Regulating Visual Media

“Vettel scorches his way to victory  – Formula One big brass lavish praise on inaugural Indian Grand Prix” – The Hindu. “Vettel wins, world raises toast to India – Crowd of 95,000 watches as country roars on to Global Motor Racing stage with hugely successful F1 event” – The Times of India. “Vettel warms Indian hearts – World champ’s speed endorses nation’s first GP” – Deccan Chronicle. “For India, It’s Formula Won – Huge turnout, celeb-glitter, praise for circuit and country mark the climax of inaugural Indian GP” – The New Indian Express. “Vettel lifts cup but India wins F1 race” – The Economic Times.

These are the screaming headlines of lead news stories on page one of these dailies on October 31 splashed with huge photographs all over, of the inaugural Formula One Grand Prix of India at the Buddh International Circuit in Greater Noida on the previous day, October 30. If this is the exuberance of the print media reporting the event, it is needless to say how the visual media was engrossed in their 24x7 news channels. The presumption of the media is that this is the top most and most absorbing news for the 120 crore people of this cursed country. The irony is that the huge and lavish circuit and stadia was named after Gautham Buddha! The people of 75 villages around the complex mostly poor farmers and agricultural workers live in absolute poverty and without electricity, water supply and other basic amenities – which are of least concern for the media, professing to be the pulse and voice of the people.

The fact is, on the contrary, the modus operandi and modus vivendi of the media are far removed from the people of this country as reflected by the new Chairman of the Press Council of India and former Supreme Court judge Justice Markandey Katju, in an interview to CNN-IBN (published on page 9 and 10 of this issue), who also insists on bringing the electronic media under the purview of the council and giving the council more teeth so as to punish the errand news channels.

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? The role of the media is not just creating but cultivating public opinion.

‘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. It created so much revulsion that some sections demanded legislation to control the media and ban sting operations.

    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. Dravidian leaders Thanthai Periyar, Arignar Anna, Kalaignar and several others published dailies and journals facing enormous difficulties.

Common charge against the news channels is that they are intruding into privacy, and reduce one’s honour by putting pictures, simulations, re-enactments 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 anyone 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.                                                        

Media Trials: ‘Media trial’ is a popular word in the street of intellectuals and our judiciary has shown its unhappiness on it several times. News channels are delivering decisions indirectly by their coverage and angle of stories. They don’t feel the sensitiveness of the incident as well as their responsibilities. In an incident of Delhi, a girl made allegations of rape and continual sexual harassment on her own uncle(Mama). News channels snatched this sensational story and started to broadcast it continuously with headings like “Haiwan Mama Ka Karnama”, “Vasana Me Andha Bana Mama” etc. After few days that mama and his wife committed suicide. According to suicide note that person was impotent so he was not able to do such a heinous crime. After investigation the girl’s allegations were found full of suspicion and a conspiracy against that person (Mama) came in to light. Here, the irresponsible behavior of news channels took to valuable and innocent lives.

The abuse of freedom by a section of the media for creating sensation, achieving pecuniary benefit and enhancing their TRPs, has to be checked in public interest. The right of media always comes with a duty - duty to report fairly, objectively and accurately. That duty attracts restrictions and limitations which protect the right of an individual.  Freedom of the press  is essential for healthy functioning of democracy; however, democracy comes with responsibility.  Freedom of the press cast responsibility on media as well.

Expression of views and making analyses of the news by the news channels, have  become a regular affair. Telecasting views on the news relating to  the arrest of an alleged accused and airing of press conference by the police, tantamount to the trial by media which may have prejudicial impact on the witnesses, the accused and  the administration of criminal justice in general and it may also affect the judge sub-consciously. In a recent double murder case in Noida, speculative stories by certain news channels have  dented the image of the alleged accused beyond repair inasmuch as the father of the victim was condemned before the actual trial had commenced.

The direct live telecast of the sixty hours Operation Black Tornedo by the security forces to combat terrorist attack in Mumbai particularly on Oberoi Trident and Taj Mahal Palace Hotels and Nariman House, by news channels included live feed of air dropping of NSG commandoes on the rooftop of Nariman House which had taken away the element of surprise and was critical and crucial in the operation of Black Tornedo.  The live footage shown by TV channels to the viewers, could also have been used as free intelligence input by the perpetrators sitting far away from the place of incident who allegedly guided the attackers to take appropriate emergent measures against the positions of security forces through satellite/mobile phones.  Such live feed of Commandoes being air dropped directly endangers the success of operations and safety of hostages as well as security forces. 

