Dialogue  July-September,  2010, Volume 12 No.1

Regulating the visual media: self-regulation has failed

Sudhanshu Ranjan

An acrimonious debate has been going on about regulating the media in general and electronic media in particular. The Union government has clarified time and again that it does not have any plans or desire to regulate TV channels. For the print media there is at least the Press Council of India, though dubbed as a toothless regulator, for the electronic media there is none. There is, however, a demand to convert the Press Council into the Media Council so that it has jurisdiction over the electronic media as well. Though most people support self-regulation, there is also a sizeable section which feels that it has failed and some other sort of regulation is needed but the government must not regulate.                                                                                             
    Generally, broadcasters argue that viewers are the best judges. Viewers’ choice is important but not ultimate. If people want to view blue films, should TV channels be free to show them? ‘Sach ka saamna’ was one such reality show which was a direct intrusion into privacy which people enjoyed. That’s why, regulation is needed. Self-regulation is, doubtless, the best solution, but unfortunately, it has failed miserably. Self-regulatory mechanism of private TV channels got a body blow when India TV, a member of News Broadcasters Association (NBA)— a group of 31 news broadcasters — quit it in April 2009 alleging bias a day after the NBA Disputes Redressal Authority slapped a fine of Rs. one lakh on it for “deceptively dubbing” a US-based policy analyst’s interview. The NBA, formed in 2008 in the face of growing pressure from the government to regulate news content, set up a self-regulatory body headed by a former chief justice of India. Its draft aims at ensuring that channels assume more responsibility for the shows they air, making it mandatory for every channel to appoint a ‘content auditor’ to address all complaints of content violation.. The withdrawal of India TV from the group vindicated the fear being expressed right from the beginning that self-regulation may not be effective. It was the result of the carping criticism that the media, in general, and TV channels, in particular, faced for their slipshod reporting of the 26/11 terrorist attack and the Aarushi murder case, to name a few, and a fake sting operation which showed Uma Khurana, a Delhi government school teacher, as running a brothel using school girls. An angry mob would have lynched her but luckily she survived and ultimately got justice. However, it is heartening that the media in general condemned the fake sting operation. It created so much revulsion that some sections demanded legislation to control the media and ban sting operations.
    While there are regulators in other countries to control the electronic media, India does not have any such body. In England, Ofcom has been penalizing broadcasters regularly. On 3 April 2009, it fined the BBC £150,000  and described the Radio 2 broadcast of messages left by Jonathan Ross and Russell Brand on actor Andrew Sach’s voicemail as gratuitously offensive, humiliating and demeaning. The BBC had broadcast “explicit, intimate and confidential information” about Sach’s grandmother, Georgina Baillie, without her consent. The watchdog said that it “seriously infringed their privacy” and added that the scale of the fine suggested the “extraordinary nature and seriousness” of the failures and the resulting breaches of the broadcasting code. In July 2008 also, the BBC was fined £400,000 for faking winners and misleading its audience in competitions.  Earlier, GMTV and ITV were fined £2 millions and £5.8 millions respectively for breaching the code. In India, though the Cable Television Network Regulation Act, 1995 seeks to regulate the electronic media, virtually there is no regulation. 

    Cable TV connections in India rose to a staggering 78 million by the end of 2007. Though the spread is phenomenal, the sector in its present form is facing challenges of transparency, vertical restructuring, fragmented distribution chain, technological upgradation, appropriate addrerssability and resources. In order to address these issues, the Telecom Regulatory Authority of India (TRAI) initiated a consultation process suo moto by issuing draft recommendations entitled “Restructuring of Cable TV Services”. It has recommended that the Cable TV industry and Multi-system operators (MSO) need to be brought under licensing to restructure the fragmented industry. It has further suggested imposition of an entry fee of Rs. 10,000 to 1 lakh along with cess on cable operators, “No person shall operate a cable television network unless he is licensed as a cable operator”. The union government has been also contemplating to bring in new content code for TV programmes.

