Regulation by stealth

In a welcome, rapid response to widespread and intense criticism, the Government of Kerala withdrew the controversial new Section 118A of the Kerala Police Act on November 25, 2020, just a few days after the state’s Governor had signed it into law.

The vaguely drafted law was disturbingly reminiscent of Section 66A of the Information Technology Act and an earlier Section 18(d) of the Kerala Police Act, both of which were struck down by the Supreme Court in 2015. Pushed through without even a debate in the state Legislative Assembly, it was ostensibly meant to tackle cyber bullying and online abuse, especially of women and children.

However, it triggered public apprehension and outrage because it clearly went well beyond the stated objective. Legal experts, free speech activists, media professionals and a wide range of political leaders described it as draconian, inimical to freedom of expression (including media freedom), and prone to misuse. The only positive aspect of the regrettable episode is that better sense eventually prevailed and the ill-conceived amendment is now history.

Nevertheless, this incident underlines the urgent need for the critical issue of media regulation in public interest to receive more serious attention from all concerned, especially the media and civil society.

This is by no means the first time a government has attempted to exert control over media – disclaimers aside – and it is unlikely to be the last such effort. The vital, so far largely ignored issue of media regulation, requires urgent, critical consideration – all the more now because it has, in recent years, become ever more vexed and complex. The old separation of mass media into print, audio and audio-visual/electronic is clearly outdated. Digital and social media, not to mention all that lies ahead with constantly evolving communications technologies, are becoming increasingly pervasive and influential. Social media, in particular, has thrown up some serious challenges, including online abuse and fake news.

Under the circumstances, the apparent confusion that prevails among even justices of the apex court and legal luminaries, not to mention government officials as well as media leaders, about regulation of even traditional media, is disconcerting. The seeming lack of clarity was revealed most recently in the ongoing Sudarshan News and Tablighi Jamaat cases in the Supreme Court.

The Sudarshan News case has also exposed many faultlines in India’s existing, chaotic and ineffective media regulatory system. A major problem is the role of the government: if regulation here is inevitably associated with government interference, if not control, there are valid reasons for that.

To begin with, India still lacks a public service broadcaster, unlike most mature democracies around the world. The Prasar Bharati Corporation, set up in 1997 as a statutory, supposedly autonomous body, has not lived up to its original mandate to ensure independence for Doordarshan and Akashvani/All India Radio, which still function as state broadcasters, answerable to the government of the day. Radio news remains a government monopoly, with private and community radio stations allowed to broadcast only AIR news bulletins.

It is true that private “news and current affairs” television channels have proliferated over the past couple of decades. According to the latest available official data, they constitute just a little less than half of the over 900 “permitted private satellite TV channels.”

Holding sway

However, the jurisdiction of the two supposedly “self-regulatory” bodies governing news channels – the older News Broadcasting Standards Authority (NBSA) and its new rival, the News Broadcasters Federation Authority (NBFA), is limited. They hold sway, if at all, only over members of the News Broadcasters Association and the 2019-born News Broadcasters Federation respectively, and these together make up just a fraction of the total number of news channels. Sudarshan News, for example, is not a member of either. Under the circumstances, the majority of private, so-called news channels are answerable to no regulatory authority – except, again, the government. This is clearly an unsatisfactory situation which calls into question the legitimacy and effectiveness of “self-regulation” by broadcasters in its present form.

The various draft Broadcasting Services Regulation Bills floated by the government in the interim (most recently in 2007) have been unacceptable because they were clearly intended to institutionalise government control over the media. Yet, all these years later, in both the Sudarshan News case and the Tablighi Jamaat case, Supreme Court justices appear to assume that the answer to fake news and bigotry on air lies in media regulation by the government and, failing that, by themselves and/or committees set up by them.

This is all the more incomprehensible since there are many, readily available past and current studies of non-governmental media regulation systems and practices across the democratic world, to learn from and draw on. According to a recent overview of journalistic self-regulation in Europe (undertaken as part of a project titled Media Councils in the Digital Age), “The basic idea behind all media councils is the same: a truly independent media system requires self-regulation, for the simple reason that having government regulation would threaten the freedom of the press.”

It is, of course, convenient for governments to profess, pretend and procrastinate. The prevailing regulatory vacuum, disagreements among media enterprises and public apathy together serve to strengthen their hands. It is significant that, despite protestations in court about respect for freedom of the press, several recent moves by the Central government suggest accelerated action to extend control over digital media, including online news and current affairs publications.

The speech by the Minister for Information and Broadcasting Prakash Javdekar at a National Press Day function in mid-November was a classic example of speaking with a forked tongue – asserting that the government did not wish to step into the regulatory domain while saying it is thinking of developing a common code of conduct for TV channels. And, contrary to what he implied, the Press Council of India is no model of self-regulation. The PCI’s recent, uncalled-for advisory on the publication of “foreign content” in Indian newspapers is only the latest among its many sins of omission and commission over the years.