This article has been written by Liza Borah pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction 

The media has become an integral part of human life. The word media is derived from the word medium, which is used to communicate information in various forms. More than before, in current times, media has become an indispensable part of our lives. 

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In India, the media industry is considered the sunrise industry. It is one of the fastest sectors in India and has outperformed the Indian economy. Due to rampant digitisation and internet usage, this sector has grown exponentially.

The media industry can be classified into three categories:

  1. Electronic media:- Television, radio, films, etc.
  2. Print media:- Newspapers, books, press releases, etc.
  3. Digital media:- OTT, Social Media, Blogs, podcasts, etc.

The media is considered an integral pillar of a democracy. So it is crucial to have a media environment that is free, diverse, and capable of providing accurate and unbiased information. But to function as a fair, unbiased sector, media related organisations or media technology companies face several challenges due to existing loopholes in legislation in India as well. In this article, we will be discussing the existing loopholes in the legislation that pose a challenge to the media industry.

Regulatory uncertainty

Regulatory uncertainty in the media industry refers to the lack of clarity or predictability of the rules, regulations and policies that govern media organisations and their activities This uncertainty can be caused by various factors, such as the change of a product of technology, changing public opinion and changing politics.

Causes and consequences of regulatory uncertainty

common causes and consequences of regulatory uncertainty in the media are:

Changing technologies

Rapid technological advances can override existing laws, creating uncertainty about how laws should be applied and enforced in the digital age. For example, there may be a lack of a clear regulatory framework in the context of online content, streaming services, and social media. 

Political involvement

Media laws can change as a result of changes in government leadership or political opinion. Controversy arises when policies are proposed or implemented by new administrations, leaving news organisations unpredictable.

Media owners and focus

Regulatory uncertainty can arise from debates about media ownership restrictions and concentrations and changes in regulations. Questions about who controls media outlets and their potential impact on voices could lead to legislative change.

Content policy

Concerns about inappropriate and harmful issues such as hate speech, false information, or transparency can lead to legislative efforts. Doubts then arise about balancing freedom of expression with the need to protect the public.

Data privacy and security

The extensive collection and use of user information raises legal doubts about data privacy and security issues. Governments may introduce new laws or amend existing laws to address these concerns, which will affect the privacy of news organisations that rely on user data for targeted advertising or the content itself.

Cross border challenges

Media organisations operating across borders face legal uncertainty related to conflicting or overlapping regulations from different industries. Harmonising laws internationally is often a difficult task.

The institution of uncertain regulations could lead to the following consequences:

  • Investors may find it difficult to invest in new technologies and content creation owing to uncertainty in regulations.
  • Due to uncertainty about which regulations to comply with, media service providers may tend to overcompliance and self censor under such confusion.
  • With constantly changing regulations, media houses find it difficult to comply with a specific regulation
  • Regulatory uncertainty can distort the market, disenchant certain players or prevent fair competition.

Content regulation

Content regulation in India faces a paradox of challenges due to a variety of factors, including technological advancements, cultural diversity, political considerations, and the need to balance freedom of expression with societal concerns, reflecting the complex and diverse nature of the media landscape in the country.

The challenges faced in content regulation can be classified into various sectors:

  • OTT platforms: Content is the heart of the OTT platforms. If the service providers are not able to cater content according to their audiences, the OTT platform will suffer severe losses. It is important to determine standards for OTT content, including factors like censorship, classification, age restrictions, etc.
  • Balancing freedom of expression and regulation: It is important to strike a balance between freedom of expression and the need for reasonable restrictions, as allowed by the Constitution.
  • Political interference and press freedom: In order to preserve the integrity of unbiased journalism and the freedom of journalism, it is important to maintain concerns about political interference and attempts to curb press freedom.
  • Effectiveness of self regulatory bodies: Although there are several regulatory bodies in India, like the Press Council of India (PCI) and the News Broadcasting Standards Authority (NBSA), the effectiveness and enforcement of these self-regulatory bodies still remain debatable.
  • Regulating online hate speech: The definition of hate speech is very ambiguous. But generally, it is defined by the cultural and moral ethos of any society. Thus, defining and regulating hate speech online while safeguarding freedom of expression is a complex task.
  • Sensitive content: It is important to navigate through various perspectives when it comes to balancing content that may be perceived as offensive or insensitive by certain sections of society.

Data privacy concerns

The upsurge of digital platforms, e-commerce, and social media has led to an explosion in the volume of personal data being generated, collected, and processed. The challenges revolve around ensuring the protection of individuals’ privacy while allowing for the legitimate use of data for journalistic and business purposes. Although the DPDA bill has been passed, there are concerns pertaining to the media that need to be addressed.