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. Quoting 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. Later it had to be brought to force by an amendment to the People’s Representation Act

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 is not effective, government regulation is not the solution either. A broad-based autonomous body should play the watchdog.

It is no exaggeration to say that media represent the sector of the economy that is the envy of others because of the extremely buoyant growth rates witnessed over the last two decades, in an environment characterised by minimal or no regulation. The sole statutory, quasi-judicial body set up for media regulation in the country is the Press Council of India. While it aims to preserve the freedom of the press and maintain and improve the standards of press in India, it has no way of imposing punishments or enforcing its directions for professional or ethical violations.

In the absence of any other government regulator, the focus has shifted to self-regulation by the media organisations, individually or collectively. Collective self-regulation has failed because it is neither universal nor enforceable. Individual self-regulation has also failed due to personal predilections and the prevailing of personal interest over public interest.

It is relevant to note that, to an extent, the most effective de facto media regulator happens to be the advertisers and sponsors who determine the bulk of the revenue stream of our media industry. Their aims and desired outcomes, however, might not align with public policy goals of the government or markers of public interests and may, instead, stand in opposition to them. The common citizen, who is a consumer of media products, is thus faced with a piquant situation.

While economic deregulation has been the dominant trend of the recent past, it is premised on a dynamic market place with a system of independent regulation, especially competition regulation, to prevent cartelisation, abusive behaviour by dominant firms, and corporate transactions that derail the competitive processes in the market.

When the government, the polity, the market and the industry are unable to provide for full-spectrum systemic regulation that protects consumer welfare and public interest, who will step in to address the gap? As we debate the issue of media regulation, the following aspects need closer scrutiny:

First, the objective of regulation in democratic societies such as the USA, France and others is to enhance diversity, competition, and localism among media outlets and to promote public interest with a focus on upholding constitutional values, protecting minors, and limiting advertising. Intrusive content regulation is minimised because those who are aggrieved can resort to legal means in the knowledge that the justice delivery system will address their grievances in a reasonable time period. Unfortunately, the same cannot be said about our justice delivery system. The time taken to settle court cases deters individual citizens, and even corporate entities, from seeking legal options and forcing the search for alternative tools of administrative justice and facilitation for grievance redressal.

Second, we have not had an informed debate in the country on the issue of multiple ownership and cross-ownership nor a cogent national media policy that covers print, radio, television, cable, DTH platforms, video and film industry, internet, and mobile telephony. In most developed countries, rules on cross-ownership and multiple-ownership are intended to prevent the emergence of monopolies and cartels and promote competition. Many States in India have a few media groups dominating both the print and electronic media. At the national level, we have seen the emergence of a handful of media conglomerates spanning the entire media spectrum. Its impact on moulding public opinion, generating political debate, and safeguarding consumer and public interest is a moot question.

Third, India is among the few democracies without active media watch groups engaged in objective analyses of the media, discerning prejudices and latent biases, and subjecting the media to a dose of their own medicine. For an industry that has over fifty thousand newspapers and hundreds of television channels, systematic media criticism is non-existent.

What this means is that in the absence of government and industry regulation, even civil society has been unable to provide an effective de facto media regulatory mechanism.

Fourth, no discussion of media regulation can ignore the recent controversy over ‘paid news’.

We need to introspect whether the strategy of relying on advertisement rather than subscription as the main revenue source for media outlets has created a difficult set of ethical problems for the media industry as a whole. Once content ceased to be the revenue driver for a media outlet, the effort to leverage it as a direct revenue source began. The inability of the industry and the Press Council to go public with its report on paid news is also another pointer to the problems of self regulation and the ‘culture of silence' in the entire industry when it comes to self criticism.

Fifth, the structural biases of the development process have favoured urban areas over rural ones, metropolitan areas over other urban areas, English-speaking over those speaking other Indian languages, the middle and upper classes over the others who constitute the vast majority of our citizens, and the service sectors over other areas such as agriculture.

