MEDIA FREEDOM, RESPONSIBILITY AND REGULATION
March 2, 2006
To talk about the “media” today is to deal with multiple meanings. Variously perceived, the media (used here and elsewhere in this article, in the singular) is today a source of information and entertainment, as also the midwife of a union between the two. Increasingly again, it is serving for a growing number, as a forum of self-expression.
With several models available to study the modern media as a social reality, a self-serving myth continues to hold sway. The media in this portrayal is the institutional bearer of the social right to free speech. And global events in recent times have shown that the right to free speech is both contentious and elusive in its definition. The cartoon-caricatures of a revered historical figure, were in the perception of the Danish newspaper that recently published them, a mere articulation of its right to free speech. But for a major world community, this was an act of gross provocation, a manifestation of the licentiousness of western civilisation, which transformed free speech into a sanction to cause offence.
The problem is an old one for liberal democratic theory. When does one person’s right become an irksome intrusion into another person’s individual and social being? It is a dilemma that led to Isaiah Berlin’s celebrated elucidation of two notions of liberty: the positive and the negative. Positive liberty in his estimation involved the right of unbridled action with few social or institutional restraints. It also involved the potential for excess, for oppression of individuals in the name of some larger cause. Certain sections could in its name arrogate to themselves the right to decide what serves the cause of the larger social good, compelling others to acquiesce, often at the cost of their freedoms.
Positive and negative liberty
The consequences of positive liberty were for Berlin, too terrible to contemplate, which is why he advised that the concept be jettisoned as a basis of democratic liberalism. Far more manageable was “negative liberty”, which demarcated a zone of inalienable freedoms where the sovereignty of the individual could not be breached. Rather than defining an individual’s rights in terms of all that he could do, this notion confined itself to a range of actions where free will and choice could not be denied.
C.B. MacPherson, the Canadian political philosopher who has been a perceptive critic of Anglo-Saxon orthodoxy in the post-World War II years, pointed out in an important critique, that these notions are inherently flawed. They fail, for one thing, to take into account the possible constraints on individual conduct that skewed patterns of distribution of the means labour could impose. An individual who lacks the means to earn his subsistence would be obliged to put himself at the service of another, conferring on the latter, an “extractive power” over his labour capacities. And precisely because he is deprived of his freedom to choose how his faculties and abilities should be utilised, this individual is deprived of the opportunity to develop his talents and personality in the best manner possible.
To find a way out of this dilemma of modern political theory, MacPherson posed two alternative conceptions: of “counter-extractive” and “developmental” liberty. The former enables an individual to resist the extraction of his powers and capabilities by another, merely because he lacks the means to render his labour productive. The latter is a positive affirmation which goes beyond the preservation of individual sovereignty, to enable the exercise of freedoms for the development of the individual’s particular personality and genius.
How would these concepts bear up when imported into the domain of free speech? Counter-extractive liberty could be interpreted as the right of the individual to be free of manipulated images and information that vitiate his sovereign right to form an independent opinion. And developmental liberty would be the power to put forward a viewpoint before society and have it assessed for its intrinsic merit. The former involves fashioning an area of individual autonomy where the intrusive attentions of the media do not reach. The latter involves ensuring that every individual has access to the channels of information dissemination.
Interestingly, article 19 of the Universal Declaration of Human Rights conceives of precisely this kind of a radical investiture of rights in the individual. “Everyone has the right to freedom of opinion and expression,” it states, and “this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
The compulsions of the real world impose the need on most national constitutions to abridge this absolute right. The Indian Constitution illustratively, speaks of article 19 freedoms as necessarily qualified by “reasonable restrictions”. The grounds for these restrictions, where it concerns free speech, are clearly spelt out: “the sovereignty and integrity of India, 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.”
In all the debates that have taken place about the media and its social role, freedom is necessarily balanced by a notion of responsibility. To maintain the uneasy balance between information as commerce and information as a basic human entitlement, reliance is placed not so much on curbing the pursuit of profit, but on ensuring the sustenance of media diversity. Commerce need not be antithetical to the right to information, provided there is a sufficient plurality of sources from which the public can draw. A liberal democracy allows for few institutional restraints on the functioning of the media, leaving the marketplace of ideas as the final arbiter. In matters that vitally involve the public interest, where there is a risk of social disorder or offence to good taste, decisions are left to the prudence and sense of social responsibility of the media.
Yet there are circumstances in which questions that seemed banished for all time, emerge with a fresh vigour. In 2003, the Standing Committee on Information Technology of the Indian Parliament, urged the Government to prescribe a “ratio for coverage of news contents and advertisements in newspapers”. This was necessary since, as the Committee observed, “a tendency is being noticed in the leading newspapers to provide more and more space for advertisements at the cost of news items”.