  • Consent and transparency mechanism: The DPDA emphasises obtaining informed and explicit consent from individuals before collecting and processing their personal data. A vast majority of non-compliances in the data privacy legislation are due to non compliance with the consent required and personal data being processed for any other requirement not consented to.
  • Data minimisation: It is very challenging for most organisations to differentiate between personal data and business data. As a result, too much data gets collected. Therefore, it is important to limit the collection of too much data and restrict usage to only the requirements it is gathered for.
  • Data retention: Another crucial factor for media organisations to consider along with data minimization is not storing personal data longer than legally required. Establishing appropriate data retention policies is crucial for media organisations.
  • Cross border transfers: Balancing data flow for international business operations and complying with data protection regulations is another ongoing challenge.
  • User profiling and behavioural tracking: Media platforms use personal data for user profiling and behavioural tracking to personalise content and ads, with users having no control over the personal data collected.
  • Data security and breaches: Another challenge the media industry faces in dealing with data security and privacy breaches. As media organisations deal with robust data, including sensitive data, they also need to invest in robust cybersecurity measures to protect against unauthorised access and data leaks.

Intellectual property (IP) issues

In recent times, there has been rampant development in the use of technology in the field of media and as a result, the content created and delivered to the masses is also immense. As such, the matter of intellectual property rights becomes a very crucial topic. Intellectual property rights can be broadly classified into copyright, trademark, patent, and design rights, and the media faces violations of the above due to which legal issues tend to arise.

Copyright law and piracy

The Copyright Act, 1957 (Act), along with the Copyright Rules, 2013, govern the laws and rules related to copyright protection in India. The Copyright Act, therefore, provides rights to the authors and owners, as well as certain provisions in the Copyright Act (such as Section 52 of the Copyright Act) that allow fair use. The basic aim of this law is to offer protection against the unauthorised use of artistic, literary, and musical works such as songs, films, novels, etc. Even though it is preferred, it is not a mandate in India for a person to register for copyright in order to get protection. To be actionable in court for infringement, the copy must be substantial and not small. Therefore, there would be no infringement if the two works’ themes were the same but presented in different ways.

Trademark law and infringement

Trademarks are that type of intellectual property right that enables individuals to retain ownership of their inventive products and creative efforts. It could be a name, a sign or a word that helps in distinguishing businesses. With an authorised trademark, it becomes possible to sell or market any goods or services. Unauthorised use of trademarks in the media, including in advertising, branding, and promotional materials, can lead to trademark infringement issues. Protecting the distinctiveness of brands is crucial.

Patents in media technology: In the media industry, patents are often used to protect technological advances in production or distribution. With the advancement of new technologies in the media industry, issues related to patent protection are on the rise.

Protecting celebrity rights: Another issue faced by the Indian media is securing celebrity rights. There have been instances where there was unauthorised use of celebrity images, names, or personas. It has been observed that if the identity of any celebrity is used for commercial purposes without their consent, it leads to infringement of the right to publicity.

Broadcasting Regulation Bill and its challenges

The Broadcasting Services Regulation Bill, 2023, was introduced by the Ministry of Information and Broadcasting (MIB) to replace the three decade old Cable Television Networks Regulation Act of 1995 (CTN Act). The bill was introduced broadly to include OTT platforms and other digital news platforms, along with TV channels and FM radio, under its regulatory framework. Even this bill has its own limitations and challenges, which are stated below:

  • The proposed legislation will not cover the social media intermediaries that are specified in the Information Technology Act of 2020.
  • The above legislation proposes to introduce a clause of self-certification of content by the Content Evaluation Committee (CEC), which will obstruct the creative freedom of TV broadcasters and OTT players alike.
  • Many stakeholders are also of the opinion that the requirement of  CEC approval before publishing any content will be similar to getting approval from an internal censor board.
  • OTT platforms are apprehensive of the fact that by applying outdated TV regulations to their sector through the programme code, their freedom to disseminate content without much filtering will be jeopardised.
  • Any violation of the proposed act or any rules under it that would lead to the seizure of equipment by government officials of both broadcasting services (TV channels, OTT, and digital news) and broadcasting networks (Cable, DTH, and IPTV) has been a matter of great concern amongst the stakeholders in the broadcasting sector.

The Broadcasting Services Regulation Bill of 2023 also aims to establish a comprehensive regulatory framework that encompasses various aspects of broadcasting services, including television channels, streaming platforms, and online content providers. Here are some key highlights and implications of the Bill:

  1. Unified Regulatory Authority:
    • The bill proposes the establishment of a unified regulatory authority, the Broadcasting Regulatory Authority of India (BRAI).
    • BRAI will be responsible for regulating all broadcasting services, including television channels, streaming platforms, and online content, under one umbrella.
    • This centralised regulatory approach aims to streamline the regulatory process and ensure consistency in regulations across different platforms.
  2. Licencing and Registration:
    • The Bill introduces a licencing regime for broadcasting services, including television channels and streaming platforms.
    • All entities providing broadcasting services will be required to obtain a licence from BRAI.
    • Registration requirements for online content providers will also be implemented, bringing them under the ambit of the regulatory framework.
  3. Content regulation:
    • The Bill proposes a comprehensive set of content regulations to ensure responsible and ethical broadcasting practices.
    • It includes provisions related to the classification of content, age-appropriate programming, and adherence to advertising standards.
    • The bill also empowers BRAI to take action against broadcasters who violate content regulations, including imposing penalties and suspending licences.
  4. Consumer rights and protection:
    • The Bill emphasises consumer rights and protection in the broadcasting sector.
    • It includes provisions for transparent billing practices, redressal of consumer grievances, and ensuring the quality of service provided by broadcasters.
    • The bill also mandates broadcasters to provide accessible services for people with disabilities.
  5. Convergence of media platforms:
    • The Broadcasting Services Regulation Bill, 2023, recognises the convergence of traditional television and digital platforms.
    • It seeks to create a level playing field for all broadcasting services, regardless of their platform or technology.
    • The Bill aims to ensure fair competition and prevent anti-competitive practices among different broadcasting entities.
  6. Promotion of local content:
    • The Bill includes provisions to promote local content and diversity in programming.
    • It mandates broadcasters to allocate a certain percentage of their airtime to local content, including regional languages and indigenous cultures.
    • The Bill also encourages co-productions and collaborations between broadcasters and independent content creators to foster a vibrant and diverse broadcasting ecosystem.

