Authored by Neha Sadawat & Ambati Nupur Rao, 2nd-year law students at Hidayatullah National Law University, Raipur
Introduction
The government recently introduced the Broadcasting Services (Regulation) Bill, 2023, seeking to regulate digital platforms. It was set to replace the outdated Cable Television Network Act of 1995, as it has become obsolete in the era of technological advancements and the rise of internet-based, on-demand content platforms, such as over-the-top (OTT) services. In light of instances of sensational news during the 2024 Lok Sabha polls, the bill was amended in August 2024 to introduce accountability measures. To address the gaps in the bill, the amended draft provided stricter content guidelines, reinforced regulatory oversight and enhanced transparency in digital governance. But, this revised version expanded the scope to social media accounts, online content creators, OTT platforms, and digital news. Through this bill, online content creators like Dhruv Rathee and BeerBiceps would be categorised as “digital news Broadcasters” thus imposing new regulations and a code of conduct.
Through previous attempts, like the IT Rules of 2021, the government sought to regulate digital platforms, but these efforts were criticised for being ineffective and overly restrictive. These rules did not clearly define terms such as “fake news”, “offensive content”, thus, allowing authorities to interpret it subjectively. Additionally, it lacked clear procedural safeguards which meant that content takedowns could be ordered without proper judicial oversight.
The revised draft faced strong opposition, particularly from digital content creators, who felt it was too controlling. Amid the growing concerns from media groups and civil society organisations, the government extended the deadline for public comments until October. However, the government eventually suspended work on the bill due to widespread concerns that it would violate fundamental rights, such as freedom of speech and the press.
In light of the above, the piece seeks to assess the bill’s impact on constitutional rights and discusses its broader implications. Further, it also compares the Bill with the UK’s Media Act providing relevant suggestions for its improvement.
Understanding the Bill
The main aim of the bill was to create a single legal framework for the broadcasting sector, including OTT content, digital news, and current affairs. It proposed to regulate news and current affairs broadcasts, excluding print media. These broadcasts would need to follow specific guidelines for content and advertisements. The Bill defines “digital news broadcasters” as those who produce online news and current affairs content. It also required each broadcaster to set up an internal Content Evaluation Committee (CEC) at their own expense, which must approve all content. This committee had to be composed of experts from diverse social groups, including women, child welfare, and marginalised communities, and their names are to be disclosed to the government.
The Bill also defined “systemic activities” to include “any structured or organised activity that involves an element of planning, method, continuity or persistence”, and broadened “news and current affairs” to cover both traditional formats and written content. As a result, individuals giving financial advice on YouTube or posting news updates on Twitter could be considered digital news broadcasters and be subjected to regulation. The Bill updates definitions of “program” and “broadcasting” to include textual content, aiming to keep the law in line with the fast-changing digital media world.
It also adds internet service providers, social media platforms, search engines, and online marketplaces to the definition of “intermediary”. Notably, if digital news broadcasters or OTT services use these platforms, the responsibility for compliance will fall on the platforms, and not the intermediaries.
Analysing the Bill: Implications for Free Speech and Media Control
The Broadcasting Regulation Bill, 2024 was allegedly introduced as a tool for increased government intervention and regulatory overreach that has significant implications for fundamental rights. One of the major concerns of the bill was that it would result in excessive control over media content, resulting in censorship and suppression of dissenting voices. India, being one of the largest democracies with a rapidly increasing digital population, raises questions as to its impact on democratic principles and media independence. To understand these concerns further, it is essential to examine their implications on two fundamental pillars: freedom of speech and expression, and the freedom of the press.
Freedom of Speech and Expression: A Constitutional Pillar Under Siege
To elaborate on the legal issues associated with the Broadcasting Regulations, it is crucial to analyse the potential impact of such regulation on the freedom guaranteed by the Constitution: Freedom of speech and expression, one of the core tenets of a democratic nation, finds a place in the Constitution of India under Article 19(1)(a). However, this right is not absolute and is subjected to reasonable restrictions under Article 19(2).
However, the Broadcasting Regulation Bill 2024, contains ambiguous language, which raises concern for this fundamental right. For example, using terms like “misinformation” and ambiguous phrases like “as may be prescribed,” which appear over 42 times in the Bill, creates room for arbitrary interpretation and enforcement. Such provisions could be weaponised to suppress dissent, silence critics, and control online narratives under the guise of maintaining order or combating misinformation.
The erosion of free speech in India is not a hypothetical threat. The analysis of the data from the Free Speech Collective reveals that at the start of 2024 itself, the country witnessed at least 134 recorded violations of free speech targeting journalists, YouTubers, and others. Additionally, 177 social media accounts were blocked during the farmers' protests in that year, which shows that the lack of clear-cut guidelines and the wide discretionary powers conferred upon regulatory authorities opened the door to potential abuse. These instances highlight the precarious balance between legitimate regulation and authoritarian overreach, with the latter raising concerns about the impact on democratic principles such as free speech.
