SCHOOL OF LAW

MANIPAL UNIVERSITY JAIPUR, RAJASTHAN

A RESEARCH PAPER ON:

Powerless Watchdogs: A Study on Diminished Powers of Indian Media Regulatory Bodies

BY

Shivam Vashisht

(Student 2^nd Year, BBA LLB, Manipal University Jaipur)

Under the Guidance of

Assistant Professor Shruti Bitoliya

(Manipal University Jaipur, FOL)

September Of 2023ur

CERTIFICATE

This is to certify that the Research Paper titled Powerless Watchdogs: A Study on Diminished Powers of Indian Media Regulatory Bodiesis a record of the bonafede work done by Shivam Vashisht(221305014) submitted in partial fulfilment of the requirements for the award of the BBALLB(Hons.) in School of Law of Manipal University Jaipur, during the academic year 2022-23.

Assistant Professor Shruti Bitoliya

Project Guide, Dept. of Law

Manipal University Jaipur

Dr. Sony Kulshrestha

HOD, Dept. of Law

Manipal University Jaipur

DECLARATION

I Shivam Vashisht hereby declare that the dissertation, titled ‘Powerless Watchdogs: A Study on Diminished Powers of Indian Media Regulatory Bodies’ is a record of original research work undertaken by me. I have completed this study under the supervision of Assistant Professor Shruti Bitoliya, School of Law. It has not been sent for any publication or presentation purpose. I hereby confirm that this work is original without any plagiarism.

 Place: Jaipur, Rajasthan

Date: 30/10/2023

Shivam Vashisht Reg No.221305014

Manipal University Jaipur, Rajasthan

ACKNOWLEDGEMENT

I would like to express my profound gratitude to the Faculty of School of Law for their contributions to the completion of my project titled “Powerless Watchdogs: A Study on Diminished Powers of Indian Media Regulatory Bodies”.

I would like to express my special thanks to our mentor Assistant Professor Shruti Bitoliyafor her valuable time and efforts, she provided throughout the year. Your guidance and suggestions made this project successful.Youruseful advice and suggestions were helpful to me during the project’s completion. I will always be appreciative of you.

Author: Shivam Vashisht

(Reg. No.: 221305014)

(Program: BBA LLB (Hons.))

Co-Author: Assistant Professor Shruti Bitoliya

(Manipal University, Faculty of Law)

Abstract

Issues surrounding media regulation have been repeatedly debated in India for years. Despite the continuous evolution of the Press Council of India and other regulatory groups, their authority and arbitrary actions are upraised in different ways again and again. The main point that is the root cause to continuous tension among many is that the current self-regulatory mechanism is too feeble to address the issues regarding common topics like defamation,  news moulding by way of payment, misreporting due to many factors like political influence, and sensationalized or exaggerated reports.

Media regulatory bodies in India, such as the Indian Press Council, CBFC, NBDSA, and the Ministry of Information and Broadcasting, have faced persistent criticism for their perceived lack of real power and independence. They struggle to effectively punish and standardize media actions, raising doubts about their authority. The Information Technology Rules 2021 further exacerbate the issue by curbing media independence and free speech, limiting the autonomy of journalists and digital media publishers.

To enhance Indian media regulation, in this research we will also study countries with strong frameworks like the UK and Germany for insights on improving independence and effectiveness.

To address these issues, we will use Doctrinal  Methodology to conduct our research in this paper.

INDEX

S.No. Content                                                                                                                  Pg. No.   

1.      Certificate                                                                                                                    2

2.      Declaration                                                                                                                   3

3.      Acknowledgement                                                                                                        4

4.      Abstract                                                                                                                         5

5.      Introduction                                                                                                                  7

6.      Diminished Powers of India Media Regulatory Bodies                                            9

7.      A Comparative Analysis (An International Viewpoint)                                         14

8.      Suggestions                                                                                                                  16

9.      Conclusion                                                                                                                   17

Introduction

The origin and development of media in India goes deep in past where there were various means to transfer or send information. There were handwritten manuscripts, letters, documents, and information in the form of storylinesetc. in early Indian civilization. However, with the introduction of print and journalism, the more contemporary notion of media as we know it now started to take shape.

