THE EVOLVING LANDSCAPE OF FREE SPEECH: RETHINKING MEDIA LAWS IN THE DIGITAL AGE
By Pallav
JRF(UGC) and PhD Scholar, The West Bengal National University of Juridical Sciences (WBNUJS), Kolkata. Email: pallavphd202220@nujs.edu.
ABSTRACT
The author of this paper explores the evolution of digital media and the transformation of media dimensions in India. The media regulations in India have undergone a significant transformation from the inception of the British era to the current era of digital media dominance. Regulations were implemented in colonial India with the intention of restricting the press's freedom. Subsequently, post-independence regulations were implemented with the objective of promoting media freedom and ensuring the continued dissemination of accurate information. The nature, scope, and ambit of media regulations have been evolving over time. Despite the fact that the freedom of the media is highly valued in independent India, efforts have been made to align the media with the political ideologies of the governing government in order to regulate it. It is evident that the fulcrum of media regulations was established in colonial India, and the world's largest democracy has never been able to escape the shackles of British-origin media regulations and frequently relies on them. The Indian media regulating system has undergone significant transformation and structural reorganization to address technology improvements. With the ascendance of digital media, a regulatory framework is being established for it. Although self-regulation is currently the predominant method for regulating digital media, its ineffectiveness in addressing issues such as vulgarity, obscenity, and information crises necessitates state intervention. This study elucidates the necessity of state intervention in the regulation of digital media. It also examines the implications for media freedom.
Keywords - Freedom of Speech and Expression, Social Media, Digital Media, Constitution, Freedom of Press, Human Rights etc.
I. INTRODUCTION
The modern man has many gifts thanks to the continual advancement of science and technology. Numerous inventions have been made feasible by never-ending study and ongoing experiments. Devices that were only a dream for millions of people have become ubiquitous, everyday equipment components. The world that was once so hard to even understand is now within man's grasp, thanks to advancements in science. Without any difficulties, everybody in the globe can be reached in a matter of minutes. This also affects the media industry and the way information is disseminated. Gone are the days when people used to excitedly wait for morning newspaper or evening news to be transmitted in order to find out what’s happening across the country and throughout the world. When electronic media took over, radio and television broadcasting again relied on costly equipment, satellites, and studios to transmit signals around a country, regionally or globally (Bhattacharya, 2022). The emergence of digital technology and social media in recent years has significantly changed how communication is made, whether it be public, such as sending news and other information, or personal, such as chats and conversations. Previous forms of media, such as publishing books and newspapers, required an expensive and large printing press, but their circulation was limited to a fraction of people, i.e. Instead of depending on newspapers, letters, telegrams, large television sets or radios, or cable, communication may now be done with just a mobile phone and an internet connection relationship, etc. Furthermore, digital media is considerably faster in disseminating information than in earlier modes. As a result, before digital media, news was transmitted through costly, time-consuming, and space-consuming print and electronic media (Al-Quran, 2022).
The media is of unmatched importance. The responsibilities are more paramount than merely running a business. Media plays a crucial role in a democratic society. The fulcrum of democratic governance is based on the freedom of media, which is crucial for the smooth operation of the democratic process. Freedom of media generally developed from the freedom of expression (Abraham, 2021). It is believed that the primary prerequisite for liberty is the freedom of speech and expression. In the hierarchy of liberties, it holds a favoured place, supporting and safeguarding every other liberty. Indeed, it has been stated that it is the mother of all other freedoms (Jain, 2008, p. 986). Media freedom is acknowledged not only in our nation but also globally through a number of conventions and international institutions. On December 10, 1948, the United Nations General Assembly unanimously acknowledged this right. Article 19 of the Universal Declaration of Human Rights contains the declaration's main points (United Nations, 1948, Article 19). Media "freedom of expression" has been linked to discussions supporting participatory democracy. This extraordinary independence that the media enjoys is of paramount importance to the principles of democracy i.e. by the people and for the people. The foundation of civilisation is "freedom of expression." The rudimentary concept of this independence is ingrained in human culture. The right to "freedom of speech and expression" is guaranteed in India by Article 19 (1) (a) of the Constitution. This freedom's scope extends beyond spoken words. It also covers the right to express oneself or to disseminate opinions and information in writing or through printed or other modes as well. Thus, it is clear that "freedom of the media" is a crucial component of "freedom of expression." It goes without saying that media freedom is necessary for democracy to function correctly (Limpitlaw, 2021). Liberal democracies in the modern era are thought to require a free media that is unrestricted and uncensored. A free media is extremely important in the social, cultural, political, and economic aspects of a nation's existence. People are educated and assisted in developing logical opinions regarding the successes or failures of the government via the dissemination of varied news and opinions about governmental policies and other public intuitions.
