The continuation of India’s existing Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) framework for regulating content on over-the-top (OTT) broadcasting services is the most ideal way forward, The Internet and Mobile Association of India (IAMAI) said in its comments on the draft Broadcasting Services Regulation Bill, 2023.
The organization notes the differences between OTT broadcasting services and traditional broadcasting, including the infrastructure used, licensing, and model of transmission, which justify the separate treatment of the two. This argument, it says, is further supported by the recent judgment by the Telecom Disputes and Settlement Appellate Tribunal (TDSAT) which held that an OTT service is not a TV channel.
[Note: MediaNama received IAMAI’s comments in response to an RTI request.]
Key points of concern raised by the association:
Don’t include cloud service providers under internet broadcasting networks:
IAMAI seeks clarification on the definition of “Internet broadcasting network” under the bill, arguing that a cloud service provider operating a content distribution network (CDN), may end up falling under the scope of the current definition.
OTTs shouldn’t have to comply with compulsory transmission requirements:
The bill states that the central government can mandate the broadcasting of certain Doordarshan channels. The association says that there is no clarity on how this mandate will practically apply to OTT services, adding that it fails to take into account the uniqueness of the OTT industry.
Don’t make OTTs re-register:
The bill says that any person who has been given a registration/license/permission/approval under certain existing regulations (like the Cable Television Network Regulation Act) would only have to self-certify their compliance. Notably, the Information Technology (IT) Act, 2000 and IT Rules,2021 are not present in this list of regulations. This is notable because OTT service providers have already provided requisite information to the Ministry of Information and Broadcasting (MIB) under the IT rules, akin to the intimation requirement created under the broadcast bill. IAMAI says that if the suggestion for keeping streaming services outside the scope of regulation is not accepted, the IT Rules should be included in this list.
Programme and Advertising codes fail to account for audio-only content:
While the bill allows for the creation of separate programme and advertising codes for different service providers, it only makes distinctions based on the mode of content delivery and not the medium of content. This creates difficulty from an implementation standpoint for audio-only OTT content like podcasts, music distribution services, and audiobooks.
Accessibility guidelines should be suggestive and not prescriptive:
Before any such guidelines are issued, extensive stakeholder consultations should be conducted, and public engagement should be undertaken to further accessibility while ensuring the feasibility of implementation. In the case of OTT services, a majority of the content is licensed from third parties. As such, the implementation of any accessibility feature is hinged/dependent on the producers supplying the content.
Content evaluation committees are difficult to practically implement:
The bill requires all content put up on an OTT service to be certified by content evaluation committees (CEC). The association points out that it is practically difficult to do so considering the voluminous content being produced in multiple languages in different parts of the country and the world. Further, the bill specifies that individual broadcasters must set up their own CEC. This may lead to a situation where the same programme which is available on two different services is classified differently due to there being different CECs for different broadcasters.
It is also mentioned that a high volume of content available on OTT platforms has had a theatrical release first, and as such, has been given a certification by the Central Board of Film Certification (CBFC). The bill does not provide clarity on how CECs will operate in the context of content that has already been certified.
Need for checks and balances on inspection and equipment seizure powers:
The bill allows the central government or an authorized agency/officer to inspect broadcasting networks and services. It, however, doesn’t have a requirement to provide a written cause for inspection. Similarly, the bill also allows for the seizure of broadcasting equipment in case any authorized officer has reason to believe that the broadcaster has not been compliant with any provision of the bill. The association says that there should be some degree of restriction within both the inspection and equipment seizure sections to ensure appropriate checks and balances on the exercise of such powers.
Non-compliance should not be punished with imprisonment:
The bill says that non-compliance with its provisions would be punishable with imprisonment. “This inclusion of criminal publishment is not in line with the recently proposed amendment wherein the Central Government had in fact deemed it fit to decriminalise the provisions of the CTN [cable television networks] Act,” IAMAI says, arguing that non-compliance should continue to remain decriminalized in the broadcast bill as well.
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