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By Ammu Joseph In the face of outraged opposition, the draft Broadcast Bill and Content Code will be submitted to another round of consultations with stakeholders. A more carefully considered and drafted piece of legislation aimed at setting up an independent, autonomous public authority with a mandate to regulate the media in the public interest is required
Retreating in the face of outraged opposition from the broadcast media, the Ministry of Information and Broadcasting has decided not to table the controversial draft Broadcast Bill and Content Code (aka Self-Regulation Guidelines for the Broadcasting Sector http://www.mib.nic.in/Code200707.pdf and Broadcasting Services Regulation Bill, 2007 http://www.mib.nic.in/Bill200707.pdf) in Parliament during the ongoing monsoon session, as originally planned. I&B Minister Priya Ranjan Dasmunshi has finally accepted that the Bill cannot be introduced during the current session, agreeing to another round of consultations with “stakeholders” before a final draft is prepared. The question is who counts as stakeholders in the ministry’s lexicon. So far there has been little evidence that the government, on the one hand, and the industry, on the other, recognise that the most important stakeholders of the media in a democracy are citizens. Echoing the Supreme Court of India in its landmark 1995 judgment relating to the broadcast sector, the preamble to the draft Bill does state that the airwaves are public property and the purpose of regulating them is to ensure that they serve the public interest. If that is the case, the views of the public must surely be taken on board before formulating, let alone finalising, legislation or policy relating to the media in general and the broadcast media in particular. Yet the ministry thought nothing of setting a deadline of just two weeks from the posting of the draft documents on its website for public response. With no public notification of the fact that the draft legislation had been made available online and only the occasional, obscure media report providing scanty and fragmented details, only a negligible proportion of the educated elite with access to the Internet (in itself a miniscule section of the country’s population) was likely to have learnt about the proposed legislation in time, with even fewer able to respond to it so quickly. Under the circumstances, the admission by Ministry sources that no comments had been received by August 5, 2007 is hardly surprising.It is not enough for officials to now privately acknowledge that comments are still coming in and that the deadline is not being strictly adhered to. The extension of the deadline has to be publicly announced and inputs from the public actively encouraged. In fact, in the interest of transparency, all inputs on the legislation should also be in the public domain, at least on the ministry’s website. If the Bill is to truly reflect public opinion and legitimately serve the public interest a proper democratic process of consultation and discussion must necessarily precede any further drafts. This is all the more important because the proposed legislation is fundamentally flawed, skipping as it does an essential step in media regulation in a democracy. The Supreme Court had specified that the use of airwaves was to be controlled and regulated by a public authority in the interests of the public -- primarily in order to prevent any invasion of citizens’ rights. It had also instructed the central government to take steps to establish an independent, autonomous public authority -- representative of all classes and interests in society -- to perform this function. The draft Bill does not respect the Court’s opinion or follow its directions in this matter. Not only is the document peppered with references to the central government, but several provisions within it convey the distinct impression that the legislation is essentially meant to enable the government to regain control over the broadcast sector (control that had been eroded over the past decade-and-a-half by the emergence of private broadcasters, both indigenous and international, on the media landscape). The Broadcasting Regulatory Authority of India (BRAI), as described in the Bill, cannot be seen as an independent and autonomous public authority, considering the overarching influence of the government over every aspect of it, from its constitution and composition to its powers and functions. The prescribed process of selecting and appointing the chairperson and members of BRAI does not inspire confidence. The fact that both the Chief Executive Officer of the Authority and the Regional Directors of its satellite offices across the country are to be government officers drawn from the civil services militates against the claim that BRAI is to be an independent institution. With “Licensing Authorities” as well as “Authorised Officers” also likely to be drawn from the bureaucracy, the proposed regulatory infrastructure appears indistinguishable from the government. A number of sections in the Bill listing the powers and functions of the central government reinforce the perception that BRAI will be neither independent nor autonomous. Other provisions suggest that it is meant merely to implement policy determined by the government. The fact that it is empowered to make recommendations to the central government means little as long as the latter is not committed to even considering the recommendations, let alone accepting them. Similar weaknesses afflict the Public Service Broadcasting Council (PSBC) as envisaged in the draft Bill. In addition, there is undue confusion about the division of responsibility and labour between the various players listed in the draft Bill. The lack of clarity and focus in the terms of reference for each are only likely to result in wasteful, fruitless overlap. In addition, the draft Bill does not make any provision for public involvement in the regulatory framework. This is a serious omission that needs to be corrected if media policy/legislation is to have any validity in a democracy. Media regulators in several democratic countries across the world have established transparent procedures for public consultation on matters relating to media policy and legislation. The need for media regulation cannot be used as a figleaf to mask the promotion of state control over media. The first step towards media regulation in the public interest in a democracy must necessarily be the setting up of a properly constituted, independent public authority empowered with a clear mandate and guaranteed autonomy, as envisioned by the Supreme Court. That is what the government must prioritise at this juncture. Instead of tinkering with the existing drafts, it should concentrate on fresh legislation to create this vital institution and put it in the hands of reputable, competent individuals independent of the state. Once such an autonomous authority is in place, it can be entrusted with the task of regulating the media in the public interest (which necessarily involves keeping the public informed and involved) while protecting freedom of expression -- with media freedom understood to be an essential part of citizens’ entitlements to information and free expression. Meanwhile, several provisions and terms in the present draft have the potential to be wrongly used, as they have been in the past, to curb freedom of expression. Apart from Sections 5 and 6 (concerning situations of external threat or war involving India and exceptional circumstances that would