Home / Opinion / Columns /  Light regulation of content may remain a mirage

When the government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in February to regulate social media, digital platforms and streaming services, it termed the rules as a “soft-touch regulatory architecture". Of course, it was anything but, as critics and stakeholders complained that the rules impinge on their rights and creative freedom. The amendments to the Cable TV Rules introduced last month have triggered a similar response with television news channels challenging them before the court.

Earlier this month, the Kerala High Court directed the information and broadcasting (I&B) ministry not to take any coercive action against news channels that are members of the News Broadcasters Association (NBA) for non-compliance with the amended Cable TV Rules. The NBA went to court against new provisions in the Cable Television Networks (Amendment) Rules, which stipulate the broadcast industry self-regulatory bodies to register with the ministry, and TV channels to employ grievance officers for content complaints.

The new rules also create a third layer—an oversight mechanism—for grievance redressal, over and above the TV channel and its self-regulatory body. This will publish a charter and codes of practices for self-regulatory bodies and also establish an inter-departmental committee chaired by an additional secretary of the I&B ministry to look into complaints against TV content.

In its plea, the NBA has said this gives the executive unfettered and excessive power to regulate content. “NBA is challenging the 2021 amendments as being violative of fundamental rights of the Constitution (Article 14, Article 19(1)(a) and Article 19(1)(g)), alleging violation of right to equality before the law, right to free speech and expression and right to trade," said Chandrima Mitra, partner, DSK Legal.

“We understand that the main challenge is to rules 18-20 of the 2021 amendments, as these create the oversight mechanism which enable the government to regulate the content of news broadcasters. The petitioners have contended that the said rules give the inter-departmental committee the power to adjudicate upon decisions given by retired Supreme Court/High Cort judges (since they head the self-regulating bodies) and thus is allowing the executive to interfere with the judicial process," she added.

Bombay High Court advocate and media specialist Ashok Mansukhani agreed. “All forms of media, barring newspapers, will now have a three-layered self-regulatory mechanism with ‘strong’ government supervision," he said. “Importantly, this inter-departmental committee can recommend deleting or modifying content and not just overrule an HC or SC judge but even completely bypass the second tier of self-regulation."

Mitra observes a trend in the 2021 IT Rules, the proposed amendments to the Cinematograph Act, 1952, and now the Cable TV amendments—the Centre is attempting to amend the legislations to provide safeguards so that the content is aligned with public interest. “While changes in technology and evolution in the digital world require amendments that are in line with the current times, these amendments in content-related legislations could lead broadcasters, producers, OTT (over-the-top) platforms and content creators to become more and more cautious in the kind of stories they want to tell to avoid the threat of any complaints or litigations," she added.

Content choices are subjective and views on content are bound to differ in a diverse country like India. “But the government must be able to draw a clear line as to which views are to be taken seriously and which cannot be allowed, as under Article 19(1)(a), it is a fundamental right of every citizen of India to have freedom of speech and expression and any restriction to such right must only be as per Article 19(2)," Mitra said.

Mansukhani maintained that regulating broadcasters through the Cable TV Act is a legislative failure to effectively monitor a vibrant broadcast media industry. He has been batting for an autonomous broadcast regulator for the sector for years and often cites the Supreme Court ruling on the Cricket Association of Bengal case that said “airwaves or frequencies are public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights…"

But times have changed. With the Centre tightening the noose around all content across platforms—social, digital, streaming and broadcasting—Mansukhani rued that light-touch regulation will remain a mirage in the near future.

Shuchi Bansal is Mint’s media, marketing and advertising editor. Ordinary Post will look at pressing issues related to all three. Or just fun stuff.

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