Is media ethics justiciable?

 

Over the years we’ve heard murmurs from several quarters on the need for better media regulation since self-regulation is not working. Sometimes this debate veers into the possibility of creating a new external regulator for the media. Most of the debate seems to ignore the fact that the media is already subject to external regulation by different institutions like the judiciary, usually in the context of defamation or by the legislature, as happened in the India Today TV case.

The difference between self-regulatory bodies like the Press Council of India (PCI) and the judiciary, is that the former regulates ethics, while the latter enforces the law. A code of ethics is usually a moral issue, the breach of which does not attract legal remedies such as damages, injunctions or imprisonment.

This is why regulators like the PCI, whose mandate is confined to monitoring journalistic ethics, have never been vested with powers to prosecute or sue newspapers. A violation of the law, for example civil defamation, can lead to damages while a conviction for criminal defamation can lead to imprisonment.

The recent past has, however, witnessed a few cases where the judiciary has enforced journalistic ethics as the law. In one of the many defamation lawsuits between Naveen Jindal and Zee News, the Delhi High Court while, denying interim relief to Jindal, ordered Zee News to follow the guidelines laid down by the News Broadcasting Standards Authority (NBSA) while reporting on Jindal. The High Court stated:

“I hold that the plaintiffs have not been able to satisfy that they have got a prima facie good case or that balance of convenience is in their favour or that they will suffer an irreparable loss, accordingly, the plaintiffs are not entitled to any blanket pre-telecast order against the defendants; however, keeping in view the guidelines of the NBSA, the defendants are directed to obtain the view of plaintiff Nos. 1 and 2 in case they intend to televise any programme pertaining to plaintiff No. 1 or his companies so that the said interview, comment or his side of the story is simultaneously reflected at the end of the said programme.”

The fact that the court ordered Zee News to comply with the NBSA guidelines automatically gives the NBSA guidelines the authority of the law because any breach of the court’s order by Zee News can now attract contempt of court proceedings before the same court. 

This is quite a remarkable state of affairs for several reasons.

To begin with, the NBSA isn’t even a creature of legislation like the PCI; it is entirely a voluntary organization set up by the broadcasting industry. More importantly, however, this is perhaps the first time a high court has ordered a news organization to compulsorily get the views of a person before broadcasting stories pertaining to that person.

If this judgment is used as a precedent by future litigants we may see the birth of a new legal norm requiring all persons to be given an opportunity to be heard before a news report is published. This could have long term ramifications for the Indian media, which doesn’t always follow this basic norm of reporting.

There is another lawsuit between Jindal and Zee Media, which is likely to bring more clarity to the issue of ethics being justiciable before a court of law. One of the issues framed by the Delhi High Court in this case for defamation is as follows:

(a)  Whether the defendants have failed to abide by the minimum standards of ethics and violated the guidelines framed by the Press Council of India (for print media) and News Broadcasting Standards Authority (for visual media)?

Normally in a lawsuit alleging defamation, the principal issues are whether the reporting was accurate and whether the inaccurate reporting caused any damages to the plaintiff. Journalistic ethics are never ever framed as an issue. Thus the decision of the High Court to frame such an issue could signal the beginning of a new trend.

Separate from the issue of journalistic ethics is the line of judicial reasoning that has sought to equate the media to the “state” as understood under the Constitution. In the normal course of the law only the government and its subsidiaries are classified as “state” under the Constitution. The consequence of being classified as a “state” is the fact that fundamental rights can be enforced against such a body.

Fundamental rights are typically not enforced against private bodies because the nature of fundamental rights is such that they are to protect citizens from the might of the state. Over the years, the courts have been pushing the boundaries of their writ jurisdiction to include more private organizations within the scope of “state” thereby giving the courts the power to issues writs against private organizations. For example, private universities and even private sporting bodies like the BCCI have been included within the definition of “state”, by the Supreme Court, on the grounds that these institutions are essentially discharging public functions.

In the context of the media, we’ve seen two cases involving these issues. In 2013, the Delhi High Court ruled against Aaj Tak for violating the privacy of a victim of sexual assault. The girl’s mother had filed a writ petition in the case rather than a civil lawsuit alleging a violation of the girl’s right to privacy. The respondents sought to have the petition dismissed on the grounds that writs cannot be issued against private bodies. However, the High Court declared that the media was discharging a public function and that writs could be issued against media organizations.

The court ruled:

“The press and the media perform a public function and discharge a public duty of: disseminating news, views & information; initiating and responding to debates; dealing with matters of current interest in the society in all fields”

“Considering the immense impact that the press and media has over the polity, in my view, it cannot be said that they do not perform a public function or discharge a public duty, inter alia, when they perform the act of reporting news. Their functions touch the lives of practically everyone.”

“The potential of the press and media to cause such harm is immense because the press and the media enjoy a position of trust in the society and also because of their reach. Any function/activity, alleged to be in violation of such duty, would fall within the ambit of scrutiny of this court exercising jurisdiction under Article 226, especially when the same is alleged to have infringed the fundamental rights of the victim.”

Similarly in the Jindal-Zee lawsuit described earlier, the High Court framed an issue regarding the violation of fundamental rights. The issue is as follows:

“Whether the defendants have violated the Fundamental Rights of the plaintiff guaranteed under Articles 21 and 19(2) of the Constitution of India?”

Enforcing fundamental rights against private bodies has always been a radical idea. Extending the idea to the free press and media could lead to unpredictability and the consequence of that could be a chilling effect on reporting where journalists will self-censor. 

 

The author is a Research Associate at School of Law, Singapore Management University