Freedom of the Press: The Lifeline of Democracy
The bill’s attempt to control online narratives sheds light on the issue of freedom of the press. It is nowhere mentioned in the Constitution of India but was formally recognised under Article 19 in the case of Romesh Thapar v. State of Madras. The majority concluded that “freedom of the press lay at the foundation of a democratic organisation and thus, overstepping permissible restrictions is unconstitutional”.
The case demonstrates that the scope of Article 19 is not restricted to literal interpretations. The judiciary has time and again held freedom of speech to be the core of fundamental rights, as in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India where Justice Venkataramiah aptly described the free press as “the heart of social and political intercourse.” The evolved jurisprudence on Article 19 highlights the crucial role of an independent media in amplifying diverse voices and advancing social justice, especially for marginalised groups.
The bill, however, threatens to undermine this independence. Such a framework could enable censorship of critical voices, thereby stifling the press’s ability to hold power to account. Debates and discussions are crucial for participative democracy. At this point, India is facing free speech being sunk into a perilous abyss with the advent of steady falling of press freedom indices leading to crossing of lines by the authority. This is particularly concerning in a country ranked 159 out of 180 on the 2024 World Press Freedom Index. The decline in press freedom reflects a broader trend of diminishing space for dissent and dialogue, making the suspension of the Bill a welcome, albeit temporary.
The Digital Landscape: New Gateways, New Challenges
India’s digital revolution has transformed the way citizens consume news, with over 751 million active internet users as of January 2024. A survey by the Reuters Institute found that more than 50% of Indians rely on social media for news, with 29% consuming political news daily through these platforms. While this digital transition has democratised access to information, it has also raised critical concerns about excessive online misinformation and the way algorithms shape attitudes and opinions, particularly during the 2024 elections. The data further indicate that these platforms played a vital role in what is termed an "influential election," where media challengers were critical of the Prime Minister, potentially complicating vote-bank strategies.
The bill’s provisions for regulating digital media must be viewed in this context. While addressing misinformation is important, the bill's lack of precise definitions and safeguards risks infringing on individual privacy and freedom of expression. The Puttaswamy judgment, which recognised privacy as an inherent part of Article 21, emphasises the need for a balanced approach. Any regulatory framework must respect privacy rights while addressing legitimate policy concerns, a balance which this bill fails to achieve. India’s judiciary has repeatedly upheld the primacy of free speech and expression. In the case of Shreya Singhal v. Union of India, Section 66A of the IT Act, 2000 was struck down for violating Article 19(1)(a), which serves as a stark reminder of the perils of overbroad and vague laws. The court held the provision unconstitutional, stating that its intended protection fell outside the scope of reasonable restrictions permitted under Article 19(2). This landmark judgment underscores the judiciary’s commitment to safeguarding freedom of speech and expression, emphasising the dangers of laws that can be misused to suppress dissent.
Additionally, the bill created separate regulatory frameworks for print and digital news, raising questions about the inconsistent treatment of similar content across different mediums. While its suspension provides an opportunity for revision to align it with constitutional principles, it also highlights the risks of overregulation in a country where press freedom is already under threat.
Lessons from the UK: Balancing Digital Regulation and Free Speech
India can draw lessons from the UK’s Media Act 2024 which modernises regulations for digital platforms while preserving content diversity and freedom. The UK does not classify digital content creators as broadcasters, recognising that online content differs from traditional broadcasting. The Media Bill keeps public service broadcasters prominent on streaming platforms but avoids excessive control over individual creators. In contrast, India's Broadcasting Services (Regulation) Bill, 2024, extends its scope to digital creators, potentially limiting online discourse.
A recent UK Court of Appeal in the case of R (on the application of Miller) v. College of Policing highlighted that actions that monitored a person's online content amounted to a disproportionate interference with free speech. This is particularly relevant to India's bill, which risks promoting self-censorship. Instead of sweeping regulations, India should adopt independent oversight and safeguard editorial freedom to prevent undue governmental influence over digital content.
Conclusion
The Broadcasting Services (Regulation) Bill, 2024, aimed to regulate digital media but risked undermining free speech and press freedom due to its broad scope and ambiguous language. The bill’s suspension presents an opportunity to draft a more precise, rights-respecting framework. While drafting a new bill, the government should establish clear and fair regulations that protect rights and address challenges in new broadcasting models. Any law must be specific and should not unnecessarily restrain freedom of speech.
A fair regulation could be established by consulting digital content creators and journalists and incorporating their insights into policy decisions, ensuring all stakeholders’ interests are considered. Additionally, the creation of a neutral and independent regulatory body ensures compliance with legal norms while preventing excessive restrictions. This helps in maintaining a balanced content moderation framework, preserving both freedom of expression and accountability. A well-defined regulatory framework for digital content should ensure audience protection from harmful content while upholding freedom of expression, news accuracy and privacy rights.