Article On Media Law And Policy

MEDIA LAW AND POLICY

AUTHOR- KESHAV MAHESHWARI 1

CONTACT- 9769043487,955780639 INTRODUCTION TO MEDIA: The term media is derived from Medium, which means carrier or mode. Media denotes an item specifically designed to reach a large audience or viewers. The term was first used with the advent of newspapers and magazines. However, with thespassage of time, the term broadened by the inventions of radio, TV, cinemas and Internet. In the world of today, media has become as necessary as food and clothing. It has played significant role in strengthening the society. Media is considered as "mirror" of the modern society, infact, it is the media which shapes our lives. The purpose of the media is to inform people about current, new affairs and to tell about the latest gossip and fashion. It tells about the people who are geographically divided. The role of media has become one way of trading and marketing of products and prejudices. The media claimed to be governed by righteousness and equity, but greed and self-aggrandizement has poisoned its virtues. Society is influenced by media in so many ways. It is the media for the masses that helps them to get information about a lot of things and also to form opinions and make judgments regarding various issues! It is the media which keeps the people updated and informed about what is happening around them and the world. Everyone can draw something from it. Media has had a bad effect on a generation, mainly because, youth is strongly influenced by media. Teenagers and children wish to follow the people, who get recognized and do what they do to get noticed. Sometimes, they focus on bad part of the media and strive to be a part of it. However, many are not succumbed to a life of crime! These are the things which get into Young civilian minds! The media affects people's perspective. Too much intervention of media in everything is a matter of concern. Media can be considered as "watch dog" of political democracy. Through the ages, the emphasis of media on news has camouflaged. Media these days, tries to eye the news which could help 2

them to sell the information that is gathered worldwide, so that they could pave a way of success and fame of their respective channels. FM radios, newspapers, information found on net and television are the mass Medias that serve to reduce the communication gap between the audience, viewers and the media world. For the sake of publicity and selling, important figures, their lifestyles are usually targeted. Unimportant and irrelevant news, that usually have no importance are given priority and due to a reason or the other, they get onto the minds of the viewers and in this ways many a times,importantpolitical, economical and sociological news get neglected and gradually, lose their importance! No doubt,media has played significant role in making world a global village and to reduce the communication gaps amongst the people living in the far areas but unfortunately,media these days has become a COMMERCIALIZED SECTOR,eying the news which are hot and good at selling.The goal is to gain the television rating points.

Purposes: Mass media can be used for various purposes: Entertainment: The original idea behind the creation of various ‘media means’ was to entertain masses. Radio, TV, cinemas and magazines spend most of their resources targeting on entertaining items and programs. Because of the growing population and developing lifestyle, the demand for more entertainment is increasing. Every year billion of dollars is traded in entertainment industry. News & Current Affairs: One of major duties of media today is to inform the people about the latest happening around them and the world. They cover all aspects of our interest like weather, politics, war, health, finance, science, fashion, music, etc. The need for more and more news has evolved into creation of dedicated TV & radio channels and magazines. People can listen, watch and read latest news whenever and wherever they want. Political Awareness: 3

Media is the overseer of the political system. If it plays its role honestly, it will be a great force in building the nation. It plays a great role in bringing common man close to their leaders. The media focuses in bringing details of all major political situations, decisions and scenarios. Hence people can better understand their rights and make better decisions. Education: Because of the power of media is so extensive and huge, it can be used to educate people with very little cost. Imagine a classroom in every city with thousands of students being taught by just one teacher. But unfortunately, because of money-making approach of media and lack of interest by government, very less work is done in spreading the education. Public Announcements: Various authorities and agencies utilize the power of media to spread informative messages to public. This may include warning against a storm or epidemic, delay in arrival or departure of flights and trains, etc. In some cases, it is legally binding to publish notices in newspaper like tenders, change of property ownership, etc. Advertisement: Almost all business concerns uses the power of media to sell their products. They advertise in media for the enhancement of business purposes. Huge amounts of money are invested in media for marketing of a product. The more attractive the advertisement, the more people will follow it. Disadvantages: Even though there are lot of plus points for use of media but there are also many disadvantages associated with it. Media has the bad effect of inducing baseless ideas through advertisements. People are forced to buy harmful or substandard products. Sometimes, the Media develops unnecessary sensation and distortion of truth to attract attention. Because of its power to build public opinion, the influence of media can make or break the government. MAIN ARGUMENTS: The main arguments which are covered under this article are freedom of press, privacy and media laws, trials by media and victimisation, media laws in India, sting operations, advertising, broadcasting, media sector analysis 4

