This is Part 5 of a 7 part series on Technology, Media and Telecommunications Review. It was authored by AnantLaw and published by Law Business Research Limited in December 2022.
Part 5: Media
5.1 Regulation of media distribution generally
India is the fifth largest media and entertainment sector in the world. The market size of the Indian broadcasting industry, in fiscal year 2020, was over US$5.16 billion, which is estimated to reach over US$8.85 billion by 2024. As per the data released by the TRAI on 15 September 2022, the total number of broadband subscribers until 31 July 2022 were 807.42 million and the overall tele-density is 85.11 per cent. Moreover, the media and entertainment industry is expected to reach US$30.9 billion by 2024.
The media distribution and broadcasting, in India, is taken up through four mediums: cable TV service (operated through multi-system operators and local cable operators), DTH operators, IPTV operators and HITS operators. All the four mediums directly supply content to the consumers.
The National Telecom Policy, 1999 categorised cable service providers as ‘access providers’, together with mobile service providers and fixed access providers. The Cable TV Operators are governed by the Cable Television Networks (Regulation) Act, 1995, along with its allied Rules. The Act requires broadcasters to register as cable operators and multi-system network operators with the registering authority and they must comply with registering and reporting requirements. The Act also obligates them to regulate the content and advertisements broadcast on channels. The IPTV services were introduced in 2008 and HITS services in 2009. The TRAI also laid down a regulatory framework and guidelines for the same.
Further, the amendments to the Cable Television Network Rules proposed a three-tier grievance redressal mechanism, namely, self-regulation by broadcasters, self-regulation by bodies of broadcasters, and oversight mechanism by the government. In order to address the issue of transparency and consumer welfare, the government recommended cable operators to provide content only through conditional access systems (CAS), hence, they implemented a series of measures to implement CAS. Hence, the broadcasting and distribution segments are regulated by the MIB and the TRAI, respectively.
The Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and tariff orders provides for obligations of broadcasters, television channels and service providers along with reference connection offers, as provided by TRAI. Moreover, the content providers are also required to comply with the guidelines and directions relating to content and transmission of television channels, as issued by the MIB.
Cinematographic films are regulated under the Cinematograph Act, 1952 establishing the CBFC, which provides for film certification and regulates the content. In the past, the CBFC has regulated harshly on many films and television series including Taandav, Udta Punjab, Haider, Lipstick Under My Burkha, stating that the films are too bold for public release, hence must be cut. Looking into the rising issue of film piracy, the MIB introduced the Cinematograph (Amendment) Act, 1952, which made the process of sanctioning films for exhibition more effective and in tune with the changing times, while also curbing the issue of piracy.
Moreover, through a gazette notification dated 9 November 2020, the digital and online media, along with films and audio-visual programmes were made available by online content providers and news and current affairs content on online platforms. Subsequent to it, the centre also notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, wherein the Rules aimed to regulate content on the OTT platforms and impose a code of ethics for online publishers of new media.
After a clarification on 16 October 2020 on a notification dated 18 September 2019 (see Press Note 4 of 2019), the government allowed 26 per cent of FDI through the approval route for digital media entities, news agencies and news aggregators. However, this clarification was not welcomed by the stakeholders as it puts a direct impact on industry players that are looking to raise investment from foreign investors.
Further, with the growth of technology, the media is not limited to mainstream electronic and print but digital media, including web-based news portals and other channels have also been increasing immensely. To cope with the loss in traditional means of media, the traditional media houses have moved to OTT platforms by introducing new apps and websites endorsed and owned by them, like Sony Liv, Hotstar, Zee5, etc. Even the telecom service providers have launched their OTT platforms, namely Jio Apps, Vi Movies & TV and Airtel Wynk.
5.2 Internet delivered video content
Through a gazette notification dated 9 November 2020, the MIB brought all audio-visual and news and current affairs digital content within the purview of the Ministry. Subsequently, the centre also notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, wherein a code of ethics for online publishers of news media was imposed. However, these Rules were challenged before various high courts as certain provisions of the Code, especially Rule 9, is ultra vires, the provisions of the IT Act being beyond delegated power and on 22 March 2021, the Supreme Court stayed all those proceedings and transferred the same to the Supreme Court.
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