The Broadcast Services (Regulation) [BRS] Bill 2023 is a classic case of omnishambles, though it claims to be our knight in shining armour, promising to liberate us from the shackles of regulatory chaos. The government seems to be juggling too many regulatory balls at once only to drop them all in a clumsy display of legislative ineptitude. As we read through it, it only turns out to be a case of causing further regulatory ambiguity or is akin to setting out on a journey without assessing the current state of the road. The oversight to ongoing consultations (detailed later herein) is perplexing and could potentially lead to unforeseen complications down the line, steering us into unchartered waters.
The Explanatory Memorandum to the Broadcast Services (Regulation) Bill 2023 attempts to sell us the dream of “simplification” and “streamlining”. However, it is crucial to look beyond the surface and evaluate the true substance of this Bill, which fails to live up to the purported “intent” and “object”. The beastly nature of its complex and cumbersome provisions cannot be concealed with fancy buzzwords and hollow rhetoric.
“Simplification and streamlining” should be more than a mere buzzword. Like fine wine it should improve with age, but alas, this Bill seems to have turned vinegar before it even left the cask. True simplification demands more than just a fresh coat of paint — it requires a comprehensive and surgical approach, excising unnecessary complexities, untangling the bureaucratic knots or red tape that binds us. It should enhance overall efficiencies of the processes it seeks to improve. However, these words of “simplification and streamlining” in the Explanatory Memorandum was like a leaky boat being sold as a luxury yacht.
A closer examination of the Bill reveals of having fallen short or to say a disappointing lack of commitment to these fundamental goals. It leaves us with a distinct impression that we are being served a reheated stale TV dinner of some old Regulations and Guidelines along with having touched or attempting to open the oven of half-baked cake of several sub judice issues.
Let’s now take a stroll through some of these provisions and navigate through them. It’s like a guided tour of bureaucratic bloopers, complete with an ensemble cast of procedural flaws and statutory mandates being treated like optional guidelines. The chutzpah is truly lacklustre or awe dissuading.
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The Grand oversight/ignorance to several ongoing consultations
The foundation of the Bill appears to be a selective reference to a consultation of a bygone era way back on January 20, 2020, where the provisions now parading in the BSR Bill were conspicuously absent. These include the:
- surprise introduction of ‘OTT’ as ‘broadcast services’,
- creation of ‘Content Evaluation Committee (CEC)’,
- setting up of ‘Broadcast Advisory Council (BAC)’,
- renaissance of “Three Tier Grievance Redressal Mechanism”,
- mandating “Accessibility Guidelines”,
- prescribing gigantic, steep and “Disproportionate Penalties”, etc.,
None of them had any reference or found any mention in the 2020 Consultation. Further, the Explanatory Memorandum elegantly sidesteps and overlooks references to a myriad of ongoing consultations which overlap and intersect with several provisions, issues and aspects raised in the present BSR Bill. These include the ‘Draft Telecommunication Bill, ‘Digital India Act’, TRAI Consultation on Regulating Converged Technologies, recent consultation on ‘Regulatory mechanism for OTT communication services and selective banning of OTT services’, TRAI Pre-Consultation on National Broadcast Policy 2023, etc, none of which either find any mention nor even being taken cognisance of, as if it never existed.
BSR Bill Fails To Comply With Statutory Mandates Under TRAI Act Of Seeking TRAI Recommendations
There is a statutory mandate and a compulsion under the TRAI Act 1997 (as amended) for the government to seek recommendations of TRAI under the provisions of Section 11(1)(a)(i) & (ii) r/w the Second Proviso on issues relating to “need” and “timing” for “introduction of a new service provider” and/or before “prescribing the terms and conditions of a license of a service provider”. By way of a daring escapade, this procedure has been side-stepped as if it were a mere inconsequential obstacle in the path. The absence of TRAI recommendations is a conspicuous void that is noticeable, much like an elephant in the room. It would be a serious preliminary legal objection by challengers, which courts won’t be able to ignore since OTT services have been proposed to be introduced and brought under the broadcasting service definition. At present, there is only an “intimation” requirement for the declared OTT services, but the government can at any point make all the requirements of the upcoming Act (which emanates or would be a byproduct of BSR Bill) applicable to them with one stroke of pen “as and when it conveniently feels” that the certain OTT service has attained certain prescribed “threshold of subscribers” or “active users”, or has similarity to the broadcasting services. This can be done under Section 39, which are futuristic provisions in relation to emerging and future broadcasting technologies and it grants the visionary superpower to the government to shape the regulatory landscape.
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BSR Bill – Bureaucratic Ballet Of Ministry Overlaps And Regulatory Acrobatics
The IT Rules 2021 Amendment already has certain safeguards which are currently administered by MeitY. However, with this proposal of the BSR Bill, MIB would also have an independent charge in addition to MeitY. This would only create confusion and would resemble a high wire Act without a safety net. On the contrary, by virtue of Sec 48, only the Cable TV Network Act is getting repealed. Further under provisions of Sec 42, by enactment of this BSR Bill, the provisions would be in addition and not in derogation of IT Act 2000 which ideally would include IT Rules as well. Such overlap of Ministries as also the statutory provisions would only result in confusion, uncertainty, inefficiencies in decision making and difficulties in implementation. It is well known that each ministry has different priorities and policies and procedures which can result in confusion and delays.
