Why journalists should take leadership of the debate on media ethics

The context for the discussion on ethics in Indian journalism

All sectors of the media in India have grown rapidly in recent years.

Significant changes have occurred in editorial policy and commercial strategies, as traditional sectors (print and radio), have responded to competition from new media like satellite TV and the internet.

Concerns have been raised about the quantitative expansion being accompanied by a perceptible deterioration in quality. The decline in quality in turn, is ascribed to a crisis of ethical standards in journalism.

Three cases highlight the need for this conversation on ethics

Recent cases involving the media and its regulatory environment, which raise critical issues of journalistic ethics, include the following:

*** In September 2007, three journalists and the publisher of an afternoon daily in Delhi were convicted by the Delhi High Court for “contempt of court”. The court held the media workers guilty for a series of investigative articles and cartoons on the Indian Supreme Court’s orders shutting down small commercial establishments and shops in notified residential areas of Delhi. The articles were reviewed by competent legal authorities and found to be factual and accurate. Though the four media workers have obtained a temporary stay on the application of their sentence, their conviction still stands. Other sections of the media have failed to respond to the challenge posed by the Indian judiciary’s arrogation to itself of sky-high powers of conviction for the alleged offence of “contempt of court”.

*** In September 2007, a 24-hour news channel, India Live TV was ordered off the air for a period of one month as a penalty for airing a fake “sting” operation, implicating a school-teacher in Delhi in a non-existent prostitution racket. The case obviously warranted prosecution under legal provisions covering the offences of falsification of evidence, extortion and incitement to violence. There was also a credible case for lawful recompense to the school-teacher who suffered serious trauma and irreparable damage to her reputation. Yet the regulatory response was to pull the channel off the air for a month. There has been no explanation for either the punishment, or its duration. It has all been completely arbitrary.

*** In November 2007, a radio jockey on the Red FM channel was booked under the law for inciting communal violence and creating hatred between the Nepalese Gurkha community and others. Red FM is a channel that broadcasts to various urban markets in India. But it is not known to have a signal in Siliguri district in the state of West Bengal, where riots broke out over allegedly disparaging remarks made against the Nepalese Gurkha community. The individual concerned now faces prosecution in a West Bengal court. Red FM offended against a basic rule of ethical journalism, which is “to do no harm”. But the sanctions that the individual responsible could face, seem excessive and illogical.

A regulatory vacuum and an ethical void

What emerges from this brief catalogue of cases is that there are no accepted standards on the exercise of the free speech right in the Indian media. Neither is there a credible regulatory framework in place. More serious transgressions (than that of Red FM) and more serious abuses (than that of India Live TV), escape sanction, because they do not (for whatever reason) excite violence on the streets. This raises troubling questions about how far media freedom can be hostage to organised riot specialists.

The rapid growth of the Indian media has occurred in a regulatory vacuum. Where satellite TV is concerned, the two main instruments of regulation are the Cable TV Act of 1995 as subsequently amended and the Guidelines on Uplinking of 1999, most recently amended in December 2005.

The Cable TV act was drafted when uplinking from Indian territory was banned. Since the downlinked signals from foreign broadcasters were thought to be beyond the scope of regulatory action, the Cable TV Act laid the onus of good conduct entirely at the doorstep of the local cable TV provider. Thus, the cable operator, who is no more than a window through which broadcast signals pass, is under the Indian legal system, responsible for all content issues in satellite TV.

The uplinking guidelines were introduced in 1999, permitting entities registered in India to uplink to a broadcast satellite. These guidelines have been amended successively over the years, often as a post facto response to realities created by India’s powerful broadcast industry.

Policy tends to downgrade editorial ethics and competence

In its current version, the guidelines specify certain eligibility criteria for obtaining uplinking permission. These include stipulations on the maximum extent of foreign equity ownership (49 percent) and the minimum net-worth of the entity seeking such permission (which varies between INR 10 million and 30 million, depending on the number of channels leased by the broadcaster).

Uplinking guidelines in force do not impose any requirements in terms of competence in media operations or adherence to any set of ethical standards in journalism.

The rules in the Indian media domain have been written by the bureaucracy. And business groups have interpreted these rules according to their convenience. Journalists have not at any stage been involved in the formulation of these rules.