History and Context of study:-

With little overlap, the Judiciary, which enforces the law, the Legislative which frames it and the Executive, which implements it, have each carried out their distinct functions successfully. However, the media now being referred to as the Fourth Pillar of democracy—has united the three branches of government and served as a watchdog to maintain accountability, the execution of each branch's constitutional mandate, the flexible theory of the separation of powers, and the strict application of the law.

The Media in India has been developed broadly in three segments over different historical phases:-

The first one being the Print Media was originated and developed when James Augustus Hickey, who launched "The Bengal Gazette," India's first newspaper, in 1780, is frequently credited with bringing print media to the country. In the 19th century, the Indian freedom movement, and the demand for educated public opinion led to a nationwide explosion of newspapers and journals. During this time, prestigious newspapers like "The Hindu" and "The Times of India" started to appear.

The second one being the Broadcast Media came into being when the All India Radio (AIR) was founded in 1936, however radio transmission in India dates back to the 1920s. In the early 1950s, television made its debut in India through Door darshan, the state-run broadcaster that remained the only channel for many years. However, the 1990s saw the advent of cable and satellite television, which significantly altered the media environment.

The third one being the Digital and New Media started developing when India witnessed a dramatic increase in the use of digital media with the development of the internet and related technologies. Online news portals, social media platforms, and news websites all resulted from this evolution. Given that India has one of the highest internet user populations worldwide, digital media has significant influence over public opinion.[1]

Need of Media Regulating Bodies

The very origin of the media led to the need of media regulating bodies, the on and on development of various media organizations all over India or I should say world made these regulating bodies a global demand. As for India from the very establishment of democracy there was an upsurging trend of criticism and along to path to present this criticism became more and more unmanageable or unruly leading to origin of various problems like  defamation, (slander/libel), hampering the image of our own government and Indian judiciary and many more. Thus, allowing the need to develop and establish media regulating bodies also giving rise to a dilemma that whether these bodies should be centre regulated, state regulated or self-regulated.

Purpose and Problem of Research:-

After the phase of establishment of these Regulating bodies a new problem and a major one started uprising that all the media regulating bodies were criticized to be the toothless tigers

The Indian Press Council, being established  in 1978 under the Press Council Act, despite the fact of having a continuous supervision over media actions and ethics defining its standards the counsel has failed to take any real actions or have some real powers to punish. The CBFC is another example of failing in regulating the cinema studious due to various allegations of taking arbitrary censorship decisions is also coming under the spotlight of criticism. The NBDSA, which was established to uphold broadcasting standards and norms, is confronted with issues regarding, among other things, its independence. The Ministry of Information and Broadcasting, which is crucial to supervising media regulation, has also been charged with abusing its political power.

Even the bare minimum powers i.e., medium-specific regulations of punishing and standardizing are being lacked turning the whole authority of media regulation under question.

The recently developed Information Technology Rules 2021 (IT Rules, 2021) for regulating the Digital Media content have given birth to a new problem of continuous diminishing the independency and free speech of Media thus, limiting the independency of journalists, bloggers, and other digital media publishers.

Scope of the Study

The scope of this study is limited to only issues being raised among print and electronic media. And the research will be conducted only in the context of India only although, the reference will be taken from other countries if required. 

Significance and Solution

To improve the climate for media regulation in India, this research suggests comparing India with countries that have strong media regulatory frameworks. By looking at best practises from countries with stringent media regulation, like the United Kingdom and Germany, it may be able to improve the independence, effectiveness, and adaptability of Indian media regulating authorities.

Diminished Powers of India Media Regulatory Bodies

How Indian Media Regulating bodies came into being ?

