MEDIA ETHICS AND INDIVIDUAL’S INTEREST
At the outset, it may be stated that the Supreme Court is not only the sentinel of the fundamental rights but also a balancing wheel between the rights, subject to social control. Freedom of expression is one of the most cherished values of a free democratic society. Currently the tension between freedom of expression and the right to privacy and reputation is scrutinized with a particular attention to news media in India.
This right to freedom of speech and that of press has to be exercised to the degree to which private information is exposed harming reputation of individual prior to any trial and at the stage of investigation. Right to privacy and reputation in India is not explicitly mentioned in statutes or constitution, it is interpreted by the Supreme Court repeatedly in number of cases. Freedom of the press is the freedom of communication & expression through various electronic media & publishing materials.
The Indian Press has a long history right from the times of British rule in the country. The British Government enacted a number of legislations to control the press, like the Indian Press Act, 1910, then in 1931-32 the Indian Press (Emergency) Act etc. During the Second World War (1939-45), the executive exercised exhaustive powers under the Defence of India Act & enforced censorship on press.
After enactment of the constitution, there is a change in the outlook. Article 19(1)(a) of the Constitution of India lays down that “All citizens shall have the right, to freedom of speech & expression.” However, it is now well settled that the words “speech & expression” in Article 19(1) (a) includes freedom of press also. The Article 19(1)(a) of the Constitution is subject to certain restrictions laid down in Article 19(2) of the Constitution.
In Independent India, despite the Constitution, ‘Press (Objectionable Matter) Act, 1951’ and ‘Prevention of Publication of Objectionable Matter Act, 1976’, mirrored Lord Lytton’s Vernacular Press Act, in colonial era by allowing the government to demand a security from a newspaper without setting any financial ceiling on the amount. Thus, restraints on the press imposed in independent India have resembled those imposed on the press in colonial India, despite the existence of a fundamental right to free speech under the Constitution.
In Romesh Thapar v/s State of Madras, Patanjali Shastri, CJ, observed that “Freedom of speech & of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” In this case, entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”.
If the government directs newspapers not to publish any articles unless they are first approved by the government or any authority, this form of censorship would be called a ‘prior restraint’. In1823, Raja Ram Mohan Roy submitted a memorial to the Supreme Court of Calcutta protesting against the imposition of prior restraints on the press.
Earlier John Milton had, in his 1644 pamphlet Areopagitica, protested against Parliament’s decision to re-introduce prior restraints against the press in England, which were eventually abolished there in 1694. However the Supreme Court in the 1950s held that prior restraints were constitutional. Thereafter Prior restraints were found to be constitutionally valid in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603.
After perusing the restrictions given in Article 19(2) of the right to freedom of speech and expression exercised by publishing companies it seems that defamation is one of the restriction. So what can publishing companies do to ensure that they fall within the exception to defamation? Most critically, they must ensure that due care is taken to verify facts and sources.
The Supreme Court of India R. Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264) held that any publication containing aspects of an individual’s private life becomes unobjectionable if such publication is based upon public records, including court records. In the absence of supporting public records, a reasonable verification of facts must be undertaken before publication.
A series of cases came before the Supreme Court where journalists sought interviews with convicts in prisons, convicts who were sometimes on death row. The journalists contended that prison authorities or regulations prohibited them from carrying out the interview, and asserted that this went against their rights to free speech. In these cases, the court adopted a very circumspect approach to Article 19(1)(a).
It was held that there is no general right available to members of the press to interview prisoners, and that the interview could only be held subject to the consent of the prisoner, to the approval of the prison authorities, and in accordance with the jail regulations. The judgments delivered by the Supreme Court in this line of decisions, analysed below, can be considered as laying down the proposition that press rights to free speech must give way to the right to privacy. These judgments particularly have far-reaching implications today, because they suggest that the right to free speech does not confer any right on the paparazzi to invade the privacy of any person.
In Justice K. S. Puttaswamy (Retd.) vs. Union of India, 2017 Hon. Apex Courts nine-judge bench passed a landmark judgment on 24th August 2017, upholding the fundamental right to privacy under Article 21 of the constitution of India. While delivering judgement J. Chandrachud observed Privacy is an element of human dignity and is an inalienable natural right.
Sapre J. focuses his opinion on the importance of the Preamble to the Constitution, and the principles of liberty, dignity, and fraternity enshrined therein. The Supreme Court also stated that the state must carefully balance the individual privacy and the legitimate aim, at any cost as fundamental rights cannot be given or taken away by law, and all laws and acts must abide by the constitution.
Recently Delhi High Court in Swami Ramdev vs. Juggernaut Books (CM(M) 556/2018) drew interesting conclusions between freedom of speech, right to reputation, fair comment and defamation, as below:
- Balance Between Freedom of Speech and Right to Reputation – The right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another’s right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person’s reputation. Merely because previous similar publications exist does not permit repetition of prima facie defamatory insinuations.
