The Government of India has recently (on July 31, 2023) has made two critical amendments to the Government of India (Allocation of Business) Rules, 1961 pertaining to areas of governance for the Ministry of Information and Broadcasting (“MIB”). The changes implemented by Government by way of these amendment are as follows:
- Under Entry 22A ‘Films and Audio-Visual programmes made available by online content providers’ has been amended to read as ‘Films and Audio-Visual programmes/content made available by online content providers/publishers’.
The expansion of this provision seems to have been undertaken with the intent of giving effect to the relevant portion of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) pertaining to MIB’s powers to regulate ‘publishers of online curated content’ (which include entities engaged in publishing a ‘curated catalogue of audio-visual content’ – including films and audiovisual programmes – on an online platform, such as OTT platforms). However, the amendment (in its current form) would have a far-reaching effect. Pursuant to this amendment, any ‘content’ which is made available by any ‘online content provider/publisher’ would become subject to regulation by the MIB (in addition to content made available by publishers of online curated content).
It is pertinent to note, however, that the definition and scope of the term ‘online content provider/publisher of content’ is not provided for under the provisions of any existing statue in India (and though the IT Rules provide a definition of the term ‘publisher of online curated content’, this definition has a much narrower scope). In absence of clarity on the scope and purview of these terms, the authority granted to the MIB under this recent amendment seems to be potentially conflicting with the provisions of IT Rules, under which the Ministry of Electronics and Information Technology (“MeitY”) has the sole authority to regulate online intermediaries including online gaming intermediaries and social media intermediaries (which could be regarded as ‘online content providers’ since these entities are responsible for providing and making available various content to users of their platform).
Particularly in light of the recent amendments to the IT Rules as of April 6, 2023 (through which MeitY introduced provisions empowering it to regulate ‘online games’ and ‘online gaming platforms’), the fact that the Government has now amended the Government of India (Allocation of Business) Rules, 1961 such that online gaming platforms falls within the purview of the MIB (and causes an overlap of powers between MIB and MeitY) seems quite surprising. We can expect some clarification from the Government in the near future to provide clarity on the potential conflict.
- A new Entry 22C pertaining to ‘online advertisements’ has been added
The implication of the above provision would be that any advertisements made available online (including any websites, mobile applications, OTT platforms, social media networking platforms, etc.) will now be governed/regulated by the MIB.
The authority granted to MIB by way of this provision also causes a potential conflict with the extant powers and existing authority held by MeitY under the IT Rules (as amended and up to date) vis-à-vis the regulation of online content. The instant amendment thereby also merits suitable clarification to be provided from the Government vis-à-vis the overlap of powers of MIB and MeitY with regard to regulation of online advertisements.
In addition, clarification is also required with regard to the impact of both the above amendments on the functioning and powers of the Advertising Standards Council of India (“ASCI”), a self-regulatory body constituted by the Indian advertising industry, which extensively works with various government bodies, including both MIB and MeitY in creation of guidelines pertaining to online advertisements.