    News channels are facing the credibility crisis of the worst order. Heads of news channels themselves admitted while participating in India’s first news television summit held in New Delhi in 2008 that the “race for eyeballs” was forcing news channels into pornography and crime shows. One must not forget that media is not only supposed to cater to the public taste, but also to create the public taste. Actually, this problem rears its head when the tyranny of market rules the roost. Advertisers, no doubt, go by the numbers of viewers, but the question is: should the quality be dissipated in order to mobilize revenue? Generating revenue to run a media house is acceptable, but to run a media house for earning revenue is unacceptable. Actually, media houses are registered under the Companies Act and not under the Registration of Societies Act under which one cannot earn profit. Mahatma Gandhi’s ‘Indian Opinion’ did not have a single advertisement and he financed it by his earning from the law practice. In fact, during the freedom struggle, several national leaders published their own magazines to propagate their viewpoints.                                                                                                          
    Common charge against the news channels is that they are intruding into privacy, and reduce one’s honour by putting pictures, simulations, reenactments and alterations in a misleading context. The Supreme Court on 24 August, 2007 directed the Ministry of Information and Broadcasting to stop TV channels from telecasting photographs of Monica Bedi taken surreptitiously in a bathroom in Bhopal jail. This is not the first time that a girl in the bathroom has been snapped. Such video recordings have been telecast earlier. This unfortunate trend acquired a monstrous dimension in the Aarushi murder case when she was shown, by computer simulation, sleeping with the domestic help, Hemraj, under one blanket. TV channels took the stand that they showed what the police informed the media about the progress in the investigation. But such a lewd depiction cannot be justified under any circumstances. Privacy is under invasion, primarily for sale, but also in the name of state security. A salacious media is crossing all limits to capture nudity. Mind-boggling technological innovations have made intrusion into privacy a child’s play. Girls are not safe even in bathrooms with peeping Toms’ shenanigans wreaking havoc threatening to tear individuals apart. A reporter’s job is persnickety, requiring him to adhere strictly to truth and refrain from expressing any personal opinion and meticulously protect one’s dignity. The right to privacy is a fundamental right as recognized by the Supreme Court in R. Rajagopal v. State of Tamil Nadu (1994) which said that any one violating the right to privacy of the person concerned would be liable in an action for damages. It has been protected even under the Norms of Journalistic Conduct (2005) issued by the Press Council of India.                                                         
    The media must learn to exercise restraint and respect the right to privacy. This right is not only legally guaranteed but also recognized by Indian customs. Indian courts were ahead of British and US courts in protecting this right. The ancient Indian law givers declared “Sarve Sve Sve Grihe Raja” (every man is a king in his own house). Even Kautilya in his Arthashastra, while dealing with the problem of national security risk recommended the employment of spies but did not assign to them the role of eavesdropper. The Allahabad High Court recognized this right in 1888 itself in Gokal Prasad v. Radho. The observation of Chief Justice Edge is quite telling: “In my opinion, the fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be in India an usage or custom of privacy valid in law.” In this case the plaintiff complained that the defendant had illegally constructed a house in which certain eaves projected over the plaintiff’s land and that a verandah and certain doors of the house intruded upon the privacy of some portions of the plaintiff’s house and premises which were occupied and used by females. So he prayed that the eaves and the verandah be removed and those doors be closed. The High Court arrived at the conclusion that a right of privacy exists and has existed in these provinces by usage or custom, and that substantial interference with such a right affords such owner a good cause of action. So the prayer was allowed. The court also referred to earlier cases like Nuth Mull v. Zuka-Oollah Beg (1855), Ganga Pershad v. Shalik Pershad (1862), Goor Dass v. Manohar Dass (1867), Ram Baksh v. Ram Sookh (1868) and hordes of other cases in which the judges expressly recognized the right to privacy.                                                              Indian cases were cited in Britain for invoking this right. Percy H. Winfield, in 1931, made a fervent appeal to the House of Commons, wherein he said, “The Indian cases have been referred to not, of course, for the purpose of urging their application to the different particular circumstances which prevail in England, but as an illustration of the pliability of Indian law where the need of protecting privacy has been felt…our law probably lags behind the needs of a community in which intrusion on privacy is apt to take offensive forms owing to the modern development of instantaneous photography and of method of advertisement which, to say the least of them, are totally indifferent to the feelings of private individuals.” Compared to technologies available in the twenty-first century technology in 1931 was in a nascent stage and yet offensive intrusion upon privacy was feared.                                      Another criticism against the media, not only TV channels, as a whole is that it gives news based on unnamed sources. Newspapers can afford to wait for some time to verify the authenticity but the news channels dishing out news round the clock do not have any patience to wait and cross-check as the culture of ‘breaking news’ does not allow any time. Qouting unknown sources is a must to protect the credibility of the report as well as the person who leaks the information. In some cases it may be misused, but then it dents the credibility of the channel or the paper. In 1981, The Washington Post gave back a Pulitzer because reporter Janet Cooke had cooked up a story about an 8-year-old heroin addict who did not exist. Subsequently, its editor announced the “no more unnamed sources” policy to the newsroom. The experiment failed miserably as its competitors published important news stories that the Post did not, and the experiment ended after two days. Sometimes, senior officials themselves leak when they feel that it is in the public interest to expose some misguided policy. It was Mark Felt, then deputy director of the FBI, who leaked the Watergate conspiracy to Bob Woodward.                                                                                                            
    Curbing the freedom of expression is neither desirable nor easy under our Constitution which has made it a fundamental right. It was because of this reason that the Election Commission’s order to ban the exit poll was set aside by the Supreme Court though parliament did it subsequently by amending the representation of people Act. The Election Commission banned it without genning up on the legal position and got rebuke from the Supreme Court. The right to freedom of expression guaranteed by Article 19(1) (a) of Constitution, recognized as a basic feature of the Constitution, can be curtailed only on specific grounds mentioned in Article 19(2). The Supreme Court has clearly held in Bennett Colemam & Co. v. Union of India [(1972) 2 SCC 788] that there cannot be any other ground for curbing this freedom. However, in Union of India  v. Motion Pictures Association [(1999) 6 SCC 150], it rejected the prayer of cinema hall owners that the order to compulsorily screen scientific and educational documentaries by cinema halls curtailed their right to freedom of expression as it is in the national interest. Moreover, the Supreme Court has not struck down any legislation for violating the basic structure. The basic structure doctrine evolved primarily in the context of constitutional amendments only. But in S. R. Bommai v. Union [(1994) 3 SCC 1], the Supreme Court examined even the Presidential proclamation under Article 356 on the touchstone of basic structure, and upheld the dismissal of three state governments headed by the BJP as constitutionally valid as those governments were not likely to observe the ideology of secularism, a part of the basic structure, and held the dismissal of other state governments as unconstitutional. However, in cases of legislations, the apex court has flatly refused to apply this yardstick (Kuldip Nayar v. Union). In Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.), it set aside the 39th amendment but upheld the similar amendments in the RP Act.
    Media enjoys tremendous privileges in the public interest, but TV channels are dishing out rubbish in the name of public interest. Though self-regulation may not be effective, government regulation is not the solution either. A broad-based autonomous body should play the watchdog.