stuff online. The court said that the law was too vague and broad, and that it went against the right to free speech and expression. They made it clear that any limits on free speech have to be specific and carefully thought out.
All these cases show that the courts play a big role in keeping our right to free speech and expression safe, which is super important for democracy. They remind us that freedom of speech isn’t just about being able to speak your mind, but also about having access to
information and being able to challenge ideas.
Censorship of the media in various countries.
Media censorship remains widespread in many countries today, although it takes different forms and occurs in varying contexts. Here are some examples from modern nations:
- China: The Chinese government heavily restricts access to the media, internet, and social media through the “Great Firewall” and other censorship systems. It prohibits content considered politically sensitive, such as discussions about human rights, democracy, and government misconduct. Independent journalists, bloggers, and activists who criticize the
government face threats, imprisonment, and silencing of their voices.
- In Russia, President Putin’s government has severely restrained the operations of independent news organizations and journalists who criticize the government. To silence opposing viewpoints and stifle free speech, laws governing the media have been abused. While independent journalists risk harassment, intimidation, and even physical harm,
government-controlled media organizations hold a monopoly on broadcasting.
- In Turkey, the government has been increasing its efforts to limit media liberties. This has resulted in the closure of media outlets without government oversight and the imprisonment of journalists. The government has also implemented laws that give authorities excessive authority to monitor online content and take legal action against journalists who criticize
them. These measures aim to quell dissent and control the spread of information.
- North Korea: The North Korean regime maintains total control over the media, with stateowned newspapers, radio, and television serving as propaganda tools to promote government ideology and suppress dissent. Access to foreign media and information is strictly controlled, and those caught accessing or disseminating unauthorized information
face severe punishment, including imprisonment and execution.
Suggestion:
The regulation on the 3-year-old decade bill was necessary, because it comes to force in a time where internet was not a part of daily life. Despite our mixed feelings about some parts of the draft bill, we do appreciate the Ministry’s attempt to make the Broadcasting Bill more accessible for people with disabilities. It is cool that they are thinking about adding things like sign language, audio descriptions, and subtitles for videos. And it is great that they want to have a disability grievance redressal officer to help sort out any problems that might come up. suggestions are:
Clarity and Understanding: Make the language simple and easy to understand so there is no confusion or room for misunderstandings. Create clear guidelines for setting thresholds and formatting notices to make sure everyone follows the rules fairly and equally.
Freedom of Speech: Add rules that protect freedom of speech and expression, which is a basic right in our constitution. The bill should not limit or censor content too much, especially for independent journalists and digital publishers.
Talk to Everyone Involved: Talk to lots of people who will be affected by the new rules, like journalists, civil society groups, and the public. This will help make sure the rules work for everyone.
Diversity and Pluralism: Encourage a variety of voices and viewpoints by giving everyone a chance to share their stories. This means giving support to content creators from different backgrounds and cultures.
Flexibility and Innovation: Do not get too hung up on rules when new tech comes around. Instead, find ways to adapt the regulations to fit the changing media landscape. This will help creativity thrive and keep the industry growing.
Conclusion:
Throughout history, governments have always tended to use censorship as a tool to manipulate information and control public opinion. This is done to stifle dissent and maintain their political power. Even with the advancement of technology and the changing political landscape, media censorship remains a major issue in many parts of the world. In the context of India, the Broadcasting Services Regulation Bill, 2023, is a particularly concerning development for freedom of speech and expression. If passed, this bill would grant the government excessive control over broadcasting services, potentially leading to widespread censorship and
restrictions on independent journalism and digital platforms.
The whole point of free speech is about the unrestricted exchange of ideas and information, which is essential for the functioning of a democratic society. When governments try to regulate and control the media, they are basically infringing upon our basic right to express ourselves freely and undermining the principles of democracy and transparency. By imposing strict regulations on broadcasting services, the government could end up stifling diversity of thought, silencing dissenting voices, and limiting the public’s access to unbiased information.
It is important for governments to realize that censorship is not the answer to solving societal problems or maintaining political stability. Instead, it is about fostering an environment where open dialogue and respect for different viewpoints are encouraged, and robust protections for freedom of expression are in place. The Broadcasting Services Regulation Bill, 2023, serves as a reminder of just how important it is to protect democratic values and safeguard the
fundamental rights of citizens.
In conclusion, even though the challenges posed by media censorship may seem
insurmountable at times, it is crucial for everyone – citizens, policymakers, and advocacy groups alike – to remain vigilant in defending free speech and expression. By upholding these principles, we can work towards creating a society where ideas can be exchanged openly, dissent is respected, and democratic values are upheld.
Murshid Ahammed .p
Campus law centre ( Delhi university)
Vineeth Bhalla, why India’s new draft broadcast bill has raised fears of censorship and press suppression, FCROLL.IN, (DEC.3,2023), https://scroll.in/article/1059881/why-indias-new-draft-broadcast-bill-hasraisedfearsof-censorship-and-press-suppression.
- Tejasi panjiar and Prateek waghre, broadcast services bill not looking like a wow:our first read, INTERNET
FREEDOM FOUNDATION,(nov.15,2023),https://internetfreedom.in/broadcast-services-bill-first-read/.
- Broadcasting services(regulation) bill,2023,https://prsindia.org/files/parliamentryannouncement/20231209/Draft_Broadcasting_Services_(Regulation)_Bill,_2023.pdf
- NL team, proposed broadcasting bill will ‘irreparably damage free speech’ ,says journalist’s body, NEWSLAUNDRY, (JAN.27,2024),https://www.newslaundry.com/2024/01/27/proposed-broadcastingbillwillirreparably-damage-free-speech-says-journalists-body.
- R.Rajgopal and ors V. state of tamilnadu,1994 SCC(6) 632
- Maneka Gandhi V. union of india,1978 AIR 597, 1978 SCR (2) 621
| viii Sakal papers(P) ltd., And others V. The union of india, 1962 AIR 305, 1962 SCR (3) 842, | |
| AIR 1962 SUPREME COURT 305 | |
- Indian express newspapers(Bombay) V union of india & ors 1986 AIR 515, 1985 SCR (2) 287
- Shreya Singhal V uoi ,AIR 2015 SUPREME COURT 1523