Sweeping terms in draft broadcast Bill raise red flags on free speech

The latest draft seeks to define “digital news broadcasters” to include “publisher of news and current affairs content” means any person who broadcasts news and current affairs programmes through an online paper, news portal, website, social media intermediary, or another similar medium as part of a systematic business, professional or commercial activity but excluding replica e-papers.

In the earlier version, it specifically excluded publishers of newspapers and replica epapers of such newspapers, which means that it now covers digital content published by a newspaper that is not in the newspaper.

This definition could include users on YouTube, Instagram, and even X, who generate advertising revenue through paid subscriptions or monetise their social media accounts through affiliate activities. The earlier draft stated that television broadcasting networks will have to register with the Central government, while OTT platforms must provide an intimation after meeting a certain threshold of subscribers.

The Bill also seeks to validate the “Code of Ethics” prescribed under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which has been stayed by the Bombay High Court and the Madras High Court. “The various “do’s” and “don’ts” of the Programme Code may be relevant for a programme carried in the cable service but per se cannot bind writers/editor/publishers of content on the internet to express views which may be against good taste or even may not be decent. If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticizing an individual in respect of his public life,” the Bombay HC had said in August 2021.

“The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes. The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions,” the HC ruling by Justices Dipankar Datta (now in SC) and G S Kulkarni said.

The draft Bill also seeks to regulate the broadcast of news and current affairs programmes (excluding print news). Such programmes will have to comply with the prescribed programme code and advertisement code.

A senior government official said one key reason behind the significant expansion of scope in the current draft Bill compared to the version which was released for public consultation in November 2023 has been the “role a number of independent content creators played in the run-up to the 2024 Lok Sabha polls”.

“There were a number of instances where creators made videos on current affairs which made some sensational claims about the government and its senior leaders in the run up to the elections. That’s when it was decided that there has to be an accountability measure for these creators as well, to create a level-playing field between mainstream press and independent creators,” the official said.

This change in attitude is also evident from the swift moves the government has made in reshaping the draft version of the Bill. On June 4, the day the election results were announced, the Ministry sent a notice to stakeholders regarding a meeting on the draft Bill. Since then, industry executives said at least six meetings have taken place with the Ministry.

The thresholds for online content creators to intimate the government about their work and set up a CEC are currently undefined. However, it is understood that some of the big Indian creators of current affairs and news content on YouTube are on the government’s radar. To be sure, as per the current wording under the Bill, even foreign creators may fall under its ambit, although enforcing Indian content regulations on them could be challenging.

The penalty to not appoint such a committee is hefty under the current draft – news creators who do not intimate the Central government names, credentials and other details of members of their CEC will be fined Rs 50 lakh in the first contravention, and Rs 2.5 crore for subsequent violations in the next three years.
The draft Bill allows the government to “exempt a distinct class of players or a group for avoiding genuine hardship”, which suggests that some stakeholders might be exempted from the purview of the Bill.

The Indian Express has also learnt that another concern the government had was the decisions made by tech companies’ algorithms, and whether they ended up amplifying a certain narrative over another. “Internally, between the Information and Broadcasting Ministry and the IT Ministry, we have discussed these so-called neutral algorithms that platforms are deploying to see if there is a certain bias to the type of content they amplify,” the government official said.

Companies, however, are understood to have told the government that their algorithms do not favour one type of content over another, but in fact serve users content depending on their browsing history. “If you watch a lot of videos that have a conservative bent, your home feed will show you more of that type of content, and vice versa,” a senior tech company professional said.