report, prospects, call for regulation, impact of globalisation on Indian media. IMPORTANCE OF THE ISSUE: Media is one of the most powerful instruments of communication. It can help to promote the right thingson right time and gives a real as well as strong aspects of the world about what is right or wrong also italso express that how can we store and distributes the views. The world is moving towards progress inevery step of life. But we cannot refuse the real fact that we all are bounded directly or indirectly with theloads of social problems and issues, which are affected by the people of the people and for the people. The media plays a very constructive role in today’s society.Media play an important role in increasing of public awareness and collect the views, information and attitudes toward certain issue. Media is the most powerful tool of communication in emerging world and increased t he awareness and presents the realstage of society. In this decade of Knowledge and awareness there is a huge and grand role of media, it isall around us when we watch on Television, listen to on the radio, read to the books, magazines, and newspapers, every where we want to collect some knowledge and information and a part of this media hasto present a very responsible role for our society. Without the media, people in societies would beisolated, not only from the rest of the world, but also for the total formation of creditable world.

FREEDOM OF THE PRESS Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections. With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being 5

otherwise protected from disclosure due to relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest. The Universal Declaration of Human Rights states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers" This philosophy is usually accompanied by legislation ensuring various degrees of freedom of scientific research (known as scientific freedom), publishing, press and printing the depth to which these laws are entrenched in a country's legal system can go as far down as its constitution. The concept of freedom of speech is often covered by the same laws as freedom of the press, thereby giving equal treatment to spoken and published expression. The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offense". Laws such as the Official Secrets Act andPrevention of Terrorist Activities Act1 (PoTA) have been used to limit press freedom. Under PoTA, person could be detained for up to six months for being in contact with a terrorist or terrorist group. PoTA was repealed in 2006, but the Official Secrets Act 1923 continues. For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."2 With the liberalization starting in the 1990s, private

1The Prevention of Terrorism Act 2002". 2Freedom of the Press". PUCL Bulletin, (People's Union for Civil Liberties). July 1982. 6

control of media has burgeoned, leading to increasing independence and greater scrutiny of government. It ranks poorly at 140th rank out of 179 listed countries in the Press Freedom Index 2013 released by Reporters Without Borders (RWB).3 Analytically India's press freedom, as could be deduced by the Press Freedom Index, has constantly reduced since 2002, when it culminated in terms of apparent freedom, achieving a rank of 80 among the reported countries

PRIVACY AND MEDIA LAWS In her research, SonalMakhija, a Bangalore-based lawyer, tries to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. The research examines the existing media norms (governed by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority), the constitutional protection guaranteed to an individual’s right to privacy upheld by the courts, and the reasons the State employs to justify the invasion of privacy. The paper further records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy. Last year’s satirical release, Peepli [Live], accurately captured what takes place in media news rooms. The film revolves around a debt-ridden farmer whose announcement to commit suicide ensue a media circus. Ironically, in the case of the Radia tapes, the same journalists found themselves in the centre of the media’s frenzy-hungry, often intrusive and unverified style of reporting. Exposés, such as, the Radia tapes and Wikileaks have thrown open the conflict between the right to information, or what has come to be called ‘informational activism’, and the right to privacy. Right to information and the right to communicate the information via media is guaranteed under Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v Raj Narain,4 the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and expression, guarantees the 3"Press Freedom Index 2013". Reporters Without Borders. 7

right to receive information on matters concerning public interest. However, more recently concerns over balancing the right to information with the right to privacy have been raised, especially, by controversies like the Radia-tapes. India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution. The higher judiciary of the country has recognised the right to privacy as a right “implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21”. The Indian law has made some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI Act, makes an exception under section 8 (1) (j), which exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. What constitutes an unwarranted invasion of privacy is not defined. However, courts have taken a positive stand on what constitutes privacy in different circumstances. The purpose of this paper is to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. At present, the media is governed by disparate norms outlined by selfgoverning media bodies, like the Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority (NBSA). The paper examines the existing media norms, constitutional protection guaranteed to an individual’s right to privacy and upheld by courts, and the reasons the State employs to justify the invasion of privacy. The paper records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy. The paper traces the implementation of media guidelines and the meanings accorded to commonly used exceptions in reporting by the media, like, ‘public interest’ and ‘public person’. This paper is not an exhaustive attempt 41975 AIR 865, 1975 SCR (3) 333. 8

