Unreasonable indemnity

BY Radhika sachdev| IN Media Practice | 17/05/2012
Parents compromise on the safety of their children by blindly signing audition contracts for talent shows that are overwhelmingly in favour of the broadcasters.
Helpful guidelines of the NCPCR are followed more in the breach than in practice, writes RADHIKA SACHDEV
Some of the clauses in the audition contracts that broadcasters of talent/reality shows make parents of minor participants sign are “unconscionable and violative of Section 23 of the Indian Contract Act” say lawyers.  Indian Broadcasting Foundation’s (IBF’s) Broadcast Content Complaints Council (BCCC) may issue notices to three TV channels on this issue
Radhika Sachdev
Who should be held liable for the physical safety and mental health of a minor auditioning for a performance on Zee TV’s Lil Champs, Sony Entertainment TV’s Indian Idol, or Color's India’s Got Talent?
If the audition contracts signed by their parents are any indication, the responsibility vests solely with the parents/guardians. The broadcasters and content producers enjoy full indemnity. They cannot be sued for any damages of any kind.
Clause 19.1 of Sony Entertainment TV’s audition Terms and Condition for instance, clearly states that “The organisers and/or the channel is in no manner whatsoever responsible and/or shall not be held liable in any manner whatsoever, for any physical injury, death, mental trauma caused to any Viewer(s) / Registrant(s) / Participant(s) and/or the Winner (s) in any manner whatsoever, in relation to the show and/or prize.”
There are similar indemnity clauses in Zee and Color’s audition contracts for talent shows. Giving themselves this kind of a blanket protection is violative of Section 23 of the Indian Contract Act, according to Ashok Agarwal, a Supreme Court lawyer, who specialises in child rights cases.
The operative part of Section 23 of the Indian Contract Act is: “The consideration or object of an agreement is unlawful if it implies injury to another person or property; is immoral, or against public policy.” “Not assuming responsibility for a child-participant’s safety on the sets would be a breach of this section,” says Agarwal.
However since the contracts are signed by ambition-blinded parents, who see in these shows a rare opportunity to gain fame and prosperity through their ward, the need to protest, doesn’t cross their minds. Some of them may not genuinely be aware of child rights provisions.     
Nearly five months after the National Commission for Protection of Child Rights (NCPCR) posted an exhaustive set of guidelines to “regulate child participation in TV serials, reality shows and advertisements” on the website of the Ministry of Information & Broadcasting (MIB) there have been 14 complaints filed to the Child Protection Commission by non-governmental agencies and parent groups from diverse parts of India.  
Section 18.1 to 18.3 of the NCPRC guidelines only talk about ensuring “physical condition and safety of the children” on the production sets.  
Since its inception on January 1, 2007, one of the first major complaints brought to the notice of the NCPRC was against reality show Pati, Patni Aur Woh, aired on the now defunct NDTV Imagine. Time Warner’s Turner shut down the Hindi GEC channel that it had acquired from NDTV in 2010, last month.
Aired between September 18 and November 11, 2009, from Monday to Friday, before it got ordered off air, Pati, Patni Aur Woh, was based on an international format, Baby Boomers, owned and produced by BBC Worldwide Ltd. Although Baby Boomers was meant to raise awareness about teenage pregnancies (even that was taken off air after public outcry), the Indian avatar, Pati, Patni Aur Woh, had newly-married celebrity couples (among them Rakhi Sawant and Elesh Parujanwala) who were made to handle wailing babies (several below the age of one).
The parents could watch their babies through a one-way screen but of course the babies didn’t know this and as a result suffered from “separation anxiety” caused by keeping away from their primary care-givers, according to psychiatric assessment done by a panel of doctors, constituted to look into the issue by the NCPRC. Their report is posted on the NCPRC site.
The outcome of this report was the NCPCR guidelines that among other things recommends that broadcasters/content producers must have a child (defined as anyone aged 6 to 18) protection policy that should be shared with all stakeholders (18.1); that children should not be made to attend more than one audition/production shoot at a time (16.2); the audition must be scheduled after school hours or during holidays (16.2; to meet the demands of the Right to Education Act, 2009); that they should only be asked to perform age-appropriate acts (15.1-15.7); that child-participants should not be subject to any ridiculing or bullying by the judges of these talent shows (15.8-15.10); that parents of minors should be informed about the consequences (physical, mental, or psychological) of such shows (15.11 and 19.6) ; that basic amenities in the form of recreation, rest, and travel arrangements (18.5 and 18.9); that no financial inducement must be sought for participation (19.4); that 50% of the payment made to them should be set aside in a fixed deposit/bond for the child’s future use, and out of the balance 50%, a portion to pay for his/her school fee and the rest could go to the parents; among a host of other such useful suggestions.
