Broadcast bill: A censor code for everything

Reasearched by: Nirmal Bhansali & Aarthi Ramnath

Wait, what?! What’s this new bill?

The bill is called the Broadcasting Services (Regulation) Bill, 2023. It is intended to replace the equally wordy Cable Television Networks (Regulation) Act, 1995. That law regulates everything you see on cable/satellite TV.

First, the backstory: In the 1990s, a High Court ruling directed the government to crackdown on cable content—which was relatively unrestrained compared to good old Doordarshan. There were worries about the inclusion of Pakistani channels—and the “cultural invasion” represented by foreign channels such as Fashion TV that broadcast female nudity. Other than ensuring proper licensing, service quality etc, the Act was specifically aimed at preserving “Indian values.”

Enter, ‘programme code’: The government framed a list of criteria to protect these “Indian values”—called the ‘programme code’:

The programme code contains various classes of content not deemed suitable for television broadcast. It prohibits the telecast of programming which is “obscene” or “offends good taste or decency” or even “encourages superstition and blind belief”. But even though “good taste” and “decency” may be found at dinner-table conversations, it is absent from legal definition. As it stands, the code does not permit “irony” in the portrayal of certain ethnic, linguistic, and regional groups or even allow “snobbery” on air.

The code was supposed to be enforced by an Inter-Ministerial Committee. The channels, in response, offered to self-censor their content instead. If a viewer was offended, they could complain first to a self-regulating industry board—which was formally set up in 2011—and dubbed the Broadcast Content Complaints Council.

But, but, but: As internet freedom expert Apar Gupta pointed out back in 2013, this system resulted in even greater censorship. The industry had its own charter—which added more criteria to the already censorious programme code. 

For example: the BCCC imposed penalties for telecasts of shows like ‘Sex and the City’ and ‘America’s Next Top Model’ “for instances of female nudity, gestures and kissing, most of which were termed as ‘suggestive’.” Beyond sex, all sorts of viewer complaints were taken very seriously—such as this one for a NatGeo show: 

It shows the protagonist, a British, stuffing hashish, contraband, inside the idol of Lord Ganesha. The idol could have been concealed and not shown to avoid hurting of religious feelings.

Point to note: Any channel that received five such notices was in danger of losing its licence. The threat made cable companies extremely cautious about what they aired. 

Escape to OTT: Happily, these rules didn’t apply to streaming platforms—which offered refuge for Indians looking for greater diversity and freedom of choice. In recent years, even news channels have lost their hold on the audience. More than ever, Indians look for news content on YouTube—which has become a haven for former TV anchors like Ravish Kumar.

And that’s why we now have a spanking new Broadcasting Bill.

There’s going to be a code for Netflix now?

Yes, because the government has expanded the definition of “broadcasting”:

The Broadcasting Bill defines “broadcasting” as “one-to-many transmission of audio, visual or audio-visual programmes using a broadcasting network, intended to be received or made available for viewing, by the general public or by subscribers of the broadcasting network.”

This also covers streaming services like Netflix, Hotstar, Jio Cinema etc—who are now called “Broadcasting network operators.” 

Much broader than OTT: On the face of it, the bill does not cover social media platforms. But as Alok Prasanna Kumar points out, one clause suggests any content posted on these platforms will also be subject to the code: 

Any person who broadcasts news and current affairs programs through an online paper, news portal, website, social media intermediary, or other similar medium but excluding publishers of newspapers and replica epapers of such newspapers, as part of a systematic business, professional, or commercial activity shall adhere to the Programme Code and Advertisement code referred to in Section 19.

What this means: any individual creating news content online now has to adhere to the government’s rules. That includes everyone from Faye D’Souza to Ravish Kumar and Dhruv Rathee—or even you. The definition of what constitutes news or current affairs is itself vague—which adds to the confusion. 

And what are these new rules? 

Streaming platforms have to follow the ‘programme code’—and the system looks pretty similar to the one for cable.

