CRITICAL ANALYSIS OF THE REGULATORY FRAMEWORK OF

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335 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9

CRITICAL ANALYSIS OF THE REGULATORY FRAMEWORK OF

“DIGITAL JOURNALISM” IN INDIA

Authored by: Poorvika Chandanam*

* 3rd Year BBA LLB Student, School of Law, Christ (Deemed to be University), Bengaluru

ABSTRACT

Media, which is acclaimed to be the fourth pillar of the democracy, acts as a watch dog for the rest

of the pillars in a democratic nation. But the major question that arises is who watches the ‘watch

dog’? It is to be noted that the media is majorly self-regulated in India and in various other

democracies like the United States, the United Kingdom, and Switzerland etc.,. The major reason

for self-regulation of media is the underlying concept of freedom of press, which is rooted under

the freedom of speech and expression. With an intention to keep the citizens informed about the

affairs of the state, the news media is free from the control of the state and is self-regulated. This

self-regulation has posed various problems including fake news, paid news, fake sting operations,

trial by media, breach of privacy, etc. In addition, the recent technological developments and the

increase in the internet users have led to proliferation of online news media. The regulation of

online news media is a myth due to lack of institutions which could self-regulate the news

disseminated. The concept of “digital journalism” has impacted the dissemination of news in the

recent times. “Digital journalism or “online journalism”, as opposed to the traditional methods of

publishing via print or broadcast puts across news and information online. Lack of barriers to entry,

fewer restrictions, lack of clarity as to who constitutes to be the online journalists and absence of

a self-regulatory body creates an urgent need for policy reforms. Thus, the paper seeks to scrutinize

the regulation of online news media in India and to also make a critical analysis on self-regulation

by drawing comparisons with other nations.

Keywords: Media, Self-regulation, Digital Journalism

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INTRODUCTION

“Freedom of the press is the staff of life, for any vital democracy. “

- Wendell Willkie

Free press ensures voicing of public opinions and enunciation of minority views about the state.

News Media in India is an asset which upholds the democratic principle of free speech. Any

democracy primarily needs a powerful media which stands impregnable against the influence of

the state and ensures propagation of veracious materials of current affairs. The freedom of the

press serves the colossal purpose citizens’ right to be informed of a broad spectrum of facts, views

and opinions. It is through this medium, people gain access to new information and ideas, thus

forming an essential component of a functioning democracy. Thus, “The survival and flowering

of Indian democracy owes a great deal to the freedom and vigour of our press.”1 The media plays

a vital role in uncovering the truth and invigorating public opinion, especially in the face of

wrongdoing and corruption. There have been numerous instances where the media has played a

central role in revealing corrupt practices and shaping the demand for accountability and good

governance.2

There are various forms of disseminating news and current affairs to the general public. This

majorly includes newspapers, television, radio, magazines, and online platforms. With the

development of internet and an increase in the smartphone users, the online means of gathering

news and current affairs by the public has seen a steep rise. The question as to what constitutes the

online news media may lacks clarity, but generally, online newspapers, web blogs, web logs, web

portals, websites etc. may form a part of this fraternity. Again, whether blogs and portals with

individuals penning their opinions could be considered to be a part of the online news media is a

matter of debate.

No right is absolute. Freedom of speech and expression also comes with certain reasonable

restrictions. News media which enjoys this freedom also require certain restrictions in order to

protect the integrity of the state. The authenticity of news and current affairs disseminated by the

press needs to be over looked with increasing issues of fake news. Thus, regulation of news media

1 Amartya Sen, ‘The glory and the blemishes of the Indian news media’, The Hindu, 25 April 2012 2 Law Commission consultation paper on media law, Government of India, May 2014

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is essential in order to ensure that the press functions ethically. In India News media is self-

regulated with multiple regulatory bodies and with respect to the online news media there has been

no body or association to regulate the news and current affairs.

Thus the paper seeks to study the news media regulation in India with special reference to online

news media. The first part of the paper scrutinizes the regulatory bodies governing the news sector

in India, their functions and their limitations. These include the News Broadcasters Association,

the Press Council of India, and analysis of the Information Technology Act, 2000 with respect to

online news media. This is necessary in order to ascertain whether self-regulation would be

practical and effective in regulating the online news media. The second part of the paper dwells

into various other countries’ online news media regulatory frameworks and analyses the Indian

scenario with reference to online news media. Thus, the paper seeks to critically analyse and

ascertain the appropriate regulatory framework for the online news media in India.