Unfortunately, these guidelines are not statues of law. And although these are posted on the Ministry of Information and Broadcasting’s (MIB) website, they do not carry any bite. As such, the guidelines are followed more in breach than in practice. The Hoot accessed audition contracts on the websites of three well-known Hindi general entertainment channels, that are currently running talent/realty shows involving minors, namely, Zee TV’s Sa Re Ga Ma Pa, Lil Champs-season 2, Sony Entertainment Television’s Indian idol- edition 6 and the Viacom18’s (Color TV's) India’s Got Talent- season 3.
Some of the clauses mentioned in these audition contracts are so skewed in favour of the broadcaster that they appear to be making a mockery of the NCPCR guidelines, the Juvenile Justice Welfare Act of 2006 and the United Nations Convention on the Rights of the Child (UNCRC), 1989, to which India became a signatory on December 11, 1992.  
When The Hoot took these documents to (former) Justice AP Shah, who heads Indian Broadcasting Foundation’s (IBF’s) 13-membered Broadcast Content Complaints Council (BCCC), he conceded that prima facie some of these clauses (Refer to the inset box) do appear to be “unconscionable” and promised to look into the matter. Subsequently, his office has issued notices to all the three channels to appear before BCCC. On Justice Shah’s invitation, this correspondent has also filed a formal complaint with BCCC against the three channels.
Besides Justice Shah, BCCC has four members from the Indian Broadcasting Foundation (IBF), four members from national level statutory commissions, and four eminent civil society personalities, namely, a JNU Professor, Anand Kumar; sociologist and member of the Indian Censor Board for motion pictures, Nandini Sardesai, journalist Vir Sangvi, and film actor and activist and former MP, Shabana Azmi. Emailed questionnaires to two of them (Anand Kumar and Shabana Azmi) failed to elicit a response.
Ashok Agarwal, Supreme Court lawyer and specialist in child rights, who was consulted by The Hoot agreed that “some of these clauses appear to be arbitrary and violative of Section 23 of the Indian Contract Act.”
He added: “They protect only the interest of the broadcasters and as such are non-tenable. How can a broadcaster shrug off the responsibility of an accident during a shoot or at the audition venue? They can’t run away from their responsibilities. Not providing any refreshment to the child and leaving all responsibility to the parent is shocking and inhuman, to say the least.”
When The Hoot consulted S. R. Joshi, Deputy Director General in the Ministry of Labour, he said because the matter involved minors and there was a difference between “child work” and “child labour”, the issue did not come under the purview of his department.  
Reacting to this statement, Dipa Dixit, member, NCPCR, said the attempt to differentiate between “child work” and “child labour” was meant only to obfuscate the legal issues. 
Meanwhile, while drawing attention to the channel’s role in “cultivating and promoting outstanding untapped ability amongst the youth of India by nurturing them and providing them with a national platform on which to showcase their talent”, Ashok Nambissan, general counsel at Sony Entertainment Television (Indian idol- edition 6), in a written reply to The Hoot, clarified that Indian Idol is not a “kids’ show. “It is only open to talent between the ages of 16 and 30.” The Right to Education Act, 2002, he clarified, also applied only to children below the age of 14 years.
When reminded that anyone between 16 and 18 is also a minor and the NCPRC guidelines would apply to them, he mentioned that Sony had a few “special clauses for child-participants between 16 and 18 that include a written confirmation of authorised leave of absence during school term from school, if auditions and/or shooting dates clash with school timings; a letter of consent from the parent or legal guardian; free accommodation for the participant and parent/guardian; basic amenities such as food, health and medical facilities at the place of accommodation; services of a professional counsellor; and independent legal advice from a professional law firm in the final round of the competition.”
It is another matter that none of these “special clauses for child-participants” find a mention in the general terms and conditions posted on Sony channel’s website. To this, Nambissan replies that “Provision of food/refreshments is something we make available as a matter of course as a responsible broadcaster. It does not have to form a part of the general terms and conditions.”
