Another media regulation initiative

Does the Election Commission have the powers to deal with paid news? No, said  V. S. Sampath, the Chief Election Commissioner of India (CEC), at a public hearing on media laws. Since paid news was not an electoral offence, the Commission could do nothing about it, he explained. 

Other equally fascinating views emerged from the consultation, held by the Law Commission (in collaboration with the National Law University) on August 27-28 in New Delhi. The public hearing was the first of its kind and was the culmination of a public consultation that began in May on a paper on media laws.  

The two day consultation examined five areas: regulation (self vs. statutory), contempt of court and reporting of court and legislative proceedings, privacy, defamation of trial by media, paid news and opinion and exit polls, and social media.

Although the CEC also offered a positive suggestion, namely that legislation was necessary to govern poll expenditure by political parties, the helplessness evident in his comment was voiced by other speakers too.  A constant refrain was that unethical practices were flourishing in an aggressive and competitive media and, more specifically on the specific issue of paid news, who was going to bell the cat?

Other subjects discussed were: Should the Press Council be dissolved to make way for a medium-neutral Media Council? Should any proposed regulatory mechanism take into account the fact that the media is actually a complete ‘media and entertainment’ ecosystem that requires the full status of an industry? Should there be statutory regulation of aspects like cross-media ownership and self-regulation for content-related issues? Who should sit in regulatory bodies: media owners, media industry representatives, eminent citizens, academics or lawyers? What should be the regulations surrounding government-owned media?

The consultation paper arose out of an earlier report on electoral disqualifications submitted to the Law Ministry in February. The purpose of the paper was initially to look at electoral issues such as paid news and opinion polls but the Law Commission decided to widen the ambit and also examine other media issues.   

Some specific recommendations were thrown out during the debate. One was to remove provisions in the law which curb free speech, including the ‘scandalising’ provision in contempt law. Another was to codify the privileges of legislative bodies. Yet another was to decriminalize defamation.

Most of these are actually old demands but in the absence of any concerted campaign from the media – save for flashpoints like the 2004 standoff between The Hindu and the Tamil Nadu State Assembly – they die down after every crisis.

Speakers pointed to the increasing use of defamation to harass and censor journalists in the form of SLAPP (Strategic Lawsuits Against Public Participation) suits by corporate houses (or even media houses) who drag magazines to distant and relatively inaccessible courts with criminal complaints of defamation.

It was noted that existing guidelines on how to report court proceedings needed to be more widely disseminated among journalists. More training for journalists would also help.

But neither of these solutions was of any help when it came to publicity-hungry lawyers or judges. “Would a press briefing by the judiciary help?” asked one member of the audience.  “What is the need for journalists then,” asked Justice Rajiv Sahai Endlaw.

Social media

In the social media session, the divide between regulators of online content and the rest was marked. Dr Gulshan Rai, head of the Computer Emergency Response Team, said that the national security argument for retaining provisions in the law to curb or block online content remained valid.

When others disagreed, pointing to increasing surveillance, violations of privacy, and data security threats, Dr Rai was unconvinced. ‘We can’t apply physical laws to cyberspace,” he said, adding that in a virtual, borderless and anonymous world, there was a need for a balance between freedom of expression and the rights of victims.

His views are not popular among the responses that have been put up on the Law Commission’s website. A large body of opinion feels that, when it comes to laws governing the media, anything that curbs free speech must be minimized or eliminated.

The draconian Section 66A of the amended Information Technology Act, 2000, most respondents feel, must go. Others felt that ambiguous terms like ‘objectionable content’, ‘menacing character’ or ‘grossly offensive’ should be removed. 

 

Responses to the consultation paper

The consultation paper drew 41 responses from a cross-section of individuals and groups: law students, lawyers, academics, women’s rights activists, media advocacy groups, Amnesty International, Human Rights Watch, Alternative Law Forum, the Society for Knowledge Commons, the Delhi Union of Journalists, the Brihanmumbai Union of Journalists, the Internet and Mobile Association of India, and the Cable and Satellite Broadcasters Association of Asia.

The Press Council of India and the News Broadcasters Standards Authority also made submissions, as did representatives from the Times Group and Sony. The Hoot also sent its comments. But the Indian Newspaper Society was conspicuous by its absence.   

Certainly, more responses could have come in and hearings could have been held in other parts of the country to make the process more inclusive. The consultation on electoral disqualifications, for example, elicited 157 responses although most were from individuals rather than political parties.

India needs a much more rigorous debate on the legal provisions that govern media freedom and the regulation of media practice but at least this was a start. The Commission is compiling responses already received and has solicited feedback from those who attended the public consultation, following which it will make its report.