New Delhi: Three new legislations give the union government power to censor news content, imperil encrypted communication, make it easier to shut down the Internet, and interception communications with minimal accountability. 

These views were put forth by leading experts at a meeting organised on 20th December 2023 by Digipub, which represents over 60 digital news media, independent journalists and commentators.

These legislations include: the Telecommunications Bill of 2023, the draft Broadcasting Services (Regulation) Bill of 2023, and the Digital Personal Data Protection Act of 2023.

The telecom bill was passed by the Lok Sabha on 20 December 2023 and the Rajya Sabha on 21 December 2023 and will become an Act after the President’s assent. 

Anything Can Be Censored Under New Broadcasting Bill

The legislations aimed at regulating online content, including news, were “extremely broad” and “vague”, said Ritu Kapur, CEO and co-founder of The Quint. There is currently a “complete lack of clarity” on what can lead to a punishment, interception, investigation, inquiry, or censorship, said Kapur.

She said the provision for content evaluation committees (CECs) in the draft broadcasting bill, asking broadcasters to broadcast only those programmes self-certified through these CECs, would be difficult for news media to follow.

“There is a reason news organisations have editors,” said Kapur. “Why do we need this content evaluation committee?” 

Digital news content creator Meghnad S spoke about how the difference between a journalist and content creator has been blurred in the recent legislations. 

Meghnad said anyone making social commentary online—including comedians, Instagram meme pages, even those running WhatsApp communities—could face the same restrictions proposed for news media in the broadcasting bill. He was referring to the broad definition of “news and current affairs programmes” prescribed in the draft broadcasting bill, which requires such programmes to adhere to advertising and programme codes prescribed by the government. 

Meghnad said these codes restricted programming for a variety of supposed transgressions, such as “snobbish behaviour (...), decency, public morality”.

It is unclear if the government will prescribe new codes or continue with the existing ones. 

Meghnad expressed concerns over the requirement of verifiable biometric- based identification for users of telecom services in the telecom bill. For journalists, this could mean that their sources can no longer be anonymous when they share news, he said.

Meena Kotwal, the founder of the news website The Mooknayak, said these laws, if passed, as they likely will, can be used for “selective targeting” of people speaking on issues that the government did not want to discuss. 

She said, “Since things are in the hands of the government, it can decide what is right or wrong. There are a lot of ministers in the government who put out wrong information but no one will target them. And even if our information is correct, it is very easy to target us”.  

Aslah Kayyalakkath, founding editor of Maktoob, shared his experience of how he landed in trouble with the Kerala police because of a 30 October story by a freelance journalist, alleging anti-Muslim bias by the Kerala police. The police filed a first information report (FIR) against the freelancer and his phone was seized. Kayyalakkath was made a potential accused in the FIR and interrogated for several hours.

Several such instances of harassment and arrests of journalists publishing stories critical of the government and its institutions have been recorded in the past few years. This not only discourages journalists but also instils a feeling of fear that leads to self-censorship.

Surveillance & Privacy Concerns In Telecom Bill

Advocate Apar Gupta said there were major concerns related to surveillance and interception, internet shutdowns, encrypted services, and duties of users in the Telecom Bill, 2023 (which the Lok Sabha passed with 95 of its MPs suspended), in a political economy “where there is a growth” of chosen companies and increased government control. 

Referring to Internet shutdowns, Gupta said, “Long periods of Internet shutdowns have caused grave amounts of economic and social injury to people in Jammu and Kashmir and Manipur almost reducing them to a barbaric sort of existence during Covid”.

"The department of telecommunications still refuses to make a centralised repository of internet shutdowns, thereby reducing transparency,” said Gupta. “We are completely ignoring the central core of telecommunication rules that are required."Gupta said the interception provisions in the new bill were worse than those in a previous 2022 avataar, which was released for public consultation in September that year. The department of telecommunications did not release the comments that were made. 

The new telecom bill states that the central government can ask for messages to be disclosed in an “intelligible format”. 

“What that means is that if there is an interception order, and it's a WhatsApp message given to WhatsApp, [then] WhatsApp needs to decrypt it and give it to a law enforcement officer,” said Gupta. “And how will it do it if it's implementing end-to-end encryption?”WhatsApp currently claims to provide end-to-end encrypted messaging services, which means that no one except those communicating with each other can read the messages being exchanged, not even WhatsApp. Asking WhatsApp to decrypt its messages could affect the privacy rights of Indians.

“The hope is always obviously if you're coming out with a new law, you would want policy to improve,” said Gupta. “You wouldn't want it to just replicate the existing provisions.” 

Advocate Vrinda Bhandari spoke about how search-and-seizure powers granted under the telecom bill were of concern. The telecom bill allows any officer authorised by the union government to search any place where “unauthorised” telecom equipment is kept and seize it, or, for certain offences, such as unlawful interception and “causing damage to telecommunication network”.

Bhandari said that the government’s powers under the bill were “very broadly defined” and that it provided no safeguards against interception. The new Bill would allow any social-media messages on Manipur violence to be blocked for “inflaming tensions,” she added. The Bill allows the central government to intercept messages communicated via “any telecommunication equipment” for reasons like “public emergency or in the interest of public safety”.

Another controversial aspect in the Bill is the definition of “telecommunication services”. Bhandari argued that the current definition is still very broad and has scope to include “any content” under its ambit. This could cover services like WhatsApp, PayTm and Google Pay, she added. 

Including Internet-based services in the definition of “telecommunication services” would make them vulnerable to the government’s power to restrict and suspend their services. 

Advocate Shreya Singhal said the telecom bill allowed all telecom services to be suspended for any “public emergency”. The government would have the power to ban not only the Internet but also mobile services. 

Censorship Powers Of The Broadcasting Bill

Journalist Anna M M Vetticad referred to growing self-censorship in the Hindi entertainment industry, describing it as “mind-boggling”. 

“If an actor is outspoken, they will not cast that person” because there’s potential for controversy, said Vetticad. Self-censorship was evident even with script-writers and financiers, she added. Vetticad discussed the film "Bheed," which draws connections between the Covid crisis and India's 1947 partition. When the film’s director, Anubhav Sinha, ran into trouble with the censor board, the producer distanced himself from the project and had his own name removed from the credits, Vetticad said.

“Multiple filmmakers have told me that the scripts of their shows and their films are being looked at for, [to check if] there’s anything that would offend the government [or if there] is there anything that would offend Hindutva,” said Vetticad. 

She also raised concerns with the provisions for content evaluation committees (CECs) in the broadcasting bill. The bill requires broadcasters to self-certify content before publication. The CEC, she said, would be another layer above existing censorship. 

The broadcasting bill seeks to regulate broadcasting services over television, Internet, and radio, allowing the government to regulate or censor content. The bill empowers the union government to delete or modify programmes. 

Lawyer Alok Prasanna, co-founder and lead, Vidhi Centre for Legal Policy, Karnataka, described the broadcasting bill as a completely “confused approach” to regulating OTTs. 

Abhinandan Sekhri, co-founder and CEO of Newslaundry,  said it was important to remember that government regulations applied to the media as well. “I myself have faced in court in five different cases, three against income tax authorities, one against The Times of India, one against India Today,” he said. 

Vibodh Parthasarathi, associate professor, Jamia Millia Islamia, said that the broadcast regulations have been “unclear” in finding the “object of regulation”. For instance, he said, “I see a lack of state capacity in stipulating the methodology for audience measurement”, a task that falls under the ambit of the central government under the broadcasting bill.

(Akshit Chawla is an independent journalist based in New Delhi.)

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