to capture all privacy and media related debates. It does, however, capture debates within the media when incursion on the right to privacy is considered justifiable. The questions that the paper seeks to respond to are: When is the invasion on the right to privacy defensible? How the media balances the right to privacy with the right to information? How is ‘public interest’ construed in day-to-day reporting? The questions raised are seen in the light of case studies on the invasion of privacy in the media, the interviews conducted with print journalists, the definition of the right to privacy under the Constitution of India and media’s code of ethics. Constitutional Framework of Privacy The right to privacy is recognised as a fundamental right under the Constitution of India. It is guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and expression. It is the right to freedom of speech and expression that gives the media the right to publish any information. Reasonable restrictions on the exercise of the right can be imposed by the State in the interests of sovereignty and integrity of the State, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Article 21 of the Constitution provides, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Courts have interpreted the right to privacy as implicit in the right to life. In R.Rajagopal v. State of T.N.5and PUCL v. UOI,6the courts observed that the right to privacy is an essential ingredient of the right to life. For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was sentenced to death for committing six murders — in his autobiography divulged his relations with a few police officials. The Supreme Court in dealing with the question on the right to privacy, observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right to be left alone.’ "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.” The 5(1994) 6 S.C.C. 632. 6AIR 1997 SC 568. 9

publication of any of the aforesaid personal information without the consent of the person, whether accurate or inaccurate and ‘whether laudatory or critical’ would be in violation of the right to privacy of the person and liable for damages. The exception being, when a person voluntarily invites controversy or such publication is based on public records, then there is no violation of privacy. In PUCL v. UOI,7which is popularly known as the wire-tapping case, the question before the court was whether wire-tapping was an infringement of a citizen’s right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case. It observed that, "telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law." It further observed that the right to privacy also derives from Article 19 for "when a person is talking on telephone, he is exercising his right to freedom of speech and expression." In Kharak Singh v. State of U.P,8 where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual. The court, therefore, has interpreted the right to privacy not as an absolute right, but as a limited right to be considered on a case to case basis. It is the exceptions to the right to privacy, like ‘public interest’, that are of particular interest to this paper. International Conventions Internationally the right to privacy has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and 7 IBID 8AIR 1997 SC 568. 10

reputation. Everyone has the right to the protection of the law against such interference or attacks." The UDHR protects any arbitrary interference from the State to a person’s right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 imposes the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.9 Safeguarding Identity of Children The Juvenile Justice (Care and Protection of Children) Act lays down that the media should not disclose the names, addresses or schools of juveniles in conflict with the law or that of a child in need of care and protection, which would lead to their identification. The exception, to identification of a juvenile or child in need of care and protection, is when it is in the interest of the child. The media is prohibited from disclosing the identity of the child in such situations. Similarly, the Convention on the Rights of the Child (CRC) stipulates that: Article 16 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. Article 40 of the Convention, states that the privacy of a child accused of infringing penal law should be protected at all stages of the proceedings. Safeguarding Identity of Rape Victims Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim punishable. In the recent AarushiTalwar murder case and the rape of an international student studying at the TATA Institute of Social Sciences (TISS) the media frenzy compromised the privacy of the TISS victim and besmirched the character of the dead person.10In the TISS case, the media did not reveal the name of the girl, but revealed the name of the 9International Covenant on Civil and Political Rights, Part III Art. 17. Available at: http://www2.ohchr.org/english/law/ccpr.htm (LAST USED AT 5:09 PM 11/10/14) 11

university and the course she was pursuing, which is in violation of the PCI norms. In addition to revealing names of individuals, the PCI norms expressly states that visual representation in moments of personal grief should be avoided. In the Aarushi murder case, the media repeatedly violated this norm.

