Framing the legislation forgetting the transparency

Framing the legislation forgetting the transparency

India, it appears, is charting a regulatory framework without discussion and openness, and with government overreach.

It was the June of 2002 and the Information and Broadcasting Ministry office on the fifth and the sixth floors of Shastri Bhavan, New Delhi, was buzzing with activity. Cable operators referred to as “unsavoury characters” had taken over the conference room which was overflowing with pizza and soft drinks. Reporters could come and go and talk to officials; usually the Secretary and the Additional Secretary would come out to brief the reporters. There was a reason for this flurry of activity. The Cable Television Networks (Regulation) Amendment Bill, which had the potential of regulating the business of lakhs of cable operators, multi-system operators and broadcasters, was going to be debated in Parliament and it was the draft of the proposed Bill that was being discussed threadbare with stakeholders.

Then and now

The discussions spilled over months as reporters munched through the pizzas. The Ministry was careful to keep the stakeholders away from each other. Such was the unease between the stakeholders. It was evident to all of us that while Ministry officials were comfortable discussing the provision of the proposed Bill with broadcasters, cable operators were a different kettle of fish. So, while the broadcasters were invited at dusk, the cable operators held sway during the day. The Atal Bihari Vajpayee government, much like the present Government, was clueless about the number of cable operators; many had sizeable stakes in the real estate business in the country and carried the channels for a price which was at the centre of animosity between the broadcasters and the cable operators.

Eventually passed by Parliament in 2002, the Cable Television Networks Regulation (Amendment) Act was not a perfect Act, and would undergo many more amendments, but the changes were the outcome of intense discussions with all stakeholders. In the days to come, the Act would be criticised but the doors of the Ministry were always open for discussions. This is a marked departure from the manner in which the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which has sought to put the brakes on free speech, is being pushed through.

OTT in focus

Of course, the Government can always turn back and say, ‘hey we gave you 100 days’. But here is the rub. The Government never put up for public discussion what it was seeking to amend and control. The November 2020 Executive order bringing Over-The-Top (OTT) platforms or video streaming service providers such as Netflix, Amazon Prime and others under the ambit of the Ministry of Information and Broadcasting, exposed the real intentions of the Government. But when the now former Ministry of Information and Broadcasting Minister Prakash Javadekar commented that the Ministry officials had no fix on the number of OTT platforms and users in the country, his concern was legitimate. After all, this is a business and along with the entertainment industry, had reached ₹1.82 trillion in 2019 and has been projected to cross ₹2.4 trillion by 2022 (FICCI report on media and entertainment). In fact, digital media overtook filmed entertainment in 2019. And to throw in some more figures, there are around 550 million television and smartphone consumers in the country. The figures are expected to double by 2025.

There are over 200 million OTT subscribers. The major draw of OTT is this: the content being served to you when you want it. You are free to watch what you wish to at a time chosen by you on a platform you are comfortable with. Your smartphone doubles up as the screen as you navigate your ride on the metro.

This is in danger now with the IT rules having come into effect on February 25 with the Government giving digital publishers three months to comply. The Digital News Publishers Association — a 13-member collective of some of the leading news media companies, the Press Trust of India and now the News Broadcasters Association, have moved courts petitioning them to intervene and stop the code which not only restricts free speech but also far exceeds the mandate of the IT Act in empowering the executive from controlling online content.

Incidentally, while amending the Press and Registration of Books Act, 1867, to bring within its ambit digital news platforms two years ago, for good measure, the Ministry had put out the draft on its website (draft “Registration of Press and Periodicals Bill, 2019) inviting discussions. So, it is all the more surprising why the Ministry did not follow the same process while attempting to regulate OTT and digital news platforms. It could have got a fix on both.

Rules elsewhere

Since the best of rules and guidelines are often enriched by best practices around the world, here is a brief list of some of these. The EU Audiovisual Media Services Directive, updated three years ago, encourages self-regulation and co-regulation among players, with specific focus on child safety and violence and hate speech. In the United Kingdom, programming on video-on-demand services, including TV and online film services, is regulated by Ofcom which not only provides editorial rules but also has specific provisions for protecting those under 18 and the prohibition of content inciting hatred. The United States, perhaps the most liberal of countries, expects Pay TV players to follow Federal Communications Commission (FCC) guidelines — OTT content remains unregulated. So, from a light touch to content governing children, most countries have set up an enabling architecture for OTT platforms to grow. India, it appears, has not followed in their footsteps, instead, charting a regulatory framework which has been characterised by excessive government overreach.

Unease over free speech

More importantly, does the government of the day have the mandate to control and regulate digital news? And here the Government, many of whose Ministers had burnished their reputation as champions of free speech during the Emergency, has floundered. Much like the Constitution makers who had decided to retain some of the most draconian provisions of laws controlling freedom of expression, the present government too appears to have followed the same path and has expressed its uneasiness over free speech on numerous occasions. The plate of newly minted Information and Broadcasting Minister Anurag Thakur is overflowing. For one, he can pose a question to himself: should the Government formulate a self-regulating code for digital media? Does that even make sense?

At the heart of content, both news and entertainment, is the freedom of expression — the life-giving force behind content. Finally, discussions and transparency indicate trust in the people by an elected government. There is little evidence of that in the framing of the IT guidelines. Now, we even have the Government’s draft on the proposed amendments to the Cinematograph Act of 1952, seeking to control the Central Board of Film Certification’s power of certification!