OTT Regulations Under the Broadcasting Bill

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Introduction:

The Ministry of Information and Broadcasting released the Draft Broadcasting Services (Regulation) Bill, 2023 on 10 November 2023. The draft Bill provides for a consolidated framework to regulate the broadcasting services in the country and seeks to replace the existing Cable Television Networks (Regulation) Act, 1995 and other Policy Guidelines currently governing the broadcasting sector in the country. The Bill also streamlines regulatory processes, extends its purview to cover Over-the-Top (OTT) content and digital news, and introduces contemporary definitions and provisions for emerging technologies.  It seeks to provide Content Evaluation Committees and a Broadcast Advisory Council for self-regulation, different programmes and advertisement codes for different Broadcasting Network Operators, Accessibility measures for persons with disabilities, and statutory penalties, etc. The Bill comprises Six Chapters, 48 Sections and three Schedules.

Background:

Mainly 3 events prompted the Ministry of Information and Broadcasting to come out with this Bill:

1. The 2015 TRAI consultation paper on the Regulatory Framework for Over-the-top (OTT) services made fleeting references to the emerging importance of OTTs. During the era of Net-neutrality discussions, it was argued that once OTT achieves disintermediation, it would lead to a loss of business for telecom operators. Combined with the infrastructural investments that the telecom operators would have to make to facilitate such growth, there was a real possibility that the TRAI would attempt to regulate certain technical aspects of OTTs to protect the interests of the telecom service providers.
2. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 issued by the MeiTY were not backed by the law and were challenged by news organisations in various High courts across the country and even received stay orders from various High Courts.
3. The Ministry of Health and Family Welfare released a notification on 31st May 2023 making it mandatory for all Online curated content publishers to display smoking warnings, blindsiding the MIB.

With the IT rules being held as not enforceable by several High Courts, OTTs were essentially unregulated, and it became imperative for the MIB to step in and regulate online streaming services. Additionally, the MIB also wanted to become the sole regulator for all broadcasting services in the country.

What is Online Streaming?

Online streaming (referred to as internet broadcasting service in the Bill) is the one-to-many transmission of programmes. This would leave content broadcasted through private networks or closed networks outside the scope of the definition. Programmes have been defined to mean any audio, visual or audio-visual content, signs, signals, writing, or images which is transmitted using a broadcasting network. However, it is not very clear as to whether this would include music streaming services or online games considering that the definition indicates the type of programmes as of the following kind:

1. Exhibition of films, features, dramas, documentaries, advertisements and serials;
2. Any audio or visual or audio-visual live performance or presentation and the expression ‘programming service’ shall be construed accordingly;

If we apply the Doctrine of ejusdem generis for the interpretation, we can conclude that music, podcasts and games would not come under the definition of programme. This interpretation is further supported by the definition of broadcasting which is also limited to programmes ‘intended to be received or made available for viewing’. This would once again exclude music streaming and online games from its scope. However, considering that the definition itself provides for pure audio content to be included as a programme, we must wait for further clarification to understand the scope of the definition. Further clarifications are also awaited to determine whether documentaries would be considered as news and current affairs or as OTT programmes.

Online streaming is essentially on a personal device. It is not necessarily to the public. This is one of the major differences between OTT and other traditional forms of media. OTT is a mix of on-demand and live programmes. The subscriber decides what he wants to watch at any given time as opposed to watching what is being broadcast at the time of him tuning in. This marks a shift from a ‘push’ to a ‘pull’ distribution model. Traditional TV operates on a ‘push’ model where content is broadcasted and consumed passively. This push model is characterised by its linear and scheduled programming. Now, the subscribers of online content consciously ‘pull’ what content to consume from a variety of options available to them.

Requirements for OTTs under the Bill:

Compulsory registration/ intimation to the Central Government: To begin with, Section 4(1) of the Bill, read with Section 16(2), requires all OTT platforms, with such number of Indian subscribers or viewers as may be prescribed, to compulsorily provide an intimation to the Central Government of its operations.

General Obligations: Section 5 of the Bill includes the general obligations of the broadcasters which shall include:

1. Transmission of programmes in compliance with terms and conditions as prescribed
2. Conformity with the Programme Code and Advertisement Code
3. Compliance with orders under Sections 35 and 36
4. Provision of information sought by the Central or State Government

Maintenance of records of subscriber data: Section 14 of the Bill requires the maintenance of records of subscriber data. The section also requires OTT platforms to undertake periodic external audits of subscriber data, as may be specified, to ensure the accuracy and reliability of subscriber data maintained by the operator. Section 14(1)(d) gives power to the Body to prescribe technical measures for the maintenance and reporting of such data.

Self-Classification of Content: Section 21 of the Bill shall also require the OTTs to self-classify their programmes under the categories specified under the Bill. Based on such classification, the broadcasting network operator is required to implement access control measures under section 22.

Accessibility Guidelines: Section 23 of the Bill also empowers the Ministry to issue Accessibility Guidelines so that Broadcasting services are accessible to persons with disabilities. Such guidelines may include:

1. Broadcasting services in a form accessible to disabled persons.
2. Supplementing video programmes with subtitles of size, colour, and font as may be specified
3. Supplementing video content with audio description for the blind in such languages as may be specified.
4. Translating audio content of videos, where appropriate, into sign language
5. Requiring providers of OTT broadcasting services to use applications that are accessible to persons with disabilities.
6. Requiring providers of broadcasting services to submit an end-to-end annual accessibility audit report to the Central Government in the form and manner as may be specified.
7. Designation of a disability grievance redressal officer, to be appointed by the Central Government, to address complaints of contraventions of the accessibility guidelines in such manner and within such time as may be specified in guidelines.
8. Establishing mechanisms to enable any person with a disability who is unable to access the programmes, platform, or equipment of a broadcasting service to file a complaint in such form and manner, specified in guidelines.

