On November 9, in a surprise move, the Central government issued a notification bringing digital and online media comprising films and audiovisual programmes offered by online content providers and news and current affairs content on online platforms under the purview of the Information and Broadcasting Ministry. It added these two entries to the Second Schedule of the (Allocation of Business Rules), GOI, under the heading of Ministry of Information and Broadcasting. These platforms were earlier under the Ministry of Electronics and Information Technology.
Before taking this decision, the government did not hold consultations with the stakeholders, namely, digital news media players and Over the Top Content (OTT) providers. The Ministry already has under its purview the Cable Television Act, audio and visual media including radio and the public broadcaster. Also read: Digital capitalism
Sudarshan TV case
The move, though surprising, was not entirely unexpected. But the context in which it cropped up had little to do with the digital news media or OTT platforms. In September, Syed Mujtaba Athar and others filed a petition before the Delhi High Court stating that the editor-in-chief of Sudarshan TV channel was showing communally loaded content through a programme titled “Bindaas Bol”. The programme, they said, insinuated that there was a concerted attempt by the minority communities, namely Muslims, to “infiltrate” the civil services.
The Delhi High Court stayed the telecast but later the Union government allowed it with a warning to the channel.
The Supreme Court was also hearing a petition on the matter. Firoz Iqbal Khan, the petitioner in the Supreme Court, claimed that the programme promoted hate speech and violated Articles 14 and 21 of the Constitution. The channel’s news story was not only baseless but tasteless as well, he stated.
The government submitted an affidavit to the Supreme Court on this matter. On September 15, the Court stayed the telecast of the show, observing that the “object intent and purpose of the show was to vilify the Muslim community”. The Union government, through the I&B Ministry, issued an order warning the television channel to exercise caution and stick to the Programme Code, failing which penal action would be taken against it. The channel had breached the Programme Code through the tone and tenor of the episodes and audiovisual content. The utterances were “not in good taste”, offensive and were likely to “promote communal attitudes”, the government said. The remaining episodes could be telecast only if there was no violation of the Code and even that was subject to the final decision of the court. Also read: Into the brave new digital order
The channel was not penalised in any manner and the government averred that every TV channel that had been given permission to operate under the Uplinking and Downlinking Guidelines, 2011, had to abide by the Programme and Advertising Code of the Cable Television Networks (Regulation) Act, 1985. The Supreme Court called upon the Union government to explain the regulatory mechanisms and broad guidelines on reporting for the electronic media.
Tablighi Jamaat issue
The apex court had earlier taken stock of the issue of the minorities being caricatured as virus spreaders by the media, especially the electronic media, and sought an explanation from the government on what was it doing about sections of such “motivated” media. It may be recalled that in the initial weeks of the COVID-19 virus outbreak, a congregation held by the Tablighi Jamaat in New Delhi was singled out and unfairly accused of spreading the virus to other parts of the country and attacking health workers. The virus was given a communal colour. The impression that a certain community was responsible for the spread of the infection was created by a section of the media and the government itself. COVID-19 bulletins issued by some States had also inserted a special category indicating the number of persons from the congregation who were infected, a practice which was discontinued in the face of objections.
Interestingly, the government went out on a limb to defend the reportage in the media on the grounds of freedom of speech and stated in its affidavit that the reports were based on facts and could not be censored. The apex court pulled up the government for what it said was a “brazen” affidavit that sought to defend such reportage by the media. In an attempt to to show the Supreme Court that sections of the media were not biased in reporting the Tablighi case, the government also conveniently quoted as examples reports of digital media organisations such as The Wire and Newslaundry, which in the government’s eyes were its critics.
Need for guidelines
But by now the Supreme Court seemed determined to ensure that there ought to be some guidelines. Concerned over the programme content on Sudarshan TV, the court said that the News Broadcasters Association (NBA), a private body representing private news broadcasters, must formulate a robust mechanism for self-regulation. At the same time, it observed that the body was toothless. The controversial Sudarshan TV channel was not a member of the NBA. The apex court was clearly interested in the formulation of guidelines for the media. But the government, in its affidavit in the Sudarshan TV case, requested the court to confine itself to just that particular case and refrain from issuing guidelines for reporting by the electronic media for the time being. The Under Secretary representing the I&B Ministry said: “The fact situation in each case shall have to be decided on a case-to-case basis and a broader exercise which is too general in nature is neither warranted nor permissible.” Also read: Hindutva's drumbeaters
The government’s affidavit further averred that even if the court considered it appropriate to undertake such an exercise, there was no justification for doing so only for the electronic media. In the affidavit, the government’s representative said: “The media includes mainstream electronic media, mainstream print media as well as a parallel media namely digital print media and digital web-based news portal(s) and YouTube channels as well as ‘Over The Top’ platforms.”
