Helping fix TV: Anti Tobacco Warnings

[Earlier this month, I mentioned a series of posts on based on complaints sent to broadcasting regulators. This post is the first in the series.]

With ever increasing frequency, channels are now displaying anti-tobacco warnings, which have little connection to the content being shown on television. The Cigarettes and Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 only requires these warnings to be shown when smoking and tobacco products are being depicted on screen. I sent in a complaint to the Broadcasting Content Complaints Commission (BCCC), since this is practiced by all broadcasters, and it is not possible to make individual complaints to each broadcaster.

Although the BCCC rules say that the complainant would receive a response within 2 days of the complaint (Rule 8.a), I have not received any response to my complaint, made on January 7, 2013. Since my complaint, however, at least one broadcaster’s warnings have become less conspicuous on screen, although there is still no relevance to the content being aired.

The full text of this complaint is reproduced below.

The Government of India has put in place excellent legislation to create more awareness about the medical and other negative side-effects of prolonged use of cigarettes and other tobacco products through the implementation of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (‘the Act’) which ensure that there are warnings about the evils of tobacco use. This includes, specifically, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 (‘the Rules’) issued under the Act, which detail the circumstances under which, specifically, advertisements of cigarettes and tobacco products would be banned. The Act and the Rules under them are all admirable steps towards the fulfilling of India’s international commitments under the Framework Convention on Tobacco Control, under the aegis of the World Health Organisation.

However, the portrayal, or mere representation of tobacco and/or cigarette use has not been prohibited, as was detailed in the decision of the Hon’ble Delhi High Court in Mahesh Bhatt v. Union of India, where the learned judge suggested that cinema is intended to portray both the positives and the negatives of social life, and therefore, the use of tobacco products could not be prohibited. In addition, the learned judge suggested that as long as the actual sale of tobacco products was not banned, its portrayal on film could not be prohibited in a manner so as to survive a challenge under Article 19(1)(a) read with Article 19(2), as to the constitutionality of such a measure.  On these grounds, the Court struck down Rule 4(6), 4(6A), 4(6B) and 4(8) of the Rules.

In light of this statement of unconstitutionality, and no subsequent amendment of these rules, it should stand that there is no prohibition on the portrayal of tobacco products on television. Equally it is no longer mandatory, statutorily, for television broadcasters to broadcast a warning in the manner prescribed in the aforementioned Rules. Despite this, it is a mark of the IBF’s commitment to public health that these warnings are still displayed.

However, there appears to be a disconnect with the manner in which the warnings are being displayed, as they are currently, and the goal of such messages. Very often, the messages appear when there is no portrayal of tobacco products on screen, leading to this complaint, which is to question the efficacy of the actions of the IBF. The messages, as they currently appear, are broadcast excessively often, and as mentioned previously, have no connection to the images being broadcast at that time. Therefore, the warnings do not achieve the purpose of re-enforcing a negative message along with images being broadcast. Therefore, it would seem that there is saturation of these messages, therefore making it easy for viewers to ignore them, and for them to fail to have any impact. This saturation is one of the reasons for statutory warnings under the Rules to be rotated or changed every 12 months.

To this extent, I believe that the actions of the members of the IBF are resulting in an unfair infringement on our Fundamental Right to Receive Information, which is an essential element of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, as laid down by the Hon’ble Supreme Court in several landmark decisions including but not limited to Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the seminal decision on freedom of speech in the broadcast media. I would request the Broadcasting Content Complaints Council to take the necessary steps to ensure that this over-regulation of content on the airwaves stops, since these actions not only prejudice the broader social objectives which such actions seek to achieve, but they also potentially, result in gross violations of fundamental rights guaranteed to ever citizen, under the Constitution of India.

Any rationale for such constant disclaimers is also unclear from the Self-Regulation Content Guidelines for Non-News and Current Affairs Television Channels. Under the Programme Categorisation System, Theme 4 dealing with alcohol and tobacco merely requires discretion while airing: there is no mention of warnings being shown, especially when the warning has no discernible connection with the matter being broadcast.