Price regulations and the right to free speech
The Government for its part responded with a plea of inability. Both a prescribed ratio for advertisement space in newspapers and a “price-page schedule” – a rule requiring newspapers to increase their selling price with the number of pages printed – had been under active consideration, said the Ministry of Information and Broadcasting. But these matters had not proceeded far “owing to legal and constitutional complexities”.
It would be a misperception to believe that these outlandish policy options are the exclusive domain of politicians, since a “price-page schedule” to restrain fratricidal battles within the press, has been a part of the public debate on the Indian media. It proponents indeed, have included many with vital interests in the industry. The awareness that unlike in most other industries, price competition in the media could be antithetical to consumer interest is well developed, as also the belief that newspapers are an institution that require the controlling hand of public policy when self-discipline fails, as it inevitably must.
Among independent India’s first exercises in enunciating a theory of the media in society, was the Press Commission appointed in 1952. Without undue fuss or ceremony, this body went to the core issue in newspaper economics: the relative proportion between circulation and advertisement revenue. And it underlined that this really was the crucial variable in determining how far the press remains an institution serving the public interest.
The price-page schedule was the policy instrument through which the objective of media diversity was sought. In accordance with the powers conferred by a law adopted by the Parliament in 1956 the government in 1960 issued the Daily Newspapers (Price and Page) Order, an intrusive set of rules that sought to micro-manage every parameter of a newspaper’s functioning.
In 1962, in the case of Sakal Newspapers versus the Union of India, the Supreme Court held the Price-Page Schedule violative of article 19 of the Indian Constitution. Handing down its ruling in the case, India’s highest court found that the order took away the freedom of the newspaper to charge whatever price it chose, constricted its ability to disseminate news and opinions, and cut into its commercial fortunes by limiting advertising space.
It was a curious and contrary case. The Supreme Court heard arguments on behalf of the Government, that the order in dispute, would “promote further the right of newspapers in general to exercise the freedom of speech and expression”, rather than the opposite. The space allocated to advertisements, the Government pointed out, varied between 46 and 59 percent of total printed area and these brought in “substantial revenue” which enabled the newspapers to be sold at “a price below the cost of production”. In consequence, “newspapers of long standing” which had “built up large and stable advertisement revenue” would be “in a more advantageous position” and could “squeeze out” newcomers, “with the result that they are able to destroy the freedom of expression of others”.
India’s highest judicial body disregarded all these arguments, ruling that free speech as a right, applied to every citizen of the country “not merely to the matter he (sic) is entitled to circulate, but also to the volume of circulation”. By fixing a minimum price for the pages a newspaper is “entitled to publish”, the Government aimed not to ensure fairness for the buyers, but to curtail the circulation of some newspapers. And if the “area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down.”
Free speech as commerce
Revisiting the issue, the Second Press Commission appointed in 1978, affirmed the fundamental importance of Article 19, but baulked at the judicial orthodoxy on the “price-page schedule”. Far from the scenario foreseen by the Supreme Court, the Commission concluded, the objectives of this regulatory device were to “advance freedom of speech and expression” through the “promotion of competition and prevention of monopoly”.
This rather ambivalent situation provides the context for grappling with another significant judicial intervention in interpreting the free speech right, which came in a case involving the publishers of The Times of India. At issue was a government notification, issued in a situation of acute newsprint scarcity, limiting allotment of the commodity to publishers in accordance with their reported consumption. Newspapers that published in excess of ten pages were required to bring down their daily offering to that number. They would not be permitted to reduce circulation to maintain or increase the number of pages. To provide a full day’s complement of news, publishers could rationalise their allocation of space between editorial and advertisement matter. Or they could maintain profitability by curtailing news coverage to accommodate advertisements.
In October 1972, the Supreme Court decided that the order was violative of the Constitution. The judgment in the case of Bennett Coleman and Company Ltd versus the Union of India is of historic significance, since it lays out a whole range of norms on the exercise of the right to free expression. Addressing the issue of the locus standi of the petitioners, the majority on the bench, with Justice A.N. Ray speaking, held that that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”. A few pages on though, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.
Whichever way it was considered, the restriction on newsprint use by a newspaper meant a serious abridgment of free speech. If the volume of news disseminated was reduced, that in itself was a loss to the public. And if the space devoted to advertisements were to be curtailed, the newspaper would suffer serious financial losses, “weaken” and perhaps “crumble”.
The rest of the judgment clung very closely to the liberal orthodoxy: that governmental regulation is an evil more invidious than the prospect of private monopolies. Called upon to address the latter issue, the majority on the bench concluded without unduly bothering themselves with facts, that “the press is not exposed to any mischief of monopolistic combination”. And even if it was otherwise, newsprint allocation could not be a feasible “measure to combat monopolies”.