The government also said that while publication or telecast in the mainstream media, print or electronic,was a one-time act, digital media had a “faster reach to a wider range of viewership/readership and had the potential of becoming viral because of “several electronic applications like Whatsapp, Tweeter (sic) and Facebook”.
Target: digital media
Then came a statement revealing the government’s intentions: “Considering the serious impact and the potential, it is desirable that if the Hon’ble Court decides to undertake this exercise, it should first be undertaken with regard to the digital media as there already exists sufficient framework and judicial pronouncements with regard to electronic media and the print media.”
The digital media had suddenly become the focus in a matter concerning the propriety of news reportage in the electronic media. The affidavit went on to refer to Supreme Court judgments that had held that existing legal framework and statutory provisions in sections of the Penal Code, the IT Act, the IT (Intermediaries Guidelines) Rules, the Representation of the People Act, the Unlawful Activities Prevention Act, the Cable Television Networks Act and Rules, the Cinematographers Act, the Criminal Procedure Code, the Protection of Civil Rights Act, and the Religious Institutions (Prevention of Misuse) Act, were adequate to deal with hate speech and other offences covered under these sections.
FDI capped at 26 per cent
The government had now conclusively shifted its focus from television and print media to the digital media, although it is believed that this move was on the anvil for some time now. On September 18, 2019, the government declared that it would “liberalise” the foreign direct investment (FDI) regime for entities in the “news digital media sector”. It said entities engaged in uploading and streaming news and current affairs could accept FDI up to a limit of 26 per cent, which was in effect a reduction from the 100 per cent limit earlier. The FDI limit in print and electronic media stood at 26 per cent and 49 per cent respectively. In the name of liberalising the digital media sector, the government had capped the FDI limit in it instead.
In October 2020, the Department for Promotion of Industry and Internal Trade issued a fresh notification in the form of a clarification on the FDI policy, which directed Indian digital media entities registered or located in India to align their FDI to the 26 per cent level with the approval of the Central government within one year of the issuance of the new clarification. Around the same time, 11 leading digital media organisations, which have clearly expressed their commitment to constitutional values as one of their objectives, decided to come together to form an association. Also read: Everybody's soapbox
They launched the Digipub News India Foundation with the objective of creating “a healthy and robust news ecosystem for the digital age”. The founding members were leading names in digital news media such as Alt News, Article 14, Boomlive, Cobrapost, Newsclick, Newslaundry, Scroll, The News Minute, The Quint and The Wire. Interestingly, a handful of some other digital media organisations perceived to be close to the government also formed an association.
Prabir Purkayastha, editor of Newsclick and one of the founder members of Digipub, said that the government had been planning to regulate the digital news media and OTT platforms for some time now and the Sudarshan TV case was just an excuse. He said that having controlled the narrative on television and print media, with some exceptions, the government was now looking to control digital platforms as the latter had been successful in “breaking the narrative” set by television and print media.
The Ministry of Electronics and Information Technology was perfectly capable of controlling the digital platforms and implementing the rules of FDI limits. “But the I&B Ministry considers itself the Ministry of Truth, therefore the digital platforms had to be brought under it. The main intent is content regulation,” he said.
In the case of OTT platforms huge technical issues are involved. This is the reason for their being under the purview of the IT Ministry in the first place. There were regulatory and technology issues as well. Above all, the Internet was also telecommunication, which needs to be under the IT Ministry.
In 2014, the Telecom Regulatory Authority of India (TRAI) issued a paper saying that any service over the Internet was OTT and should be regulated. It had solicited comments in the matter. Also read: Journalists condemn UP govt's moves to muzzle media
Prabir Purkayastha, who is also founder member of Knowledge Commons and president of the Free Software Movement in India, said: “We had argued from Knowledge Commons that all OTT services provide service through a telecom player who are already regulated by the government. Licences were already issued to the telecom service providers. Now, content services are coming under all kinds of restrictions. And services are the only thing India is strong in.”
Digital challenge to dominant narrative
According to Prabir, the problem was that the digital news platforms were seen to be challenging the dominant political narrative. As some of them had investments from overseas, they were apprehensive of getting into trouble over issues such as registration. Even so, regulation was only one of the challenges. The number of digital platforms far outnumbered the print and electronic media entities put together. There were hundreds of thousands of websites. As what constitutes news remains largely undefined, it is possible for the state to bring in regulations to control what it felt was news.
