Paid news and the law

This is a story which began with a news report by P. Sainath in the Hindu on November 29, 2009. Titled ‘Is the ‘Era of Ashok’ a new era for ‘news’?’, the report explained how Ashok Chavan, the then Chief Minister of Maharashtra had reported an expenditure of only Rs. 5,379 to the Election Commission (EC) as expenses toward newspaper advertisements despite the fact that there were at least 47 full newspaper pages from different newspapers, many of them in colour, focussed exclusively on Chavan as a Chief Minister and political leader of the Congress Party.

While Sainath did not spell it out in so many words, his report more than hinted at the likelihood of these 47 pages actually being “paid news”. If proved true, it would mean that Chavan spent much more than Rs. 5,379 on advertisements and in the process also probably breached the EC’s ceiling of Rs. 10 lakh on election expenses for each political candidate.

Sainath’s report had major implications for Chavan because Section 10A of the Representation of People’s Act, 1951 allows the EC to disqualify a person for failure to lodge accounts of election expenses and the failure to file true accounts amounts to a breach of section 10A.

Acting on complaints filed by BJP politicians, the EC initiated an inquiry into Chavan’s accounts in April, 2011 and after several rounds of litigation by Chavan’s lawyers before the High Court and the Supreme Court, the EC finally delivered an order on July 13, 2014 finding Chavan guilty of not disclosing his true election expenses to the EC.

On the basis of this finding, the EC also issued a show-cause notice to Chavan, as to why he should not be disqualified from contesting elections under Section 10A.

Chavan filed an appeal against this order to the Delhi High Court, which set aside both the EC’s order and the show-cause notice in a 101 page judgment dated September 12, 2014.  

(i) The Election Commission’s 104 page order dated July 13, 2014 can be accessed here;

(ii) The Delhi High Court’s judgment by Justice Suresh Kait can be accessed here; (The judge’s reasoning starts from page 76, para 174)

The Delhi High Court’s judgment in Ashok Shankarrao Chavan v. Election Commission of India covers a lot of ground on electoral practices. This piece will, however, limit itself to an analysis of two specific issues which have implications for political advertising in the media:

(i) Were the publications about Chavan in several newspapers tantamount to “paid news” as defined by the Press Council of India (PCI)?

At the time of the elections in 2009, neither the Press Council nor the EC had any guidelines or definition of “paid news”. Since then, both institutions have put in place rudimentary guidelines to deal with this phenomenon.  

The basic definition of “paid news” is when advertisements are published in the form of news reports under the by-line of a newspaper or its journalist without disclosing that payment has been received for publishing such a news item.

In Chavan’s case, the BJP had provided a list of news reports eulogizing Chavan and promoting his electoral prospects. The entire list is accessible on pages 29-31 of the EC order and mainly involved the following newspapers: Lokmat, Pundari, Maharashtra Times, Nav Bharat Times, Satyaprabha, Lok Rajya.

The smoking gun in these cases was the fact that the same news reports appeared verbatim in different newspapers thereby indicating that the source was the same. In most of the other cases, suspicions were raised by the fact that the reports were biased in favour of Chavan.

The problem, however, was proving that Chavan had actually paid for the publication of these news reports. Chavan’s lawyers denied that their client had paid for any of the articles and instead gave the EC a list of publicly available party and government publications from which the impugned stories had been sourced by the newspapers.

The EC asked the newspapers in question to submit affidavits explaining their position. The Pudhari Group & Lokmat Newspapers Ltd. were candid in admitting that they were aligned to the Congress Party’s ideology along with the fact that the Congress Party was sending new items and articles to all newspapers.

But both papers denied receiving any remuneration for publishing the articles or news items as news. In addition, the Times of India group categorically confirmed that the three articles under investigation were published without any remuneration.

Faced with the denials and lack of proof of actual payment being made to these newspapers, the EC had to drop the “paid news” charge against Chavan. The EC does, however, remind newspapers of their ethical obligations, stating:

“While every newspaper/media house is entitled to its own philosophy (which could be akin to a political party’s philosophy), what is sought to be publishedas news should be untinged by such philosophy as different from editorial. The minimum that is expected of ethical journalism is that the reader is cautioned by suitable disclaimers while such articles are published so that the unwary reader can make suitable allowance in his mind while forming his judgement. This matter assumes greater significance in the election period when the media needs to show greater responsibility.”

Since the EC dropped this charge, it was not examined by the High Court.

(ii) Did Chavan authorize the publication of advertisements related to his campaign? 

The second issue was whether Chavan had authorized the publication of around 25 advertisements (not “paid news”) and failed to disclose the expenses of these to the EC. His defence was the testimony of his party colleagues who claimed that they had commissioned the advertisements in question and had borne the expenses without Chavan’s knowledge as they were his friends and well-wishers. 

The EC did not buy this argument and instead invoked the theory of “implied authorization” to trace the publication of the advertisements to Chavan himself. The EC cited Kanwarlal Gupta vs Amar Nath Chawla (1975), a  Supreme Court judgment which held that “implied authorization” occurs when “…expenditure is incurred which can be identified with the election of a given candidate that it would be liable to be added to the expenditure of that candidate as being impliedly authorised by him (sic).”

Such an interpretation saved the EC the trouble of finding a direct financial link between Chavan and his colleagues who published the advertisements without his knowledge.

Citing another Supreme Court precedent on the standard of proof required for such electoral cases, the EC ruled that it only had to consider the evidence on a balance of probabilities.

This standard is followed in civil cases as opposed to criminal cases, which follow a standard of proof beyond reasonable doubt. To prove a preponderance of probabilities, it is enough to establish that the evidence leads to the conclusion that the allegations are more likely true than not.

In the present case, the EC cited four specific factors to conclude, that on the preponderance of probabilities, it was more likely than not that Chavan had “impliedly authorized” the payments for the advertisements  since (i) The persons claiming to have sponsored the advertisements were all senior party bearers in the Congress Party; (ii) The quantum of such advertisement was significant (around 25) (iii) All the advertisements related to public meetings in furtherance of Chavan’s election pursuits and (iv) The advertisements were all in relation to Chavan’s public meetings with heavyweight Congress leaders rather than being general propaganda advertisements for the Congress Party as such.

Chavan had appealed against this and other findings of the EC to the Delhi High Court. Fortunately for him, Justice Kait of the Delhi High Court pretty much ignored the Supreme Court’s interpretation of “implied authorization” when he held that it was essential to establish that the persons publishing the advertisements were in fact reimbursed by Chavan.

The court reasons: “It is pertinent to note that authorization means acceptance of the responsibility. Authorization must precede the expenditure. Authorization means reimbursement by the candidate or election agent who has been authorized by the candidate or by the election agent to spend or incur. In order to constitute authorization, the affect must be that the authority must carry with it the right of reimbursement (sic).”

The Kanwarlal case was not applied by Justice Kait on the grounds that its facts were different from the present case.

Since it was not possible to establish that reimbursement by Chavan had taken place, the High Court dismissed the charge.  

Conclusion: This judgment is likely to be appealed by the EC and is most likely headed for the Supreme Court eventually. Without a doctrine like “implied authorization” it will be impossible to ever crack cases like Chavan’s.

At the same time, the complainants could be faulted for poor legal strategy. At the very least, the functionaries of the Congress claiming to have paid for the advertisements should have been cross-examined before the EC and the same stands true for the journalists whose by-lines appear in the paid news reports.

Cross-examination is the only tool to test the veracity of the sworn affidavits and the complainants in this case surprisingly chose not to cross-examine any of the important witnesses.