Trial by Media & Media Victimisation The PCI norms lay down the guidelines for reporting cases and avoiding trial by media. The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and accused as that amounts to invasion of privacy. Similarly, the identification of witnesses may endanger the lives of witnesses and force them to turn hostile. Zaheera Sheikh, who was a key witness in the Gujarat Best Bakery case, was a victim of excessive media coverage and sympathy. Her turning hostile invited equal amount of media speculation and wrath. Her excessive media exposure possibly endangered her life. Instead, of focussing on the lack of a witness protection program in the country, the media focussed on the twists and turns of the case and the 19 year old’s conflicting statements. The right of the suspect or the accused to privacy is recognised by the PCI to guard against the trial by media. In the Bofors pay-off case11the High Court of Delhi, observed that, “The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate. The functions of the court in the civilised society cannot be usurped by any other authority.” It further criticised the trend of police or the CBI holding a press conference for the media when investigation of a crime is still ongoing. The court agreed that media awareness creates awareness of the crime, but the right to fair trial is as valuable as the right to information and freedom of communication. 10Kumar, Vinod, “Raped American student’s drink not spiked in our bar,” 16.04.09 Available at http://www.mid-day.com/news/2009/apr/160409-Mumbai-News-RapedAmerican-student-date-drug-CafeXO-Tata-Institute-of-Social-Sciences.htm, Anon, “Party pics boomerangon TISS rape victim” , 04 .05.09, Available at http://www.mumbaimirror.com/index.aspx? page=article§id=15&contentid=2009050420090504031227495d8b4e80f [Last Accessed 11/10/14] 11Crl.Misc.(Main) 3938/2003 12

The 200th report of the Law Commission dealt with the issue of Trial by media: Free Speech vs Fair Trial under Criminal Procedure. The report, focussed on the pre-judicial coverage of a crime, accused and suspects, and how it impacts the administration of justice. The Contempt of Courts Act, under section 2 defines criminal contempt as: "…the publication, (whether by words, spoken or written or by signs, or by visible representations, or otherwise), of any matter or the doing of any other act whatsoever which (i) … … … … (ii) prejudices or interferes or tends to interfere with the due course of any judicial proceedings; or (iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any manner." Section 3(1) of the Act exempts any publication and distribution of publication, "if the publisher had no reasonable grounds for believing that the proceeding was pending”. In the event, the person is unaware of the pendency, any publication (whether by words spoken or written or signs or visible representations) interferes or tends to interfere with or obstructs “the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending." The report emphasizes that publications during the pre-trial stage by the media could affect the rights of the accused. An evaluation of the accused’s character is likely to affect or prejudice a fair trial. If the suspect’s pictures are shown in the media, identification parades of the accused conducted under Code of Civil Procedure would be prejudiced. Under Contempt of Court Act, publications that interfere with the administration of justice amount to contempt. Further, the principles of natural justice emphasise fair trial and the presumption of innocence until proven guilty. The rights of an accused are protected under Article 21 of the Constitution, which guarantees the right to fair trial. This protects the accused from the over-zealous media glare which can prejudice the case. Although, in recent times the media has failed to observe restraint in covering high-profile murder cases, much of which has been hailed as media’s success in ensuring justice to the common man. The Apex Court observed that the freedom of speech has to be carefully and cautiously used to avoid interference in the administration of justice. If trial 13

by media hampers fair investigation and prejudices the right of defence of the accused it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the court. The Court, commented, "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." Conclusion The right to privacy in India has failed to acquire the status of an absolute right. The right in comparison to other competing rights, like, the right to freedom of speech & expression, the right of the State to impose restrictions on account of safety and security of the State, and the right to information, is easily relinquished. The exceptions to the right to privacy, such as, overriding public interest, safety and security of the State, apply in most countries. Nonetheless, as the paper demonstrates, unwarranted invasion of privacy by the media is widespread. For instance, in the UK, Sweden, France and Netherlands, the right to photograph a person or retouching of any picture is prohibited unlike, in India where press photographers do not expressly seek consent of the person being photographed, if he/she is in a public space. In France, not only is the publication of information is prohibited on account of the right to privacy, but the method in which the information is procured also falls within the purview of the right to privacy and could be violative. This includes information or photograph taken in both public and private spaces. Privacy within public spaces is recognised, especially, “where there is reasonable expectation of privacy.” The Indian norms or code of ethics in journalism fail to make such a distinction between public and private space. Nor do the guidelines impose any restrictions on photographing an individual without seeking express consent of the individual. The Indian media violates privacy in day-to-day reporting, like overlooking the issue of privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is outweighed by ‘genuine overriding public interest’. Almost all the above countries prohibit publication of details that would hurt the feelings of the victim or his/her family. Unlike the UK, where the PCC can pass desist orders, in India the family and/or relatives of the victims are hounded by the media.

