India/ 4.2 Recent policy issues and debates  

4.2.6 Media pluralism and content diversity

Ernst & Young report (Spotlight on India’s Entertainment Economy: Seizing New Growth Opportunities, 2011) counters fears of the industry’s inability to address digital challenges, by pointing to the extent to which film companies use digital media to generate new ancillary revenues, including direct-to-consumer engagement. Film-related songs, games, and mobile themes account for 50% of Indian mobile value-added service (VAS) revenues. Studios are also making films available directly to users on pay-per-view, with direct-to-home (DTH), digital cable and IPTV distributors. The use of social media, for example through exclusive online chats between lead actors and audiences prior to a release, to gather feedback at different stages of a movie, and to disseminate web-based home entertainment, is growing. The Indian home entertainment market represents just 8% of film industry revenues due to relative high pricing and piracy, but represents, they say, the major growth opportunity of the future.

Media concentration and cross-media ownership

In February 2009, the Telecom Regulatory Authority of India (TRAI) came out with a set of recommendations on cross-media and ownership restrictions with specific reference to broadcast media[1]. This was in response to a request by the Ministry of Information and Broadcasting (MIB), and it cut across the broadcasting sector to include print media and other miscellaneous ownership within the fold of telecom, information and broadcasting. ‘Looking at the increasing trend of print media entering into broadcasting sector’, TRAI was asked ‘to examine the issue in its entirety, the Authority in the present context should also include print media’.

Earlier to this, as well known media commentator Paranjoy Guha-Thakurta (‘India Needs Cross-Media Restrictions’)[2] shows, the Administrative Staff College of India (ASCI) had already prepared a report that the MIB had effectively ignored. This report had pointed out that there is ‘ample evidence of market dominance’ in specific media markets, and had argued in favour of an ‘appropriate’ regulatory framework to enforce cross-media ownership restrictions, especially in regional media markets where there is ‘significant concentration’ and market dominance in comparison to national markets (for the Hindi and English media). In India at present, restrictions on cross-media holdings are imposed only on DTH and private FM (frequency modulation) radio companies, while broadcasters, cable operators, and publishing houses have no such restrictions even though there are enough examples of print companies operating in television broadcasting, internet and radio and vice versa.

Companies in this sector included over 60,000 cable operators, DTH providers, multi-system operators (MSOs) and operators proving HITS (head-end-in-the-sky) services. Almost none of these operators are licensed, and many of the provisions of the TRAI Act pertain to licensees. ‘This limits TRAI’s jurisdiction on broadcasting companies’, the ASCI report observed. The report studied major media conglomerates in the country including the following groups: Sun, Essel/Zee, STAR India, Times of India/Bennett Coleman, Eenadu, India Today/TV Today, Ananda Bazar Patrika, Jagran Prakashan, Malayala Manorama, Mid-Day Multimedia, Rajasthan Patrika, Dainik Bhaskar, Hindustan Times/HT Media, Network18, Reliance Anil Dhirubhai Ambani group, New Delhi Television, Malar, B.A.G. Films, Positiv Television, Outlook and Sahara. Cross-media ownership was detected in most of the above groups.

In its recommendations, the TRAI had asked that broadcasters should not have ‘control’ over distribution of television channels and vice versa. The regulator had also called for putting safeguards for horizontal and vertical integration for broadcasters and distribution companies and suggested separate Mergers & Acquisitions guidelines for the sector to prevent media concentration and creation of significant market power.

Most leading media houses opposed the TRAI’s role in probing print companies that have ventured into television. The established media conglomerates refused to accept the need for restrictions over ownership and control, arguing that this would result in devious and dubious forms of censorship, resurrecting the ghosts of the 1975-77 Emergency if cross-media restrictions were imposed. Although the TRAI report had asserted that ‘necessary safeguards (needed to be) be put in place to ensure plurality and diversity are maintained across the three media segments of print, television and radio’, there was strong resistance on the part of media groups to the idea of restrictions on their sector. Many different arguments were proposed, e.g. that regulation would stifle growth, that the multiplicity of media and the highly fragmented nature of the Indian market prevents monopolisation, and that regulation of the sector amounts to an impingement on the Constitutional right to freedom of expression [specified in Article 19(1)(a)]. Further, some groups, ‘particularly those associated with print’, argued that it was not under the jurisdiction of the TRAI to make recommendations on any matter which did not relate directly to telecommunications. The Information and Broadcasting Ministry clarified that the issue of cross-media ownership restrictions ‘should be examined in its entirety’ and that it was within the jurisdiction of the TRAI to make recommendations regarding cross-media ownership.

After hearing the arguments of media groups, TRAI came to the conclusion that certain restrictions were required on vertical integration, that is to say on media companies owning stakes in both broadcast and distribution companies within the same media. The reasoning behind this restriction was that vertical integration can result in anti-competitive behaviour, whereby a distributor can favour its own broadcasters’ content over the content of a competitive broadcaster. TRAI stated that vertical integration in the media market was causing serious problems, citing numerous disputes brought before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) between broadcasters and cable operators alleging denial of content by other service providers.

