A licence raj for digital content creators

This data suggest a “content election” or an “influencer election”, with digital media critical of the Prime Minister challenging the dominance of television news. The widespread use of digital media critical of the Prime Minister also challenges the dominance of television news, which Vanita Kohli-Khandekar, an expert on the Indian media, describes as catering primarily to Bharatiya Janata Party (BJP) voters and being “homogenized into one lump”. This leads to a crucial question about the Union government’s gameplay. How will it use existing and new laws to shackle digital content?

Signs of control

Even before the President of India administered the oath of office to the Prime Minister and cabinet Ministers, TV channels rather than calling it “Modi 240” (for the number of seats won by the BJP in the general election) labelled it “Modi 3.0” instead. Just like a new version or a software upgrade, this label marked continuity with improvement in a project to centralise power in the name, the image and the voice of the Prime Minister. Consequently, there has been little change in his Cabinet of Ministers. Ashwini Vaishnaw remains the Minister for Electronics and Information Technology (MeitY) and has also been given the Ministry of Information and Broadcasting (MIB) portfolio. This reflects a growing convergence and the interest of these ministries in controlling digital content. A formal legal basis to this censorial partnership was first established through the IT Rules, 2021 on February 25, 2021. It expanded MeitY’s powers, including a traceability mandate compromising end-to-end encryption on messaging services such as Signal. It also granted the MIB new powers to require registration and block digital news media and online entertainment streaming apps. The MIB has publicly disclosed its enforcement action only when they align with nationalistic themes such as terrorism, or on issues such as internal security, fitting its political interests. Thus, both Ministries now have overlapping functions and a shared interest in controlling online narratives.

Creating an autocratic weapon

Even with the IT Rules, 2021, the Union Government was unable to completely control the expanse of digital content. So, it expanded them twice. First, on January 28, 2023 it created three “Grievance Appellate Committee(s)”, or GACs, headed by officials from the Ministry of Home Affairs, the MIB, and MeitY. They have heard 1,216 appeals and issued 1,089 secret orders to online platforms on the taking down of or for the reinstatement of content. Then, on April 6, 2023, the IT Rules were amended to grant the Union government the power to order the removal of any digital content deemed “fake, false, and misleading”, which was claimed to be the “fact checking amendment”. This has been stayed by the Supreme Court of India on March 21, 2024.

Snapshot of the article titled, “A license raj for digital content creators” published in The Hindu on July 31, 2024

With past attempts under the IT Rules, 2021 being inefficient and thwarted, the Union government released the first draft of the Broadcasting Services (Regulation) Bill, 2023, on November 3, 2023, introducing an autocratic superweapon for digital censorship. In simple terms, if it passes into law, your favourite YouTube or Instagram creators who comment on politics and report the news will need to register and work at the discretion of the MIB. Writing on the first version of this proposed law in this daily (“Old censorship on a new medium”, November 27, 2023), this writer argued that it will “increase government powers, reduce transparency and accountability processes, and erode fundamental rights.…”.

Work on the Broadcasting Bill, 2023 paused during the election months, while online creators increased their scrutiny on the BJP’s campaign messaging and its 10-year term. The heightened activity of online creators and increase in reach was noticed. On June 4, 2024, in his first address after the election results, the Prime Minister specifically referred to, “countrymen… influencers and… opinion makers.…” Wasting little time, according to a media report, the MIB convened a meeting on July 9 for a “presentation” to “stakeholders”. Another media report on July 26 mentioned the release of a new draft to “stakeholders”, rechristened the Broadcasting Services (Regulation) Bill, 2024. This latest version has not yet been made public. Nor is the complete list of “stakeholders” who have access to it. According to multiple sources who participated in the MIB meetings, the Broadcasting Bill, 2024 is individually watermarked and provided only after signing undertakings. Despite these retrograde practices from the Union Government’s own Pre-Legislative Consultation Policy dated January 10, 2014, a copy of the Broadcasting Bill, 2024 has been floating in the corridors of media, politics, policy and law.

Key highlights of the Bill

On analysis, the nervousness not only of the “stakeholders” but also of the MIB itself in making the Broadcasting Services (Regulation) Bill, 2024 public is understandable. Instead of recognising constitutional limits, the Bill increases the Union Government’s command and control over digital media. While its minutiae pose immense harm to democratic expression, let us focus on three primary highlights. First, the Bill expands its scope to classify individual commentators as “Digital News Broadcasters” and content creators as “OTT Broadcasters”. The MIB can prescribe and change thresholds for subscribers or users, which, when met, require registration. Second, it creates additional compliances for online platforms and establishes a new safe harbour regime independent of the Information Technology Act, 2000. In addition to the IT Rules, 2021, it can demand registration, enforce censorship, and even require platforms such as YouTube to frame special compliances not only for news channels but also for creators such as Nisha Madhulika, whose latest video is about coconut laddu recipe. This law is designed for the MIB to exercise coercive and total control while outsourcing everyday censorship as a form of compliance to a private apparatus. Finally, the decision-making process for censorship relies on cumbersome proactive compliances, a system of registrations and private self-censorship, and, on failure or whim, censorship and fines levied by the MIB. If that were not enough, most provisions in the Broadcasting Bill, 2024 are sufficiently vague, making them ripe for arbitrary enforcement.

(An edited version of this article was published in the The Hindu on July 31, 2024)