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In India, the right to privacy is not a positive right. It comes into effect only in the event of a violation. The law on privacy in India has primarily evolved through judicial intervention. It has failed to keep pace with the technological advancement and the burgeoning of the 24/7 media news channels. The prevalent right to privacy is easily compromised for other competing rights of ‘public good’, ‘public interest’ and ‘State security’, much of what constitutes public interest or what is private is left to the discretion of the media.

Sting Operations In India Sting Operations are accepted with a view to look into the working of the govt. or to see whether the acts of any person is against the public order. On the basis of the motive Sting Operations can be classified as positive and negative. Positive Sting Operation is one which results in the favour of the society, which penetrates the veils of the working of the government. It is carried out in the public interest. Due to positive sting operation society is benefited because it makes government answerable and accountable. It leads to the translucency in the government. On the other hand negative sting operations do not favour the society, but they do harm the society and its individuals. It unnecessarily contravenes the privacy of the person without any beneficial results to the society. These types of Sting operations if allowed then it will hamper the freedom of the individuals and infringe their rights. Here are some examples which we can distinguish as positive and negative sting operations.

MEDIA LAWS IN INDIA Historical Perspective of Mass Media Laws 15

Mass Media laws in India have a long history and are deeply rooted in the country’s colonial experience under British rule. The earliest regulatory measures can be traced back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation of the Press Act, which undid most of, the repressive features of earlier legislations on the subject. Thereafter on 18th June 1857, the government passed the ‘Gagging Act’, which among various other things, introduced compulsory licensing for the owning or running of printing presses; empowered the government to prohibit the publication or circulation of any newspaper, book or other printed material and banned the publication or dissemination of statements or news stories which had a tendency to cause a furore against the government, thereby weakening its authority. Then followed the ‘Press and Registration of Books Act’ in 1867 and which continues to remain in force till date. Governor General Lord Lytton promulgated the ‘Vernacular Press Act’ of 1878 allowing the government to clamp down on the publication of writings deemed seditious and to impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 which authorized local authorities to take action against the editor of any newspaper that published matter deemed to constitute an incitement to rebellion. However, the most significant day in the history of Media Regulations was the 26th of January 1950 – the day on which the Constitution was brought into force. The colonial experience of the Indians made them realise the crucial significance of the ‘Freedom of Press’. Such freedom was therefore incorporated in the Constitution; to empower the Press to disseminate knowledge to the masses and the Constituent Assembly thus, decided to safeguard this ‘Freedom of Press’ as a fundamental right. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1)(a). [1] It is however pertinent to mention that, such freedom is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public. 16

It is necessary to mention here that, this freedom under Article 19(1)(a) is not only cribbed, cabined and confined to newspapers and periodicals but also includes pamphlets, leaflets, handbills, circulars and every sort of publication which affords a vehicle of information and opinion[2]: Thus, although the freedom of the press is guaranteed as a fundamental right, it is necessary for us to deal with the various laws governing the different areas of media so as to appreciate the vast expanse of media laws.

The Press and Registration of Books Act, 1867 – This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses. The Press (Objectionable Matters) Act, 1951 – This enactment provides against the printing and publication of incitement to crime and other objectionable matters. The Newspaper (Prices and Pages) Act, 1956 – This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter. When dealing with this statute, it will be worthwhile to mention about the case of Sakal Papers v/s Union of India.12In this case, the Daily Newspapers (Price and Control) Order, 1960, which fixed a minimum price and number of pages, which a newspaper is entitled to publish, was challenged as unconstitutional. The State justified the law as a reasonable restriction on a business activity of a citizen. The Supreme Court struck down the Order rejecting the State’s argument. The Court opined that, the right of freedom of speech and expression couldn’t be taken away with the object of placing restrictions on the business activity of the citizens. Freedom of speech can be restricted only on the grounds mentioned in clause (2) of Article 19. Defence of India Act, 1962 – This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom 12AIR 1962 SC 305 17

Of The Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil Defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper. Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government. The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists. Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence. Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament. In the famous Searchlight Case,13the Supreme Court held that, the publication by a newspaper of certain parts of the speech of members in the House, which were ordered to be expunged by the Speaker constituted a breach of privilege. Due to the restrictive scope of this Article, it is not possible for us to delve into all the other statutes; however, a few of the legislations, which are worth mentioning are the Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.

