INTRODUCTION
"Hope is a good thing, maybe the best of things, and no good thing ever dies."
This iconic line from one of the greatest movies of all time, The Shawshank Redemption, perfectly encapsulates the sentiment surrounding the recent legal and regulatory developments in the Indian media & entertainment industry. As we stand on the precipice of significant changes, the anticipation is palpable, as the future holds both promise and uncertainty.
Real-money gaming companies are waiting in anticipation for the Supreme Court to hear the case on the 28% (twenty eight percent) Goods and Services Tax regime, hoping for a favourable outcome that could potentially reshape the financial landscape for their businesses. On the media front, the government is contemplating whether there is a need for the Broadcasting Services (Regulation) Bill, 2023. A diverse range of stakeholders would be consulted before the government arrives at a decision.
As we look forward to these potential changes and developments in the coming months, the underlying theme remains one of cautious optimism. The outcomes of these developments could significantly impact various sectors, and like Andy Dufresne in The Shawshank Redemption, we hold on to hope, believing that the best is yet to come.
With these thoughts, we present to you, Volume XXIV of IndusLaw's The Recap, a round-up of legal updates for the media & entertainment and gaming industries. This edition covers updates from the months of June and July 2024 and their related developments from August 2024.
MEDIA AND ENTERTAINMENT UPDATES
Government to assess the need for Broadcasting Services (Regulation) Bill, 2023
As per latest news reports, on August 19, 2024, Mr. Ashwini Vaishnaw, the Union Minister for Information and Broadcasting stated that the government is assessing the need for a new regulatory framework for broadcasting services and is open-minded about its approach. He stated that the Ministry of Information and Broadcasting ("MIB") will continue to have extensive consultations with a diverse set of stakeholders to assess the purpose of the law. He also added that the government has encouraged the content creator economy and enabled it to create more intellectual property.
Mr. Vaishnaw's statements were made in the backdrop of the controversy surrounding the consultation process and the provisions of the Broadcasting Services (Regulation) Bill, 2024 ("Revised Broadcasting Bill"). As per latest news reports, MIB held a private meeting with select industry stakeholders and shared physical copies of the Revised Broadcasting Bill. This version of the bill was not released for public consultation. However, various stakeholders, who accessed the Revised Broadcasting Bill criticized it for potentially creating a chilling effect on the freedom of speech and expression.
Reports also indicate that due to the backlash faced by the government, on August 12, 2024, MIB had asked the select stakeholders to return their physical copies of the Revised Broadcasting Bill. The ministry also extended the time for stakeholders to provide comments to the Broadcasting Bill, 2023 ("Broadcasting Bill") till October 15, 2024, and had stated that a revised version of the bill would be released after the consultation process, without any reference to the Revised Broadcasting Bill.
Notably, some unnamed official sources quoted by news reports have stated that the Broadcasting Bill has been put on hold for the time being. As on date, the Revised Broadcasting Bill stands withdrawn.
Some of the key provisions of the Revised Broadcasting Bill as per reports were:
- Individuals engaging in systematic business or commercial activities through social media, such as uploading videos, creating podcasts, or writing online, are now classified similarly to traditional broadcasters. This includes those who are involved in systematic and professional activities, where "systematic" refers to structured activities with planning and continuity.
- News content creators online who are not linked to traditional or registered digital media are now subject to similar obligations as streaming platforms, i.e., OverThe-Top ("OTT") broadcasting services.
- Definitions of 'programme' and 'broadcasting' has been expanded to include "texts" alongside traditional audio, visual, or audiovisual content.
- The definition of 'intermediary' encompasses social media platforms, advertisement intermediaries, internet service providers, online search engines, and online marketplaces.
- The government under the Revised Draft can set different due diligence guidelines for social media platforms and online advertisement intermediaries. All intermediaries will now need to provide detailed information about OTT and digital news broadcasters to the Central Government to ensure compliance.
- Intermediaries will risk losing their safe harbour status and face penalties under Bharatiya Nyaya Sanhita, 2023, if they fail to comply with the government directions.
Financial Express' coverage of the update can be viewed here and here.
Money Control's coverage of the update can be viewed here.
MediaNama's coverage of the update can be viewed here.
The Hindu's coverage of the update can be viewed here.
Self-Declaration Certificate case moves forward: Ministry of Consumer Affairs to reinitiate its tie-up with ASCI to track misleading advertisements; MIB files its affidavit
During the recent hearings in Indian Medical Association v. Union of India ("Patanjali Case"), the Supreme Court of India ("SC") highlighted the inefficacy of the Grievance Against Misleading Advertisements ("GAMA") portal noting a significant decline in registered complaints following the end of the collaboration between the Ministry of Consumer Affairs ("MCA") and the Advertising Standards Council of India ("ASCI").
The SC observed that the GAMA portal operated by the MCA was not effective. The SC noted that the MCA had registered only around 130 (one hundred and thirty) complaints under GAMA between 2020-2024, compared to over 2500+ (twenty five hundred plus) complaints between 2018-2020 when the MCA had a collaboration with the ASCI. The SC also pointed out that the MCA was only acting against misleading advertisements when a complaint was made rather than acting on its own. The SC observed orally that the MCA should start acting against such advertisements on its own instead of waiting for complaints to be filed.
Observing that the ASCI does "a lot of suo motu due diligence on ground", the SC implied that the approach adopted by ASCI was more effective in curbing misleading advertisements as compared to the MCA's approach of waiting for complaints to be made on the GAMA portal. This observation, though likely to be obiter dictum, may give a boost to the ASCI framework. The amicus curiae, Shadan Farasat, suggested that the mechanism developed under the MCA's tie-up with the ASCI be re-initiated (among his other suggestions in relation to medicines and food products).
Separately, the Additional Solicitor General ("ASG"), Mr. K.M. Nataraj, appearing for MIB informed the SC in July that stakeholder meetings had been conducted on the issue of the self-declaration for advertisements and more than 40 (forty) stakeholders had given their views and suggestions on the issue. However, the ASG sought more time to gather some more stakeholder views, collate them, and file a response (affidavit) containing MIB's recommendations on the issue.
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