NEWS SECTOR REGULATION IN INDIA- AN OVERVIEW

Indian News Media is not regulated by a single body or association. There have been various

instances and proposals to have a single regulatory board for news sector which is altogether

another area of debate with regard to regulatory boards. In India regulation of media is divided

into news and non-news sectors. A Brief overview of the existing legal framework governing the

news sector is essential in order to understand the lacuna in the regulatory regime and then in

ascertaining the regulatory framework for the online news media in India.

NEWS BROADCASTERS ASSOCIATION

The News Broadcasters Association (NBA) is the self-regulatory body for news and current affairs

channels which is funded by its own member broadcasters. Currently it has 29 leading news and

current affairs broadcasters as its members.3 The News Broadcasters Association has constituted

the News Broadcasting Standards Authority (NBSA) which adjudicates matters relating to

violation of ethics and practices in news broadcasting. This authority has laid down standards in

3About News Broadcasters Association www.nbanewdelhi.com accessed 19 October 2018

http://www.nbanewdelhi.com/

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order to ensure ethical practices of the journalists. The powers of the authority include warning,

admonishing, censuring, expressing disapproval against and/or imposing a fine upon the

broadcaster and/or recommending to the concerned authority for suspension/revocation of license

of such broadcaster after receiving a receipt of complaint against the member and has a reason to

believe that the member has offended the regulations and may impose a fine which shall not exceed

Rupees One Lakh. But the standards laid down by the authority are applicable to its member

broadcasters only and thus, the jurisdiction of the NBSA is also restricted to its members.4

The major limitation that this association faces is that its authority does not extend to a majority

of the 389 private news television channels (permitted satellite channels as on 31.12.2017) in India.

It can only adjudicate complaints against the top 29 broadcasters and their 71 channels that are

members of its parent body, the News Broadcasters Association.

Across the board, whether they are members of the National Broadcasting Association or not, news

television channels have flouted all norms, violated ethics and privacy rights, been blatantly

partisan as they have indulged in fake news and doctored news to suit their agendas, besides

reducing tragedy to the bathos of spectacle and triviality as they race to the bottom to secure TRPs

and assert their stamp over reality. Thus, the private body like News Broadcasting Association

needs a strong adjudication mechanism and broader implications on broadcasters need to be made

in order to regulate all broadcasters on an equal footing. Constitution of a similar association for

the online news media would be again at the cost of restricting the regulatory framework to the

members of the association and may fall foul due the lack of clarity in ascertaining the online

journalists.

THE PRESS COUNCIL OF INDIA

The Press Council Act, 1978 governs the print media in India that has established the Press Council

of India (PCI). The Press Council of India was constituted in 1979 as an autonomous body. The

Council is a statutory body and functions as a quasi-judicial mechanism. It comprises of a

Chairman who is selected by the committee of the chairman of the Rajya Sabha, the Speaker of

4 News Broadcasting Standards Regulations www.nbanewdelhi.com Para 7.1 accessed 15 September 18

http://www.nbanewdelhi.com/

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the Lok Sabha and a person elected by the members of the Council. There 28 other members

excluding the Chairman in the Council. These 28 members include journalists, persons who own

or carry on the business of management of newspapers, persons who manage news agencies,

persons having special knowledge or practical experience in respect of education and science, law

and literature and culture and also five Members of the Parliament.5

The functions of the Press Council of India include adjudication of complaints against the press.

It is statutorily empowered to take suomotu cognizance against those actions which are against

journalistic ethics. It has the power to summon witnesses, take evidence under oath, issue warnings

and admonish the newspaper, news agency, editor or journalist. However the major limitation of

the Press Council of India is that it does not have the power to penalize any entity for violation of

its guidelines. And thus as stated by Justice Markandey Katju, “The Press Council in its current

form has no punitive powers and is hence akin to a toothless tiger.” Regulation of online news

media under the framework of the Press Council of India is thus a fallacy due to the sole reason of

lack of adequate powers to penalize the members of media who violate journalistic ethics.

THE INFORMATION TECHNOLOGY ACT, 2000

The Information Technology Act, 2000 was enacted in order to regulate the cyber space in India.