13AIR 1962 SC 305 18

Broadcast The broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,14the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country. This judgment, thus, brought about a great change in the position prevailing in the broadcast media, and such sector became open to the citizens. Ø The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly set up to govern the All India Radio, the following cardinal principles have ideally been practiced by all Broadcasting and Television Organization; viz:Ø To ensure the objective presentation of news and fair and unbiased comment Ø To promote the advancement of education and culture Ø To raise and maintain high standards of decency and decorum in all programmes Ø To provide programmes for the young which, by variety and content, will inculcate the principles of good citizenship Ø To promote communal harmony, religious tolerance and international understanding Ø To treat controversial public issues in an impartial and dispassionate manner Ø To respect human rights and dignity Ø Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving 14(1995) 2 SCC 161 19

programmes transmitted in the basic tier. In pursuance of the Cable Television Network (Regulation) (Amendment) Bill, 2002, the Central Government may make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system as and when the Central Government so notifies. Such notification may also specify the number of free to air channels to be included in the package of channels forming the basic service tier. Ø Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-toHome TV service in Ku band in India. Film - India is one of the largest producers of motion pictures in the world. Encompassing three major spheres of activity – production, distribution and exhibition, the industry has an all-India spread, employing thousands of people and entertaining millions each year. The various laws in force regulating the making and screening of films are: The Cinematograph Act, 1952 The Cinematograph Act of 1952 has been passed to make provisions for a certification of cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film Certification) with advisory panels at regional centres is empowered to examine every film and sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to sanction a film for public exhibition. In K. A. Abbas v. Union of India,15the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court however observed that, precensorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotion more deeply and thus, classification of films between two 15AIR 1971 SC 481 20

categories ‘A’ (for adults only) and ‘U’ (for all) was brought about[9]. Furthermore, in Bobby Art International v. Om Pal Singh Hoon,16the Supreme Court re-affirmed the afore-mentioned view and upheld the order of the Appellate Tribunal (under the Cinematograph Act) which had followed the Guidelines under the Cinematograph Act and granted an ‘A’ certificate to a film. The Copyright Act, 1957 According to this Act, ‘copyright’ means the exclusive right to commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or cinematographic films as per the wishes of the owner of copyright subject to the restrictions imposed in the Act. Although this Act, is applicable to all the branches of media, in some areas it is specific to this particular genre. In the case of a Cinematographed film, to do or to authorise the doing of any of the following acts would lead to the infringement of copyright. Those acts are namely:· To make a copy of the film · To cause the film, in so far, as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public · To make any record embodying the recording in any part of the soundtrack associated with the film by utilizing such sound track · To communicate the film by radio-diffusion The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any unauthorised recordings and prescribes severe penalties, including imprisonment, fines as well as confiscation of the equipment used for the purpose of such recording and exhibition. The Amendments to The Copyright Act also prohibit unauthorized transmission of films on the cable television. Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 This legislation affords a measure of protection to those employed in the industry by imposing certain obligations on motion picture producers and theatre owners concerning the former’s condition of service. 16(1996) 4 SCC 1 21

Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981 They seek to create means of financial support to cine employees, the seasonal and unpredictable nature of whose employment often leaves them impoverished and helpless. Besides these, there are also a few local legislations, which affect the film medium; viz.

The Bombay Police Act, 1951 It contains provisions empowering the police to regulate the exhibition of films in the state of Maharashtra (formerly Bombay). Bombay Cinemas (Regulation) Act, 1953 It provides a scheme for state licensing of cinema theatres and other places where motion pictures are exhibited The Bombay Entertainments Duty Act, 1923 It imposes a tax on the public exhibition of motion pictures and other forms of entertainment.

