After setting up a three-tier grievance redressal mechanism for digital media, the Central Government has now incorporated a similar structure for broadcasters and advertisers. The Ministry of Information and Broadcasting ("IB Ministry") has amended the grievance redressal mechanism through the Cable Television Networks (Amendment) Rules 2021 ("New CN Rules"). This article analyses the New CN Rules and its impact.
The three-tier grievance redressal model under the New CN Rules is elaborated below -
Level I – Self-regulation by broadcasters
The New CN Rules require each broadcaster to appoint a grievance officer. The contact details of the grievance officer and grievance redressal mechanism should be published on the website. Any person can file a complaint about content which is not in conformity with the Programme Code or Advertising Code as set out under the Cable Television Network Rules, 1994. For any complaints relating to the Programme Code, the broadcaster must acknowledge within twenty-four (24) hours and resolve within fifteen (15) days of receipt. For any complaints relating to the Advertisement Code, the Advertising Standards Council of India ("ASCI") is required to resolve it within sixty (60) days. Broadcasters are required to make the information related to complaints received and action taken public.
Level II – Regulation by self-regulating body
The New CN Rules stipulate that -
- Each self-regulating body is required to register after scrutiny with the IB Ministry.
- Each self-regulating body must have at least forty (40) members.
- Each self-regulating body will be headed by a retired Supreme Court or High Court Judge or an independent eminent person from the field of broadcasting, entertainment, child rights, human rights or such other relevant fields. The self-regulating body can have up to 6 (six) members in addition to the head.
- If the broadcaster fails to resolve the complaint within fifteen (15) days or if the complainant is aggrieved by the decision of the broadcaster, the complainant can approach the self-regulating body of the broadcaster. The self-regulating body must dispose off the complaints or appeals within sixty (60) days.
- While disposing off any complaints/appeals, the self-regulating body can pass guidance or advisory to the broadcaster. It has the broad powers to warn or reprimand, mandate an apology and/or require inclusion of a warning card or disclaimer. In appropriate cases, it can refer the content at-issue in a complaint/appeal to the Central Government for deletion or modification.
- In case the guidance or advisory is not complied with in fifteen (15) days, the self-regulating body shall refer the matter to the Central Government.
- Each self-regulating body is required to make the information related to complaints received and action taken public.
Level III – Oversight by Central Government
The Central Government will maintain oversight of the grievance redressal mechanism through an inter-departmental committee. The inter-departmental committee shall be chaired by the Additional Secretary of IB Ministry and can formulate its own procedure. Based on the recommendation of the inter-departmental committee, the Central Government can issue guidance or advisories to broadcasters. It can warn or reprimand, mandate an apology, require inclusion of a warning card or disclaimer and/or require deletion or modification of content.
Notably, the Central Government retains the broad power to prohibit transmission or re-transmission of any content which is in violation of the Programme Code or Advertising Code. Such directions may be passed after hearing the cable operator and through a written order.
In Common Cause v. Union of India and Ors.1, the Supreme Court recognized the existence of self-regulatory bodies like ASCI, News Broadcasters Association etc. These self-regulatory bodies ensure that there is no violation of the Programme Code or Advertising Code. The Supreme Court observed that there was a need to formulate a formal complaint redressal mechanism. Accordingly, through the New CN Rules, IB Ministry has brought in a strong institutional system for grievance redressal and accountability.
The provisions of the New CN Rules closely mirror Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 ("New IT Rules"). We have previously analyzed the New IT Rules in another article2. Much like the New IT Rules, the two key issues are (i) potential chilling effect on free speech and (ii) intervention by the Central Government
- Potential chilling effect on free speech: As noted by IB Ministry's press release3, there are over 900 television channels which are presently operating with permission from IB Ministry. The requirement to conform to the Programme Code and Advertising Code is not new. However, with the three-tier grievance redressal model as introduced by the New CN Rules can potentially result in different interpretations of the restrictions imposed by these codes. For example, the Programme Code contains ambiguous provisions like "good taste or decency". It is likely that this term is interpreted differently by different broadcasters and self-regulating bodies. The New CN Rules fails to provide for an opportunity to broadcasters to appeal against the recommendation of the self-regulating body. The limited opportunity to defend its content may adversely affect the creative liberties of artists and have chilling effect on their free speech.
- Intervention by the Central Government: The Central Government has a prominent role in Level II and Level III of the three-tier grievance redressal model. This is contrary to the thrust on self-regulation. However, the more pressing issue is the Central Government's power to prohibit transmission and re-transmission of violative content. Firstly, in exercise of this power, the Central Government only contemplates hearing the cable operator not the broadcaster. Secondly, the widely worded power also allows prohibition on transmission altogether i.e., pre-broadcast prohibition. This wide power coupled with the ambiguous phrases in the Programme Code may result in pre-censorship of content.
In our view, the effort to bring in parity between online and offline content has resulted in the import of certain similar issues as well. The practical implementation of how the adjudicatory powers by self-regulating body and oversight mechanism should be exercised will be worthwhile to observe. In the coming years, it is likely that the Courts will be required to interpret the provisions of the Programme Code to ensure a uniform standard of implementation. It is well settled by the Supreme Court that any free speech is not an absolute right and is qualified by the reasonable restrictions set out in Article 19 (2) of the Constitution of India.4 The Courts may have to examine if phrases like "good taste or decency" are a reasonable restriction under Article 19 (2) of the Constitution of India as well.
With respect to the wide powers of the Central Government, it will be interesting to see how the jurisprudence around pre-broadcast censorship evolves. The Supreme Court in R. Rajagopal v. State of Tamil Nadu5 held that prior restraint on material that may be defamatory cannot be imposed by the State. Over the past decade, News media has amplified reporting of on-going investigations as well as investigative journalism. The resultant editorialization of news bulletins has had a two-fold impact. On one hand, it has created media pressure for expediting investigation. While on the other hand, it has resulted in reports where the media has pre-judged the issue and reported extensively against an individual without proper substantiation. To curb reporting which adversely affects an individual's reputation and right to life with dignity, the Central Government may exercise its power to prohibit transmission of such problematic content. However, any such restriction will be required to strike a balance between the media's right to report within the contours of free speech under Article 19 of the Constitution of India and the individual's right to life with dignity under Article 21 of the Constitution of India.
The exercise of wide adjudicatory powers by self-regulating body and oversight mechanism will have a lasting impact on broadcasters and artistic freedom. The presence of vague terms in the Programme Code clubbed with Central Government's wide powers may result in self-censorship by broadcasters in the coming years.
1. 2017 SCC Online SC 617
2. New Rules for Digital Media: Taming a wild horse - here
4. Express Newspapers and Anr. v. Union of India and Ors. AIR 1958 SC 578
5. 1995 AIR 264
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