Further, these “special terms and conditions” place the onus of obtaining an NOC from the school on the parents, whereas the NCPCR guidelines (20.2) divides the responsibility equally between the parents and the broadcasters: “It is the responsibility of the parents and the production units to ensure that the school attendance of child performers is not affected due to their acting obligations,” it states.
The Zee audition contract also advises “Guardian should bring one water bottle, medicine required if any, and lunch for applicant and self.”
When questioned M. Lakshminarayanan, executive vice-president, company secretary, and legal head of Zee Entertainment Enterprises Ltd., maintained: “We are aware of, and strictly adhering to, the guidelines relating to participation of children in our various television programmes and/or auditions. We do not agree with your view points as we provide all requisite amenities to take care of the children, and none of our terms are violative of the guidelines. Our audition schedules and/or programme schedules are made in such a way considering the exam and other schedules in general. However, as a broadcaster, we ought to have certain force-majure clauses including the right to cancel the auditions and/or shoot, if required. You may note that at no point in time we had ever cancelled any of our auditions.”
The Color spokesperson did not take any mails or phone inquiries from The Hoot.         
H K Jethi, Director, Labour and Employment, Ministry of Labour, told this correspondent that his department was ready with a draft amendment to the Child Labour Prohibition & Regulation Act 1986 that would ban the recruitment of children (6 to 14) in ALL occupations, including in entertainment and media industries. At present, this Act only applies to 18 occupations and 65 processes and does not include entertainment and media industry.
Although the NCPCR would like the new Bill to cover all children between the ages of 6 to 18 (against the proposed 6 to 14) in order to bring it in sync with the Juvenile Justice (Care & Protection of Children) Amendment Act 2006, that may be a long wait.
“Where children are concerned, the standard of self regulation, whether it is by the press or broadcasting agencies, would have to be different and far more stringent,” says Dipa Dixit, member, NCPCR.
“Till date, the NCPCR has received no response from I & B Ministry on the incorporation of NCPCR guidelines into a Bill,” she adds, thereby implying that unless this is done, the NCPCR guidelines may have no teeth. 
The bottom line is that while India’s may have a lot of talent, the best way to nurture and groom this talent is in schools, and not under harsh arc lights in TV production studios, where they are made to wait for long hours without rest or refreshments; not paid their dues; asked to wear layers of pancake make-up; subjected to judges’ ridicule and harsh comments; and have to lip sync and gyrate suggestively to adult numbers.
That’s exploitation, not entertainment.
Controversial clauses in the Zee TV’s Sa Re Ga Ma Pa, Lil Champs-season 2   
·         The organiser shall not be responsible for any damage, loss or any form of physical or mental harm, injury caused to the participant/guardian
·         Organiser shall not be bound or the participant shall not be entitled to any remuneration, fee, reimbursement of cost or any payment of whatsoever nature for the work done
·         The company reserves the right to disqualify and or exclude in its sole and absolute discretion, any participant from any stage of audition without assigning any reason thereof
·         Guardian should bring one water bottle, medicine required if any, and lunch for applicant and self.
·         For the purpose of participation, all expenses, if any, including travelling cost and expenses incurred in sending SMS shall be borne by the participant.
·         The participant agrees, confirms and warrants that he/she shall have no right/title, interest or other claim whatsoever over his performance/work/photo submitted or created during the audition and copyright in the same shall vest with the organiser in perpetuity for the entire world.
·         Organiser shall not be responsible to the winner for cancellation, discontinue and/or postponement of the audition or performance.
·         Winner and/or person accompanying him/her shall travel at their own risk and shall take appropriate medical insurance at their own cost.
·         The contest may be discontinued or terminated by the organiser at any point of time, without assigning any reason, thereof.
·         The organiser reserves the right to modify the rules/or the terms and conditions from time to time without any prior/public notice by posting the applicable terms and conditions on its website.
·         The decision of the organisers shall be final and binding on the participants. No dispute regarding the participation/rejection/broadcast or rights of participants will be entertained at any point in time.

__(Some of these clauses, phrased differently are in the Sony Entertainment Television’s Indian idol- edition 6 and the Viacom18’s (Color TV's) India’s Got Talent- Season 3contracts, as well).


Part II   Pushing the limits of precociousness





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