Digital media organisations argue that no country in the world regulated content in digital media. While blocking channels and websites was possible, regulating content was next to impossible. There were standard laws in each country on restrictions on freedom of speech, including reasonable restrictions as in the case of India, and there were also criminal law provisions to check the abuse of such freedoms. Most digital media organisations believe that the governement’s affidavit in the Sudarshan TV case revealed the real intent of the government.
Prabir Purkayastha said: “They have no problems with hate speech but the problem is with digital platforms. The problem is that these platforms question the government’s position. Facebook and Google are the biggest news purveyors and they have entered into agreements with Jio, a telecom provider. But the government has little issues with them.”
It is believed that the huge regulatory uncertainties that are expected to emerge will not affect the big players.
Prabir Purkayastha, who is also the vice-chair of Digipub, said: “The smaller players will get hurt and ultimately the big monopolies will benefit. Till now, the general norm has been to self-regulate by the print and television whether it be by the Press Council of India or broadcasting associations setting up their own codes. Digital platforms can also do that. That was one reason why Digipub was set up.”
Digital players said that there cannot be two sets of rules—one for the print and electronic media and another for the digital media. Prabir Purkayastha said: “When there was a proposal to regulate the OTT platforms, we had, as part of Knowledge Commons, underlined these concerns to the TRAI. We said that the minute one enters the content part of the Internet package, it would be akin to opening a Pandora’s box,” he said. Also read: The model and the code
According to Abhinandan Sekhri, general secretary of Digipub, the slew of policy prescriptions and notifications of the last few months and the restrictions on FDI should not be seen in isolation. He told Frontline that the intent behind the orders was important. The print and electronic media greatly depend on government advertisements. In the aftermath of the lockdown, they were the major recipients of government advertisements. “The kind of leverage the government has in print and television is not there in digital. That’s one reason why the digital media has been able to raise other issues,” he said.
Abhinandan Sekhri, who is also the co-founder and CEO of Newslaundry, a media critique, news and current affairs website, said that all digital media companies were already registered with the Registrar of Companies. He said that the FDI notification favoured foreign media companies and capping FDI for Indian digital media companies would also be disastrous for employment generation in the digital media, which had absorbed job losses in the print and electronic media in the wake of the lockdown.
While there were FDI restrictions on domestic digital media platforms, anyone overseas with access to international funds and the Indian market would be able to enter. Abhinandan Sekhri said: “Even the United States protects its domestic companies but here it is the opposite. So, not only will we be competing with international brands but we have the government batting for them. The notion that digital is not regulated is a myth. We are facing a defamation case. We are also bound by all the laws of the land. Now, by bringing us under the I&B Ministry, are we going to be covered by the Cable Television Act? There are already problems with definitions in the Programme Code.”
Lack of consultation
But what rankles Indian digial media platforms most was the government did not consult them. Abhinandan Sekhri said: “No consultation took place. We are going to write to the Minister to put our point of view across. Digipub is the only forum that is representing digital. We would have, by the end of the year, 50 digital news platforms as our members. They say they are liberalising it by capping the FDI!” Also read: Devious design to target PTI
He added: “In broadcast, if one doesn’t buy a licence, one can’t have access to the market. There is a restriction on FDI up to 49 per cent. But there is no entry barrier in digital. So, if the government wants to encourage Digital India, it cannot be by controlling digital media. In the excitement to kill the narrative, this will kill the industry itself.”
According to him, the government wants leverage so that it can tell digital platforms what to do and what not to do. The OTTs, like Google and Facebook, were sitting quiet. “They are big players and will survive one way or the other. Even without being asked, they fall in line,” he said. In February, a John Oliver show critical of Prime Minister Narendra Modi was dropped from Hotstar, an OTT platform. The content in some of the series on streaming sites such as Netflix was frowned upon by sections within the government.
The move to bring the digital media and OTT platforms under the I&B Ministry has triggered a range of concerns—of regulatory uncertainties on the one hand and apprehensions that monopolies will be strengthened on the other.
Prabir Purkayastha said: “The government thinks they can manage Google and Facebook and they [Google and Facebook] think they can manage the government. YouTube can’t be controlled but those who put their videos on YouTube will need to register. The major purveyors of news are Facebook and Google and not digital media. A huge amount of money has been put in Jio by both of them. So, is this to help the monopoly of Facebook and Google?” Also read: Media and the judiciary
At the moment, no one know what lies ahead except that detailed guidelines are awaited. For a healthy democracy, the narrative in the digital media space is important and there is no reason why the digital media should not be allowed to operate with the same freedoms that print and electronic media have. But first, the government has to engage with the digital media organisations and clarify what is it that it wants regulated and how the I&B Ministry would be in a better position to execute what the IT Ministry was already doing.