Happy Holidays from the Degen Lawyers Team and welcome to our Newsletter, here we bring you your weekly doses of lethal legal insights, and regulatory updates in the emerging tech & law space. Our expert lawyers serve up curated analysis, hot takes, and expert commentary, sprinkled with a healthy dose of wacky and meme-worthy content. Enjoy!

In this week’s edition:

News in short:

1. China eyes Web 3.0 Development

   China’s Ministry of Industry and Information technology has unveiled a ‘China Web3 plan’, focusing on Government applications of Web 3, NFTs, DApps & more. The government plans to further shape the industry by encouraging new business models and boosting its international influence. Public education and academic support have been highlighted as crucial aspects of the strategy. China’s public blockchain ‘Chang’An Chain’ already has several Chinese companies as part of its ecosystem and China is looking for yet another industry to dominate. Watch out Europe, once China sets its eyes on the prize, nothing will stand in its way.

2.  Japanese Cabinet to scrap corporate taxes on unrealised crypto gains

   Japan seeks to boost Web3 by ending taxes on unrealised crypto gains held by companies, following a plea from the industry for lighter taxation, the lack of which is currently a barrier to Web3 development. The cabinet approved the proposal, hoping to keep Web3 companies from moving overseas. Some other nations (*cough India cough*) should take a long, hard look when it comes to Crypto taxes and industry moving overseas.

3. Massachusetts exploring bill to ban killer robots

   Massachusetts lawmakers have introduced a bill that would bar manufacturers from the sale & use of weaponised robots. The bill seeks to ensure that advanced robotic technology will be used responsibly. The Bill aims to prevent the robots from inflicting lethal injury or force on humans. Given that Boston is a powerhouse of robotics development, the bill is sure to have serious implications on the industry worldwide. In our opinion, given the whole chatter around AI x Robotics, this Bill can’t get here soon enough!

Article of the week

The Broadcasting Services (Regulation)Bill, 2023: A Critical Analysis

Introduction 

The “Broadcasting Services (Regulation) Bill, 2023” (The Bill), is a landmark legislative proposal that aims to modernise & consolidate the regulatory framework of the broadcasting industry in India. Replacing the outdated Cable Television Networks Act of 1995, this Bill extends its oversight to include over-the-top (OTT) content, digital news, and current affairs, which were previously governed under the IT Act, 2000. The Bill was conceived as a response to the evolving nature of India's broadcasting sector, particularly with the advent of digital platforms. It aims to replace the outdated Cable Television Networks (Regulation) Act of 1995, which struggled to effectively regulate emerging media formats like Direct-To-Home, Internet Protocol Television, and Over-The-Top services. This Bill acknowledges the shifting media consumption patterns and the need for a modernised legislative framework that balances industry growth with ethical broadcasting standards and public interest. 

Key Features of the Bill

The Bill embodies a set of key features that distinguish it from previous legislation, marking a significant stride in the evolution of India's broadcasting regulation. These features not only address the contemporary needs of the media landscape but also envision the future of broadcasting in a digital world.

Expansion of Regulatory Scope

At the heart of the Bill is the expansion of its regulatory domain to include OTT platforms and digital news. The inclusion of these platforms under the Bill's umbrella is not just a nod to technological advancements but a recognition of their significant role in the broadcasting ecosystem​​.

Strengthening Self-Regulation

The Bill introduces 'Content Evaluation Committees' and elevates the Inter-Departmental Committee to a 'Broadcast Advisory Council'. The Bill envisions a broadcasting landscape where creators are more accountable for their content, promoting ethical standards and quality assurance in programming​​.

Incorporating Modern Definitions

The Bill includes comprehensive definitions for contemporary broadcasting terms. This feature is pivotal in ensuring that the regulatory framework remains relevant and adaptable to emerging broadcasting technologies. By defining new-age media terminologies, the Bill prepares the regulatory landscape to be future-ready, capable of embracing innovations.

Differentiated Codes for Programs and Advertisements

The Bill introduces distinct Programmes and Advertisement Codes for different services, ensuring that content across diverse broadcasting mediums is regulated appropriately. This is crucial in maintaining the ‘integrity and appropriateness of content’, ensuring that what is broadcasted is in line with societal norms and values, and is sensitive to the diverse audience demographics​​.

Accessibility Provisions 

A significant stride in inclusivity is evident in the Bill's provisions for issuing comprehensive accessibility guidelines for persons with disabilities. These guidelines aim to ensure that broadcasting content is accessible to all segments of society, thereby promoting inclusiveness and equality in media consumption. It's a step towards ensuring that no individual is left behind in the digital age of information and entertainment​​.

Statutory Penalties 

The introduction of structured penalties, including advisory, warning, censure, and monetary fines, is a move towards stricter compliance enforcement.

Infrastructure Sharing 

The Bill includes provisions for infrastructure sharing among broadcasting network operators and carriage of platform services. Thus it facilitates better resource utilisation and fosters a collaborative environment among broadcasters. It’s an initiative that can lead to cost efficiencies and technological synergies, promoting a more cohesive and efficient broadcasting infrastructure​​.