These biases have prompted the media industry to resort to “sunshine journalism” where the focus is on the glass that is quarter-full rather than that which is three-quarters empty! When media portrayal is of a life that is always good, optimistic, going with the tide of those with discretionary spending power and their causes and pet themes, the role of the media as a defender and upholder of public interest is relegated to the background and its commercial persona takes over, replete with its allegiances to the market and the shareholders and issue dear to them.

Sixth, no discussion of media regulation can ignore the slow erosion of the institution of the editor in Indian media organisations. When media space is treated as real estate or as airline seats for purpose of revenue maximisation strategies, and when media products are sold as jeans or soaps for marketing purposes, editors end up giving way to marketing departments.

One might ask, if the situation is so stark, what can be the way forward?

A good starting point would be for all stakeholders of the media industry to realise that the ethical underpinning of professional journalism in the country has weakened and that the corrosion of public life in our country has impacted journalism.

We should not forget that vibrant journalism in a democracy is watchdog journalism that monitors the exercise of power in the state, stands for the rights and freedoms of citizens, and informs and empowers citizens rather than entertains and titillates them and feeding to their pervert notions and apolitical tendencies. Vibrant journalism always springs from the bedrock of professional ethics. Our media, and democracy, are fortunate that we have shining examples of journalists who not only embody the ethical dimension, but sadly, also laid down their life for the same.

‘Media trial’ reached a crescendo since the CAG report on ‘presumptive loss’ in the allocation of spectrum. Although the report itself quotes four figures and concede that the presumed loss was debatable, the media as a whole hung on the highest figure of Rs.1,76,000 crore, if the 2G spectrum were auctioned like the 3G spectrum, which was not permitted by the policy of the government. Knowing the truth very well, the media deliberately clung on the figure and more mischievously propagated the ‘presumed loss’ as scam that it got firmly embedded in the minds of people as well as the judiciary. Showing the portraits of former Telecom Minister A.Raja round-the-clock on TV channels for any news connected with it, the viewers had been virtually brain-washed by the so-called ‘free media’ like the ‘totalitarian regimes’ do. The result is one ‘enlightened’ reader of a daily posts the opinion that ‘Raja should be hanged to death’ when the CBI filed additional charges. This is how the media had brutalized the minds of people.

Now, fed up with the distortions of court proceedings in the case, the Supreme Court judge Justice Singhvi had said on Nov.1, “We express our serious anguish over distorted and misleading versions of proceedings reported in newspapers, which is most unfortunate and regrettable. There is also an attempt to tarnish CBI.” But this was what the media was doing all along. On October 24, when the trial court was to hear the bail petitions of Kanimozhi and others, the Zee TV conducted an opinion poll early in the morning on whether Kanimozhi could be given bail or not, and published the result even before the court proceedings started. In that evening the NDTV conducted a debate on the same issue with participants like Subramanian Swamy. The judges had said that the proceedings in the trial court would not get influenced by these reports. It is an admission by default that the court and CBI were influenced by the media.

Expectedly, The Editors Guild of India have come out with a scathing condemnation of Markandey Katju’s ‘ill-conceived, sweeping comments on the media’. They get hurt when the same yardstick used by them for castigating politicians and bureaucrats as a class and creating a low opinion about them, the people and in the society. How many upright politicians and bureaucrats would have suffered was no consideration for them. It is almost a year since the malaise of ‘paid news’ phenomenon was unearthed. How many newspapers, journals and TV channels published the news? Why there was no debate? Again with regard to the BJP’s misadventure at Satna when journalists were handed over envelops containing currency notes, for reporting L.K.Advani’s yatra, only one journalist came out and exposed it, while dozens of others kept mum as they were accustomed to it. Hence, both proprietary and working journalists should first mend themselves before pointing fingers on others.

What is wrong with the PCI chairman advocating responsibility and accountability for the Media? They claim to be the Fourth Estate or Fourth Pillar of Democracy. If so, when all the other three estates/ pillars, the Legislature, Executive and even the judiciary (with the passing of the Judicial Accountability Bill) are made accountably (to the people) why media dither? Are they super-citizens? It is time, though belated, to bring the visual media also under the purview of the Press Council of India and the council empowered with more teeth, like the regulatory bodies RBI and SEBI. Are not they enjoying concessions, rights and previleges on par with the print media?