Penalty? An advisory

IN Law and Policy | 19/03/2013

There are more than 850 television channels and about 250 private FM channels in the country, beaming content 24x*7 to about 150 million Indian homes. However, there is no comprehensive and deterrent regime of self-regulation put in place by the broadcasting fraternity nor any semblance of ‘legal regulation’ by the Ministry of Information & Broadcasting in its capacity as content regulator. The establishment of an independent authority to regulate various aspects of broadcast media, mandated by a Supreme Court judgement in 1995, is still an elusive dream. The unfortunate result of this regulatory vacuum has been that the Indian audience is rendered voiceless without any basic/credible grievance redressal mechanism against content-related violations by channels.

In 1995, Hon’ble the Supreme Court in the Cricket Association case held that “airwaves or frequencies are public property” and that “their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights.” The court directed the central government to set up an independent broadcasting authority that would give access to all interests and groups. While the government made some attempts such as Broadcast Bill of 1997, Communications Convergence Bill, 2000, Broadcasting Services Regulation Bill, 2006, Broadcasting Services Regulation Bill, 2007 (with accompanying Content Code – Self-Regulation Guidelines for the Broadcasting Sector – 2007, 2008 versions), nothing materialised for various reasons. Since 2008, the Ministry of I&B shelved the initiative to enact the much-needed statute to regulate broadcast media including content regulation, presumably due to opposition from the broadcasters and that  the self-regulatory effort initiated by the broadcasting industry in the last few years.

As there is no proper monitoring nor any deterrent penalties there are violations galore by TV channels, day in and day out, as examples cited later in this article will show.

In this context, it is pertinent to mention that current regimes of ‘legal regulation’ and ‘self-regulation’ of broadcast content in India by the I&B ministry are basically a bureaucratic farce.

Pending the constitution of a dedicated authority, the government of India should have put in place a systematic and time-bound complaint redressal process involving all stakeholders to look into the plethora of viewers’ grievances against broadcast content and given wide publicity about the same among the audience. But the government had failed to do so, as on date, as substantiated below:

1. Ministry of I&B constituted a composite Inter-Ministerial Committee (IMC) to look into complaints against all private television & FM radio channels in 2005 for violation of programme and advertisement codes. However, it had not given any publicity about the same it did not publicise this through print or electronic media so that public can know about it. As on To date, there is absolutely no information available on the ministry’s website for the benefit and guidance of viewers in case they want to make any complaint against content-related violations by the TV channels (e.g., online complaint form or contact details of the IMC, manner of receipt, processing and disposal of complaints or the details of self-regulatory mechanisms in place, etc.)
2. Except for stipulating the composition, the Ministry of I&B’s order dated April 25, 2005 constituting the IMC doesn’t prescribe any well-defined terms of reference or rules of procedure for systematic functioning of the committee; there is no dedicated secretarial setup to aid and assist IMC in processing the complaints.
3. Being a pure bureaucratic apparatus headed by Additional Secretary, Ministry of I&B and joint secretaries from various ministries as members (lone exception being a member from ASCI), the IMC rarely meets is meeting rarely to deliberate on the complaints received against satellite TV & FM radio channels. In the year 2012, the committee met a mere three times (January 3, April 25 & July 24)*. Further, the broad-basing of membership of IMC is has not been effected till date by the ministry by including representatives from other stakeholders such as broadcasters, civil society, representatives from relevant specialised statutory bodies such as National Commission for Women (NCW), National Commission of Protection of Child Rights (NCPCR), National Consumer Disputes Redressal Commission (NCDRC), Press Council of India (PCI) etc. which will add to the representative nature of the committee, apart from infusing focus and expertise in dealing with myriad content-related issues.
4. In 2005 and 2008, the Ministry of Information & Broadcasting had issued orders to all state governments for constitution of state-level and district-level committees to monitor the content of private TV channels and forward recommendations to the ministry for taking action against erring channels. Their functioning in almost all states is by and large confined to paper as hardly anyone knows about their existence. Neither the I&B ministry nor the state governments gave had given any publicity in the print and electronic media regarding the same for the benefit of audience.
5. The government set up an Electronic Media Monitoring Centre (EMMC) in 2008 with crores of rupees to monitor violations of programme and advertising codes by the satellite TV and FM radio channels. While I&B ministry is receiving reports on regular basis from EMMC regarding hundreds of violations by the satellite TV and FM radio channels, the inter-ministerial committee is not processing them seriously and the ministry is hardly taking any action against the erring channels. 
6. Both the local cable networks and satellite channels are bound by the same programme and advertisement codes prescribed under the Cable Network Rules, 1994. Authorised officers (Sub-divisional Magistrate / District Magistrate / Commissioner of Police) under Cable Networks Act are responsible for taking action against local cable networks for any violations. Uplinking & Downlinking Guidelines 2011 empower the Ministry of Information & Broadcasting to take action against erring satellite channels. The penalty prescribed for first violation by any channel is ‘suspension of the permission of the company and prohibition of broadcast/ transmission up to a period of 30 days.’ The quantum of penalty increases further for second violation and so on. However, in practice, the ministry is dealing with the violations as follows: 1. issuing advisory; 2. issuing warning; 3. requiring channel to scroll an apology for a specified number of days; 4. suspension of broadcast for specified time period. Curiously, the first three modes of ‘penalties’ has no legal basis at all and it is not understood as to on what basis the ministry is awarding these sort of informal ‘punishments’ to the TV channels. While the advisories and warnings are hardly taken note of by the channels, orders for suspension of broadcast or scrolling apology are very rare. Thus, the ministry is acting like a virtual ‘safety valve’ and the erring channels are able to get away with nominal ‘punishments’ and continue to flout the norms without any fear for law.