Non-compliance with such guidelines shall entail a penalty under Section 34 which may even include a revocation/suspension of licence.

Content Evaluation Committee: Section 24(2) of the Bill lays down the requirement for the constitution of a Content Evaluation Committee (CEC) by the OTT broadcaster in the manner as prescribed by the Central Government.

Different fines have been prescribed for non-compliance under this Section which may include:

1. Not intimating the Central Government, or/and
2. Not publicising; the names, credentials and other details of members of CEC 

The fines can be up to Rs. 50 Lakhs for the first instance and up to Rs. 2.5 crores for any subsequent instance within 3 years.

Broadcasting programmes without certification from CEC can also attract a fine of up to Rs. 1 crore for the first instance and up to Rs. 5 crores for any subsequent instance within 3 years.

The fine for not displaying the CEC Certificate in a proper manner can be up to Rs. 20 Lakhs for the first instance and up to Rs. 1 crore for any subsequent instance within 3 years.

Registration for providing audience measurement services: Section 40 requires any OTT broadcaster desirous of providing audience measurement services to apply for a grant of registration for audience measurement agency to the registering authority, in such form and manner containing such particulars as may be prescribed.

Penalties: All fines prescribed under the Bill are subject to the maximum penalty imposable on the major category of persons or entities as listed in Para 1 of the charging Schedules. The maximum penalty mentioned shall be restricted to 50%, 5% and 2% respectively for the Medium, Small and Micro categories of Registered persons under this Act.

1. Non-compliance with Accessibility Guidelines shall entail a penalty under Section 34 which may even include a revocation/suspension of licence. The penalty for not taking mandatory measures specified in the Accessibility Guidelines is prescribed under the First Schedule of the Bill and can range from a maximum of Rs. 50 Lakhs for the first contravention to a maximum of Rs. 2.5 crores for any subsequent contravention within 3 years.
2. Section 35 empowers the Central Government to impose penalties/ take measures for the contravention Programme Code and Advertisement Code. The section lists the various orders that the Central Government may issue that the broadcaster is required to comply with which may include the following:
3. to delete or modify a programme or advertisement;
4. Requiring to comply to an advisory, censure, or warning issued;
5. to display an apology scroll at such date and time as may be specified;
6. A statement of apology to be read out by the Director, CEO or any other key personnel of the entity on the channel;
7.  Directing the channel to be off-air for a specified number of hours or days;
8.  Imposing a penalty, as specified in the First Schedule, which such broadcaster or the broadcasting network operator shall be liable to pay.
9. In case of non-compliance with the Programme code or the Advertisement Code, paragraph 3 of the First Schedule prescribes fines up to Rs. 20,000 for the first instance and up to Rs. 1 lakh for any subsequent contravention.
10. The fine for not becoming a member of any self-regulating organization can be up to Rs. 50 Lakhs for the first instance and up to Rs. 2.5 crore for any subsequent instance within 3 years.
11. The fines for not appointing any grievance redressal officer to receive and hear complaints can be up to Rs. 50 Lakhs for the first instance and up to Rs. 2.5 crore for any subsequent instance within 3 years.

Concerns:

In Kamlesh Vaswani v. Union of India, Chief Justice H.L. Dattu was of the opinion that the consumption of pornographic content by an adult within the four walls of his house, shouldn’t be made an illegal activity. There is no functional difference between pornography and private viewing so regulation seems fairly excessive. Prohibiting the relay of a programme can also be considered a restriction under Article 19(2) of the Constitution. This view aligns with the principles laid down in the report of the Ministry’s Expert Committee on Film Certification chaired by filmmaker Shyam Benegal where the Expert Committee had stated that film viewing is a consensual act, so regulation should be limited to a statutory warning.

Government bodies and political bodies are not allowed to provide broadcasting services. Both are however allowed to provide OTT services. How does the banning of government-owned broadcasters but allowing government-owned OTTs serve the purpose of preventing propaganda? We can guess that the reason would stem from the pull model of OTT broadcasters would mean that it would be difficult for the Government/ political bodies to force their views upon the viewers.

Under the bill, broadcasters may be prohibited from broadcasting in certain regions. This means that over-the-top platforms would have to track the location of users. This, combined with the ability of the government under the bill to intercept the data of these platforms gives rise to privacy concerns.

Conclusion:

The Broadcasting Bill brings with it a sea of change to the OTT broadcasting landscape in India. It is clear that the Ministry of Information and Broadcasting intends to be the sole regulator for OTT broadcasters and is trying to be extremely comprehensive in its approach through this Bill. However, some of the major causes of concern are the various privacy concerns brought up in the presentation. The Bill would also infringe upon the freedom of an individual to watch what he wants. The approach to regulating OTTs must be different from that taken for traditional media simply because of the push-pull differentiation. Clubbing both for regulation would lead to overregulation in my opinion.

There have also been many questions raised ambiguity of the Bill regarding its application and many entities are awaiting further communication from the Ministry for clarification. Additionally, the Bill would substantially increase the compliance costs for the OTT services which would once again prove counter-productive and hamper the growth of the industry. The Ministry must expeditiously make clarifications in this regard. The OTT Video market in India is projected to reach US$3.66 Billion in 2023 and is expected to show an annual growth rate of 8.78%. Having a clear regulatory regime is essential to foster the confidence of international players and facilitate the growth of this burgeoning industry. The Government should ideally respect the freedom of individuals to consensually view the programmes that they desire, and I believe that a light touch regulation should be the way forward for technology-based platforms.