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.

News Post: December 21, 2012

  • Even as Indian authorities are increasingly finding issues under the IT Act to disallow various kinds of speech on the internet, authorities in the UK have a different take. They suggest that prosecution cannot be commenced if the post has been subsequently deleted.
  • The recent tragedy at Sandy Hook Elementary School in the US was hit with the added trauma of being severely misreported in the press. Some apologies from the press have been put together here.
  • The issues of journalistic standards have been raised often in the US press over the last few weeks, following a series of front page covers run by the New York Post, which have been criticised as lacking moralistic standards.
  • Social media, such as Twitter, are increasingly being seen as an additional tool to determine TV ratings.

The Journey of Online Censorship: A recent timeline of Section 66A

[Section 66A of the IT Act, 2000 has been widely discussed and debated owing to a spate of recent events. The provision is clearly problematic, and is currently being challenged in two High Courts and the Supreme Court. In order to provide context to the ongoing commentary on the issue, I have listed below a series of events concerning Section 66A. I apologize for the descriptive nature of this post, but hope that this information can inspire more enlightened conversations about the many problems with the IT Act and manner in which the state seeks to control online speech. If readers find any discrepancies in the details or dates, please feel free to leave a comment. The details listed below are not exhaustive, and are merely illustrative instances which have brought the Section into public scrutiny.]

September 10, 2012 – Cartoonist Aseem Trivedi is arrested on sedition charges along with 66A, for allegedly posting objectionable content on his website. The arrest has been made pursuant to a private complaint by a lawyer.

October 31, 2012 – An industrialist in Puducherry is arrested under Section 66A for comments on twitter against the son of Union Home Minister P. Chidambaram.

November 9, 2012 – The Constitutional validity of the Section 66A is challenged before the Madurai bench of the Madras High Court.

November 19, 2012 – Two girls are arrested in Palghar, Maharastra for questioning the shut down of the city after the death of Bal Thackeray under Section 66A of the IT Act and Section 295 of the Indian Penal Code.

November 20, 2012 – The Chairman of the Press Council of India, writes to the Maharashtra Chief Minister questioning the legal validity of the arrest of the two girls under Section 66A. The letter(s) may be accessed here.

November 21, 2012 – The division bench of the Madras High Court issues notice to the State in the pending PIL concerning Section 66A.

November 21, 2012 – A division bench of the Lucknow High Court accepts a PIL questioning the constitutional validity of Section 66A.

November 23, 2012 – Two Air India employees have been detained under Section 66A for offensive content posted on a Facebook group against certain Congress leaders.

November 29, 2012 – A Supreme Court bench consisting of the Chief Justice of India Altamas Kabir and Justice Jasti Chelameswar accept a PIL questioning the validity of Section 66A.

November 29, 2012 – Union Telecom and IT Minister Kapil Sibal issued guidelines for the better enforcement of Section 66A. Under these new guidelines cases under Section 66(A) can only be registered if prior approval has been sought by DCP rank officers in urban areas and IG rank officials in rural areas.

November 30, 2012 – The cyber hacktivist group Anonymous hacks Union Ministers Kapil Sibal’s website in protest over the misuse of Section 66A.

November 30, 2012 – The Supreme Court seeks the opinion of the Attorney General regarding the status of Section 66A. Mr. Vahanvati reiterates the need for retaining the provision, while indicating that the government intention to enforce the relevant guidelines, for more tailored implementation. The court issues notices to the Centre, Maharashtra, Puducherry, Delhi, Tamil Nadu and West Bengal.

December 8, 2012 – A 20 year old man was arrested in Rourkela for uploading communally sensitive pictures on his Facebook account. Officials claim that the picture contained a Hindu god atop a Mosque, was allegedly uploaded on the anniversary of the Babri Masjid demolition.

December 14, 2012 – The cyber hacktivist group Anonymous defaces the BSNL website in protest over the misuse of Section 66A. They have uploaded images of cartoonist Aseem Trivedi, drawing attention to his imprisonment earlier this year.

December 14, 2012 – The Issue of the misuse of Section 66A by state governments was raised in Rajya Sabha, with members urging a reconsideration of the provision. Some members of Parliament also directly questioned the constitution validity of  Section 66A and demanded its suitable amendment. In response to these concerns the Union Minister for Telecom and IT has suggested advisory guidelines for the implementation of Section 66A to circumvent misuse by state governments.

December 15, 2012 – Cartoonist Aseem Trivedi ends his 8 day fast against Section 66A in Delhi.

December 18, 2012 – The Maharashtra Police drop all charges against the women who were arrested in Palghar after their Facebook comments. A closure report has also been filed before the magistrate.

News Post: Wednesday, December 19, 2012