Over the past week, there has been a lot of noise over the revisions made to the Broadcasting Services (Regulation) Bill, 2023. The bill was first released for public consultation in November last year and then again last month to “select stakeholders”.

There are concerns that the bill, if approved, would allow the government to have more control not just over the kind of content that gets published but also in choosing who it subjects to such regulation.

Much has already been said about how the proposed bill muzzles free speech by introducing restrictive regulations for digital mediums. This explainer is an attempt to look closely at the latest revisions and explore the regulatory and legal questions surrounding them.

According to Hindustan Times, which first reported the development, the new version was handed out to only a few for consultation, with efforts to make sure it wasn’t shared. Every distributed copy also bears a watermark—identifying with whom it was shared—to trace leaks. Note that The Morning Context has been able to access an open-access copy of the revised version of the bill, and not the exclusive copy distributed to a select few.

A ‘digital news broadcaster’ is born: To begin with, the new bill—which seeks to replace the Cable Television Networks (Regulation) Act, 1995—has revised the definition of the term “broadcast”. It has removed the reference “one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network” and replaced it with “transmission of audio, visual or audio-visual or textual programme(s), intended to be received or made available for viewing, by the general public or by subscribers”. The addition of the words “textual” programmes and removal of “one-to-many” transmission will likely ensure broader applicability.

More importantly, the new bill has also created a category called “digital news broadcasters”. Earlier, the term “broadcaster” was limited to anyone registered to provide services across radio, streaming and terrestrial broadcasting networks. Now, anyone who publishes or broadcasts content related to “news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium as part of a systematic business, professional or commercial activity” is a “digital news broadcaster”.

Also, such broadcasters have been broadly referred to as “publisher of news and current affairs content”. The scope of this definition, however, is rather broad.

A matter of scope: Several questions arise over who exactly qualifies as a publisher of news and current affairs:

Will it include those with a fair share of followers on social media who put out news-like content but as personal views?
Will it leave out those who publish such content but do not make money from it or allow ads on such content?
How is “as part of systematic business, professional or commercial activity” defined? Is it on the basis of how much revenue they earn out of it or how many followers they have?
Finally, what happens to those who put out a mix of content—both news and popular culture, trending topics?

There’s no clarity yet.

Additionally, these “broadcasters” will have to, within a month of the act coming into effect, inform the government of their existence. They will also have to appoint a “Content Evaluation Committee“ that reviews and sanctions what can be published—and inform the government about who is part of this committee.

Bear in mind that the earlier version of the bill also recognised news published on social media as “News and Current Affairs Programmes” that needed the approval of a similar committee. These programmes, it said, should adhere to the Programme and Advertising Code of the bill. But what is this code? The ministry has not formulated it yet, so it remains undefined. All we know is that all stakeholders have to adhere to it when it is prescribed.

Technically, the bill seemingly aims to reduce the power that social media intermediaries have in taking action against content creators or content that is flagged—and, instead, takes matters into its own hands.

Another thing that stands out is that the new draft expands the scope and definition of “person” under the act. In legalese, the term “person” is often used as an identifier or for a party. For instance: “‘Digital News Broadcaster’ or ‘publisher of news and current affairs content’ means any person who broadcasts news and current affairs programs.”

Also, in the earlier draft, when referring to an individual as “person”, only Indian citizens could be included. The new draft drops this reference. Going by this logic, the government could regulate any individual producing news content anywhere in the world. So, does that mean John Oliver of the satirical show “Last Week Tonight” could be pulled up for non-compliance? It would appear so.

A key question to ask is: given the volume of content produced every day, is it feasible to regulate such a vast trove of information?

According to a senior media executive, who spoke on condition of anonymity, the regulation will significantly escalate costs for all broadcasters, especially content creators. “These content evaluation committees will not come for free. Also, there is no clarity right now on whether there will be a common content evaluation committee for small creators or whether each of them needs to have one. If each needs to have one, it is going to be very expensive,” says this person.

News and news content: The other facet of this new definition of broadcasters is that it will put influencers who put out news-based content on social media on a par with legacy media houses and digital news media. The trouble with that is multifold.

One, it would identify influencers as credible news media sources, which could, in the case of some influencers, be problematic. That’s because relatable and easy-to-digest influencer content, by its very nature, makes it hard to differentiate between paid and/or political campaigns and hard news.

The government can also, as it deems fit, choose to exclude some broadcasters from the purview of such regulation.

Two, it could blur the divide between content and news further. While all news is content, not all content is new, news or newsworthy.

There is a deeper problem here. For any published information, for instance, a media house has to bear all the responsibility because it is deemed to be the creator of the information in question and spends on resources that specialize in reporting, editing or fact-checking.

On the other hand, influencers, content creators or those regularly sharing views on news as content may simply be resharing, amplifying or just putting out the information already published in a different format. In many cases, they are mere presenters than first-hand sources of information. The regulation not only confers accountability upon them but also tries to put them on the same level as journalists—which seems unfair to both.

There’s another worry. Many journalists also use social media as a platform for their reportage, views and analysis. But such regulations will restrict free speech and increase compliance burdens, which could result in many even leaving journalism altogether.

Social media and digital tools, after all, are a key bastion for airing dissent and free speech. According to the 2024 Digital News Report, over 50% of Indians consume news content on social media. Against this reality, it seems controlling the narrative is all the more crucial for a government that—as the latest election results showed—has lost some of its popularity.