As in India each media body has its own regulating body, this very concept came after different incidents along with time till present:-

·         The Press Council of India (PCI)being an independent statutory body was created in year 1978 by Press  council act of India for regulating the print media like newspapers various journals etc The Body is considered the most important body for the preservation of democracy and the safeguarding of freedom of expression. It provides arbitration for cases  brought by or on behalf of the media for violations of press freedom and journalistic ethics.[2]

·         The Cinematograph Act created the Censor Board for Film Certification (CBFC) to approve films. In 2021, the government abolished the Film Certification Appellate Tribunal under the Cinematograph Act. The Ministry of Information and Broadcasting (MIB) manages films and related activities.

·         MIB's Broadcasting Wing regulates broadcasting, cable TV, and FM Radio. The Cable Television Networks (Regulation) Act 1995 and the Cable Television Networks Rules 1994 oversee cable TV operations, including registration, content codes, and channel pricing. In June 2021, the MIB proposed Cable Television Networks (Amendment) Rules 2021, which include a three-tier redressal system involving self-regulation, self-regulating bodies, and central government oversight, currently facing legal challenges in the Supreme Court.

·         Digital media, including online news, OTT platforms, and social media, are regulated under the IT Act and Intermediaries Guidelines. These guidelines require intermediaries to display user policies, warn against illegal content, and have a complaint redressal mechanism. The code of ethics for news and content publishers is also being challenged in the Supreme Court.[3]

Problems faced by Media Regulation Bodies

It is believed that India where media is growing and evolving at a very fast rate, making significant change in different sectors and along the path also giving rise to different issues regarding use of powers irregular or for own motive, thus bring different regulating bodies of media in spotlight time to time for matters having political, socialor economic interest.

Some major problems being in hot topic for respective regulation bodies are as follows:-

1.      A major problem being in news regarding Press Council of India (PCI) was that it can address problems regarding breach of guidelines being laid in Indian Press Council Act 1978, but it does not have any real power to directly penalize any article, blog,  headline in different newspapers, different agencies (of news, journals, magazines etc.), or editors and publishers of different publications.

Supreme Court in the year 2021 gave the verdict and held that journalists will not be subjects to criminal prosecution and can’t be penalized for the same reason which clearly shows dissatisfaction of the public with the policies of the government and was criticized majorly by public showing eradication of trust of public in media regulating bodies.[4]

2.      In India only CBFC has the task of certifying all types of movies, documentaries, their trailers, advertising being broadcasted in cinema, and other short films all for public viewing. And for similar purpose they have created 4 criteria according to age group:-

U     - Unrestricted

UA  - With parent’s guidance children under age of 12 years if not then unrestricted

A     - Only for Adults

S     - Made keeping in mind a special class of people.

So recently a famous movie Oppenheimer was being realized and just few days before its realizing in cinemas its category on discretion of  CBFC was changed from A to UA and similar instance was reported by IGN India. There was huge hue and cry and debates relating to same case and CBFC was criticized by many people and agencies for the same reason but overall, the matter didn’t get much relevance.[5]

3.      Another recent case was found to be bound with discretion of MIB in India where it blocked eight channels of YouTube stating that the channels were spreading content inciting and leading to hampering of national security, foreign relations and public order stating it to be a part of an implication of emergency power this happened on August 16, 2022 now this whole case was a part of self-regulation and does not contain any strong grounds to be done, although it was done due to the violation of Article 19(2) but it was found that the use of new IT rules 2022 was done in an arbitrary and discrete manner.[6]

4.      Most recently in 2023 on 18^th September the NBDA and NBF has a rivalry on which Supreme Court gave its verdict that no such rivalry is the part of S.C.’s supervision and S.C. does not want to be caught up in same suggesting a self-regulating mechanism for T.V. channels again showing a movement towards self-discretion and arbitrary use of powers.[7]

5.      If we talk about new IT rules 2021 the most debatable topic about that is instead of creating a whole act government decided to create rules showing implementation of self-regulation and use of discretion. So, because of no actual or even bare minimum control by government various platforms like Live Law, mint , SCC and other sites criticised and challenged these rules.