Journalists should get involved

Without the active involvement of media professionals in the writing of rules, the Indian media will continue to suffer the crisis of ethical standards it is going through now. Consistent with the IFJ position on ethical journalism, self-regulation should be advocated for the Indian media industry, not as “self-censorship”, but as “another manifestation of sound editorial judgment”.

To take the case of the fake sting operation by Live India TV that led to violence on the streets of Delhi and immense damage to a school-teacher’s reputation:

this was a case of non-existent editorial processes;
the story involved had
been produced two months prior to its telecast and been rejected by at least one
news channel;
the individual who had produced the story then did some channel
shopping, to find a broadcaster who would telecast his story;
this was done
by India Live TV, which was fully aware of the background to the story and yet
went ahead with its telecast;

With all this known about the fake sting operation, a thorough dissection of the underlying issues has not been undertaken, in part because of the summary decision of the Indian government to unplug the channel for a period of one month.

The alternative would be compliance with the government diktat

Hearing a public interest petition arising from the case, the Delhi High Court on December 14, 2007, held that any channel planning to broadcast programmes involving a “sting” should be legally obliged to obtain prior permission from a government-appointed committee. It recommended that the Ministry of Information and Broadcasting of the Indian government should appoint a retired judge of the High Court to chair the committee, which should also comprise two others drawn from the bureaucracy.

The grounds on which the Ministry of Information and Broadcasting licences channels are unclear, since the only eligibility criteria specified deal with patterns of equity ownership and the company’s net worth (as already mentioned above).

The grounds on which the Ministry cancels permissions are still more unclear, since the only explanation offered in most cases is a failure to conform to the “broadcast content code” decreed by the Ministry.

The “content code” it must be emphasised here, is a unilateral and arbitrary imposition on the part of the Ministry. It does not represent a consensus position of the broadcast industry.

Commercial calculations do not ensure quality journalism

A recent effort to codify a content code was abandoned when the Ministry’s draft was challenged by a number of media organisations.[1] The Ministry then delegated the job of evolving an agreed position to the broadcast industry and its apex organisations.

This effort according to information available to the IFJ, is today stymied by disagreements and business rivalries between two associations of the broadcast industry: the Indian Broadcasting Federation (IBF) and the News Broadcasters’ Association (NBA).

With voluntary codes of conduct and self-regulation being a distant prospect, the Indian government recently notified “monitoring committees” at the level of each state and every district, to enforce its content code. These committees are constituted overwhelmingly by bureaucrats and police personnel.[2]

Journalists cannot afford, as a professional community, to leave the job of enforcing ethical standards to either bureaucrats or business lobbies.

The Ethical Journalism Initiative in its Indian avatar, should put the issue of evolving a content code, which of course would merely be an embodied version of an ethical code, right up front and centre.

How are media rights understood in India?

The Constitution of India guarantees the right to free speech through article 19(1)(a). But the very next clause in the Constitution allows for “reasonable restrictions” on this right, on certain specified grounds.

Unlike the U.S. Constitution, where the first amendment has created a specific niche for the media, the Indian Constitution provides no such special status. As the principal author of the Constitution, B.R. Ambedkar, put it, the “press” cannot be held to have any status other than that of an individual or a citizen: “The press has no special rights which are not given or which are not exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely expressing their right to freedom of speech and expression and in my judgment, therefore, no special mention is necessary of the freedom of the press at all”.

Some commentators have observed that the Indian Constitution is unmindful of the institutional needs of the media. But judicial rulings over the years have elaborated on the notion of media freedom as derivative of article 19 of the Indian Constitution, and also read the public right to information into the same constitutional provision.

In 1959, the Indian Supreme Court held that “being only a right flowing from the freedom of speech and expression, the liberty of the press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the press as such, that is to say, as distinct from the freedom of the citizen”.

An ambivalent construction of media freedom

In 1972, the Supreme Court ruled that the “individual rights of freedom of speech of editors, directors and shareholders, are all expressed through their newspaper”. Once having equated the press to any “citizen”, the higher judiciary in India seemed now to be narrowing the right to free speech, in its application, to a very narrow category of citizens.

But then in the same judgment, the Supreme Court also said that 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”.

So here, India’s higher judiciary is speaking of a broader category of rights inherent in the media, which is supposed to be an institutional embodiment of the public right to free speech. In later rulings, the Supreme Court also held that the public right to information, though not explicitly a part of the Indian Constitution, has necessarily to be read into Article 19, to make of it a logically coherent provision.