I would request the IBF and the BCCC to take the necessary steps to prevent these unnecessary incursions into every citizen’s right to freedom of speech and expression, and further to refrain from activities which defeat the social purpose for which measures have been put in place.

News Post: 22 January, 2013

  • Speaking at a conference organized by the Institute of Mass Communication, the Chairman of the Press Council repeated his well known stance that Indian media should be subject to external forms of regulation (see here and here). This comes in sharp contrasts to views of government officials who still seem to favour self-regulatory models for the media.
  • The Observer Research Foundation recently organized a conference in New Delhi dealing with the question “Media regulation: Is status quo the answer”. Participants were in agreement that regulatory dialogue around the media, must also pay closer attention to regional and local media. A brief account of the conference can be seen here and here. Pictures of the even may be viewed here.
  • The Ministry of Information and Broadcasting has sought the opinion of the Telecom Regulatory Authority of India (TRAI) regarding issues surrounding the ongoing digitization process, and the functioning of Multi-system Operators (MSO’s) and Local Cable Operators (LCO’s) has (see here and here).
  • The Ministry of Information and Broadcasting has recently banned certain private T.V. Channels for broadcasting explicitly material that was allegedly in violation of broadcasting guidelines.

News Post: January 13, 2013

  • A fact finding team of the Press Council of India has claimed that there were rampant instances of paid news during the recently concluded Gujarat State Election. The news reports indicate that the formal report is still being finalized, and will be submitted to the Election Commission of India upon completion.
  • In light of the approaching general elections in 2014 the Press Council of India has taken suo motu cognizance of the issue of paid news. It had constituted a committee to draft fresh guidelines for journalists and media organization (see here and here).
  • On January 8, the magistrate currently hearing the trial of the 5 accused in the Delhi gang rape case has ordered an in camera trial, citing security reasons. Journalists have approached the Delhi High Court against this order, claiming their fundamental right to report on these judicial proceedings. The High Court has issued notice to the relevant police authorities and stated that a delicate balance between a fair trial and free speech rights, would have to be struck in this case (see here and here).
  • The Government is proposing that all electronic hardware be accompanied with a security manual, in order to improve cyber security.

2nd NLSIR Public Law Symposium on Delimiting Media Freedoms: Some Reflections

[I recently had the pleasure of attending a conference organized by the National Law School, Bangalore on Delimiting Media Rights. The conference was structured along two panels – one dealing with privacy issues involved in media reporting and the second dealing with regulation of media reporting of judicial proceedings. The following post is not a summary of the deliberations, but merely a brief discussion of some of the observations of the speakers that stood out in my mind. Readers are welcome to point out any mistakes.]

The conference began with a speech by Justice Muralidhar of the Delhi High Court. Justice Muralidhar is celebrated for his strong commitment to human rights and most notably his agreement with Justice A.P. Shah in decriminalizing consensual homosexuality in Naz Foundation v. N.C.T Delhi. Justice Muralidhar began his discussion on privacy by stating that he viewed privacy rights as a means of enforcing personal dignity, whether in a personal space, decisions or relationships. He also correctly drew attention to the historical fact that privacy jurisprudence took root very modestly through a dissent in Kharak Singh, which was later read into Article 21 of the Constitution. He was also candid in stating that legal responses to privacy violations are mostly reactive, instead of deliberating these issues before egregious violations actually take place. A consequence of this delayed manner of thinking about and enforcing privacy rights was a disjoint and underdeveloped understanding of privacy.

Ms. Geetha Seshu (a journalist with the media watch dog organization The Hoot) provided an insight on the relationship between privacy rights and journalistic practices. She stated that journalists in the 1980’s and 1990’s had no conscious awareness of privacy rights, and as a result would often compromise the identity of vulnerable people or communities. She also acknowledged that some media organizations have recently begun to be sensitive towards privacy interest, but on the whole, journalists remain ignorant about privacy rights. She attributed this to two broad causative factors. First, she stated that journalists are under immense pressure from editors to capture the news with the greatest detail and in the least amount of time. This professional obligation to “get the story first” in large part clarifies the reason why journalists often violate the privacy of the subjects they report on. Furthermore, she stated that employment conditions of journalists are extremely adverse, in that most journalists are not hired permanently but are mostly engaged on a contract basis. Second, she was very critical of Press Council of India and its complete failure in developing robust guidelines for journalists and lacking any real authority to impose any sanctions on erring journalists or media organizations.