Another aspect is the question of accountability and responsibility. As and when a stakeholder gets governed by multiple ministries, it becomes challenging to assign clear accountability and responsibility on the ministries. Indeed, it becomes easier for each ministry to shift blame or responsibility on to others leading to lack of accountability. By centralising governance, a single ministry can be held accountable for stakeholders’ outcomes and performances.
The issue must also be understood on the challenges faced with respect to collaboration and coordination. Because of conflicting objectives, mandates, or priorities, it becomes extremely difficult to align efforts and work together effectively. Thus, centralising the governance would ensure a more coherent and integrated approach. Multiple ministries also lead to duplication of resources such as personnel, infrastructure, and funding and thus centralising is important to eliminate redundancies and promote efficiency. It would also help the stakeholder with more clarity and consistency and to avoid confusions or dilution of focus. For a more tailored and focused approach to address specific needs a single ministry would be the best way forward to simplify the channels of communication and to make decision-making more agile and responsive.
TRAI – The Super Regulator
With the mention of TRAI gracing the BSR Bill at five different places, one can’t help but wonder if this heralds the almighty super regulator overseeing the realm of streaming platforms as well. This view would be treading on the toes of sub judice court matters, which prima facie holds a different view.
Classification Of ‘OTT Streaming Services’ As ‘Broadcast Services’ — State Surveillance On Personal Screens
The BSR Bill’s approach to classify OTT Platforms under broadcast service is intriguing. It’s like trying to redefine the boundaries of personal and public communication. The distinct characteristics between the two i.e broadcasting and OTT may not be so easily reconciled and it’s more like a complex puzzle that requires a more nuanced solution. OTTs like Netflix, Amazon Prime, Disney Hotstar, etc. are more like a library where we can pick what we want to read, and the state should not take up the role of the librarian to regulate and control it to the extent of erroneously equating it to ‘broadcasting’. Indeed, the intricacies of broadcasting and OTT service are as different as chalk and cheese. Caution had to be exercised before calling a personal diary as the newspaper. OTTs should not be unceremoniously ushered into the realm of broadcast services. The BSR Bill has labelled them as ‘OTT broadcasting services’ and grouped under the categories of ‘internet broadcasting network’, ‘broadcast network operator’, ‘on-demand’ and similar classifications.
The intricacies of broadcasting, narrowcasting, or unicasting, the to and fro and the delicate balance between the “one-to-many” and “one-to-one” versions of content dispersions, seem to have been misunderstood in the BSR Bill and appear to have stumbled into a quagmire of misunderstanding within the Bills’ provisions. Broadcast as we all know is “one-to-many” and where users relinquish control over the content they receive, save for the power to simply switch off. It is a realm where State intervention can arguably be justified, for among us, who would want to shield the unsuspecting individuals from unsuitable content. Sometimes, it is also used as a tool of “narrative control” or “crowd control”. In the same way, the Cinematograph Act also exerts control over public viewing.
On the other hand, the OTT content mostly happens on personal devices rather than shared screens. Thus, online is a ‘one-to-one’ communication meant for the purpose of viewing individually in a personal capacity. Most or majority of the content consumption in such cases happens on personal devices rather than shared screens where multiple people are watching. In this case a person who watches a particular video or a particular show or a movie on an OTT platform or any other streaming website, would not be and should not be construed as a ‘broadcast’.
Now to take up and recollect the proceedings in a pending matter in Supreme Court, namely the Kamlesh Vaswani case, which pertains to a challenge made to Sections 66 [Computer related offences], 67 [Punishment for publishing or transmitting obscene material in an electronic form], 69 [Power to issue directions for interception or monitoring or decryption of any information through any computer resource], 71 [Penalty for misrepresentation], 72 [Penalty for Breach of confidentiality and privacy], 75 [Act to apply for offence or contravention committed outside India], 79 [Exemption from liability of intermediary in certain cases], 85 [Offences by companies] of the IT Act, and seeking a ban on all online pornography. The prayer in this case was essentially that the consumption and dissemination of pornography be treated as cognisable and non-bailable offence.
An order/direction was also sought for formulation of a national policy and draft an action on the issue of pornography and to treat watching of porn and sharing porn as cognisable and non-bailable offences. Justice Nariman rightly observed in one of the hearings that it is impracticable to block 2 crore websites as 2 crores more websites will surface. These websites pop up in foreign countries and are hydra headed so only servers will help. The then attorney general Mukul Rohatgi also told the court during the hearing, rightly so, that how could someone be stopped from watching porn in their phones or within their bedrooms and how the state can do moral policing, and that India cannot become a totalitarian State. It was further submitted that the government is committed towards freedom of the internet and that it has launched the Digital India project. Imagine a world where your favourite rom-com is interrupted by a stern voice to sit up straight and refrain from excessive snacking. Now, that’s entertainment!
PART II Tomorrow: A Square Peg In A Round Hole: The OTT Broadcast Redefinition Conundrum
(The author is an independent counsel and columnist)
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