allow the government to exercise certain powers) there are other references to threats to “the security and integrity of the State,” “peace and harmony or public order,” “relations with foreign countries,” and so on, that are vulnerable to misuse that could subvert democratic rights. The controversial Section 12, introducing “restrictions on accumulation of interest”, or curbs on media ownership, has caused considerable heartburn within the broadcast industry. While it purports to be an attempt to prevent monopolies across different segments of the media as well as within broadcast segments in order to ensure plurality and diversity of news and views -- essential for citizens in a democracy -- it stops short of addressing what media reports have loosely termed “cross-media ownership.” It certainly does not appear to be based on a nuanced understanding of concentration of media ownership, which involves complex and contentious issues which continue to be of deep concern to citizens, regulators and media establishments across the world. It is widely accepted that plurality of voices in the media, diversity in sources of news and information, and access to varied ideas and opinions are of vital importance in view of the media’s critical role in democracies. The safeguarding of diversity and plurality in the media is, therefore, recognised across the globe as a legitimate goal of media policy. However, it is not clear how Section 12 serves this end. In several countries existing cross-media ownership restrictions within broadcasting legislation have in recent times given way to regulation under competition laws and policies. However, it is generally understood that protection and promotion of the public interest must underlie any regulatory interventions in issues of ownership in the media sector. For example, the statutory duties of Ofcom, the regulator for communications industries in the UK (with responsibilities across television, radio, telecommunications and wireless communications services), are “to further the interests of citizens in relation to communications matters,” as well as “to further the interests of consumers in relevant markets, where appropriate by promoting competition.” According to the Australian Press Council, “The regulation of ownership of Australia's media should be by the Australian Competition and Consumer Commission under the Trade Practices Act, subject to a media-specific public interest test. That test should place a high value on the need for media diversity and the significance of local content.”
Considering the complexity and controversial nature of ownership issues, they need to be studied more carefully, understood more fully and handled with more sensitivity. Above all, any restrictions on media ownership must be defensible on grounds of public interest, with particular reference to media diversity and plurality. The draft Bill also seeks to mandate public service programming across the broadcast spectrum, including private broadcasters. However, thanks to the indiscriminate and indefinite use of the term “public service broadcasting” (PSB) in media and public discourse, its nature and meaning are prone to misinterpretation. According to a UNESCO definition, PSB refers to broadcasting made, financed and controlled by the public, for the public -- neither commercial nor state-owned and, therefore, free from political interference as well as pressure from commercial forces. In order to fulfil the information, education and entertainment needs of diverse audiences PSB requires editorial independence, appropriate funding, accountability and transparency. By this measure there is at present no PSB in India. The term, as used in the draft Bill, falls short of such an understanding of PSB. Instead the document uses vague terms such as “public service/socially relevant programme content” interchangeably. Besides, the very idea that a Public Service Broadcasting Council with members appointed by the central government (albeit from among “persons of eminence” in various fields) can “lay down regulations” to determine “what will constitute public services/socially relevant programming or messaging” goes against the concept of true PSB. Prescribing quotas that do not seem to have any clear rational basis and necessitate the establishment of complicated mechanisms, including penalties, to ensure compliance does not seem to be a democratic or effective way to encourage more public-spirited quality content in the broadcast media. While there is little doubt about the need for greater attention to ethics and social responsibility in media practice, the current draft of the proposed Self-Regulation Guidelines for the Broadcast Sector (commonly referred to as the Content Code) does not appear to be the best way to achieve this. The first problem is the contradiction in terms implied in the very title and nature of the document: guidelines for self-regulation issued by the government. There is no information within the document or on the ministry’s website about the process through which the guidelines were formulated, including participants in the exercise. As a result there is no way of knowing if those who are supposed to “self-regulate” themselves – ie broadcasters – were involved in drafting the Code. Judging by the reactions from both media professionals and media owners/managers in the broadcast sector, it appears that they were not. This is clearly a problem if the goal is self-regulation. If broadcasters were not involved, it is likely that representatives of the public were not either. This is also a problem in view of the fact that the main justification offered for the Content Code is that it is to benefit the public in various ways. Significantly, even the reference to written comments from the public on the Code states only that they “can be considered” before it is notified. The government may have served its professed purpose better – and avoided accusations of interference in media freedom -- if it had merely initiated or, perhaps, even facilitated a process through which broadcasters themselves could come up with professionally acceptable principles and systems for self-regulation. Ideally it is the independent public authority mandated by the Supreme Court that ought to be left to figure out how best to respect media freedom and at the same time achieve the basic purpose of content regulation: ensuring adequate protection for audiences against offensive or harmful material and adequate protection for citizens against unfairness or the infringement of privacy. In most democracies regulators – let alone governments -- steer clear of getting involved in regulating media content unless intervention is unavoidable in the public interest. In such cases they try to ensure that intervention is based on evidence, besides being proportionate, consistent, accountable and transparent in terms of both deliberation and outcome. The attempt is to achieve policy objectives through the least intrusive regulatory mechanisms. Unfortunately, the draft Content Code is not consistent with this approach. If the government is really well-intentioned about media regulation it would do well to be seen to be so. The present draft Bill and Code do not do the trick. Perhaps a more carefully considered and drafted piece of legislation aimed at setting up an independent, autonomous public authority with a mandate to regulate the media in the public interest would help restore its bona fides in this matter. InfoChange News & Features, August 2007
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