Advertising Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost. In order to enforce an ethical regulating code, the Advertising Standards Council of India was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: · To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising; · To ensure that advertisement are not offensive to generally accepted 22

standards of public decency; · To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and · To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served. Few Complaints filed with ASCI 1. HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro biocide, when in reality, dandruff is known to be caused by several other factors, besides, microbes. HLL’s multi-crore research wing ‘clearly overlooked’ this aspect. The advertisement has been withdrawn. 2. Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. This claim was found to be totally false. The truth is that build up is a natural biological phenomenon with all contact lenses. The ad was discontinued. The other legislations affecting the area of advertising are: Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. In HamdardDawakhana v. Union of India17 the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and 17AIR 1960 SC 554 23

hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a). However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd,18a three judge bench of the Supreme Court differed from the view expressed in the Dawakhana case and held that ‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the dissemination of information regarding the product. The Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful. Monopolies and Restrictive Trade Practices Act, 1969 Section 36 A of the Act deals with 5 major Unfair Trade Practices: 1. Any misleading, false, and wrong representation either in writing (i.e. in advertisements, warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices; 2. Sales, where there is element of deception; 3. All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any element of deception is involved; 4. Violation of laws existing for protection of consumers; 5. Manipulating sales with a view to raising prices. Parle’s mango drink ‘Maaza’ gave the advertisement of Maaza mango and the MRTP issued a notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared from fresh mango while actually preservatives were added to it. The company had to suspend production pending enquiry.

MEDIA SECTOR ANALYSIS REPORT: Indian media and entertainment industry is expected to grow at an annual average growth rate of 18% to touch Rs 2245 bn by 2017 (Source: CII-PwC 2013 report). The industry comprises of print, electronic, radio, internet and outdoor segments. With the government aggressively pushing in for digitization of TV, Multi System Cable Operators (MSOs) are expected to lose 15-20% of their subscribers to DTH (direct-to-home) services. 18(1995) 5 SCC 139 24

Digitization will facilitate increased number of channels and high quality viewing. The Information and Broadcasting (I&B) ministry has already completed the second phase of digitization, which involved digitizing 16m cable TV houses in 38 cities by April 1, 2013. It aims to complete the third phase of digitization which includes all other urban areas (municipal corporations/ municipalities) by September 30, 2014. The rest of the country is likely to be covered by December 2014 under Phase four of digitization. The digital subscribers are expected to outdo the analog subscribers by 2013-14. The players in the electronic media can be classified into a three-link chain. First are the studios (including the animation studios), which comprise the hardware part of the industry, the second are the content providers and the third link comprises the distribution trolleys, which include the cable and satellite channels, multiplex theatres, MSOs and the DTH players. In India, the ratio of advertising expenditure to GDP is less than 1%. This is substantially lower in comparison to the developed economies as well as other developing economies. Interestingly, Print and TV media contribute over 75% of the advertisement spend in a year. As the Indian economy continues to develop and the media reach increases, the advertising expenditure to GDP ratio is expected to increase over the next 5 years. INDIAN MEDIA FACE GROWING FACE CALL FOR REGULATION The rapid growth of revenue-hungry Indian media and recent scandals involving news outlets have prompted growing calls for external regulation, raising concerns about independence of the press. In May, a parliamentary committee argued for the creation of a statutory body to control the print and electronic media. And in April, the Delhi High Court--in a case prompted by reality television--rejected the idea of selfregulation and recommended the central government form a statutory body to regulate the electronic media. "Absence of state intervention on its own is no guarantee of a rich media environment," a bench headed by Justice Pradeep Nandrajog said. MarkandeyKatju, chairman of the Press Council of India, a statutory body that governs the conduct of the print media, has expanded on such calls, pressing for electronic media to be brought under the purview of the Council. In a column that appeared in The Hindu he wrote, "If red lines can be drawn for the legal and medical professions, why should it be any different for profit-making newspapers and TV channels?" The calls for regulation follow controversy over the widespread practice of paid news--essentially "advertorials" giving favorable coverage to an individual or issue in exchange for advertising revenue. The recent arrests 25

of senior editors at Zee News for allegedly attempting to extort a whopping 18 million dollars in advertisements in exchange for not airing unfavorable news reports on a top industrialist and politician have added fire to the debate. Zee editors have denied the allegations, and the matter is in litigation. While many journalists in India accept that the industry's standards are falling, the growing calls for external regulation raise many questions. GeetaSeshu, consulting editor for The Hoot, a South Asian media watchdog group, agrees that it is time to address maladies in the media. "It is definitely the need of the hour, especially with a media that has grown untrammeled, has covered itself in the most inglorious manner with corruption, paid news, sensationalism, and violations of privacy and suffers little scrutiny in terms of ownership, working conditions, and professional practices in newsrooms," Seshu told CPJ. "The question is, as always, who will bell the cat?" Last year, Member of Parliament Meenakshi Natarajan tried to introduce the Print and Electronic Media Standards and Regulation Bill, 2012, which would have given the government sweeping powers over the media, including ability to ban or suspend coverage of an event in the interest of national security. The bill would have also created a regulatory body largely appointed by the government. Natarajan's bill has been shelved in response to a media outcry. India's vibrant media landscape includes close to 650 television channels, more than 2,000 publications, and more than 30 FM radio operators running 245 stations. As the country's press continues on this trajectory of expansion, calls for regulation will continue to echo. Any form of regulation that compromises the independence of the media has no place in the world's largest democracy. Not only would it curb press freedom in India, but moves infringing on independence of the media are closely watched by repressive regimes. India must tread carefully, as what happens there will have far-reaching ripples elsewhere.