The following examples* clearly establish the undue lenience shown by the ministry even in case of serious violations by satellite channels:

1. Sony TV & Times Now telecast an ‘A’ certified promo of the film, ‘Dirty Picture’ on 1-9-2011 & 31-8-2011 respectively. The Inter-ministerial Committee initially observed, “…the issue is a serious lapse of violation of legal provision… the channel can’t escape its primary and sole responsibility of ensuring that the content telecast on its channel are in accordance with the law.” The IMC finally recommended as follows: “Based on the submissions made by the two channels about their apologetic stand and an assurance that such a recurrence may not take place, the IMC decided to take a lenient view in the matter and close the matter.” Exhibition of ‘A’-rated films to non-adults in a theatre is a cognisable and non-bailable offence under cinematograph law and the offenders are liable for prosecution also. While that is the gravity of the violation under extant laws, IMC let off the offending channels without even a warning for broadcasting ‘A’-rated content throughout the country, citing the channels’ apology.
2.  P7 News Channel & Sahara Samay telecast a news capsule titled, ‘CD ka Nanga Sach’ on November 10, 2011 having visuals drawn from a CD relating to sexually compromising images of a man and woman. The IMC observed that the “suggestive visuals telecast repeatedly clearly establishes the intention of the channel in seeking to sensationalise the news with a prurient orientation…the channel forgot to keep in mind that it involved the social esteem and reputation of a woman not occupying a dominant position in public life…” Despite this conclusion, the IMC recommended as follows: “The representative of the channel agreed with the views of IMC and offered to tender an apology…Considering that both the channels were willing to run an apology scroll for 3 days from 22-11-2011, the matter could be treated as rest after the channels actually run the scroll.”
3. On different complaints against FX Channel, Fox Crime Channel, Channel [V], while the IMC observed that “the programmes are not suitable for unrestricted public exhibition and violated provisions of Cable Network Rules, 1994”, finally let off all the channels recommending that “a WARNING may be issued to the channel to strictly adhere to the provisions contained in the programme code.”
4. In a case where Sony Pix telecast seven English films containing adult content, the IMC observed: “While telecast of a film certified as ‘A’ clearly violates the Cable Television Act, 1995, it is a far more serious matter that visuals from a film which are of adult nature and not sent to CBFC for certification are shown on TV.” The committee concluded: “IMC noted the apology tendered by the channel. It also noted that such a lapse has taken place for the first time. Therefore, IMC recommends the channel may be spared of any harsher action and a warning may be issued for strict compliance with Cable Network Act & Cinematograph Act.”
5. In a case where ET Now and Star Cricket telecast programmes involving direct promotion of Kingfisher and VB Best beer respectively, IMC noted that “the visuals and dialogues shown in the programme clearly promoted Kingfisher beer… this was a clear case of advertisement of a liquor brand and hence in violation of advertisement code”. The recommendation by IMC is “A warning may be issued to the channel for following the Cable rules strictly.”
6. In a case where ‘Zee Trendz’ telecast a programme ‘Bikini Destination’, the IMC concluded “the focus of the programme was mainly centred around showcasing the woman’s body in an obscene and tantalising way…such brazen display of woman’s body on television doesn’t conform to parameters prescribed in the programme code”. The ‘penalty’ recommended by IMC is ‘to issue an advisory to the channel’.

‘Self-regulation’ by broadcasters – neither comprehensive nor deterrent

The News Broadcasters Association (NBA) representing 20 news and current affairs broadcasters comprising 45 news and current affairs TV Channels had initiated self-regulation effort by evolving a ‘Code of Ethics and Broadcasting Standards’ and a complaint redressal mechanism in the form of News Broadcasting Standards Authority (NBSA) which started functioning from October 2, 2008. Indian Broadcasting Foundation (IBF), representing about 250 non-news, non-current affairs entertainment TV Channels, had initiated self-regulation effort by evolving ‘Self-Regulatory Guidelines for non-news & current affairs programmes’ and a complaint redressal mechanism in the form of Broadcast Content Complaints Council (BCCC) which started functioning from July 1, 2011.            

However, the self-regulation efforts initiated so far by News Broadcasters Association (NBA) and Indian Broadcasting Foundation (IBF) though commendable, are not comprehensive and have limited efficacy due to many serious limitations. The regime put in place by them is hardly ‘viewer-centric’ so as to inspire any public confidence in ‘self-regulation’, much less to have a deterrent effect on the erring channels, as elaborated below: 

While some section of broadcasting fraternity felt the responsibility to come under some voluntary self-regulation in the form of membership in NBA/IBF, majority of the broadcasters are not genuinely interested in coming under some sort of self-regulation regime. When not even 300 out of about 850 broadcasters are part of NBA or IBF, to be bound by any self-regulatory code, the claim by the broadcasting industry for ‘self-regulation’ sounds hollow.        