A significant dissent
Of special significance is the lone dissenting judgment delivered by Justice K.K. Mathew, which essentially reverses the perspective -- rather than blandly rule it out, the judge explicitly concedes the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially views it in terms of twin entitlements -- to speak and to be informed – Justice Mathew observed in his dissent, that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. What was essential in the circumstances was to evolve “an affirmative theory underlying freedom of expression” and to attend to the “various conditions essential to maintaining a workable system”. The problem at hand was of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.
Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, said Justice Mathew, “as the right to express ideas without fear of governmental restraint”.
“Access” was one of the most crucial questions raised in the Justice Mathew’s dissent: access both of the public to the media environment and of the media organisation to the essential resources of its trade. Though the latter was the key issue before the bench, the dissenting judgment tied up this issue with the larger one of the public function of a newspaper and its socially enjoined duty to reflect the variety and diversity of the milieu it operated within.
An individual citizen’s access to the media, as a right, was the subject of the Supreme Court’s 1992 ruling in the case of Manubhai Shah vs Life Insurance Corporation of India. The Life Insurance Corporation (LIC) was obliged under the ruling, to publish an article highly critical of its functioning in a journal meant for its policy-holders, agents and the general public. The argument that the journal was an in-house publication to which the general public was not entitled access, was denied by the Supreme Court on a number of grounds. But LIC was in a sense, a soft target – a government-owned corporation for which publishing was a peripheral activity. The same issue in relation to the media has not quite been addressed with any degree of rigour.
Whose freedom: the advertiser or the public?
To revisit this entire sequence of rulings, it is clear in the light of India’s media experience through the 1990s, that the relationship between circulation and advertisement revenue is not quite as neat as the Supreme Court believed it. Advertisement revenue is dependent not merely on gross circulation, but more crucially, on audience demographics. When the Times of India proudly proclaimed that it had crossed the magical threshold of a million in circulation in 1996, it did not in the breathless ardour of this achievement, inform readers how its printing presses were sustaining this output, when every additional copy was being sold at a price rapidly plunging below production cost. The answer simply was that the TOI had assembled an adequate war chest from its conquest of the advertising market, to be able to ramp up its financially draining output and reach the demographic segments of the most intense interest to advertisers.
The situation was the exact converse of what the Supreme Court had considered in the Sakal case, not of a newspaper being forced to raise prices because it was deprived of advertisement space, but of a newspaper able to slash prices and drive out competition because it had managed to establish a pre-eminent position in the ad bazaar. Advertisers unlock the doors to circulation and vice versa – though the newspaper that delivers the high purchasing power demographic segments to the advertiser has the potential to earn profits beyond the reach of others.
In short, the advertiser is king and there is nothing he likes more than a “feel good” ambience. As far back as 1997, when the Indian media market was just beginning to see the new philosophy in action, without quite understanding its motive forces or intentions, an analyst in the respected professional forum, the Columbia Journalism Review was writing about the “ad/edit chemistry .. changing for the worse”. “Corporations and their ad agencies have clearly turned up the heat on editors and publishers”, he wrote, “and some magazines are capitulating, unwilling to risk even a single ad”. This was turning up the competitive pressure on other publications, making it “tougher for those who do fight to maintain the ad-edit wall”.
The motivations of the advertisers were clear. A product tailored to highly refined tastes, would look distinctly drab when placed in an “editorial context” that referred to the seamy underside of the good life enjoyed by the few, that drew attention to a world where poverty and deprivation are rampant, and ill-health and disasters extract an enormous toll in human suffering. Specific cases of this enforcement role played by the advertiser were flagged. Colgate-Palmolive, the worldwide consumer goods giant for one, had circulated a policy statement that it would not allow ads in a “media context” containing “offensive” or “antisocial” content. Much like the praise of motherhood as an institution, this statement of intent would have been unexceptionable, if Colgate had chosen to define what it meant by each of these adjectives. But to leave the matter vague was the preferred resort, followed by the menacing information that the company had charged “its advertising agencies and their media buying services with the responsibility of pre-screening any questionable media content or context”.
In the Indian situation, the Times of India (TOI) group, as the most successful print media organisation – which today is at the vanguard of rapid diversification into the audio-visual and online spaces – is living proof of the benefit of planning ahead to accommodate the advertiser. Beginning in the mid-1990s, the TOI began a shift of content towards fashion, lifestyle and entertainment that had its loyal readership thoroughly flummoxed. But even as many among the older audience cancelled their subscriptions in disgust, the newspaper succeeded in attracting new readers from unexplored demographic segments, like the youth and the high purchasing power strata. At the same time its advertising revenue exploded and it was able to sustain a price war in Delhi – perhaps the fastest growing newspaper market in India – that severely weakened the competition.
