Content regulation does equal media control

BY ANUP KUMAR| IN Media Freedom | 10/05/2012
More regulation is not a way to address corruption, breach of ethical norms and the declining quality of journalism in India.
This requires media reform, enforcing journalistic norms, and post-publication prosecution, says ANUP KUMAR. Pix: Justice Markandey Katju
Does India need more media regulation? The honorable Allahabad High Court, some members of the Congress party and Justice Markandey Katju, the chairperson of the Press Council of India, seem to be of the opinion that we need more content regulation. Even though there is precedence in law, in democracies, that equates any form of content regulation to control. This concern was recently raised many journalists in an article in Outlook.
Justice Katju, whether we agree with him or not, has been most open about his view on media regulation. Hence, allow me start by first agreeing with Justice Katju that the electronic media and online news media organizations must be brought under the purview of the council. In the interest of raising the quality of journalism in India, especially in the electronic media, the professionals working for the news media must observe the guidelines and norms established by the council for “the press”. Justice Katju is right when he points out how declining quality of journalism and media corruption in the phenomenon of “paid news” and alleged misconduct of journalists in the “Radia Tapes” is undermining Indian democracy. The media is ignoring more important public policy issues of poverty, health and economic development by devoting large amounts of airtime and print space to Bollywood, Cricket and Babas.
However, the connection Justice Katju makes between declining quality of journalism and the need for more regulation is somewhat tenuous. More regulation by the government, the courts or an independent body such as the Press Council will further lead to decline in the quality of journalism. Continuing with his efforts to persuade the Indian news media to accept more regulation by an independent body Justice Katju wrote in The Hindu, “I want regulation of the media, not control. The difference between the two is that in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest.”
I think no one will dispute that control and regulation are two different things; however, when a regulation becomes a form of “prior restraint” on content it is tantamount to control. In democracies world over, in law, “content regulation” is interpreted as a form of control and censorship. The courts have argued that if government must apply “reasonable restrictions” the list of subjects should be short and enforcement must be post-publication through punishment rather than censorship.
The courts in India, especially the Supreme Court, have interpreted Article 19(1) drawing upon similarities and difference with case law on the First Amendment in the U.S. Constitution. When it comes to guaranteeing free speech and expression, in its legal scope the Article 19(1) of the Indian Constitution is very similar to the First Amendment. However, unlike the First Amendment, which is stated negatively and places restriction on the government, Article 19(1) extends a positive right of free speech and expression to citizens of India. The negative phraseology of the First Amendment makes it more difficult for the government in the United States to place restrictions on speech; however, the courts in the country have placed prior restrictions in the name of national security, protection of minors from child pornography, and hate speech.
The broad-based interpretation of the First Amendment allows for almost “anything goes mindset” with some limited restrictions that have been built in the case law over the years. Whereas, article 19(2) of the Indian Constitution spells out “reasonable restrictions” on speech and expression that courts in India have interpreted within the special politico-cultural context of maintaining law and order in the context of multi-ethnic and multi-religious society. However, in Brij Bhushan v. State of Delhi (1950), only a few months after the Indian Constitution came into force, the Supreme Court of India rejected “prior censorship” on content of a news media. More than a decade later, the court clarified the proviso of “reasonable restriction,” reading it along with the Indian Penal Code (IPC), spelled out in the Constitution in the landmark case of Ranjit v. Union of India (1965).
Since Ranjit v. Union of India (1965), courts have interpreted the IPC in the light of the “reasonable restrictions” standard that the government can place on freedom of speech and expression. The often-used restriction deals with speech that is delivered with a malicious intent of outraging religious feelings of any community. That standard also applies to libel and sedition posing a threat to national security under the provisions of Indian Penal Code, Section 295A. Since then the courts in India have defined free speech in the context of Brij Bhushan v. State of Delhi (1950) and Ranjit v. Union of India (1965). I think, we must not go down the slippery path of “content regulation” and “prior restraint” beyond what is already enumerated by the courts.
Justice Katju asks, “The media claims self-regulation. But by what logic?”   
I do not think there is need for more content regulation; however, as mentioned in the opening, I do think that we need more strict enforcement of professional journalistic norms, news value, ethics, and rules of fairness by the editors and publishers to ensure that we have a socially responsible news media. For example, take two recent cases: coverage of Arushi murder on TV and C-word reporting in The Indian Express. These cases cannot be addressed by coming up with more content regulation like we saw in the order issued by the Allahabad High Court on coverage of troop movements during peace time.
The case of C-word in the Express is a special case of editorializing of reporting. The facts in the story were not wrong. The scaling of banner headline is part of the macro-frame of news put in by editors that plays a role in emphasis and underlies the news value. The editors masterfully constructed the macro-frame for a desired effect. Moreover, the narrative structure of the story influenced the overall meaning, pushed by unnamed sources in the story, taking the story beyond the fact that it was a routine troop movement. In this case, the editors failed to keep the reporting separate from the interpretation, which was in the end pushed by anonymous sources.
The coverage of the Arushi murder case is an exhibit one for journalism schools when they are teaching how not to cover cases of crime and investigation. Although the problem started with a badly conducted press conference by the police, the way the news media ran with the innuendos and allegation of guilt put the case and its coverage on a disastrous path from which it has not yet recovered. The coverage has been what Justice Katju would say “irresponsible reckless and callous.”
I think, once again, Justice Katju is right that broadcasters and online news media should be brought under the purview of the Press Council. Nevertheless, by merely bringing the broadcasters under the council will not solve the problem of declining quality of journalism. What we need is systematic empirical and qualitative studies on the news coverage in the Indian media. The Press Council of India must rate the editorial control of content in the variety of news media from the perspective of quality and quantity. Such annual reports produced by scholars and professional journalists of repute will go a long way in stemming the declining quality of journalism. We only have to look at how the study conducted by the Press Council on “paid news” has brought the issue to center stage. In the last assembly elections, we saw a significant decline in the phenomenon of “paid news,” which is not clearly identified as an advertisement.
Finally, more regulation is not a way to address corruption, breach of ethical norms and declining quality of journalism in India. This requires media reform and better enforcement of journalistic norms by peers in the profession and post-publication prosecution.
Anup Kumar teaches communication and media law at Cleveland State University, Ohio, USA, and is the author The Making of a Small State: Populist Social Mobilisation and the Hindi Press in Uttarakhand Movement.
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The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

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