Our legislations should not have the effect of limiting the functions and advantages of any medium, and some overall balance needs to be created, said Tanu Banerjee of Khaitan & Co.
NEW DELHI :
India’s media and entertainment sector has been in the headlines as several new rules such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 or the New Tariff Order (NTO) introduced by the Telecom Regulatory Authority of India (TRAI) have been challenged by stakeholders in various courts. In an interview, Tanu Banerjee, partner, technology, media and telecom, corporate and commercial at legal firm Khaitan & Co. breaks down the issues and their implications for consumers and content creators.
In a recent interim order, the Bombay high court has stayed some clauses of the IT Rules. Do you foresee more challenges on that front?
While digital news publishers and social media platforms have been ahead in terms of challenging the applicability and notification of the IT Rules, publishers of online curated content (OTT, or over-the-top, content streaming platforms) have so far been passive and are largely trying to comply with the IT Rules.
Those who have challenged the IT Rules, have primarily done so on the grounds that the Rules extend beyond the scope of the parent legislation under which they've been notified (which is the Information Technology Act, 2000); the Rules having chilling effect on free speech; existence of super censors for content; and grant of excess powers to the government beyond the scope contemplated under the IT Act.
The primary underlying concern is that even though IT Rules are a subordinate legislation to the IT Act, their overall ambit is wider than the scope of the IT Act. For example, the compliance regime for digital media publishers including the Code of Ethics is not contemplated under the IT Act at all. In fact, legal definitions of many terms under the IT rules-–for example, the definition of “publishers of online curated content", “publishers of news and current affairs", “on-demand", “online curated content" etc., and the rules and framework that they have set out around that, were not contemplated under the IT Act at all.
Ideally, the parent legislation itself should have been amended. But amending or drafting a new legislation and enforcing it has a different procedure altogether, as opposed to notifying Rules.
The Bombay High Court has only stayed the applicability of Rule 9 (1) and 9 (3) of the IT Act - which require digital media publishers to adhere to the Code of Ethics. However, it hasn’t overturned the power that the Government or the I&B ministry has, neither has it said that the IT Rules themselves are not enforceable. MIB’s powers to require blocking of information and furnishing of information continue to remain valid.
How will NTO 2.0 affect consumers and broadcasters?
Let's assume that broadcasters have to comply with NTO 2.0 in its present form and there are no changes to the conditions therein. Since there are price-based ceilings -- channel pricing is likely to become more favourable for viewers. Another benefit could be that viewers will not be forced to buy bouquets. Channel bouquets are typically priced so competitively that viewers are forced to purchase bouquets, even though they might not be interested in all the channels offered in a bouquet. Going forward, viewers may be able to subscribe to only specific channels of their preference.
The flip side is that if the pricing of a la carte channels itself becomes very high, consumers might then be discouraged from buying premium channels, and may eventually shift to OTT platforms. It really depends on how broadcasters implement it given the competitive market forces.
As for the broadcasters, they are challenging this because, today, the cost of acquiring or producing content itself is very high. Especially quality content requires top-of-the-line talent and infrastructure. However, broadcasters are dependent on subscriptions from consumer and advertising revenues. With competition from OTT platforms, satellite TV subscriptions, have, already gone down. If there are ceilings on pricing also, it will somewhere affect the quality of the content that the broadcasters are able offer.
Amendment to the Cinematograph Act has been proposed. Is there an effort to regulate media on all fronts – be it the big screen or the personal screen?
Under the Cinematograph Act there were only four rating categories for films - U or universal/unrestricted, U/A for unrestricted above 12+ of age, A or adult, and S for special categories. Now U\A is further bifurcated into 7 plus, 13 plus, and 16 plus age groups, which is similar to the age ratings proposed under the IT Rules. So yes, it does appear that the government wants content across mediums to be categorized similarly.
The Bill also proposes to empower the government to order re-examination of certification already granted to a film -- based on complaints received from the public. This wide suo-moto revisionary power of the government as proposed under the Bill, is being criticized by film-makers. It’ll be interesting to see how this provision ultimately shapes up in the final amendment.
Even under the IT Rules, while the government in its statements has maintained that it has retained self-regulation for the platforms, there does seem to be enough provisions providing suo-moto powers to the government. This is similarly reflected in the Cinematograph Bill also.
So, there’s some parity in all these laws.
Definitely. It started with the IT Rules, followed by amendment to the Cable TV Rules, and then the proposed amendment to Cinematograph Act. It does appear that the Government is seeking to replicate the provisions of the Digital Media Code of Ethics, with an overall aim of bringing parity across all mediums of distribution. Perhaps the Government's intent is to create a level playing field, but ultimately, one cannot lose sight of the fact that there are entirely different distribution mediums in question. Our legislations should not have the effect of limiting the functions and advantages of any medium, and some overall balance needs to be created. I think the regulatory framework for the media industry is evolving, and at the moment it’s a work in progress.
A recent news report indicated that the government may look at a single law to govern all media. Is it constitutionally valid?
Constitutionally, you can have a single legislation. The form of a legislation or how legislations are consolidated or implemented in not the concern. The concern is if the legislation effectively differentiates between different mediums. We have to understand the nuances and the granularity of each business and each distribution medium, and the issues faced by them individually. Unless we understand that in depth, the legislations will not be fully effective.
I don't think consolidation or having a single legislation for all mediums is unconstitutional, but what is legislated, the framework implemented, and the manner in which a regulation or legislation is enforced, are the primary parameters that become the moot point in terms of whether a legislation is constitutional or not.
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