Whose Media is it Anyway? MIB’s Dig & Dive

The Diaspora of the media in a democratic nation like India is invariably on the radar of regulatory bodies such as the Telecom Regulatory Authority of India (TRAI) and the Ministry of Information and Broadcasting (MIB). From freedom of speech and expression to the need to control and monitor the power of the press, TRAI and MIB have recently put the spotlight on ‘media ownership’.

 Post the OTT domain in the Indian media, the type of reality and fictional content that is broadcast and published has been through a sea change. Whether it is politics or religion, the content space, as well as the taste and flavor of what is showcased, are subject to several more checks.

 The consultation paper released by TRAI, jointly with the guidance of the MIB, seeks to know the stakeholders’ views on how ‘media ownership’ plays a vital role in the overall operation of the media as a pillar of democracy. The proposed ‘market regulator’ is expected to keep a check on ‘concentration’ and, therefore, regulate how best to refrain from plurality. In addition, the reappears to be overlapping content monitoring, too.

 If the ‘proposed steps’ are implemented, it will lead not only to ‘regulatory extremism,’ but also to several complexities in which multiple authorities, bodies, and societies may get entangled, causing a regulatory jinx in the Indian media and entertainment sector. Here are a few such ironic and visible accidents.

 First, if this body comes to pass, it would investigate several aspects of mergers and acquisitions in the sector, which would clash with what the Competition Commission of India(CCI)is supposed to ensure- i.e., healthy competition as key to various markets in India.

 While TRAI debates certain limitations/riders that CCI has about transaction/size, CCI will have to relax/review the exemptions so there is no cap of any sort.

Second, Articles 19(1) and 19(2) of the Indian Constitution establish the anthems of content regulation, clearly delineating the extent to which one can exercise the right to free speech and expression. Furthermore, the Cable Television Networks (Regulation) Act and Rules encompass the Programme Code, and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, govern and set frameworks that respective sector players must follow.

 TRAI believes content regulation is merely self-imposed and not practical. This, however, is contrary to several measures undertaken by the self-regulatory bodies, in addition to hefty penalties and actions against those who flout content regulation rules.

 The economics of the sector poses another ironic situation. While advertising remains a key revenue index in India, it has been very tightly controlled, according to various industry reports. Advertising is no longer the sole revenue shoe for the sector. It varies without logic across digital, electronic, and print formats. However, regulatory claws merely put a damper on the overall distribution patterns and pricing caps across the sector’s tariff plans. Issues such as piracy have not yet caught the government’s attention, leading to ever-mounting losses.

 The Undercurrents

The recent push by the MIB to draw out a new plan from TRAI, since 2014, seeks clarity on whether the disclosures and impositions shall apply to both broadcasters (news channels) and distributors (cable, DTH, and others). If not, then there must be specific ways to establish the market share of the channels. This requires clarity and uniformity for all media formats to be brought on the radar. This brings into ambit all possible earthmoving deals the sector has and/or will see in the future, from the recent Sony merger to Ambani’s unsuccessful attempt, and even Adani’s interest to bring in media verticals together.

 On a different tangent is MIB’s assessment of how the country’s geography is captured. These include defining key markets, states, and languages read and spoken. The MIB seeks uniform coverage of all languages across the country. The language aspect brings both national security and border-driven sensitivities together in defining the impact of media ownership.

 The Herfindahl-Hirschman Index (HHI), a common measure of an industry’s market concentration, used to determine market competitiveness, is yet another cause of concern for the MIB. Implementation of this Index is regarded as complex. Further, it is speculated that this model does not allow pluralism.

 While the MIB has investigated the need to revamp the underlying rules, considering the dynamic changes the media and entertainment sector have undergone since 2014, it has once again overlooked the mobile/digital formats of the massive content distributor players today. So, while TV and print media formats remain on the MIB’s active radar, it would be unfair and unwise not to regulate OTT/mobile formats, too.

 The ‘Aam Aadmi’ Connection

The media in a democracy such as India is, at its core, an empathetic full circle. Readers tend to believe content is not filtered in any form and contains elements of vested interest and motive. This derives from business tycoons, religious leaders, and politically-driven establishments keeping in mind the mammoth audience size of the media and entertainment sector. One can safely draw a parallel between media ownership format and endpoint vote banks through the influence that ‘content’ can create.

 It will be interesting to see how the media regulatory environment unfolds. Inputs from various stakeholders, industry players, and the MIB’s final approach toward the rules will set the new ground for action in the sector. Ownership and Control are critical defining factors in how Media entities in India govern competition, influence content, and impact India’s democratic audience.

 Sidharrth Shankar is Partner, JSA, Advocates, and Solicitors. Views expressed are personal.