Pay your way: the right of access defined
In March 2003, the TOI announced a new initiative that was professedly, part of its effort to stay current with journalistic practices. For an enterprise as crass as charging a fee for favourable editorial coverage, the TOI managed to adopt a rather lofty idiom of expression. The “Medianet” initiative as it was called, was in the words of the TOI management, part of its “desire to drive the market, to constantly break new ground”. The deficiency of traditional news-gathering techniques was apparent especially in new areas of audience interest – such as “lifestyle, fashion, entertainment, events, product launches, social personalities and city happenings”. Public relations agencies had a much more sensitive feel of the social pulse in these areas, yet no feasible method of regulating the flow of news from this source had been devised.
Subtlety aside, this was a reference to the pervasive journalistic practice of accepting and even actively soliciting, monetary and other forms of gratification for news and editorial coverage that might be of material benefit to particular individuals or entities. Through Medianet, the TOI was, in accord with established rules of market competition, seeking to curb this corruption of the trade by institutionalising it. Objectivity and integrity of editorial content would no longer be at risk from the susceptibility of individual journalists to material inducements. The organisation itself would bear that onus of vitiating news content in pursuit of its monetary aggrandisement.
Medianet is now business as usual in the TOI group. The wave of adverse notice that it generated has subsided and the bottomline of the company, endowed with greater lustre. Profit finally is the most effective solvent for all the ethics and principles that journalists may in their quixotic fashion, still choose to cling on to. And all the momentous debates which went upto the highest judicial forum in the land and generated subtle and often pathbreaking pronouncements on the right to free speech, the right of access to media space and time, and other matters of enormous public import, have finally been reduced to the single imperative of profit. The fundamental rights are a live and vital charter for those who can pay their way to it.
India is today one of the few markets in the world where newspaper readership is growing significantly. The Indian media market in turn, is expected to register among the world’s fastest growth rates over the next few years. There are several factors driving this expansion, among them the vast literacy deficit in the country, and the impulse that neo-literates have to flag their arrival as players in the public domain by becoming active consumers of information. But with the advertiser being king and “pay your way” being the key to access, the contribution that the media can make to the evolving character of the public discourse, remains uncertain at best. The shape of Indian democracy has been determined to an extent by the strata that have entered the terrain of active political contestation in increasing numbers over the last decade-and-a-half. Its future will be moulded in part by the new voices that will resound in the political battlegrounds over the next few years. In its present shape, the Indian media is equipped neither to give voice to these aspirations, nor to render the polyphony of emerging social classes into something approaching coherence. With little left by way of a contribution the public discourse, the Indian media as an institution, could well be rapidly receding in terms of social relevance. That does not mean of course, that its prospects for earning a profit are any the worse.
 Standing Committee on Information Technology, Thirteenth Lok Sabha, 63rd Report, Lok Sabha Secretariat, December 2003, pp 39-42.
 See for instance, the report datelined Mysore, April 4, 2005, in The Hindu, which quotes a “veteran journalist and Kannada activist Patil Puttappa” decrying the price war among newspapers. This was a “dangerous trend”, he said, which “could lead to the death of many newspapers, and in the ultimate analysis, the death of democracy”. It needed to be regulated through a mechanism that would fix the price of a newspaper on the basis of the number of pages it printed. Mooted and abandoned in the past, it needed to be revived, said Mr Putappa, “failing which many small newspapers would die”.
 Vanita Kohli, The Indian Media Business, Response Books, Delhi, 2003, pp 18-9.
 63rd report of the Standing Committee on Information Technology in the Indian Parliament (Thirteenth Lok Sabha), pp 39-42.
 This and all other citations are from the Sakal Papers judgment delivered by the Supreme Court, as recorded in Supreme Court Recorder (SCR). Following standard citation procedure, this would be 1962 SCR (3) 842. The citations in this paragraph are from pages 847-8. The judgment is available on the web at the following address: http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=4110.
 Ibid, p 862.
 Bennett Coleman and Company Ltd versus the Union of India, 1973 SCR (2), p 759. The judgment is also available on the web at the following URL:
 Ibid, p 760.
 Ibid, p 761.
 Ibid, p 764.
 Ibid, p 803.
 Ibid, p 805.
 Ibid, p 814.
 Russ Baker, “The Squeeze”, Columbia Journalism Review, September/October 1997. As illustration, the following case is cited: “A major advertiser recently approached all three newsweeklies - Time, Newsweek, and U.S. News - and told them it would be closely monitoring editorial content. So says a high newsweekly executive who was given the warning (but who would not name the advertiser). For the next quarter, the advertiser warned the magazines' publishing sides, it would keep track of how the company's industry was portrayed in news columns. At the end of that period, the advertiser would select one - and only one - of the magazines and award all of its newsweekly advertising to it.”
 The entire concept note of Medianet is available on the web at: http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?artid=39286961.