Recently, the Madras High Court dismissed a plea for framing guidelines to regulate visual media. The High Court held that visual media didn’t come under the ambit of the statute and stated that the Government of India had to look into this aspect. The court further identified the lacuna in the law, stating that there’s no regulation in force except the self-regulation. Previously, in Sahara India Real Estate Corp. Ltd v. Securities & Exchange Board of India & Anr, the apex court had refused to pass any orders concerning formulating regulations for the visual media. The Union government has always advocated for the practice of self-regulation. Although self-regulation is extremely imperative for safeguarding visual media’s right to freedom of expression, it has failed miserably. The Visual Media has become influential in polarizing communities in an “us v. them” landscape. Lack of appropriate regulation has already resulted in the escalation of cybercrimes, privacy concerns and fake or misappropriate news.
NEED FOR GOVERNMENT REGULATION IN CONTEMPORARY TIMES
In Tehseen S. Poonawala v. Union of India, the supreme court held that it was the duty of the state to curb the dissemination of irresponsible and explosive messages on social media. The discourse of illicit, unsafe, or hateful content is often a complicated subject, which is why appropriate standards need to be developed to resolve these sensitive issues while preserving social harmony. One such example of this is the recent Tablighi Jamaat incident. The Indian News Channels were openly ridiculing Muslims and propagating “ Islamophobia.” It was played on the loop by the media, as a result, Muslims began to get abused and assaulted. The same media didn’t care to highlight the atrocities committed against the Muslims.
The Observer research foundation reported, “from 2003 to 2016 the Press Council of India received more than 7000 complaints while from 1990-2000 it received more than 9000 complaints.” These rising figures have raised serious threats to the quality of journalism and depicted the failure of self-regulation in India.
IDENTIFYING THE LACUNA IN THE LAWS AND THEIR IMPLEMENTATION
In Virender v. State of Punjab, it was held that Article 19(1) does not explicitly provide for the liberty of the press but the fundamental right of the freedom of the press is implied in the right to freedom of speech and expression, on the other hand, the major job of the media being gathering and circulating information, it is supposed to make it very responsible and accountable to the public at large. Visual media, in India, does not come under the ambit of any Statute as of now.
The Indian Telegraph Act, 1885, more than a century old law is inadequate to govern visual media and it doesn’t keep pace with the expeditious technological advancements. It is broad enough to have visual media in its ambit but ineffective in practice as it doesn’t lay down express provisions regulating the content that is transmitted over visual media. Section 5(2) of this act states that in the interest of public safety, the union government, state government or an authorized official has the authority to detain transmission of telegraphs to prevent incitement to the commission of an offence. Yet transmission of messages disturbing public safety has been continuing. Section 69A of the IT (Amendment) Act, 2008, allows the Central Government to block content that threatens public order and has penal provisions for publishing or transmitting any obscene or sexually explicit material, in electronic form but does not contain any provision for dealing with fake or unnecessary news.
Broadcasters on the television are required to follow the Program Code and the Advertising Code while broadcasting different programs on television, which inter alia, restrict the transmission through a cable service, of any program or advertisement that is not in conformity with their respective codes but does not restrict journalists from publishing unnecessary news on the Internet capable of promoting hatred among people and disturbing public peace.
In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat, the court held that a fundamental right of a person may have to exist together with another fundamental right of some other person, along with the reasonable exercise of power by the State. Here, the fundamental right of Freedom of Speech of the press should exist in harmony with the fundamental right to dignity with the formulation of reasonable guidelines by the State.
LEARNING FROM THE WEST
Reasonable restrictions on the right of expression exist is all the surveyed countries. Reasonable restrictions are acknowledged by the European Convention on Human Rights. The European Union enacted the Audiovisual Media Services Directive, which regulates audiovisual media, both traditional television broadcasts and on-demand services. It encourages co-regulation and self-regulation. The regulations laid by the audio-visual media directive extend to video-sharing platforms like YouTube and social media platforms such as Facebook.
Article 6 of AVMSD states that audiovisual media can’t incite hatred based on religion, sex, nationality, and region. Article 3 (2)-(3) states “the member states may restrict transmissions of audiovisual media if it violates human dignity.” Article 3(4) – (6) justifies such restrictions if the audiovisual media services pose threats to public health and policy. The Communications Act, 2003 and Broadcasting Acts of 1990 and 1996, have also laid down the legislative framework, according to which the broadcasters in the UK must operate. The Communications Act established Ofcom, which enforces content standards for Audio-visual media and other telecommunications companies in the UK.
EXPECTED CALL FOR THE HOUR
The Government could appoint an impartial oversight committee to resolve any issues relating to newspapers and electronic media. This can be achieved by determining the coverage or audience and also based on the revenue level. The committee will serve as a support mechanism for journalists who are asked to refrain from dealing with any matter and for audiences/viewers to file grievances. International Conventions and laws in Western countries can also be referred to while framing laws for Indian Visual Media. It is the pressing priority to enact laws or else the innocent public will have to pay the price in the form of human rights violations. With unceasing technological advancements, the Indian republic calls for explicit laws that can regulate the electronic media so that it serves as a safe and authentic medium for obtaining information for the general public.
 L. Dahlberg, E. Siapera et.al, Radical Democracy and the Internet: Interrogating Theory and Practice. (Palgrave Macmillan publications, London, 2007).
ABOUT THE AUTHOR
Kriti is a first-year law student at National Law Institue University, Bhopal.
Pravah is a first-year law student at Gujarat National Law University.