Further, the TRAI report drew attention to the fact that all restrictions on vertical integration are currently placed on companies. However, large media conglomerates in India are usually groups that own many different companies. This allows them to have controlling stakes both in broadcasting and distribution by acquiring licenses under their different subsidiary companies, thus totally bypassing current restrictions and defeating the purpose of their existence in the first place. The report therefore suggests that the restrictions no longer be placed on “companies” but on “entities”, which would include large groups and conglomerates.

Recent debates among media professionals: social networking and censorship

The most controversial issue in debate in 2011-12 refers to the government ordering pre-screening of user content by networking sites like Yahoo, Facebook and Google. Telecommunications minister Kapil Sibal stated that this was in order to maintain ‘the sensibilities of our people’ and that ‘cultural ethos was important to us’. A brief overview of the history of the conflict:

In June 2000, the Indian Parliament created the Information Technology (IT) Act to provide a legal framework to regulate internet use and commerce, including digital signatures, security and hacking. The act criminalized the publishing of obscene information electronically and granted police powers to search any premises without a warrant and arrest individuals in violation of the Act. A 2008 amendment to the IT Act reinforced the government’s power to block Internet sites and content and criminalised sending messages deemed inflammatory or offensive. In addition, Internet filtering was also mandated through licensing requirements. Internet Service Providers (ISPs) seeking licenses to provide Internet services from the Department of Telecommunications (DOT) were required to ‘block Internet sites and/or individual subscribers, as identified and directed by the Telecom Authority from time to time’ in the interests of ‘national security’, and license agreements also required ISPs to prevent the transmission of obscene or otherwise objectionable material. In 2001, the Mumbai High Court appointed a committee to oversee issues relating to online pornography and cyber crime, which published a report analysing key issues, and made recommendations on licensing cyber cafes, such as identity cards for cyber cafe visitors, on minors using computers in public spaces, and the need to maintain Internet Protocol logs by cyber cafes.

In 2003, the Government established the Indian Computer Emergency Response Team (CERT-IN) whose stated mission was ‘to enhance the security of India’s Communications and Information Infrastructure through proactive action and effective collaboration’. CERT-IN accepts and reviews requests to block access to specific websites, and all licensed Indian ISPs must comply with its decisions for which there is no review or appeals process. Many have argued that giving CERT-IN this power through executive order violates constitutional jurisprudence holding that specific legislation must be passed before the government can encroach on individual rights.

Following the November 2008 terrorist attacks in Mumbai, which killed 171 people, the Indian Parliament passed amendments to the Information Technology Act that expanded the government’s censorship and monitoring capabilities. In March 2012, Reporters Without Borders added India to its list of ‘countries under surveillance’, stating that since 2008 the Indian authorities have stepped up Internet surveillance and pressure on technical service providers, while publicly rejecting accusations of censorship. The national security policy of the world’s biggest democracy is undermining freedom of expression and the protection of Internet users’ personal data. Freedom House’s Freedom on the Net 2011 report, reports the following:

  • India’s overall Internet Freedom Status is ‘Partly Free’, unchanged from 2009.
  • India has a score of 36 on a scale from 0 (most free) to 100 (least free), which places India 14 out of the 37 countries worldwide that were included in the 2011 report.
  • India ranks second best out of the nine countries in Asia included in the 2011 report.
  • Prior to 2008, censorship of Internet content by the Indian government was relatively rare and sporadic.
  • While there is no sustained government policy or strategy to block access to Internet content on a large scale, measures for removing certain content from the web, sometimes for fear they could incite violence, have become more common.
  • Pressure on private companies to remove information that is perceived to endanger public order or national security has increased since late 2009, with the implementation of the amended ITA. Companies are required to have designated employees to receive government blocking requests, and assigns up to seven years’ imprisonment private service providers—including ISPs, search engines, and cybercafes—that do not comply with the government’s blocking requests.
  • Internet users have sporadically faced prosecution for online postings, and private companies hosting the content are obliged by law to hand over user information to the authorities.
  • Both bloggers and moderators can face libel suits and even criminal prosecution for comments posted by other users on their websites.

In April 2011, the new ‘IT Rules 2011’ were adopted as a supplement to the Information Technology Act, 2000. These rules required Internet companies to remove within 36 hours of being notified by the authorities any content that is deemed objectionable, particularly if its nature is ‘defamatory,’ ‘hateful,’ ‘harmful to minors’ or ‘infringes copyright’. Cybercafé owners were required to photograph their customers, follow instructions on how their cafés should be set up so that all computer screens are in plain sight, keep copies of client IDs and their browsing histories for one year, and forward this data to the government each month. On 7 December 2011, the Times of India reported that Google was asked to remove around 358 items by the Government of India out of which 255 items were said to criticise the government as per a Google transparency report. Other reasons include defamation (39 requests), privacy and security (20 requests), impersonation (14 requests), hate speech (8 requests), pornography (3 requests) and national security (1 request). Google admitted that 51 % of the total requests were partially or fully complied with.

