The President of India, in November 2020, issued a notification amending the Government (Allocation of Business) Rules, 1961 to grant jurisdiction to the Ministry of Information and Broadcasting for the regulation of digital news platforms as well as OTT platforms. The two new entries 'Films and Audio-Visual programmes' and 'News and Current Affairs on online platforms' were added.
The Central government had recently submitted in the Supreme Court that digital media is "uncontrolled" and needs to be regulated. The Union Ministry of Information and Broadcasting had told the top court that any endeavour to regulate media has to begin with digital media. This stance was taken by the centre during the hearing of a case concerning Sudarshan TV's controversial "UPSC Jihad" programme in which the court was contemplating framing of guidelines to regulate television channels.
The existing legal architecture, precedents and proposed legislative frameworks raise important concerns for free speech and fair regulation. The Ministry of Information and Broadcasting had included digital media platforms within the definition of news media in the Draft Press Registration Bill, that was introduced in 2019. Section 2(k) of the draft bill defines 'news on digital media' as "news in digitised format" including "text, audio, video and graphics", which is capable of transmission over the internet, computer or mobile networks.
Another problematic aspect of the bill is that it enables the Central government and the state government to frame appropriate rules/regulations to regulate the criteria/conditions for issuing Government advertisements in newspapers as well as accreditation of newspapers. Considering the pronounced role of government advertising on financial sustenance of media organisations, this allocation instead needs to be made in a non-partisan manner. The powers of delegated legislation give wide scope of arbitrariness while framing rules and regulations relating to advertisements. The government may also frame some rules which are beneficial to certain companies that are pro-government, as history has already shown.
Additionally, in 2019, the Union Cabinet decided to limit the foreign direct investment in digital media to 26 percent while the limit was kept at 49 percent for TV news channels. This has various ramifications from news organisations that rely on global financial resources.
Regulatory setup for traditional media
These measures were brought in to deal with the lack of regulation on digital media, juxtaposed with those on the print and broadcast media. This largely ignores the context in which these regulations are made, since most of these are related to the nature of the medium than the content. It is often said that the print media has a myriad of regulations, such as through the Press Commission of India, the Press and Registration of Books Act, and other minor laws and regulations. However, it is important to understand the context and operation of these laws to appreciate the nature of regulation over them, as most of these have either outlived their utility or rendered ineffectual in some form.
Take the Press and Registration of Books Act of 1867, a decidedly colonial legislation that requires the registration and identification of the publishers, editors and printers of newspapers, to hold them liable for any violations under the law. This law played its part in the broader attempt to surveil the different forms of knowledge dissemination in the country. It allowed for better control over the press and book publishing industries, and in restricting speech. While many of the more stringent provisions have been removed, the Act still continues to exist without serving any real purpose since such registration and information collection has no real place in a democratic society.
Then there is the Press Council of India, established through the Press Council Act, 1978. The body had been set-up as a self-regulatory institution giving it powers to conduct inquiries against the newspapers, editors etc. It also has a detailed set of journalistic ethics, violations of which can be adjudicated by the Council. Post-Emergency, there was a significant amount of deference and esteem given to it. Leading lawyers used to represent the media houses in cases before the PCI, their press releases and decisions received wide coverage. However, over the years, the council has been largely rendered ineffective by large media houses, with very little deference given to its processes or decisions. To that extent, there is hardly any, if at all, regulation of the ethical conduct of newspapers.
This lack of regulation is typified even more in the case of broadcast news channels where there are no governmental regulations on their content. Regulatory approvals with regards to broadcast media are related to getting licenses based on eligibility criteria, clearing uplinking of television channels etc. These licensing mechanisms are bureaucratic and filled with red-tape for sure, but stem more from the medium as being broadcasters than their acting as news agencies. The only ethical or content-based control comes through a voluntary organisation set up by the broadcasting industry, the National Broadcasting Standards Authority, which is not backed by any law.
External regulatory pressure on digital news platforms
It is incorrect to say that digital media was unregulated before the introduction of the present bill. There are external forms of regulation on all forms of media through the judiciary, for instance. The existing laws restricting freedom of speech and expression apply to all forms of speech.
Moreover, the Indian Penal Code (IPC) contains several provisions which restrict speech and expression, which apply to media. These offences include sedition (Section 124A), defamation (Sections 499 and 500), obscenity (Section 292), hate speech (Section 153A, 153B, 295A, 298 and 505) among other enactments.
Other enactments which restrict aspects of free speech and expression are Contempt of Courts Act, 1971, Official Secrets Act, 1923, Cable Television Network Regulation Act, 1995, Cinematograph Act, 1952, Indecent Representation of Women (Prohibition) Act, 1986, SCs & STs (Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955 and Code of Criminal Procedure, 1973.
More importantly, specific content-based restrictions on digital media can be applied under the Information Technology Act, 2000. The infamous Section 66A of the IT Act, which was commonly used by the government, was held unconstitutional by the Supreme Court in Shreya Singhal versus Union of India on the grounds of vagueness and overbreadth, and the consequent chilling effect on speech. There are many other provisions which continue to regulate online content like Section 69A, Section 79, etc.
Section 69A enables the government to block any public information on the grounds mentioned under the Act. Section 79 allows the government to force any intermediary to take down any sort of objectionable content.
In light of the above discussion, it is important to consider the various policy design alternatives for digital media regulation.
Dhawan is a fourth year student at NLSIU, Bengaluru Rakhecha is a 5th year student at NALSAR, Hyderabad