Governing media

In the age of Internet media where technology makes censorship difficult, the latest editions of two books on laws governing the media make a persuasive case for self-regulation.

THE rapid rise and spread of social media in India has transformed completely the nature of legal discourse involving its practitioners. While dissatisfaction with the mainstream media is partly responsible for the immense popularity of social media, the users of the new medium are grappling with the issue of balancing the need for absolute freedom against the official and social pressures to restrain it. This has resulted in a strange dichotomy: the degree of freedom enjoyed by writers in the mainstream media to lampoon and criticise the political class is denied to writers on social media, as a result of a flawed reading of the laws governing the latter.

This issue has been articulated well by Madhavi Goradia Divan in the second edition of her book Facets of Media Law , released recently. The first edition was published in 2006. At the launch of the second edition of the book in New Delhi, some of the speakers suggested that the author may very soon have to work on its third edition in view of the new developments in media law. The author, a lawyer practising in the Supreme Court, has added three new chapters, on “Cinema”, “Rights of publicity” and “Media ethics”, while thoroughly updating the other 14 chapters with details of the latest cases. Besides, the second edition of the book has an interesting foreword by the eminent jurist Soli J. Sorabjee, who says Indian society does not deserve an unregulated media with the problems it presents.

The author concedes that the seamless web of laws and the diverse authorities make media regulation a rather complex and unwieldy task. Regulation, she says, has been made more challenging by the globalisation of news and entertainment through satellite television and the Internet. She alerts us that with globalisation, notions of social mores, morality and acceptability are becoming increasingly homogenised. The technology behind this has rendered censorship difficult.

The availability of information on the Internet is difficult to monitor and what may be banned in one country is easily available through the Internet and satellite television in another, she says. She thus expresses her mild dissent with Sorabjee, by saying every democracy gets the government it deserves and every society its media. In principle, however, she agrees that there is a pressing need for self-regulatory bodies within the media.

Issues of our times The second edition of the book makes a significant contribution to the public discourse through the author’s insightful comments on some recent controversial cases. One such case is the Media Guidelines judgment delivered by the Supreme Court last year, permitting prior restraint of media reporting. According to her, the judgment is likely to encourage pre-censorship orders. “This is a great pity, particularly because in that case which arose out of the unauthorised leak of privileged communications between lawyers to the media, there was no issue at all before the court on pre-censorship,” she says.

An important postulate is that the freedom of speech and expression comprises the right not only to express, publish and propagate information through circulation but also to receive information. In the Mysore Sex Scandal case (2002), leading newspapers published reports on how three judges of the Karnataka High Court had been found indulging in immoral behaviour at a private resort in Mysore. A committee comprising senior judges appointed by the Chief Justice of India (CJI) carried out an “in-house investigation” and absolved the judges concerned. There was a strong demand for the contents of the report to be made public.

The Supreme Court declined disclosure, with a reasoning, as the author argues, that is difficult to reconcile with its own bold pronouncements in the past. The court’s refusal was on the grounds that the probe was only for the satisfaction of the CJI who ordered it in his moral capacity and not under any law.

As Madhavi Goradia Divan puts it rightly, quite apart from the public interest, it was in the interest of the judges concerned to have the report made public; in fact, the more so, if it established their innocence.

In her survey of morality, obscenity and censorship, the author concludes that society must lean in favour of free speech and expression and the courts must be very cautious while upholding restrictions imposed on notions such as decency and morality. She says that to imagine that “one can foster better morals in society by keeping out depictions of the immoral or indecent is as naive as thinking, in Milton’s analogy, that one can keep out the crows by shutting the park gate”.

On contempt of court, the author warns that a frequent use of the contempt jurisdiction by the courts will compromise their dignity. She has made a useful reference to Indirect Tax Practitioners’ Association vs R.K. Jain, decided in 2010, wherein the Supreme Court accepted truth as a defence. In this case, the respondent, in his editorial in Excise Law Times , had exposed irregularities in transfer, posting and appointment of members of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The Supreme Court said that the respondent was a whistle-blower seeking to expose the rot in an institution established to deal with cases involving revenue of the state.

The 2011 guidelines notified by the government under the Information Technology (Amendment) Act, 2008, require that if the intermediary (such as Google, Twitter or any online websites and cyber cafes) is aware of any infringing (objectionable) material, either based on a private complaint or from its own knowledge, it must take down such material within 36 hours, without providing any notice or hearing to its creator.

According to the author, the guidelines are difficult to implement as they cast obligations well beyond the ambit of the intermediary. Information barred includes that which is “blasphemous”, “harassing”, “disparaging”, “hateful” or “otherwise unlawful in any manner”, terms that are vague and undefined. She suggests that these guidelines are a retreat from the 2008 Act, which afforded protection to intermediaries who met the “due diligence” test.