The concept of "freedom of the media," or liberty of the press as it is currently understood and practiced, is relatively new. The phrase simply refers to the freedom to publish without prior official approval, that is, without the consent of any court or judge are limited to writings that are actually printed, although they are permitted to take notice of works meant for the press. Article 19 (1) (a) of the Constitution makes no specific reference to press freedom. In numerous rulings, the Supreme Court has maintained that "freedom of the media is within the ambit of Article 19 (1) (a)."2. The Indian Constitution Ensuring the freedom of speech and expression include not just the freedom of the media but also the freedom to express disagreement and critique the government and its policies. As a result, the press is a crucial and significant medium for expressing one's ideas, opinions, dissent, and criticism.
The media's position as the fourth pillar of democracy makes clear the power it possesses in a free and democratic society. Despite being the youngest of the four pillars, it is the most potent and has been steadily gaining ground due to its rising control over information and its broadening and deeper influence and its constantly growing ability to impact and mould the public's and policymakers' perspectives. The introduction of electronic media, especially the internet and satellite, the rise in literacy and the worldwide spread of print media driven by computer technology, the fast-paced lifestyle and increased reliance of the average person, intelligentsia, and leaders of public opinion on the media's expertise, opinions, and viewpoints have, among other ways, increased the media's hold on society. The introduction of electronic media, especially the internet and satellite, the rise in literacy and the worldwide spread of print media driven by computer technology, the fast-paced lifestyle and increased reliance of the average person, intelligentsia, and Leaders of public opinion on the media's expertise, opinions, and viewpoints have, among other ways, increased the media's hold on society. In India, society has been influenced by the media in both positive and negative ways. In certain instances, the media has misused its freedom for ulterior motives. We find that debate surrounding different subjects appears to be a media trial for the people involved. Those with hidden agendas use hate speech to further their political and religious goals under the banner of "freedom of speech and expression." It comes at the expense of offending other cultures' feelings, emotions, and religious beliefs. Misinformation, disinformation, and fake news have become prevalent, causing an information crisis. Vulgarity and obscenity, on the other hand, have soiled the entertainment media. Though media malpractice was prevalent in traditional forms of media, i.e. print media and electronic media, it has gained significance since the inception of digital media. In this light, we find that governments have developed different approaches to regulating media, but it has been prevented throughout history in the garb of regulating media; governments have discretely attempted to control it.
II. Media Regulation: Ensuring Ethics, Accuracy, and Accountability
However, the rise in media misconduct appears to disintegrate or hinder the new work that the media is charged with. In India's early decades after independence, the media was mostly a force for good. This was probably caused by the fact that a large number of media outlets were controlled by people who had been present during the liberation war and who probably valued the newly gained independence and did not misuse it. The media is become the most powerful agency. Its amazing development in all fields has been fuelled by the media. Media power stems from its capacity to sway public opinion and exert control over the dissemination of information. Media has an impact on every aspect of life. Media has an impact on every aspect of life. The media industry in India is broad. It has several separate, autonomous, and diverse entities in addition to print, electronic, and digital media. These groups are managed at all levels, from local to national, by people with diverse educational, social, cultural, and ethnic origins, for a variety of purposes, and in a variety of languages.
Media accountability requires brilliant, objective information, and honest journalism. Accountability is necessary for conflict, discontent, and transgression. Regretfully, media standards have declined and media malpractice has escalated in spite of a convoluted web of laws, regulations, and guidelines (von Krogh, 2008). The news media's deceit affects a large number of people who are illiterate and unable to filter material. The media's reach and impact have expanded since it became the fourth estate. Media misbehaviour has resulted from this, transforming the honourable profession into a propaganda-spreading enterprise.
