This article has been written by Vatsala Bhardwaj, pursuing the Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSIkho.
Table of Contents
Introduction
In our country, broadcasting is one of the primary mechanisms for communicating knowledge and information to the public at large. There were not any stringent laws on the broadcasting of content over television until recently.
India wanted to create a national regulatory framework to promote its works and for the interests of society. The Supreme Court directed the government to set up an independent autonomous authority that would free from the shackles of government control and ensure conditions in which the freedom of speech and expression could be meaningful and effectively enjoyed by one and all.
As per the Supreme court: “The right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained.” It gave a wider amplitude to the right to speech and expression: “The government has no monopoly on electronic media and under Article 19(1) (a) a citizen has the right to telecast and broadcast to the viewers through electronic media”.
Broadcasting is referred to as a central source of news and information across the globe. Due to this trait, it has the tendency of influencing the opinions of the public at large and is a target of illegitimate control.
The body that regulates and governs the media and entertainment sector in India is enshrined in the Cable Networks Act, 1995 and the Prasar Bharti Act, 1990. These are regulated by the Ministry of Information and Broadcasting and Prasar Bharti.
Broadcasting in India
In today’s day and age, the Indian mass media comprises over 300 TV channels that reach over 112 households, 50,000 newspapers and magazines having a readership of over 250 million, around 300 radio stations, over a thousand feature films in 18 languages made yearly and a plethora of electronic, print, digital and telecommunications media. Doordarshan, which is the national television network channel with 22 channels, the national broadcaster and All India Radio are managed by the autonomous corporation called Prasar Bharti. The Indian Broadcasting and Cable TV market was valued at USD 11.61 Billion in FY 2020 and the market is forecast to reach USD 19.06 Billion in FY 2026.
Broadcasting services in India are provided by Cable TV, DTH Services, Terrestrial services (Doordarshan), Internet Protocol Television (IPTV), Radio (FM, AM, Community Radio). Key features of broadcasting regulations are that they provide signals on a non-discriminate basis to distributors, carry provisions for national and regional languages. In the recent past, there has been an estimation of the growth of the Indian broadcasting and cable TV market to undergo a robust rate of growth during the forecast period. There has been an increasing demand for television sets especially in the rural parts of the country is one of the key factors supporting the growth of this market. It is projected that by 2025 there will be a huge surge in the entertainment industry with a growing demand for international TV channels and shows propelling the growth of the Indian broadcasting and cable TV market.
The Telecom Regulatory Authority of India (TRAI) regulates the tariffs payable to subscribers of television channels and service providers in the broadcasting sector. According to the Broadcast Audience Research Council, over 197 million Indian households had a television connection in 2019. As of July 31, 2020, the Union Ministry of Information and Broadcasting (MIB) had permitted 920 TV channels to operate. The television broadcast ecosystem has three stakeholders: broadcasters, distributors, and consumers. Broadcasters make content for TV and distributors provide it to consumers using one of four technologies: cable, direct to home (DTH), head-end in the sky (HITS) or internet protocol (IPTV).
Bringing OTT platforms under government control
The OTT platform in India is regulated less as compared to its offline counterparts like films and television. This gives the platforms creative freedom which allows the platforms to cater to the needs of the masses with films brought to the platform from all across the globe. OTTs do not have any special regulations or legislations in terms of foreign programmes and Indian content. There is no discrimination and the same codes and rules are applicable throughout in terms of content regulation of the programmes.
According to a national survey, the online content industry has an estimated value of INR 4000 crores with a viewership of more than 17 crores from OTT platforms alone and all of these are regulated with little or no scrutiny. The Supreme Court issued a notice to the Centre in October 2020 to the Centre by way of a PIL where the petitioners demanded the creation of an autonomous regulatory system for online content. Over the years, the judicial approach has been such that online content would not fall under the ambit of the Cinematography Act, 1952. In parallel, several OTT platforms and operators like Hostar, Netflix are increasingly adopting self-regulation codes.
Currently, the Electronic Media Monitoring Centre, which was set up in 2008, is entrusted with the work of monitoring content on TV. It puts out reports on violations of the Programme Code.
Foreign productions
The entry of foreign and private broadcasters was a result of liberalization in the 1990s. There was a huge surge in the number of channels. Entrepreneurs set up small cable TV networks and began broadcasting local video channels including music videos within neighbourhoods. Satellite television and the launch of channels by CNN, Zee and STAR led to the birth of national multi-system operators (MSOs) and local cable operators (LCOs)
Foreign investment in the TV industry is subject to sector caps and the regulatory guidelines as may be prescribed from time to time. India has entered into film co-production treaties with the United Kingdom, Italy, Brazil, Germany, France and New Zealand. The Ministry of Information and Broadcasting is the body that is responsible for creating, administering laws, rules and regulations relating to information, broadcasting of films and press.
It also regulates international co-operation in films, broadcasting and its foreign counterparts on behalf of the government of India. The programs should not be in violation of the Program Code issued under the provisions of the Cable Television Network (Regulation) Act, 1995.
The Indian Broadcasting Foundation laid down its “Content Code and Certification Rules, 2011” which provide for a BSP (Broadcast Service Provider) to ensure that all programmes are self-certified by each broadcaster as:
1) Generally Accessible; ‘G’
2) Restricted Access; ‘R’
The former can be aired at all times while the latter has a window from 11pm to 5am. It is the duty of the Broadcast Service Provider to obtain prior certification from the Central Board of Film Certification for all films, including foreign films, music videos, albums, trailers, etc and shall broadcast them on television or radio only after such certification.
Broadcasting in India versus the UK
Regulation in India is entrusted with the Union whereas, in the United Kingdom, it is entrusted with private and public entities. The UK has a self-regulated print media and both the print and broadcast media are independent of government control. In India, the press and media are predominantly influenced by political authorities.
Foreign telecasting companies
It is a mandatory requirement for foreign broadcasters who are telecasting their channels in India to appoint an Indian company as their representative in following of the guidelines issued by the Ministry of Information and Broadcasting. Such foreign broadcasters earn advertising and subscription revenues from India. The income of foreign producers should not be taxable in India in respect of operations confined to the shooting of a film in India for transmission out of India based on an exemption under the domestic tax laws.
Conclusion
There are not any specific legislation as such which talk about regulation of foreign-produced programmes and the same is governed by the regulations and codes prescribed by the domestic legislation. The Ministry of Information and Broadcasting along with The Telecom Regulatory Authority of India regulate the content of such programmes.
The Cable Television Networks (Regulation) Act of 1995 made the Rules introduced in 1994 binding on all cable networks which are either downlinked to or uplinked from, India, which include foreign programs as well.
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