Also, at that time WhatsApp also filed a case in Delhi High Court against IT guidelines challenging them on the ground that these guidelines will directly hampers the policy of end-to-end description, as right to privacy of citizens is being endangered directly thus violating basic FR.[8]

6.      Due to the inconsistent media regulatory framework and the fact that several organisations in charge of media oversight frequently perform similar tasks, which breeds confusion. Therefore, the disorganised regulatory structure is also causing issues for the media.

7.      Deepak Maini v Star Plus69 (2009) was a case where the Supreme Court laid down a verdict that theirMinistry of Information and Broadcastingis enough for judging that whether the content to be broadcasted on T.V. or other platforms is appropriate or not and does it fulfil all criteria or not, and there is no need for court and judiciary to interfere in the same matter. So, this clearly shows that MIB is getting in a position  where they can freely act in a biased way on their own discretion to take respective decision.[9]

The media has several difficulties in the area of regulations, including problems with regulatory power, organisational structures, and restrictions imposed on regulators. Perplexity frequently results from the intertwining of numerous regulatory organisations' domains. Problems arise not just in the larger framework of print and electronic media regulation, but also inside individual media platforms. These conundrums highlight the necessity of advocating for new regulatory frameworks or changing current legislation pertaining to the media.

Need for Effective self-regulation of Media:-

In a recent move, the Supreme Court (SC) emphasised how crucial it is to uphold the self-regulation policies put in place by television networks in order to guarantee moral conduct and responsible journalism.

The News Broadcasters and Digital Association (NBDA) filed an appeal against the Bombay High Court's findings that self-regulation is ineffective, and the SC acted in response. The Bombay High Court had stated that it was against media trials and that the existing structures for self-regulation did not have the characteristics of legislative systems.

The S.C.:-

After the verdict of the present case the court send a notice to NBDA and other relevant media regulating bodies regarding guidelines and need to improvise media regulating framework in a way so that the goal for examining the media work can become more effective and efficient.

The S.C. concluded:-

·         The Supreme Court has demonstrated that it is committed to maintaining media ethics and responsible journalism while protecting the values of free expression, as seen by its recent review of sanctions for dishonest behaviour inside television networks.

·         The Court's determination to work with regulatory bodies and impose stricter penalties demonstrates how proactive it is in finding a fair and balanced solution between media freedom and moral responsibility.[10]

SC Demands Tighter Regulations for TV News Channels

The SC recently asked NBDA and NBF to suggest a mechanism for better and unbiased self-regulation of media organizations and agencies, this all started with a petition filed by NBDA challenging the decision given by Bombay High Court that self-regulatory mechanism used by various regulating channels, news channels, other television broadcasting and associates will not get the legal recognition.

Problems with TV news channels' current self-regulation:

·         The Supreme Court acknowledges that protecting free expression is essential, as stated in the Constitution's Article 19(1)(a). It is difficult to strike a balance between this freedom and making sure that news reporting is held accountable.

·         Currently, TV news networks rely on voluntary rules from broadcaster groups like the NBF and NBDA. The NBSA and other regulatory agencies' penalties could not be seen as strong enough to discourage unethical reporting, which might lead to channels seeing fines as ordinary operating expenses.

·         Self-regulatory organisations must register according to new government legislation, however some organisations, like the NBSA, have refused to comply. Due to differences in the business, the PNBSA is the only legally recognised self-regulatory body for news stations.

·         Concerns over disproportionate control have been raised by fears that self-regulatory organisations, such as the NBDA, may be perceived as monopolising the news broadcaster complaint resolution process in the absence of adequate governmental or legal monitoring.[11]

A Comparative Analysis (An International Viewpoint)

The United Kingdom's Media Regulation

·         The United Kingdom has a long history of regulating the media by combining the traditions of self-regulation with legislative requirements. There has been a shift towards co-regulation, with Ofcom supervising television and IPSO controlling print media. This growth makes it possible to adjust to the digital era.

