Broadcast Bill: Controversies Surrounding the Proposed Legislation

Broadcast Bill: A Looming Threat to Free Speech?

Prateek Waghre, Executive Director of the Internet Freedom Foundation, discusses the new Broadcast Bill with Vivek Mukherji of The Probe.

Vivek Mukherji: There's a lot of chatter in the public domain about what this Bill might contain and the kind of regulations it aims to push through. There's a lot of apprehension that this might be yet another tool to create a supercharged censorship weapon. What's your take on this?

Prateek Waghre: Yes, and I think the concerns are fairly justified. The first thing to consider is that the latest version of the Broadcasting Services (Regulation) Bill, which has supposedly been given to select stakeholders, is not in the public domain. So we actually don't know the current version, what the changes are from the previous version, or what the government is actually envisioning. Some reporting has been helpful, but for a lot of us, we haven't seen the updated version and how it's changed from the previous one.

A Single Bill for All: The Broadcast Bill’s Sweeping Scope

But the broader concern remains that the Bill aims to bring all sorts of broadcasting under a single Bill. This means traditional satellite broadcasting is being combined with the internet and even curated content platforms like Netflix and Amazon Prime, all under one Bill. By any stretch, it's an ambitious task, but the way they've gone about it is problematic. They're trying to apply old sectors of regulation, like the three-tier architecture, to the internet, creating additional obligations and potential penalties.

This is particularly important in the Indian context because, as we've seen, a lot of independent journalism and commentary have moved to the internet. Traditional sources aren't as willing to criticise the government, so voices have moved to YouTube and online commentary. Now, it's almost like death by a thousand cuts as they enforce these rules.

Vivek Mukherji: That's an interesting point. Without beating around the bush, the mainstream media has been quite captured by the establishment and executive. In the recent election, independent news content creators played a vital role in providing an alternative narrative. Do you suspect that this was the trigger to withdraw the old draft and introduce a new one? We've heard that the draft shared with stakeholders is watermarked with the stakeholder's name and that they had to sign a non-disclosure agreement. This level of secrecy in lawmaking is quite bizarre, isn't it?

Prateek Waghre: Absolutely. The secrecy is extremely concerning. Lawmaking should be an open process in the public domain. We should see the responses people put in for the last version of the Bill, which should be public. Ideally, there should be counter-comments and justifications from the government on the changes made. Instead, they've created a secretive process, ensuring no one can share it, leading to fear around it.

Regarding the election's role as a trigger, while that may have played a part, it's important to note that the Bill came out for consultation in November 2023, with many provisions continuing from that draft. There was already a desire to control the internet and speech before the election. Of course, the election results and the belief that independent commentators provided an alternative narrative could be a factor in the government's renewed interest in pushing this Bill post-election.

The intention to regulate anyone engaging in news and current affairs commentary on the internet has been present in older drafts. The ambiguity around definitions like "professional" or "systematic" was a concern even then. Recent reports suggest the definitions are still broad enough to potentially cover anyone, which, combined with obligations and penalties, is concerning. The Bill's existence allows for potential misuse, and it needs to be opposed so that these provisions don't take effect.

A Lack of Transparency: The Secretive Approach to the Broadcast Bill

Vivek Mukherji: In February 2021, the IT rules attempted to break encryption in apps like WhatsApp and Signal. Around the same time, the Ministry of Information and Broadcasting got extra powers to block digital news content. In 2023, they created the Grievance Appellate Committee. Officials from multiple ministries head this, and they can remove any content the government opposes. Now, with the Broadcast Bill, there's fear that powers to block content might be even more supercharged. Do you see a pattern of expanding censorship?

Prateek Waghre: Yes, let's revisit the IT rules of 2021. They came at an interesting time, around the farmers' protests against the three farm bills. In early 2021, Twitter reversed course on some government takedown orders, and by late February, the IT rules were notified with many problematic provisions. One was the traceability requirement affecting end-to-end encryption. The joint administration by the Ministries of Electronics, Information Technology, and Information Broadcasting gave the latter takedown powers, including emergency provisions, used in cases like the BBC documentary in early 2022.

The IT rules also introduced what researchers call "hostage-taking clauses," requiring intermediaries to have grievance officers in the country. If above a certain size, they must also have a compliance officer liable for non-compliance with government orders. This changes the calculation for intermediaries and complicates things for any service provider on the internet.

The 2022 amendments introduced the Grievance Appellate Committees, with officials from various ministries. If someone disagrees with a company's grievance officer's decision, they can appeal to this committee, whose actions are binding on platforms. The committee's orders are secretive, and we don't know what content has been targeted or actioned.

Additionally, the October 2022 amendments changed due diligence requirements for intermediaries, now making them take "reasonable efforts" to prevent certain types of content. This proactive obligation means platforms should ensure certain content isn't present, shifting the burden onto them. Unfortunately, intermediaries didn't push back against this amendment.

Then, in January 2023, the fact-checking unit amendments were introduced under the guise of gaming intermediary consultations. The government proposed this unit to flag content as fake or misleading, obliging platforms to act against it. This amendment is currently challenged in the Bombay High Court. If implemented, it requires action against flagged content, affecting everyone on the internet, not just social media platforms.

The overlap between the IT rules and the Broadcast Bill creates a nuclear level of censorship. The lack of transparency and secrecy in the process is extremely concerning. There needs to be significant pushback to prevent these provisions from taking effect.

Vivek Mukherji: We've seen that the knife of censorship is getting sharper with each new law. The common thread is the secrecy and the lack of public involvement in the lawmaking process. This accumulation of executive discretion is a concerning trend.

The Impact of the Broadcast Bill on Digital Content Creators

Prateek Waghre: You're right, Vivek. The lack of transparency is a consistent pattern. Even when consultations happen, we don't know the responses or the government's reasoning for changes. This hinders our ability to understand the motivations behind amendments. The government often cites the number of responses as proof of an open consultation, but without transparency, it's meaningless.

For example, with the Data Protection Bill, the government claimed over 20,000 responses, but we don't know their content or the positions of different stakeholders. It's essential to know who supports or opposes specific provisions, especially when laws affect everyone.

This trend of executive discretion, where details are left to rule-making, is concerning. The government argues that flexibility is needed, but it results in vague laws without safeguards. The Broadcast Bill, as it stands, has provisions allowing bureaucrats to classify individuals as digital news broadcasters or content creators, imposing significant obligations and penalties. This creates a high barrier for independent content producers, discouraging critical voices.

It's crucial to push back against the Broadcast Bill and its implications for freedom of speech and public discourse. Even if the government holds another round of consultation, the secretive nature of the process and the Bill's problematic provisions must be addressed.

Vivek Mukherji: Thank you, Prateek, for sharing your valuable insights. It's been wonderful talking to you. I'm sure this topic will be discussed even more in the coming days, and we need to continue these conversations.

Prateek Waghre: Thank you, Vivek. I'm glad we could discuss this important issue, and I agree that these discussions need to continue.

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