In recent years, media accountability in India has drastically decreased. The rate of media malfeasance is increasing at a never-before-seen pace. Misinformation, deception, and false news have gotten more common, and every bit of information has grown more dubious. On polarised news networks, only news that is politically biassed is aired and published. Freedom of the press for private gain is common. Sensational, vulgar, immoral, and communal journalism has increased in popularity in an effort to boost audience and income. Journalism has lost ground to commerce as a result of the growing commercialisation of Indian media. Media owners and creative managers attempt to push advertisements into the news while democratic institutions fall apart. Ads being presented as news is a recent development. Since the media provide the government with news and information from all facets of society, their independence and plurality are seen as crucial to democracy. Democracy is harmed by political parties' strong links to the media and the decline in media pluralism. Despite their tendency to appear aloof, Indian journalists have tight relationships with powerful leaders. India's political history shows that even when governments change, the media and political forces stay in sync. Democracy is harmed by the Indian media's persistent subservience, which is unrelated to power (Maheshwari & Sparks, 2018).
News organisations hold media trials, and the media does not know someone is innocent unless proven guilty. There are several trials in the media. The focus of the media's coverage of Aryan Khan's drug case and Sushant Singh's suicide was blame. According to S. Khushboo v. Kanniammal (2010), the Indian Supreme Court has issued several warnings against media trials and the eradication of ethical journalism. Police investigations are hampered and the accused are influenced by a media trial. When voting is dispersed, exit polls—particularly pre-poll surveys—may have an impact on election outcomes. Paid news has become more prevalent in India, particularly during election seasons, which is counterproductive to free and fair elections. OTT platforms have contributed to the growth of digital entertainment media. It has a lot of promise and could soon face competition from television broadcasters. Movie vulgarity and nudity have been fostered by the absence of regulations on OTT entertainment platforms. The offensive language used in the movie is also concerning. Fake news is a problem on social media that seriously misleads the audience. The epidemic demonstrated how false information can ruin lives. Privacy violations, intrusive marketing, and other issues are issues with social networking. The short clips on social media that both adults and children may view have led to an increase in obscene and filthy content. After independence, the media had more freedom, but its value and place in society changed significantly. Because of the misconduct that characterises the media today, a careful analysis is required.
III. From Governance to Overreach: Are Media Regulations Too Strict?
In India, a mixed method of media regulation is prevented, i.e. self-regulation, regulatory bodies and state control via legislation. Standards that are more akin to recommendations are issued by the current media regulating agencies, such as the News Broadcasting Standards Authority, a self-regulatory organisation, and the Press Council of India, a statutory authority. Even norms and standards compliance are mandated under legislation. The Press Council of India majorly regulates print media. Furthermore, according to the Press and Registration of Periodicals Act, 2023, “Press Registrar General of India” (PRGI), formerly known as the Registrar of Newspapers for India or RNI, is a legislative authority for registration formalities.
Even though the idea of an independent regulatory body for the press seems to be ideal, its reality has been different. Members and chairman appointments have always been criticised for being coloured by political influence. Further, the limited powers of the council become futile against the misconduct of the press. The PCI's authority is limited in two ways. (1) The PCI's authority to enforce the stated rules is restricted. Newspapers, news organisations, editors, and journalists who violate the rules cannot be punished. (2) The PCI just provides an outline of how the news media operate (Kumari, 2015). In other words, it has the authority to impose standards on print media such as magazines, journals, newspapers, and others. It lacks the authority to examine how electronic media, such as radio, television, and the internet, operate. For motion pictures, we find a different approach to regulation. Pre-censorship is a prevalent form of a check, which was also upheld by the judiciary to keep the nature and impact in the mind of the audience. The Central Board of Film Certification (CBFC) must approve the showing of films, including documentaries, short films, television series, and commercials, in theatres or on television. The CBFC's mission is restricted to regulating the content of television programs, films, and other media. It lacks the authority to establish rules pertaining to news standards and journalistic conduct, in contrast to the PCI (Dasgupta, 2024). When we look at the television segment of media, we find a legislative approach to regulation. Under the Cable Television Networks (Regulation) Act of 1995, program and advertisement codes are produced to regulate television programming. If the cable operator broadcasts programs that are in violation of these codes, the district magistrate has the authority to confiscate his equipment. Even radio stations must adhere to the same advertising and programming codes as All India Radio. License agreements contain requirements that private radio and television stations must follow. Among these are content broadcasting standards. License suspension or revocation may result from noncompliance. We will have to highlight that the provisions of the CNT Act give powers to the government, which can easily be moulded to mussel opposing voices and ideologies. Further, the ambiguity and uncertainty because of the wide amplitude of words used in the program and advertisement code are against the principle of free media.