In the chapter on hate speech, the author leaves the question whether there is a case for some measure of Internet regulation unanswered. Citing former United States Supreme Court Justice Oliver Wendell Holmes that you cannot falsely shout fire in a crowded theatre, she warns that with the advent of technology and social media, the whole world has become one’s theatre. She also argues that different countries are entitled to choose the core values that govern their laws. No matter how globalised the world, value systems are unlikely to homogenise, she reasons. The answer to the unresolved question she poses is perhaps available between these lines.

The author reserves her strictures for the media in the section on the Niira Radia tapes under the chapter, “Emerging trends, media ethics and regulation”.

The Niira Radia tapes, published in November 2010, exposed the intricate web of connections between powerful media persons, corporate houses and politicians. The publication of the transcripts of some of the tapes in some magazines brought out the worst scandals to hit journalism as a profession. Niira Radia was a corporate lobbyist for certain prominent industrialists. The recordings, only a fraction of which are in the public domain, were made by the Income Tax Department as part of its surveillance of Niira Radia. The tapes reveal that some senior journalists offered to use their influence with Congress leaders to pass on messages from Niira Radia, who was lobbying on behalf of a faction of the Dravida Munnetra Kazhagam during the ministry formation of the United Progressive Alliance government. The author laments that the story just did not get the kind of news space it deserved. “Call it media solidarity or self-censorship, it is a response which seriously erodes the credibility of the media,” she observes.

Press and the law The first edition of D.D. Basu’s Law of the Press was published in 1980. The book saw three more editions before the latest in 2010. This edition and the previous one in 2002 have been revised by the admirers of Basu, who passed away in 1995 after the third edition was published. The latest edition carries as many as 64 appendices on aspects relevant to the law on the press. Basu’s book figures prominently in the brief bibliography carried in Madhavi Goradia Divan’s book. As Basu’s book is the first one to fill the void on the subject, it may be of interest to compare how Basu and Madhavi Goradia Divan treat similar issues.

Basu’s book, as revised, is also a votary of self-regulation by the media. According to the book, legislative restrictions may become exercises in futility because they could end up infringing some right of the fourth estate. The solution, it says, lies in formulating journalistic ethics and abiding religiously by them. The phenomenon of paid news, where newspapers and other media, in return for large amounts of money, become the de facto mouthpieces of political parties and their leaders, has been a festering wound and has emerged as a serious peril to Indian democracy, says the book.

Freedom of the press as an essential attribute of the freedom of expression was the result of the Supreme Court’s creative interpretation of Article 19(1)(a). Basu explains that as a consequence of such interpretation, the press could not be subjected to any restrictions by making a law unless that law itself was constitutionally valid, that is, consistent with Article 19(2). The immediate gain under the Constitution was that while in England the press could not claim any right or privilege that was denied by any statute, in India the validity of the statute itself became open to challenge.

According to Basu, the Indian Supreme Court, from the beginning, came to be influenced by American decisions in the matter of interpreting Article 19(1)(a) even though while interpreting other provisions of the Constitution the court expressed reluctance in importing American case law.

On the question of codification of the privileges of Parliament and State legislatures—which currently are drawn from those of the United Kingdom’s House of Commons in 1950—Basu finds that it is not the difficulty of codification that really stands in the way, because broad and general propositions may, in the first instance, be enacted (as has been done in the case of the Contempt of Courts Act), which may subsequently be embellished on experience. The real obstacle, according to Basu, is the obsession of Parliament itself, namely, that if any such law is made, the existing privileges of Parliament would be curtailed because such a law will be subject to the limitations imposed by the Fundamental Rights guaranteed by the Constitution.

This uncertain situation, the book says, will continue, to the embarrassment of the journalist and the ordinary individual alike, until the Supreme Court launches into the arena to clarify its previous decisions, which are conflicting, and the legislatures come forward to codify the privileges, even by bits.

Madhavi Goradia Divan finds the very concept of parliamentary and legislative privilege outdated in an age of information and accountability. The public’s right to full knowledge about the performance of their elected representatives in Parliament, or in the Assemblies, is a matter of larger public interest and must override unwarranted privileges and immunities. Privileges, according to her, were intended to facilitate legislative debate in the interests of the citizen but are increasingly being used to subvert the public interest and shield elected representatives from public censure.

Contrary to what the Supreme Court has interpreted in a recent case, her view is that the authors of the Constitution intended that Parliament would define its privileges and that they should be precisely defined and limited to the minimum that is necessary for protecting free debate in the House.