Concerns and Criticism

The Bill has sparked significant backlash and criticism from various sectors of the industry, raising concerns over its potential implications for artistic freedom, privacy, and the autonomy of media. While the Bill aims to modernise and streamline broadcasting regulations, these critical viewpoints highlight potential pitfalls and future challenges.

Artistic Freedom and Government Control

A primary concern is the potential for the Bill to impinge on artistic freedom. Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression. Critics argue that the Bill's provisions could infringe on this right by enabling government control over content, thereby limiting free artistic expression and the right to dissent. It further could lead to the erasure or selective representation of minority communities, thereby normalising a homogenised cultural narrative. For instance, content that reflects diverse ethnic, religious, or social groups could be censored or altered under vague terms like "public interest," leading to a form of cultural hegemony. This is particularly troubling in a country with rich cultural diversity like India. The Bill, by granting extensive control to the government, could also be wielded as a tool for propaganda, influencing the media to align with government narratives under the guise of national interest. 

Indian courts have historically protected artistic freedom. The Supreme Court's stance in the landmark judgement of Shreya Singhal v. Union of India (2015) emphasized the need to protect freedom of expression from arbitrary state intervention which is substantially compromised in the present bill. 

Privacy and Safety Issues

The requirement for Content Evaluation Committee members to disclose personal details raises concerns in light of the Puttaswamy Judgement (2017). In a politically charged environment, this could expose committee members to harassment or coercion, especially if they are involved in evaluating content that is politically sensitive or controversial. The potential for personal data misuse and the risk of intimidation could lead to self-censorship, ultimately affecting the objectivity and diversity of content. 

Furthermore, the IT Act, 2000, particularly its rules concerning data protection and privacy, may be at odds with the Bill's provisions requiring disclosure of personal information, potentially leading to legal conflicts and challenges regarding privacy norms.

OTT Content Regulation

The inclusion of OTT platforms under broadcasting services blurs the lines between personal and public communication. There is a fear that this could open doors for excessive state surveillance and control over content consumed privately, potentially infringing on the privacy rights protected under the Puttaswamy Judgement and contradicting the spirit of the IT Act, which has a more liberal approach towards content on digital platforms. For example, OTT platforms like Netflix which offer a wide range of international and diverse content, could face stringent censorship, affecting the viewer's choice and privacy. This could lead to a scenario where personal viewing habits are monitored or regulated.

In a significant judgement by the Kerala High Court. The court declared that watching pornography in private is not an offence under Section 292 of the Indian Penal Code, emphasising an individual's right to privacy and personal choice. This judgement asserts that legal interference in an individual's private choice to view explicit content constitutes an intrusion of privacy. This ruling is pertinent when considering the regulation of OTT platforms by the Broadcasting Bill, as it highlights a judicial precedent protecting the privacy of personal content consumption. The Bill's approach to OTT content regulation might be seen as contradicting this legal tenet, raising concerns about overreach into private liberties.

Impact on News Media and Journalists 

The expanded definition of broadcasting in the Bill might impede the freedom of independent journalists and smaller news outlets, an integral part of Article 19(1)(a) of the Constitution. These entities often rely on their independence to report on sensitive issues, and increased regulation could lead to a chilling effect on investigative journalism. Small news outlets might not have the resources to navigate the complex regulatory landscape, potentially leading to a consolidation of media power in the hands of a few large corporations. This could diminish the diversity of perspectives in the media and undermine democratic discourse

Potential Benefits

Despite it’s numerous criticisms, the Bill does have benefits too.

Accountability and Responsibility

By centralizing governance under a single ministry, the Bill ensures clearer accountability and coordination. This can be exemplified by the streamlining of regulatory processes, which would reduce bureaucratic overlaps and confusion.

Equitable Penalties

The Bill’s penalty structure is designed to consider the financial capacity of entities, ensuring fairness. This approach can be seen as similar to progressive taxation principles, where penalties are proportionate to the entity’s ability to pay, thus maintaining equity in enforcement​​.

Conclusion

As the Bill continues to stir debate, the government's decision to invite comments and suggestions reflects its openness to public and industry feedback. It's crucial for the government to carefully consider this feedback before finalizing the Bill, as overlooking these concerns could lead to significant complications, particularly in terms of legal challenges and industry pushback. There are already instances of OTT platforms approaching courts, highlighting the potential for legal entanglements if the Bill is adopted without addressing the highlighted issues. A cautious approach is essential to ensure the Bill achieves its objectives while balancing the interests of all stakeholders involved.

Did You Know?

In 1933, The Crooked Circle, was the first feature film to be show in television. The Don Lee Broadcasting System showed the film on March 10,1933, over their experimental station W6XAO, transmitting an 80-line resolution mechanical television picture to half a dozen or fewer receiving sets in the greater Los Angeles area. From an audience of a few dozen people, the broadcast industry reaches billions today, providing a diverse and rich set of content across the world over various devices, all of this within 100 years of the first real broadcast of a movie.

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