Further, we must also highlight that in regulatory setup, news media in electronic form is regulated by association promoting self-regulation. This unique blend of self-regulation and regulatory mandate controls news outlets. The News Broadcasters Association has developed one such technique. To control broadcast material, the NBA has created a Code of Ethics. When a broadcaster violates the Code, the NBA's News Broadcasting Standards Authority (NBSA) has the authority to warn, reprimand, condemn, express displeasure, and punish them up to Rs. 1 lakh. The Broadcast Editors' Association is another such group. Guidelines on the substance of advertising have also been developed by the Advertising Standards Council of India. These organisations have no formal authority; they are governed by agreements. The effectiveness of self-regulation is highly questionable as its findings, order and decision lack enforcement. Further, the major players in the association tend to take a biased approach influenced by political powers.
Digital media that has flourished with easy and cheap internet may be divided into news, entertainment and social media, which are also overlapping to some extent. OTT platforms have gained prominence because of minimal regulatory force. Even the dissemination of news and information has spread its wings to social media due to a lack of regulation and compliance. One of the significant factors for the proliferation of digital media is the independence offered. However, due to media malpractice like misinformation, fake news, obscenity, and vulgarity, the government is in the process of developing a regulatory framework. The major legislation governing digital media is the IT Act 2000 though it does not have sufficient provision to govern digital media, and as a result, we find different rules and guidelines under the act being published by the government. One such major attempt is the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. It attempted to accomplish multiple goals at once. It unveiled a "code of ethics" for digital media, including news and entertainment, as well as rules for social media intermediaries with a time-bound grievance redressal process. Under the guidelines, Publishers of digital news and online curated material are covered by Part III of the regulations. Further, a committee of government representatives will supervise a three-tiered grievance redressal process. Publishers must designate a Grievance Redressal Officer at the first level in order to address concerns within 15 days. The second layer allows news organisations to designate their own self-regulatory committees in accordance with government regulations on the composition of such groups. Lastly, an oversight committee established by the Ministry of Information and Broadcasting to consider appeals of judgements made at the second and third tiers makes up the third tier. In such circumstances, the oversight body would have the authority to mandate that content be removed or altered. Furthermore, when "no delay is acceptable," the regulations provide the government oversight body "emergency powers" to restrict internet content.
In some cases, it would be possible to order the banning of content without first hearing from the information's publisher. The overview of this guideline may be stated as control of media rather than regulation of media. In response to government pressure, influential internet intermediaries started submitting "compliance reports". However, news organisations who want to contest the IT Act's regulations that aimed to regulate them pushed back. Since 2021, around 17 challenges against these restrictions have been filed to high courts, and the matter was finally passed to the Supreme Court and is still pending. In development, one of the provisions under the guidelines for stabling fact-checking unit by the government has been held unconstitutional by the Bombay High Court.
IV. The Drive to Regulate Media: Who Controls the Narrative?
The will to control the media has always been there for the ruling government. It allows them to control public discourse and public narrative. In India, we have witnessed how regulations were tooled to curtail the freedom of media during the independent struggle by the British government. This tendency to have a controlled media persisted even after declaring it as a fundamental right under the Constitution. Direct and Indirect methods are deployed throughout to have control over media. We find legislation to curtail media freedom just after independence by the Nehru government. Even draconian legislation rules and guidelines similar to the British era reappeared during the infamous emergency. The constant influence of political power in film certification is another menace. Movies and files have always been a prime mode of setting public narratives, especially about historical events. Every government tends to have control over it to promote and match its ideology. We may refer to a recent event to understand this.
