India has had a flourishing industry of regulatory intent ever since privately-owned television began to blossom after liberalisation. This was manifested in the broadcasting bill of 1997, the communication convergence bill of 2001, and the broadcasting services regulation bill of 2007. None of them was passed into law.
But even as the Central government’s itch to regulate media is decades old, so is its overall ineptitude in getting any functioning, effective regulation going. We still do not have an independent broadcasting regulator or a court of appeal for digital media complaints. But cases filed by digital players against arbitrary diktats are piling up in the courts. The urge to regulate (read control) the media has only intensified under the Narendra Modi-led government. Currently, there are three players seeking to regulate the media afresh — the ministry of information and broadcasting, the Telecom Regulatory Authority of India, and the ministry of electronics and information technology.
The year began with Meity seeking to widen the ambit of the rules under the Information Technology Act, 2000, twice, to police free expression. As the year ends, the MIB has come up with the draft of a new law for TV broadcasting. The Cable Television Networks (Regulation) Act, seeking to regulate broadcasting, was passed in 1995. Now it is felt to have outgrown its utility. The draft broadcasting services (regulation) bill, 2023, seeks to replace it. Something that ran to nine pages is now going to be replaced with a 60-page draft bill, bristling with micro-intent.
Earlier, in the month of August, TRAI released a consultation paper on issues faced by the broadcasting sector, seeking responses to 32 questions, ranging from tariff, interconnection and quality of service to financial disincentives. Meanwhile, the new draft legislation put out by the MIB is trying to bring the entire broadcasting sector under a consolidated regulatory framework. The net result is that along with linear TV, regulations have been formulated for OTT broadcasters as well. The secretary in the MIB told a reporter that OTT regulation in the broadcasting services bill is a “light touch and not same as others”.
A three-tier regulatory framework for digital content that would affect the over-the-top streaming video industry had been announced before, in February 2021. As it happens, neither broadcasters nor OTT operators think the three-tier regulatory mechanism proposed in the new bill is a ‘light touch’. India is going to be one of the few democracies in the world which require broadcasters to set up content evaluation committees to certify programmes that should be broadcast. Content creators have a lot of issues with this. Then, there will be separate programme and advertising codes for different categories of broadcasters, including radio broadcasting, OTT (which has been categorised as internet network broadcasting) and linear TV.
Recognising that there is a need for regulation is one thing. Being able to actualise it in a manner that harnesses the wild instincts of India’s free-wheeling broadcasters is another. Will the harangues of shrill, baiting anchors violate any programme code? And will the committees deciding on what programming to clear be unbiased in a climate of right-wing or pro-government media bias?
The draft law excludes the public broadcaster’s Free Dish from the purview of the regulatory measures it proposes. There is also a nasty surprise in the draft bill for digital news outlets which have video programming, including independent video news channels constantly springing up on YouTube. They will be required to conform to programme and advertising codes prescribed by the government.
There is self-regulation prescribed in the new law for all types of broadcasters as there has been before. It has achieved precious little so far; broadcasters run happily amuck all the time. Also, not all news channels were members of the News Broadcasters Association (as it was then called) and, therefore, not all were covered by the earlier self-regulatory body, the News Broadcasting Standards Authority. It remains to be seen how self-regulation is made more effective this time around.
A two-part study done on The Hoot in 2018 found that TV channels regularly cocked a snook at the NBSA set up by the NBA, ignoring orders to take down content, run apologies and pay up fines. The NBSA can only censure channels which are its members, some would simply leave the NBA when censured and penalised.
Self-regulation has been getting away with laughable penalties. But, this time around, the MIB’s draft bill prescribes in detail the quantum of penalties for different contraventions and repeated contraventions, linking them to the turnover of the channels. It is not being left to soft-hearted self-regulators to regulate with a soft touch. Maybe there is hope yet for taming news TV’s excesses.
Media regulation is something everybody has a view on. At an Indian Newspaper Society event in 2014, the then president, Pranab Mukherjee, lectured journalists on paid news and breaking news. A year earlier the vice-president, Hamid Ansari, had spoken of paid news and worrying trends in media ownership. The TRAI recommendations on regulating media ownership in August 2014 quoted both.
The 111-page report included, among much else, recommendations on media concentration, media ownership disclosure, and a review of cross-media ownership rules every three years to provide enough information to judge who controls ownership. As far back as in the year 2009, the government had commissioned the Administrative Staff College of India at Hyderabad to do a study on media ownership which TRAI had taken into consideration. The recommendations TRAI made in 2014 detailed a range of disclosures which would lead to transparency, including those regarding the private treaties that major media groups had concluded with a range of companies. But nothing much came of the transparency measures recommended then. The draft broadcasting bill presented this month does not get into ownership issues. Last year, TRAI had said that it was working on new recommendations on media ownership.
Meanwhile, you can resort to control. A fortnight ago, The Washington Post published a detailed account of the taming of Twitter (now called X) — “How India tamed Twitter and set a global standard for online censorship.” It described a process that unfolded over years: “69A meetings” (referring to a section of the Information Technology Act) of a committee of executives from American technology companies and Indian officials convened every two weeks in a government office. The Indian officials would present the former with social media posts they wanted removed because they were a threat to India’s sovereignty and national security. There would be some pushback, mostly from Twitter. But the demands for some tweets to be taken down progressed to wanting takedowns of entire Twitter accounts, running into hundreds. Finally, the government criminalised social media offences in 2021.
But similar official pressure never comes on social media companies to obliterate Indian trolls who harass Opposition politicians and social media users critical of the government. No surprises there. Why would you rein in your own barking dogs?
Sevanti Ninan is a media commentator and was the founder-editor of TheHoot.org