The right of public access to media space and time

The right of public access to the media was dealt with in the case of Manubhai Shah versus the Life Insurance Corporation of India in 1992. Here, the Supreme Court held that the Life Insurance Corporation of India (LIC) had no right to deny access to its journal to any citizen. Two grounds were cited for this decision: first, as a government owned corporation, LIC fell within the definition of the State and hence could not deny any citizen his or her fundamental right to free speech; and second, as a public forum, it necessarily had to be open to every citizen.

Unfortunately, the issue here involved a soft target, since publishing is not the LIC’s core business. And the Supreme Court named two criteria for upholding the public right of access to media space, without naming either as decisive. It is obvious that if the first criterion alone is decisive, i.e., being an agency of the State, then the right of public access would not apply to the media sector as a whole. If the second criterion, i.e., that of being a public forum were to be taken as the more critical one, then the media would be obliged to grant the right of public access.

The effort to regulate media monopolies

Much of the case law concerning the Indian media has arisen from the political effort to control the growth of media monopolies. A particular area of concern identified by successive policy advisory bodies since the 1950s, has been the ability of larger media houses to leverage their superior command over advertising spending, to increase circulation and drive smaller competitors out of business. In the mid-1990s, this worst case scenario became all too real, with India’s largest newspaper publisher launching price wars to capture circulation from competitors in the pivotal markets of Delhi, Bangalore and Hyderabad.

A truce has now been called in that round of the price wars in the Indian newspaper industry. But its consequences still remain to be assessed. Among other things, it is apparent that despite the overall growth of newspaper readership in India, the degree of concentration has also increased.

Some dubious commercial practices

The competition for ad spend has also led to certain unorthodox practices in the media industry, as for example:

In March 2003, India’s largest newspaper group announced a new initiative that
was professedly a part of its effort to stay current with journalistic practices
in rapidly changing times. The “Medianet” initiative as it was called, was in
the words of the newspaper management, part of an effort to overcome the
deficiencies of traditional news-gathering techniques, 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 sensitive feel of the social pulse in these areas, and journalism
had recognised this reality. Yet no feasible method of regulating the flow of
news from this source had been devised. Medianet involved the payment of a fee
for coverage in the newspaper columns. The newspaper management initially
committed itself to clearly identifying every story published under the
“Medianet” initiative.[3] But media analysts have concluded that after a few weeks,
the practice of identifying each story that was paid for, seemed to lapse.

Media houses are now known to conclude “private treaties” under
which they acquire an equity stake in particular companies, which they pay for
through ad support. This assistance in “brand building” and “corporate image
development” is more than paid for since the companies that attract the media
houses’ interest invariably happen to be entities that are on the verge of being
listed on the stock exchanges. Since shares in most companies are known to
appreciate wildly from the day they are listed, media houses have ample
opportunities to cash in on the capital gains windfall that invariably come
their way. There has been little public questioning of the conflict of interest
issues involved in this practice, which an increasing number of media houses in
both the print and broadcast domains, have been resorting to.[4] With fortunes being made and lost on India’s stock
exchanges and investor decisions being critically dependent on media coverage,
there is ample reason to put the practice of “private treaties” under the
scanner from an ethical point of view.

With all these changes underway in the media scene, journalists face multiple challenges to ensure that their profession remains socially relevant and continues to be a valuable participant in the public discourse. Cutbacks in news-room investments have depleted the ranks of the profession. Arbitrary and in most fair-minded peoples’ estimation, unlawful changes in working conditions have damaged the collective bargaining strength of the community. In this context, journalists need to step up and be counted as a voice for change in the domain of media ethics. That would be one way to reestablish the weakening links between the profession and the public interest.

[1] For the memorandum submitted by the IFJ on the draft broadcast bill and content code circulated by the Indian government in 2007 for public comments, see: http://www.ifj-asia.org/files/070906_memorandum_on_broadcast_bill.pdf.

[2] See the story at: http://www.thehoot.org/web/home/story.php?storyid=2956&mod=1&pg=1&sectionId=7&valid=true.

[3] The entire concept note of Medianet is available on the web at: http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?artid=39286961.
[4] For a rare discussion of private treaties in the business press, see: http://www.livemint.com/2008/01/14234923/Should-private-treaties-be-mad.html; for a more critical view: http://www.thehoot.org/web/home/searchdetail.php?sid=2902&bg=1.