In the last three columns, we looked at the available literature on media regulation, the limitations of some of the recommendations, the desire to have a soft touch approach that will not undermine the agency of journalism and its investigative quest, some of the shortcomings within the profession and the fault lines within the existing regulatory framework. In this context, the ongoing consultation by the Law Commission of India assumes significance.
There are many salient points in the consultation paper. First, it recognises the limitations of the existing self-regulation mechanisms within the three self-regulation bodies — the Press Council of India (PCI) for print, the Broadcasting Content Complaints Council (BCCC) for channels other than news and current affairs, and the News Broadcasters Association (NBA) for news and current affairs channels. It also recognises that the legal challenge of Section 66A of the Information Technology Act, which many view as violating free speech. There are many instances in the recent past where this Section has been arbitrarily invoked to block access to content allegedly objectionable.
The Law Commission has raised some pertinent questions: “Do the existing self-regulation mechanisms require strengthening? If so, how can they be strengthened? In the alternative, should a statutory regulator be contemplated? If so, how can the independence of such a regulator be guaranteed? How should members of such a regulator be appointed? What should the eligibility conditions of such members be? What should their terms of service be? How should they be removed? What should their powers be? What consequences will ensue if their decisions are not complied with? Should any such change be uniform across all types of media or should regulators be medium-specific?”
Potential pitfallsThere have been many suggestions to the Commission. It is important to spell out some of the potential pitfalls before suggesting some solutions. First, the Commission must refrain from recommending a meta-regulator for the four forms of media — print, radio, television and the Internet. There should be different regulators for different forms of media. Each media platform has its own sets of problems that are neither transferable nor replicable. Second, it should come out with clear implementable and binding codes, for each of the media, which draw from Articles 19 (1)(a) and 21, and that provide an effective complaint redress mechanism and its enforcement. The first tier of regulations should focus on course correction rather than being punitive in its approach. Third, there should be space for arbitration to resolve some of the issues. The idea of arbitration is to make the redress system accessible to the general public both in terms of costs and time. The legal recourse, in the event of unsatisfactory outcome during the arbitration, should be at the level of the High Court. The PCI’s demand for an empowered Media Council, whose decisions can be reviewed only by the Supreme Court, will pose more problems to citizens than media houses. Fourth, the Commission must attempt a triangulation method, as in the social sciences, to incorporate suggestions from different quarters and disciplines in order to come up with a set of rules that do not prioritise one element of freedom at the cost of others.
Tiered and platform-specificI am convinced that the need of the hour is to create a robust self-regulation mechanism that is two-tiered and platform-specific. The first tier should be within the news organisations — an ombudsman, a readers’ editor or a public editor. This will give a chance for a reader or a viewer to get relief and recompense without going through the time and resource consuming legal path. Tier two should be at the national level and it should be closer to what Lord Justice Leveson suggested for the U.K. press: It should be independent self-regulation that takes an active role in promoting high standards, including having the power to investigate serious breaches and slap sanctions on newspapers. It should have a legal underpinning to make it binding. The regulatory body should be backed by systems designed to assess whether it is doing its job properly.
Lord Leveson also suggested a legislation to enshrine the legal duty on the government to protect the freedom of the press. He recommended that media outlets that refuse to join the self-regulation mechanism, with statutory underpinning, could face direct regulation by the media watchdog, Ofcom. In India, that power can be given to the Telecom Regulatory Authority of India (TRAI) for organisations that refuse to join the mechanism. The most defining element of his recommendation is that the regulating body should be independent of serving journalists, the government and commercial concerns, and not include any serving editors, government members or Members of Parliament. The body should consider encouraging the press to be as transparent as possible in relation to the sources of its stories, if the information is in the public domain. He also suggested a whistle-blowing hotline for journalists who are under pressure to do unethical things.
I am also convinced that it will be easier to arrive at a perfectly acceptable regulation for the legacy media — both print and broadcast — than for the digital platforms and social media. The substantial narrative in social media falls between the personal and the public. Any regulatory framework for this young, vibrant, and sometimes problematic, media needs a balancing act between these two distinct domains.
readerseditor@thehindu.co.in
