A free and independent media is the backbone of every democracy. India being the world’s largest democracy has a very sturdy and robust media which is often termed as the fourth pillar of our constitution.
Our country since independence has had a fledgling print media industry but with the opening up of the economy in 1991 we now have numerous electronic media houses which have changed the manner in which information is circulated to the public.
All this coupled with the boom of the internet has revolutionised circulation of information, views and opinions.
This sudden change in the manner in which the public is provided information brings about several legal challenges. The loopholes in the existing laws are being exploited by many to spread misinformation, hate propaganda and intimidate individuals.
Taking due note of the changing media dynamics the law commission of India is looking into the various aspects of media law.
Deliberations on various aspects of media such as social media and section 66A of the IT act, cross media ownership, media and individual privacy, regulation of media, paid news, trial by media, defamation etc. are being undertaken.
Section 66A of the Information Technology act was enacted so that information which is grossly offensive, menacing and false is not circulated amongst the members of the public via the internet.
The section provides a punishment extendable up to 3 years in case of violation.
The most bewildering aspect of this section is that the words grossly offensive, menacing and false have not been defined under the act.
This has led to bizarre interpretations of the section as a whole and it is now being used as a tool to arbitrarily arrest innocent citizens expressing honest opinions on various social networking platforms.
Cases such as the arrest of two college girls in Maharashtra and a Businessman in Tamil Nadu under section 66A for writing against certain politicians and influential individuals gained wide media attention. These cases highlighted the manner in which the section was being misused.
Though the freedom of speech and expression guaranteed by the constitution of India is subject to reasonable restrictions, the constraints on free online speech imposed by Section 66A are draconian in nature.
The ideal solution would be to scrap the section entirely but lack of political will presents a major hurdle in this direction. So an adequate common ground will be to define what will constitute grossly offensive, menacing and false and restrict the scope of wide interpretation for the terms.
Paid news, trial by media, infringing on an individual’s privacy are some of the iniquities the media is accused of. These indictments on the press are of very serious nature.
An entity which has the power to control, direct and regulate opinion of the public must ensure that the information being circulated is true. It must also ensure that it presents a balanced view on a particular issue without succumbing to partisan pressure.
While charging money for advertisements is part of the revenue generating model, media houses have often extended this same model to news content published in a newspaper or shown on news channels.
An extensive report on media corruption during the 2009 elections written by Paranjoy Guha Thakurta and Sanjeev Reddy highlighted how paid news is a major phenomenon in the Indian media industry.
Apart from paid news there are numerous instances where the media has played the role of judge, jury and prosecutor in high profile cases. This stand taken by the media is akin to that of a demagogue.
Pre judging a case and galvanising public opinion against an accused compromises the right to free trial.
A glaring example of this was the Shivani Bhatnagar murder case where the accused RK Sharma a senior police officer declared guilty by the media was ultimately acquitted by the courts.
The apex court in the Manu Sharma case had observed that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending.
The frenzy of bringing out sensational stories and getting high TRPs has led many channels to adopt the method of sting operations to break a news piece.
Successful stings such as the Tehelka one which exposed corruption in defence contracts created a high level of acceptability for such news pieces in society.
The infamy of these types of news stories came into the limelight when editors of ZEE news were arrested for trying to bribe Naveen Jindal on camera.
The airing of sting operations is governed under Section 5 of the Cable Television Networks (Regulation) Act 1995 and the Cable Television rules.
It lays down that no programme can be transmitted or re-transmitted on any cable service which contains anything obscene, derogatory, deliberate, false and suggestive innuendos and half-truths, criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country and affects the integrity of India, the President and the judiciary.
The broadcast of false and fabricated sting operations are a grave violation of an individual’s right to privacy which has been recognized by courts as an integral part of right to life and liberty under Article 21 of the constitution.
The modus operandi of sting operations is such that they induce the victim to the point of convincing him or her to undertake or perform an illegal act on camera. There are serious legal ambiguities as to whether the person conducting the sting should be tried as an abettor or an accomplice.
The PCI norms provide that the press should not tape-record conversations without the person’s express consent or knowledge, except where it is necessary to protect a journalist in a legal action or for “other compelling reason.
Whether a reason is compelling or not is for the journalist to decide.
In an environment where breaking a story is more important than protecting the individual’s right to privacy the standard for determining a compelling reason is often very low. As a result one often finds innocent citizens succumbing to the wrath of sting operations.
Presently the world including India is at a juncture where there is a growing conflict between groups supporting complete freedom of speech without any regulations and the governments which want certain degree of control over the content being distributed to the public.
Websites such as Wikileaks are strongly advocating for a completely unregulated media where information is available to the public without any censorship.
Though it is true that freedom of speech is vital to sustain a vibrant democracy, certain restrictions have to be imposed on this liberty, as is recognized by our constitution.
For the media to contribute positively towards society and progressive nation building it is imperative that the conflict between freedom of speech and restriction is addressed and issues such as paid news, internet regulations, sting operations etc. are tackled.
Rohan Shridhar is a law graduate and legal activist from the state of Himachal Pradesh