IMPACT OF GLOBALISATION ON INDIAN MEDIA Not too long ago, our frames of references would be the accumulation of imaginations sourced from observations, myths, oral or written exchanges of fables, rational and scientific behaviours of experimentation and thinking. But globalization, particularly in India, extended our frames of reference. Extraordinarily.

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Since independence, many doors to broader communication opportunities opened in India generating better awareness levels among Indians. Owing largely to this, foreign companies have forayed in India recognising it as an important MARKET with great potential for future growth. And media in globalized India has played a significant role in this for without it the country could be viewed as ungainly. The impact of globalization on Indian media has been successful in truly revolutionizing the world of print, news, TV, radio & Internet. The trend is likely to continue in all emerging forms of new media. To begin with, globalization has helped journalists network better and faster so that they can play their traditional role of educating masses about politics, sports, celebrities and important international events. Plus, an extensive coverage of world print can be read on home grounds (and viceversa) only because of globalization. It has enabled readers shape thoughts about this world and empowers them to be the change. The case of social activist Anna Hazare, who went on a hunger strike, is a stellar example. Not just here, but Indians living abroad also could support the elderly Gandhian to fight against corruption and pledge their support for a better Lokpal Bill. Even the advent of radio and television has enhanced in multiple ways due to globalization. For so long, radio is being used as a medium to educate illiterate people, help during traffic jams, floods, etc. But now with world radio, it has graduated to offering so much more to listeners and music enthusiasts! Same goes for television; be it the rich or the poor, no household in India is devoid of this device. A source of great information and entertainment, it is television that made the middleclass Indian conscious about western lifestyles and cultures. In time, Indian audiences learned to embrace Western concepts that worked best for them. Popular lifestyle-based shows like ‘The Oprah Winfrey show’, ‘FRIENDS’, ‘The Simpsons’ are not alien to Indian viewers anymore. The television industry has advanced so greatly that audiences in India contribute considerably to the TRP’s of world events (e.g. the recent Royal Wedding in London last year) Just when we thought that the world had really come close, the Internet showed us further possibilities. Indians now seek information from Google, the best innovation of our time. The Internet gives you the chance to be exactly what you desire to be or do at that very moment. If you thought that at some point in history, you were a freak, Facebook could introduce you to people who are exactly like you. Finding jobs (even abroad) has gotten easier for Indians with LinkedIn. Even matrimony (think shaadi.com)! Globalization in India has got us close to an audience in the far distance that is anonymous yet very intimately acquainted.

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Conclusion: The media has the power of educating people, the good and the bad. Since it affect the eyes, the ears and the mind simultaneously nothing can overcome the influence of the media. The media in the advanced society should perform a noble mission of enlightening people and discourage sectarian, communal and divisive trends. I believe,if the media identifies its responsibility and work sincerely and honestly ,then it can serve as a great force in building the nation. The media plays an essential role in a democratic society. It acts as the 4th institute outside the Government . Sting operations are methods of exposing information. Although, the Indian Constitution does not clearly acknowledge the liberty of the press, it is obvious that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Freedom of press is a special right under art. 19(1) (a) of the Constitution of India, 1950 but it has certain restrictions. The democratic qualities are judged by the degree of freedom the media enjoys in a particular state. Further the media has a right to transmit the information to public. Freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the circulating the information. Furthermore Art. 19(1) also includes within itself right to receive information about any event, happening or incident etc. The 28

purpose of journalism has to be public interest. In S.P. Gupta v. Union of India, the court said that no democratic government can exist without accountability and answerability and the basic postulate of accountability and responsibility is that people should have the information about how the government works.19

19AIR 1982 SC 149 29