·         By effectively extending their reach into the digital sphere, UK regulatory organisations like Ofcom and IPSO have been able to keep control over online material. Flexibility and regulatory stability have been made possible by co-regulation and robust industry participation.[12]

·         In the UK, regulatory agencies are still able to successfully exercise their influence by tackling issues such as disinformation and maintaining a balance between responsible media and freedom of speech. Continuous adjustment to the ever-changing digital environment is still crucial.

US Media Regulation

·         Based on the First Amendment, the United States takes a unique stance. While the FTC manages advertising, the FCC is in charge of broadcast media. Regulatory agencies foster a culture of self-regulation by operating with little interference from the government.

·         Although digital media presents problems for the US, broadcasting is still governed by organisations like the FCC, and privacy issues are handled under current frameworks. Media freedom has been maintained by the self-regulatory environment's continued relative stability.

·         Because US media regulatory agencies still have the authority to regulate media in the country, material may be managed responsibly. There is continued equilibrium between ethical journalism and media freedom. Sustaining regulatory efficacy will need ongoing adaptation to the digital environment.[13]

Media Regulation in India

·         India's media regulation landscape faces challenges in adapting to the digital era. The Press Council of India and NBA provide guidelines for traditional media, but their effectiveness in regulating online content is limited.

·         India's media regulatory bodies have significantly diminished powers when it comes to regulating online content. The absence of comprehensive regulatory mechanisms has led to issues of misinformation, privacy breaches, and content moderation.

·         India grapples with diminished powers in media regulation, resulting in an influx of misinformation, privacy breaches, and content moderation issues. Ensuring a responsible and accountable media landscape is a challenging task, necessitating comprehensive regulation to protect the public interest.

Social Media Regulations

Germany

With the main objective of reducing harm to internet users, the German Social Media Regulation Act of 2017 was created to regulate social media platforms and went into effect on October 1, 2017. The main goals of this Act are to protect consumers from online content that may contain upsetting items like child exploitation, violence, terrorism, and cyberbullying, as well as to hold social media companies accountable.

This rule requires businesses that have more than two million registered users in Germany to comply, which puts a heavy burden on bigger social media corporations to protect their customers' safety online.[14]

Australia

On April 6, 2019, the heinous violent material sharing act of 2019 went into force, specifically aimed at social media networks. The unfortunate event the live-streamed terrorist assault on Facebook resulted towards, the Australian government amending the criminal law, requiring social media companies to take down such violent information from their websites as soon as possible.

The measure was also a reaction to the public uproar against cyberbullying and many victims report for going into depression and suicide cases due to similar acts by various online users.[15]

Conclusion

A comparative analysis of media regulation in the United Kingdom, the United States, and India reveals distinctive approaches and outcomes. The UK and the US successfully maintain regulatory influence while adapting to the digital age, ensuring a balance between media freedom and ethical journalism. India, on the other hand, faces significant challenges in regulating online content, highlighting the pressing need for comprehensive regulatory solutions to protect the public interest. These experiences collectively offer insights into the complex interplay of media regulation and freedom of expression in the digital era.

It is clear from contrasting India's predicament with Germany's strict social media laws that both countries have made tremendous efforts to shield their citizens from dangerous internet information and cyberbullying. These actions demonstrate not just a dedication to user safety but also these nations' proactive approach to social media platform regulation in order to foster a safer online environment.

SUGGESTIONS

·         First of all, there should be a proper establishment of rules to segregate media regulating bodies for each type of media and there should not be any confusion, where two bodies can regulate same media also there should be proper separation of state and self-regulation so that bodies of respective nature don’t collide with each other’s decision while performing their functions.