This act was seen as a necessity with the technological advancements and the increased use of

internet. Though the IT Act, 2000 does not directly regulate the news sector, through its provisions,

it can regulate the information published online. Section 66A and Section 69A clearly illustrates

this. While Section 66A was held to be unconstitutional by the Supreme Court in the case of Shreya

Singhal v. Union of India6 for being “open ended, undefined, and vague” and the words used in

the text of the provision were “nebulous in meaning”, the apex court held Section 69A of the

Information and Technology Act, 2000 to be constitutional. Section 69A empowers the state to

block the online content in the interest of the state and the public interest. Thus, acts as a regulation

over the content disseminated online. But it is argued that the online news faces more regulation

and often the online content is taken down entirely by the Central government with these powers

5 Press Council of India, Central Statutory Authority www.presscouncil.nic.in accessed 15 September 2018 6 Shreya Singhal v Union of India [2015] AIR SC 1523

http://www.presscouncil.nic.in/

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vested under 69A of the Information and Technology Act, 2000.7 But the major counter argument

that has been brought up by these online journalists is that Section 69A of the Information

Technology Act, 2000 lays down more surveillance on the online content compared to the legacy

media of print and television. Also, the consolidation of media ownership in the hands of has

limited the power and media access of smaller publications and channels that have an alternate

point of view. And it is through these online spaces there has been dissenting opinions that are

serving the greater interests of the public. Additionally, the state interference is comparatively high

in case of online portals with at least 32 cases of action taken on account of internet-related

offences in 2017 according to a documentation prepared by the hoot organisation. 8

News Media regulation in India is therefore not unified, and has a multiplicity of regulatory bodies.

Additionally, there are issues surrounding the enforceability of decisions of such bodies. News

media accountability is therefore not effectively served by self-regulatory institutions which are

diverse and lack powers of enforcement. But an alternative to self-regulation is also an illusion

and could be challenge for Article 19(2) of the Indian Constitution which upheld the freedom of

speech and expression. Thus, it becomes vital to study the regulatory framework of other nations

and the current developments around the online news media.

GLOBAL SCENARIO OF ONLINE NEWS MEDIA REGULATION

The Global Scenario around the online news media regulation. In the US, the Federal Trade

Commission and the Federal Communications Commission are vital regulatory agencies that

govern media agencies. Recently, there has been a clash over the approach of the Federal Trade

Commission in regulating the online news content. The News Media Alliance, which is an

association of over 2000 journalists’, who represent the news media content creators across the US

and Canada, claims that the big technological firms monopolize the market and prey on consumers

and thus a stifling regulation is essential.

7 ‘New Report Finds Online Media in India Is Already Highly Regulated’ (The Wire, 3 May 2018) www.thewire.in

accessed 15 September 2018 8 The India Freedom Report, Media Freedom and Freedom of Expression in 2017 ( TheHoot.org )

http://www.thewire.in/

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The News Media Alliance asserts, “As news moves online, it has become clear that the digital

deck is stacked against quality journalism.” It contended that the digital publishers should clarify

their content sources and monetization of that content. Whereas, think tanks like the American

Enterprise Institute, the American Consumer Institute, the Free State Foundation, and the Mercatus

Institute asked the Federal Trade Commission to avoid “top-down” regulatory solutions and adopt

a “soft” and “permission-less” approach, organizations like Public Knowledge, call for “stronger

antitrust enforcement, aggressive use of regulatory power and new laws to fill in important policy

gaps.” Thus, the United States also faces challenges with regard to online news media but

institutions like the News Media Alliance which possess higher standards of regulation.9

Recently, in August, 2018, the European Union and the Council of Europe commissioned a study

that was undertaken by an international expert, Mr Jean –Francois Furnémont, an independent

consultant.10 The study aimed at providing support to the Macedonian media regulatory authority

as well as the interested relevant and general public, as regards potential regulation of online media

in the country. The study concluded that freedom of media is the major public policy objective and

self-regulation has to be promoted through incentives by avoiding content regulation. The author

highlights that minimum need to keep the administrative obligations upon the media. It also states

that adjudication mechanism could be done through common law with the already existing laws.

It also emphasised that the self-regulatory bodies need to be empowered and state should positively

involve itself in improving the conditions for functioning of and participation to the self-regulatory

systems.11

In Switzerland, the shift from the legacy media to the digital media in news has seen government’s

promotion of the digital news which tabled draft legislation on supporting online media. With 80%

of Swiss now getting their news on the Internet, the problem of misinformation is adequate.