In response to the controversy over the depiction of the IC-814 hijacking in the streaming series IC 814: The Kandahar Hijack, the Indian Ministry of Information and Broadcasting called in Netflix's content chief. This came after several organisations, notably members of the Bhartiya Janata Party (BJP), now in power, complained about purported inaccurate information and divisive depictions. The aggrieved said that the show humanises the hijackers, minimises the involvement of Pakistan's intelligence organisation ISI in the hijacking, and misrepresents the horror experienced by the passengers. This was not the case with other groups' similar complaints about factual errors and contentious depictions, such as those against the contentious movie The Kashmir Files. Instead, the BJP state governments gave the movie tax-free status and marketed it (Mehta, 2024). Similar events were also apparent during the government of other political parties, such as Congress.
On the one hand, the government uses market-driven tactics to advance digital technology and economic growth through its "Digital India" and "Make in India" programs. On the other hand, it makes direct attempts to regulate digital material. Remarkably, the Indian government has likewise shown little interest in developing a single culture strategy that would provide financial incentives and improved cooperation between government agencies and cultural players to promote all facets of the cultural industries. The state maintains strict control over the media's content and information flow in spite of this disregard, demonstrating the deep connections between ideological, cultural, and economic concerns. Placing India's digital audio-visual regulations in a worldwide framework reveals their unique combination of aspects of authoritarian and protective regimes.
Now prominent and influential digital media attempts are to have some form of control by the government over it. To have more control over how internet media operate, the government has been alternating between the ministries of electronics and information technology and information and broadcasting. Using a legislative approach, it has worked tirelessly to strengthen its legal and regulatory authority over the past years. If we look at history, this is not something new; the internet arrived in India in 1995. Internet media filtering began in 2003 when the previous BJP government published two gazette notifications extending the Information Technology Act of 2000. One established Cert-In, the Indian Computer Emergency Response Team, as the "single authority" to provide directives for website banning. The second alert listed the kind of websites that may be restricted. They did not include news websites. Further the United Progressive Alliance (UPA) government released a notice in 2009 that made it possible to prohibit information hosted by individuals or intermediaries. Section 69A of the Information Technology Act of 2000 served as the basis for the Information and Technology (Procedures and Safeguards for Blocking of Access to Information by Public) Rules of 2009. This portion made it possible to disable the BBC documentary. Now, we have the guidelines for 2021 and the proposed bill to replace the CNT Act and regulate digital media. The Bill has faced major fire for excessive regulation; even news media have been brought under the strict regulation framework with mandatory compliance of codes and instructions under the bill (Herbert Smith Freehills LLP, 2024).
V. Conclusion
The media continues to play a vital role in influencing public opinion, organising movements, and holding authorities accountable. However, the rise of digital media platforms, citizen journalism, and 24-hour news shows that the media environment has changed significantly. Because of these internet tools, activism has become more accessible and marginalised voices may now be heard throughout the world. Despite the fact that media has become more capable due to enhanced technologies, misconduct remains a threat. There is an information crisis as a result of the news media's contamination with false, misleading, and phoney information. Furthermore, commercialisation turned them into a viewing company, and they have lost sight of their mission. Entertainment media is likewise rife with malpractice, including agenda-driven material and profanity. Notwithstanding its dedication to promoting freedom of speech and expression, digital media poses certain challenges. Accountability is among the most important issues. Because there is no control, sensitive information is now accessible to people of all ages. Echo chambers, skewed information, cyberbullying, cyberfraud, and further privacy violations have all grown widespread. It is possible to draw the conclusion that the transition from print to digital media has given the media considerable power to advance freedom of speech and expression, but that its original intent has been lost. To enable them to develop, constitutional ideals and democratic principles must be ingrained from an early age. Furthermore, as no other rights can be guaranteed without the freedom of speech and expression, it is essential to safeguard it against both direct and indirect threats. However, we also need to emphasise that regulation shouldn't become control. Overregulation by the government is a direct danger to media freedom and must be restrained. Once more, it is the responsibility of the Indian judiciary to preserve media freedom, which it has done so admirably. The people must also recognise and value its significance.
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