·         The Press Council of India act should be amended in a manner so that apart from having powers toimposing certain restricting, disapproving and censure publications they can also in accordanceto the (act done or omission) impose fines and even putting injunction on the whole publication by cancelling their license or other relevant measure.

·         There can also be amendments made for not allowing parliamentary or other such members to interfere in the decision of council to prevent political influence and stop biasness and discretion for the same reason amendment can also be made to stop immature or new journalist and editors to attend the meeting for better and efficient decision.

·         For the above decision the panel of Indian Council committee can set certain criteria for allowing only well trained and experienced journalist, publishers, and editors to qualify to be the part of the council and also to participate in respective meetings or former journalist, publishers etc can also be selected.

·         Their can be certain guidelines for including the supervision of judiciary on decisions taken by MIB or other such broadcasting media regulating body so that personal discretion can be avoided. Also, some rules and regulations with proper guidelines can be laid down for making a better self-regulating mechanism with more effective policies so that cases alike mentioned above do not arise or if arise can be addressed properly.

·          Indian regulatory agencies ought to strengthen their laws governing online material, taking cues from the US and the UK. This entails developing extensive regulations suited to the difficulties presented by digital media, such as disinformation, privacy violations, and content moderation. For internet to make media, responsible and accountable, a stronger framework is necessary.

·         Self-regulation can be promoted in the media sector, emulating US and UK policies. Maintaining moral principles and finding a balance between media freedom and accountability, need cooperation between media organisations and regulatory agencies. Encouraging media organisations to set up self-regulation frameworks can reduce government intervention while guaranteeing ethical reporting.

·         Government can establish an independent oversight body to control different facets of the media, similar to the US Federal Communications Commission or the UK's Ofcom. This body need to have the authority to handle matters pertaining to content, morality, and the responsible behaviour of media companies. In order to guarantee impartiality, independence from governmental influence is essential.

·          Establish a system for frequent updates and modifications to handle new issues that arise in the online environment. Regulators need to be flexible in their responses to new innovations and technological advancements that impact media regulation.

·        

CONCLUSION

In conclusion, the perceived shortcomings of regulating agencies have resulted in ongoing challenges and criticism of India's media regulation system. Many people believe that the current self-regulatory systems fall short in tackling problems including sensationalised reporting, paid journalism, political interference, and defamation. This study has examined the difficulties and complexities related to media regulation, providing insights into how this subject is developing.

The Press Council of India, the CBFC, the NBDSA, and the Ministry of Information and Broadcasting are among the Indian regulatory entities that have had difficulty establishing their legitimacy and autonomy. There are questions regarding these bodies' ability to penalise and regulate media activity. The Information Technology Rules of 2021 have sparked more worries about free expression and media independence.

This research has identified important recommendations for strengthening media regulation in India, taking inspiration from nations with strong regulatory systems such as the United States and the United Kingdom. To increase the efficacy of media regulation, it is imperative to strengthen laws governing online content, encourage industry participation in self-regulation, create an independent oversight body, and acknowledge the fluidity of the digital landscape.

By establishing a balance between media freedom and ethical journalism, these countries—the US and the UK in particular—have been able to maintain regulatory power while adjusting to the digital era. India, on the other hand, has a lot of difficulties when it comes to regulating internet material, which highlights the urgent need for all-encompassing regulatory solutions to safeguard the public interest.

International viewpoints have also been examined in the study, including Australia's response to cyberbullying and online violence as well as Germany's strict social media rules. These initiatives show a dedication to protecting citizens from inappropriate content on the internet.

The continuously evolving media ecosystem necessitates that Indian media regulatory organisations change and adapt in light of these results. Adopting the recommended actions may result in a media landscape that is more responsible and accountable. In order to safeguard the public interest, India can endeavour to achieve a balance between media freedom and ethical journalism through collaboration, a more robust regulatory framework, and an awareness of the constantly changing digital landscape. The present study establishes a basis for the continuous discourse and endeavours to enhance media control inside the nation.