The Broadcasting Services Regulation Bill, 2023, is a much-needed reform in the Indian broadcasting sector. It aims to establish a modern and comprehensive regulatory framework that addresses the challenges and opportunities presented by the convergence of traditional and digital media. The Bill has the potential to improve consumer protection, promote local content, and ensure a level playing field for all broadcasting entities, thereby contributing to a vibrant and diverse broadcasting ecosystem in India.

Impact of Indian IT laws on media and its challenges

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 20213 (IT Rules) are an important law in order to control the usage of digital and social media and their intermediaries. Even the implementation of this law has its own flaws and challenges, which are discussed below:-

  • The IT regulations regulate freedom of expression, which has consequences for social media and its intermediaries as they are required by the IT Regulations to delete or restrict access to any content that is deemed illegal or disruptive to the public order. Hence, many critics are of the belief that the IT regulation provides censorship on freedom of  expression and allows the government excessive authority to control internet information.
  • Another implication of the IT law is privacy, wherein social media intermediaries need to reveal the identities of certain content creators before the law enforcement authorities.
  • Some of the guidelines of this act have faced social criticism as they are believed to have violated the right to free speech and could be used to silence dissenting opinions. 
  • This Act also actively encourages private sponsorship, involving executive action with no judicial oversight. 
  • Section 66A of this act has garnered much attention and criticism as this provision is used to track behaviour on the Internet and can be criminalised based on that and it has been observed that many activists have been arrested and summoned for posting comments critical of political parties or persons.
  •  Another section of this legislation allows the government to block any content from being accessed by the public on various grounds and whoever fails to comply with directions to block content is liable to be imprisoned for up to seven years.
  • There is also a provision in this act to avail of an exemption from liability; it requires an intermediary to observe certain guidelines, which also mandates the intermediary to take down any content that is found unlawful or objectionable acting upon private complaints or on their own.
  • The social networking media are considered intermediaries within the scope of IT Act 2000, thus making social networking sites in India liable for various acts or omissions that are punishable under Indian legislation.

Competition and monopoly concerns in Indian media

Another challenge that the Indian media faces with respect to litigation is the bare minimum or no laws to contain monopolies in the Indian media industry and promote healthy competition. Some of the issues with legislation regulating monopolies in India are stated below:-

  • There are laws regulating horizontal monopolies in the Indian media sector, but no laws to ensure diversity in media ownership. This is vividly visible in Indian news channels specifically, wherein only a  handful of people control the entire gamut of English news. 
  • Another challenge is that there is no law to regulate cross-media ownership and vertical integration in the media, which has given rise to the problem of monopolies in Indian media. The news watched on TV, read in the newspaper or for that matter, accessed on the internet might come from various sources. But actually, they might be owned by a single person.
  • Laws to prevent widespread community ownership and media usage are another legislative challenge for the Indian media. The big media giants in this country might not be involved in regulatory tangles but the bottom up, less-commercial media sector gets tangled in a web of regulatory affairs. To start up a community radio,providing broadcast coverage for small local areas will require various bureaucratic levels to procure a licence. 
  • Lack of comprehensive framework to disclose norms for media ownership is a significant issue in media monopolies. The corporate disclosures, mandate to make minutes of board meetings and related public transactions are not rigid for privately owned media organisations. The formats for above are also different for both privately and publicly owned media organisations, wherein the former enjoys laxity over information disclosure.
  • Pluralism in media content, composition and ownership is seen as an integral part of freedom of speech and expression. With the existence of monopolies and the lack of diversity in media ownership or content, certain fundamental rights like freedom of speech and the right to information become questionable. 

Conclusion

The loopholes that exist in the current legislation that are faced by media related technology companies are a matter of great concern. This needs a collaborative effort from media organisations, regulatory bodies, the judiciary and other stakeholders to create a regulatory framework that is both comprehensive and adaptable to the dynamic nature of the media technology landscape. The existing legislation needs to be amended in such a way that it maintains freedom of expression without jeopardising privacy and strikes a balance between speech restrictions. In order to uphold the security and safety of Indian citizens in this digital age, all these loopholes need to be addressed accordingly.

References

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