IBF & NBA could not ensure that their member channels allocate at least a few seconds of air-time to explain to viewers the newly introduced self-regulatory procedure. The occasional scrolls regarding the complaint redressal by the member channels merely say that the audience can complain to BCCC/NBSA and to visit their websites ‘for further details’ (as if all the viewers in India are netizens). The scrolls in many regional channels are not in the respective Indian language of the channel and given only in English. They don’t even inform that the process is a two-tier one, the first level being broadcaster and second level being BCCC/NBSA; the details of content auditors of the channels are also not given whereas the self-regulatory code mandates to publish the same on the channel. (Complaints made in this regard in the interests of audience with NBA and IBF were not even acknowledged till date, let alone any modification in the scrolls.)

The charter of ‘penalties’ evolved by IBF/NBA on erring channels is hardly a deterrent. For example, IBF’s complaint adjudicating body BCCC has ‘powers’ only to ‘modify’, ‘withdraw’ or ‘shifting the timing’ of the programmes. There is no provision for any penalties at all (monetary or non-monetary) even if a channel is found to have violated the self-regulatory code. Even when a member channel doesn’t comply with the directions of BCCC, the token ‘actions’ prescribed are ‘issuance of warning’, ‘order for apology’, ‘not to consider the outstandings of the channel for processing by IBF’ etc. One can say this is at best ‘self-persuasion’ rather than ‘self-regulation’.

While NBSA has some teeth in the sense it has power to impose a fine upto Rs 1,00,000 on erring channels, a perusal of decisions of NBSA listed on NBA’s website reveals that this provision is invoked ‘carefully’, especially after the unpleasant episode of India TV, slapped with fine by NBSA, walked out of NBA. (Later, it re-joined after much persuasion). In a ‘first-of-its-kind’ case, where Sakshi TV & TV 9 Telugu news channels complained against each other, NBSA imposed a penalty of Rs 1,00,000 each on the two and ordered for scrolling of apology. But the channels didn’t bother to comply with the order. A helpless NBSA noted: “A communication was received from Sakshi TV declining to comply with the NBSA order dated 27.3.2012 citing non-compliance by TV 9 as the reason. Since there was no compliance of the NBSA order by Sakshi TV either, the NBSA wrote to the Ministry of Information & Broadcasting recommending that this violation by Sakshi TV and its refusal to comply with the directions given by the NBSA be treated as a violation in this behalf when considering renewal of license of Sakshi TV.”

Even today, websites of most of the member channels of the self-regulatory body IBF do not have the mandatory 'complaint redressal' link giving contact details of their content auditor and the self-regulatory procedure for the information of viewers, not to speak of the non-members of IBF. While most of the NBA members’ websites have the ‘Complaint Redressal’ link, the same is not given prominently.

Also, there are no incentives accorded by the government for broadcasters coming under the voluntary self-regulation regime. No legal recognition is given for the self-regulatory codes evolved by IBF/NBA; No appellate mechanism presently available for complainants/broadcasters against the decisions of BCCC & NBSA in case of their inaction or arbitrary decisions.

‘MediaWatch-India’, the organisation the author of this article represents, had filed several complaints with the members of IBF/NBA (Tier-I) and then appeals to BCCC/NBSA (Tier-II). Not even in a single case was the time limit to acknowledge/respond to the complaints as per the code adhered to by the broadcasters/BCCC/NBSA. It is indeed saddening to note that for many complaints and vital suggestions, even to this date, there is no acknowledgement of receipt from broadcasters/NBSA/BCCC, let alone communication of decision. Also, for the complaints made with specific grounds citing relevant provisions of the self-regulatory codes, no reasoned orders are being issued by BCCC. Only one-sentence judgements are communicated to the complainants: “Your complaint is not upheld by BCCC.” Even the website of NBA lists out some ‘select’ decisions by NBSA.

Conclusion

In the last about two decades, the successive governments with their broadcaster-centric policies marked by sheer ad hocism and indifference to audience’ interests had reduced the ‘broadcast regulation regime’ to a mere bureaucratic farce.  With majority of the broadcasters opting to not come under any sort of self-regulatory net and the self-regulatory codes evolved by IBF/NBA being hardly deterrent and viewer-centric, the media houses can’t go on chanting the ‘self-regulation’ mantra as if it is the panacea for all ills plaguing media. The worst affected lot are the millions of Indian viewers who are deprived of a credible and systematic grievance redressal mechanism against content-related violations by the channels, a sorry situation which can’t be seen in any other progressive country of the world.

* The details of the cases cited are from the information obtained under RTI Act from Ministry of I&B and are not available in public domain.

The author is Vice-President, ‘MediaWatch-India’, a civil society initiative to promote decency and accountability in the media (www.mediawatchindia.org). He can be reached at mediawatchindia123@gmail.com