A self-regulation (censorship) regime: Each broadcaster has to appoint a grievance officer to address audience complaints. They also have to set up their own “Content Evaluation Committee”—whose size and operational details will be determined by the government. 

Next, there will be a self-regulatory body for the industry—similar to the BCCC for cable—to hear complaints not addressed by these operators. And above them is a Broadcast Advisory Council appointed by the government—and stuffed with representatives of various ministries. 

Point to note: The government can forward its own complaints to its own council—which sets up the perfect structure for censorship.

The price of violating the code: The bill also gives all sorts of powers to the government—and its council—to punish any offenders. According to the Internet Freedom Foundation: 

• “Clause 31 allows the Union government’s power to inspect, intercept, monitor, and seize the equipment of broadcasting networks and services.”
• “Clause 35… allows the Union government to order the broadcaster or the network to delete or modify programmes or advertisement and even direct the channel to be off-air for a specified number of hours.”
• And through Clause 36(2), it  can outright prohibit the operation of any broadcasting services or operators in “public interest.”

So online content will become like cable?

Well, that’s the worry—more so since Indian governments have a well-established track record of heavily censoring all content on TV.

Same content everywhere: The internet may have its problems, but it is also inherently democratic. It has made it extremely easy and cheap to reach vast numbers of people—which wasn’t possible with print or broadcast media. That ease of access promotes diversity and freedom of expression—which the bill will squelch:

“The regulatory homogenisation of the cable TV and OTT content may stifle innovation and growth in the online curated content industry,” said Tejasi Panjiar, [a digital rights expert]. “The impact on dynamic, diverse, extensive creator community and their artistic as well as creative freedom is unfathomable.”

Point to note: This is hardly a theoretical concern. A Washington Post report showed that streaming platforms are already self-censoring their content—in fear of inviting the government’s wrath:

Executives at the India offices of Netflix and Prime Video and their lawyers ask for extensive changes to rework political plots and remove passing references to religion that might offend the Hindu right wing or the BJP, industry insiders say. Projects that deal with India’s political, religious or caste divisions are politely declined when they are proposed, or dropped midway through development. Even completed series and films have been quietly abandoned and withheld by Netflix and Prime Video from their more than 400 million combined viewers worldwide.

Making ‘news’ same, same: This especially a concern for news content—which is heavily regulated on TV:

This may also threaten a users’ right to access multiple, diverse points of view because the individual broadcasting news will likely only produce content which is palatable to the Union government so as to avoid the non-compliance penalty,” said Panjiar.

More importantly, the very definition of ‘news’ is so vague that anyone can come under the bill’s ambit:

[Digital rights expert Tejasi Panjiar] added that the definition of news and current affairs programmes in the bill as “newly received or noteworthy programmes, including analysis, about recent events primarily of socio-political, economic or cultural nature” is vague and broad enough to include under its scope even content creators that may not fit the traditional notion of broadcasters.

Safety concerns: The government requires personal details of all members of the Content Evaluation Committee to be made publicly available—which makes them vulnerable to harassment and violence—“considering the sensitivities of a very diverse audience and the fact that audiences do tend to react when certain content is sensationalised.”

The bottomline: The heavy regulation of TV is for two reasons: One, the government owns the air waves and two, a viewer can only choose between a limited number of channels. In a sense, they are “forced” to view what is on TV. But none of this is true of the internet. A person can choose not to subscribe to Netflix or watch someone’s YouTube channel. The only justification for this bill is the need to extend the government’s iron-clad control of television and cinema—to include all online content.

Reading list

Apar Gupta offers a shorter critique in The Hindu—as does Gautam Bhatia in Hindustan Times. The Internet Freedom Foundation has a detailed breakdown of the bill. Scroll and The Hindu report on specific concerns about self-censorship. Alok Prasanna Kumar in The Quint and Hindustan Times flag concerns about news censorship—and what the bill means for all content creators. The Washington Post (splainer gift link) report on the culture of self-censorship at Netflix and Amazon is a must-read.