According to Mounir Krichane, the director of the Media Centre external at the Federal Institute

of Technology Lausanne (EPFL), “There is no going back to [a time with] no technology, there

must be solutions for these actors to work together.” In Switzerland, there is an initiative taken by

9 Kate Patrick, ‘News Media, Tech Firms Clash Over How the FTC Should Approach Regulation’

www.insidesources.com accessed 15 September 2018 10 www.coe.int, ‘A new study is out: Media regulatory framework and the online media – the Macedonian case’

accessed 15 September 2018 11 Jean-François Furnémont (Media regulatory framework and the online media – the Macedonian case, a study for

the agency for audio and audio visual services) August 2018 accessed 15 September 2018

http://www.insidesources.com/

http://www.coe.int/

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the SWI swissinfo.ch which is a ten-language news and information platform produced by

the Swiss Broadcasting Corporation called the “fact checks” in order to verify the Swiss Current

Affairs and come to a conclusion about their accuracy.

In India, there was a huge cry by the journalists when previously the Information and Broadcasting

Ministry had framed a committee of ten members. The Ministry had proposed for constituting the

committee consisting of six bureaucrats from various government ministries and one

representative each from the Press Council of India, the News Broadcasters’ Association (NBA)

and the Indian Broadcasters’ Federation (IBF). But later the committee was scrapped within a few

months due to reasons, constitutional as well as political, in order to protect the freedom of speech

and expression of the journalists. Rather than escaping the need for policy reforms, there is a need

to address them and bring out a judicious solution in order to ensure that the news disseminated

through the electronic means remain supervised.

REGULATORY FRAMEWORK FOR THE INDIAN DIGITAL JOURNALISM

Media play an essential task in augmenting awareness in people about human affairs in a society.

Article 19 of the Indian Constitution specifies the freedom of speech and expression, along with

six other freedoms. Article 19 does not explicitly provide for freedom of press but by referring to

the intentions of the law makers through the Constitutional Assembly Debates, it can be inferred

that Dr. B.R Ambedkar opined that journalists could imply their freedom of speech and expression

in their individual context as an editor or as a reporter.12

In the recent times, the online journalism has become the platform for dissenting voices against

the state as opposed to a few powerful media corporations and it is through these platforms that

the smaller publishers are voicing their opinions. But that should not prevent from devising a body

that regulate the online journalists.

Generally, regulation of media could be broadly categorized under four major categories. The first

category refers to the one where there is complete regulation and no freedom is given to media.

The government can check its contents and can ask for amendments in media reported. This sort

12 Constituent Assembly Debates: Official Report, (Delhi, 1946-1950), VII, p. 18.

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of regulation is seen in Turkey or United Arab Emirates or China. The second category refers to

co-regulation wherein a non-state regulatory system links up with state regulation similar to the

one developed in Australia much early. The third category is the statutory regulation, wherein there

are specified regulations being administered and enforced by the state through the statutes. In

India, the Press Council Act which constitutes the Press Council of India claims to be following

statutory regulation. The fourth category of regulation that is self-regulation involves regulations

being administered and enforced by the bodies themselves through internal policies.13

Regulation involves three basic components- the legislation, the enforcement and the adjudication.

Thus, self-regulation refers to the mechanism adopted by the body corporate or associations

formed for the objective of framing rules, enforcing and adjudicating the news agencies. However,

self-regulation may still prevail even though there is interference of the government in any one of

the three components discussed above. For instance, the association may be involved at the

legislation stage by developing a code of ethics, while leaving enforcement to the government or

the government may establish standards of regulations, but delegate enforcement to the regulatory

body.

Self-regulatory bodies which provide guidelines to the news agencies are essential institutions

which enable transparency and visibility of ethical media operations. Various democracies have

propagated this regulatory framework in order to avoid the state intervention in dissemination of

news. Digital Journalism, if self-regulated, has various advantages. Firstly, it preserves editorial

freedom. Freedom of press which is placed at a higher pedestal in India would be protected.

Secondly, self-regulation may encourage compliance by the journalists by building peer pressure

amongst the agencies. Thirdly, it increases flexibility and is cost effective.

But self-regulation could also be a menace for digital journalism as already sought in the instance

of the Press Council of India. Firstly, the idea that the agencies will comply more willingly with

the association’s regulations than those imposed from the outside seems somewhat weak where

the news agency is actively involved in developing regulations at the association. The association

which comprises of the agency members may often face violations. Secondly, the lack of

supervision may lead to self-aid than self-regulation. The association may frame rules for the

13 Meera Mathew, ‘Media self- regulation in India: a critical analysis’ ILI Law Review 2016

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protection of the media agencies that would be against the interest of the public at large that affects

the state. Thirdly, the private nature of these bodies may provide incentives for profit making rather

than public interest.