In 2011, an annulment motion against the Information Technology (Inter­mediaries Guidelines) Rules, moved by P. Rajeev, a Member of Parliament from the Communist Party of ­India (Marxist) in the Rajya Sabha[3], was the first serious attempt by Internet freedom activists to get the Information Technology (IT) Act, 2000, discussed and reviewed by the country’s lawmakers. Not unexpectedly, the motion [specifically against the rules governing intermediaries – clause (zg) of subsection (2) of Section 87 read with subsection (2) of Section 79 of the IT Act, 2000] was not carried. However, the discussion that preceded it at least demonstrated the concerns of parliamentarians about what Internet freedom activists have termed the ‘draconian’ provisions of the IT Act.

On 15 June 2012, the High Court of Madras passed an order saying that entire websites cannot be blocked on the basis of ‘John Doe’ orders. It said that the ‘order of interim injunction dated 25/04/2012… is granted only in respect of a particular URL where the infringing movie is kept and not in respect of the entire website. Further, the applicant is directed to inform about the particulars of URL where the interim movie is kept within 48 hours’. The High Court provided this clarification after being approached by a consortium of Internet Service Providers.

Social media and Assam violence

Between 18-21 August 2012, the Government ordered more than 300 specific URLs to be blocked. The blocked articles, accounts, groups, and videos were said to contain inflammatory content with fictitious details relating to Assam violence and supposedly promoting the exodus to the North East. Many of the blocked URLs are Indian right wing activism against corruption. This raised questions about freedom of speech in the largest democracy of the world. It also raised questions about the censorship of people and posts debunking rumours. Over four days from August 18, the Government of India issued directives to Internet Service Providers to block Twitter accounts of two Delhi based journalists. The government also blocked several right-wing websites, in addition to articles from Wikipedia and news reports of violence in Assam.


Support for production and distribution of local content

All Indian media outlets produce local content. Given the overwhelming predominance of Indian media in the areas of film, news television, and local entertainment (soap operas, etc.), local content is very strong.

TV channels with cultural or artistic content

Two major locations that are worth mentioning for local cultural and artistic content are Doordarshan’s Public Service Broadcasting Trust (PSBT), which supports independent documentary cinema, and NDTV’s ‘Documentary 24x7’ programme. Book and art review programmes are also common on television, the best known being Sunil Sethi’s arts programme on CNN-IBN.

Training programmes for journalists to sensitise them to culture related issues and conflicts to ensure a diversity of views

There are now numerous institutions across the country offering courses in journalism and mass communication, this being a major growth area. Leaders, especially institutions capable of offering a component of media ethics, include the Indian Institute of Mass Communication, Delhi, the A.J. Kidwai Mass Communication Research Centre at the Jamia-Millia University, Delhi and the Asian College of Journalism, Chennai. For a very exhaustive list of the top schools of Journalism in India see http://cyberjournalist.org.in/courses.html.

Censorship/auto-censorship/public debates about measures that could be seen as restricting content diversity

India has had a long history of both a free press as well as attempts through the 20th century and into the 21st to muzzle press freedom. The most notorious instance of suspension of press freedoms took place during the Emergency. The present crisis is twofold: one, the attack on the Internet and social media (see response on attacks on social media above) and two, the reverse situation of a muzzling of free speech – an excessive and overproducing news media which are increasingly coming together with reality television to create news, through for example sting operations.

Following the growing perception for a need for self-regulation, the News Broadcasters Association (NBA)[4] was set up, which represents the private television news and current affairs broadcasters. The NBA is an organisation funded entirely by its members and has, at present, 20 leading news and current affairs broadcasters (comprising 45 news and current affairs channels) as its members.  

There have been calls to establish an independent regulatory authority as self-regulation has its limits. Many argue that self-regulation cannot be effective as large corporations are buying stakes in media houses in India and self-regulation also not having adequate mechanisms to deal with violations. For example, when the NBA imposed a fine on one of its members for violation of its norms, the news channel withdrew its membership[5]. There have also been dissenting voices that feel that a media regulator is a way to ‘exercise political control over editorial content’[6].

These issues have come into a sharper focus in the wake of the Leveson Inquiry recommending the establishment of a new independent body in the United Kingdom.The press in India is regulated by a quasi-judicial body called the Press Council of India (PCI) whose controversial Chairman, former Supreme Court Judge Markandey Katju welcomed Leveson Report, but stated that what he wanted was ‘regulation, not control, of the media, the difference between the two being that whereas in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest’, and also that such regulation ‘should be not by the government or any individual but by an independent statutory authority (which can be called the Media Council)’, whose members ‘should be mediapersons, not appointed by the government but elected by the media organisations’. He wanted the media council to have ‘punitive powers including power of suspending licences and imposing fine’.[7] The PCI in India is largely seen as an advisory body that is ineffective in regulating the media as it has no real power to take punitive action against complaints. In 2012, a draft of the Print and Electronic Media Standards and Regulation Bill that sought to create a regulatory authoritywas circulated but never placed before the Parliament. The proposed bill apart from having no media representation in the governing council gave the regulator some overarching powers such as provisions to suspend media coverage during an event that might pose a threat to national security and excluding itself from the preview of the Right to Information Act[8].

 

Chapter published: 22-04-2014


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