Mr. Apar Gupta (A Delhi based lawyer and blogger about law and technology issues) spoke on the second panel dealing with regulation of media reporting of judicial proceedings. He dealt primarily with the recent decision of the Supreme Court in Sahara v. SEBI (popularly known as the media guidelines judgment). He was critical of the opinion and characterized it is as vague, unsubstantiated and unnecessary. According to Mr. Gupta, the vagueness in the judgment permeated not only the reasoning (by virtue of loose references to principles of proportionality and necessity) but also in the final remedy of this opinion. He also stressed that the judgment is not a welcome development, as it does not provide adequate safeguards against the option of prior restraint through a postponement order, and may lead to unconstitutional regulation of speech. His final critique related to the normative justification for the opinion, as it was unclear whether the central concern of the judges was contempt of court or whether it was concerns of a fair trial. If the concern was contempt of court, this decision was completely unnecessary since the Contempt of Courts Act already provides for civil and criminal remedies. Mr. Gupta concluded by noting that although the decision has been characterized, as a restatement of law as laid down in Mirajkar, there was one significant difference. The Sahara judgment unlike Mirajkar created a writ remedy for prejudicial reports of judicial proceedings. In doing so, the judgment created a questionable exception to the procedure as contemplated under the Contempt of Courts

News Post: January 8, 2013

  • The Government of West Bengal is considering appointing a private agency to carry out its surveillance functions in respect of media reports of the government appearing in all forms of media, including social media. The agency would be expected to submit daily reports to the Chief Minister. This disturbing move comes after the government has charged several political dissenters with claims of sedition and Section 66A of the IT Act.
  • In what could be the most serious privacy right violation, the Government of India is planning to compile a database of people convicted of the offence of rape on government websites (see here and here). This proposal comes in relation to the recent incidents of aggravated sexual assault in New Delhi.
  • More than 500 independent Internet Service provides who had been granted licenses, have returned their licenses and have shut down their business. Experts believe the reason for the same are poor government policies resulting in high prices.
  • In a welcome move, the Telecom Regulatory Authority of India (TRAI) has recently recommended that the government should not be involved in either setting up or distributing T.V. Channels. The report cites free speech issues as a reason for non-involvement of the government in T.V. broadcasting. The original report can be accessed here.

Helping fix TV: what our broadcasters are missing

This is the background to a series of posts involving complaints to be sent to the BCCC and other (broadcasting) self-regulatory authorities regarding non-compliance with their respective Content Code(s). I will be putting up both my complaint(s), and the responses received to it, if any. Please do share any issues with broadcasting content which you may have so we can send that complaint in for you, or complaints which you have sent, either in the comments, or via email. Continue reading

News Post: January 07, 2013

A Happy New Year to all our readers!

  • Israeli soldiers assaulted two cameramen near a Palestinian-heavy area, despite having signs and jackets identifying themselves as pressmen. Following this attack is this interesting piece detailing past incidents in the Middle East where military force has led to the death of journalists.
  • The Hoot has released this survey on journalistic freedom in India, in 2012.
  • One of the several phone hacking incidents in News Corp’s past which led to the Levenson Inquiry, involving Hugh Grant, has reached a settlement. The proceeds are being donated to a charity dedicated to helping the victims of the hacking.
  • After a gap of nearly 50 years, Myanmar has allowed private newspapers to be set up, starting from the first of April.
  • A journalist covering a strike in Manipur was shot dead by the police, while filming an incident where a truck was being burnt by protesters.
  • A PIL involving the right to strike and protest has reached the final stages of hearing at the Delhi High Court.