Thus, Self-regulation is a debatable matter and places requirements upon every level of the media

institutions, on the journalists themselves, on their editors and managers, on the approach of the

media agencies to the production of content and the overall behavior of the media agencies. The

fast evolving characteristic of online media, and the complex jurisdictional questions thrown up

by a globalized domain, place self-regulation at the heart of the evolving media landscape. Primary

to self-regulation is the theory of intended conformity. The self-regulatory bodies cannot function

unless it is free from bureaucracy, industrial and particular interests; unless a random check is done

within the institution; unless it has the authority to oblige moral permit, for instance the publication

of a rectification or an asking for forgiveness. Self-regulation can be properly implemented in

many forms, including information movement, examination charters, in-house complaints

management division and procedures, accreditation, licensing and association certification, quality

guarantee arrangement, standards, regulations and dispute resolution format.

CONCLUSION

Freedom of Press is vital for a nation like India in order to ensure a check on the powerful

institutions that govern the citizen. But at the same time it is also necessary that the news and

current affairs that people access are reliable. Digital Journalism should be self-regulated but with

certain amended forms as compared to the News Broadcasters Association and the Press Council

of India. Also, it is extremely important to define digital journalists and digital news agencies in

order to regulate them. It is highly necessary to make clear distinctions with respect to “old” and

“new” media or between “offline” and “online” media, or between “print” and “electronic” media.

In recent times, most print media have an online activity, and sometimes media which appears

online end up developing print activities.

As discussed in the paper any regulation involves three major components of legislation, enforcing

and adjudication. The News Broadcasters Association is self-regulated with respect to all the three

components, whereas the Press Council of India is formed by a statute, thus the legislation of the

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body is formulated by the government whereas, the enforcing and adjudication are a part of the

autonomous powers of the Council. Thus, with the proliferation of Digital Journalism it is high

time for formulating a regulatory body. There are three methods by which this issue could be

addressed. Firstly, by ensuring that the Press Council of India is given appropriate powers to

adjudicate and punish the violators of the ethics of digital journalism. Secondly, by allowing for

any self-regulatory body like the News Broadcasters Association to legislate, enforce and

adjudicate by its own member agencies. Thirdly, constitution of a unique regulatory body for

online journalists by amending the Information Technology Act, 2000 and providing complete

autonomy in matters relating to enforcement of rules and adjudication of complaints with regard

to online journalists only.

The regulation of the online news media under the Press Council of India could be made by

bringing amendments to the existing Press Council Act, 1978. There needs to be a proper

enforcement and adjudication mechanism laid down with powers to place penal sanctions on the

offenders. The Council should draw a new set of guidelines for the online journalists. Press Council

of India already faces challenges in regulating the press due to lack of powers to penalize the

offenders. This issue needs to be tackled before digital news media is regulated under the council.

Thus, it is not feasible for regulating the online news media under the Press Council of India

A self-regulatory body needs to be framed in order to ensure complete self-regulatory mechanism.

This body needs to have incentives for its members to follow the guidelines framed by the

association. The body should have rules framed by experts in the fields of media laws, who are

politically less inclined. The enforcement should ensure fines of greater degree and harsher

consequences of violating the code of conduct. The adjudication mechanism of the body should

make it easier for the complainants to seek justice by embodying effective tribunals and ensuring

efficient methods of adjudication of cases. But the challenge of non-transparency and less

supervision may still prevail.

The Information and Technology Act, 2000 was passed with the major objective to provide legal

recognition for transactions carried out by means of electronic data interchange and other means

of electronic communication, commonly referred to as "electronic commerce". The Online news

media could be inculcated under this Act, as “electronic commerce” would include news agencies

on the digital platform. But, the challenge of violating Article 19 (2) of freedom of speech and

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expression is high with arbitrary provisions. The Act must therefore, only constitute a body which

further must be vested with complete autonomy with regard to framing of regulations,

enforcements of rules and adjudication of cases of online journalists.

Thus, the regulation of the online news media which remains to be myth needs to be addressed

and reforms need to be made in order to ensure that the news disseminated on the digital platform

is reliable and authentic.

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BIBLIOGRAPHY

1. Law Commission Consultation paper on media law, Government of India, May 2014

2. Angelia Julie Campbell, ‘Self-Regulation and the Media’ (1999)

3. Andrew Puddephatt, ‘The Importance of Self-Regulation of the Media in upholding

freedom of expression’ (SERIES CI Debates N.9 – February 2011) ISSN 2176-3224

4. Meera Mathew, ‘Media self- regulation in India: a critical analysis’ (2016) Winter Issue,

ILI Law Review

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CRITICAL ANALYSIS OF THE REGULATORY FRAMEWORK OF