- Public Interest – The Court held that whatever may be of interest to the public, but has no element of public interest, may amount to breach of privacy. Here, the fact that the Petitioner was a public figure did not give a licence to the author and the publisher to defame him.
- Test for Defamation – Several book reviews had been published, and that although several comments said the book was unbiased, an equal number of comments stated that the petitioner was a villain. In this context, the court decided that the test for defamation was the basis of what an ordinary reasonable reader would think of the book.
- Fair Comment – To be justifiable as fair comment, it must appear as a comment and not mixed up with facts. In other words, a reader should be able distinguish reported facts from comments, and a comment must not convey imputations of disreputable motive unless adequately supported with evidence.
In Umesh Kumar v. State of Andhra Pradesh and another 2013, the Supreme Court observed that personal rights of human beings include the right of reputation. Further Hon. Supreme Court in Subramanian Swamy vs. Union of India, Ministry of Law & ors 2017 held right to free speech cannot mean that a citizen can defame the other as protection of reputation is a fundamental right as well as a human right. Reputation can be harmed in general by publishing any personal information which is likely to cause hate in the society.
Then what amounts to personal information? If we observe Right to Information Act 2005 and its interpretation in various stages by the Courts or Central Information Commission, more specifically in Singh (AK) v. Delhi Police It is settled that if the information of the witness is disclosed it may leads to endanger the life of the witness. The Central Information Commission agreed with the respondent that if such video is disclosed than it can leads to the danger and can affect the safety of the witness.
Further in case of Union Of India v. Hardev Singh with respect to the case of UPSC v. R.K. Jain decided on 13.7.2012 and the following view was taken: “Therefore, “personal information” under the Act, would be information, as set forth above as such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest.
At the same time, such personal information may, or may not, be private to the person. After perusing the principals from above cases and in the light of current controversies relating to media publishing such information it seems that such personal information which may not in public interest can also cause harm to evidences and witness involved.
COMPREHENSIVE INSIGHT OF SUCH EVENTS
The press has played significant roles for public welfare but at times it acted irresponsibly. For instance few of these remarkable events are as follows:
- In 2006 Priyadarshani Mattoo Case rapist and killer Santosh Singh was acquitted and the appeal against it kept hanging fire in the Delhi HC for 6 years. But once the case was taken up by the media, Santosh Singh was convicted within a record of 41 days.
- In Prof. Sabharwal’s Case 2008, when Prof. Sabharwal was killed by some activists, there were a number of news channels & newspaper correspondent were present & they had evidence of the murder but the media acted irresponsibly & the police called it an ‘Open & Shut Case’.
- In 2010 Jessica Lal Case Supreme Court reiterated ‘Presumption of innocence of an accused is a legal presumption and should not destroyed at the very threshold through the process of media trial and that too when the investigation is pending’.
- Further when Mumbai was under terror threat in 2011 the media telecasted live the long Operation Black Tornado by the security forces to combat the attack at The Taj Mahal Palace Hotel & Nariman House. It included live feed of air dropping NSG Commandoes on the rooftop of Nariman House. There are many important issues which should be covered by the media but unfortunately it does not.
- In 2017 Aarushi Talwar – Hemraj Murder Case has sensationalised not just because of the tardy and botched-up police investigation but also because of involvement of media.
- Recently in 2020 criminal complaints were filed against media journalists for hate speech and most recently issue of broadcasting a program claiming Muslim youth qualifying for Civil Services was.
- Further character assassination of the bollywood actor over the alleged use of drugs was led by some media agencies, based on some messages whose context, she thought, needn’t be provided. Select portions from actors private chats were used to prove that she was ‘administering’ drugs to the late actor and boyfriend, in a well laid out plan to ultimately murder him. At this backdrop The Press Council Of India (PCI) slammed media.
PCI stated “The Council has noted with distress that coverage of the alleged suicide by a Film actor by many media outlets is in violation of the Norms of Journalistic Conduct and, therefore, advises the Media to adhere to the Norms framed by the Press Council of India, Publishing information based on gossip about the line of investigation by the official agencies on the crime committed is not desirable”.
The principal purpose of The Cable Television Networks (Regulation) Act, 1995 was to introduce regulatory certainty to the cable market that had emerged in the early 1990s. There was a need to avoid programmes which resulted to cause hate in society and advertisements being shown to Indian viewers without any prior restraint due to lack of regulations.
The Cable Television Networks Rules, 1994 were enacted under the Cable Television Networks (Regulation) Ordinance, 1994. The Programme Code under Rule 6 lays down restrictions on the content of both programmes and advertisements that can be shown on Cable TV. No programme can be shown that:
- Offends against good taste or decency.
- Contains criticism of friendly countries.
- Contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes.
- Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths.
- Is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti-national attitudes.
- Contains anything amounting to contempt of court.
- Contains aspersions against the integrity of the President and Judiciary.
- Contains anything affecting the integrity of the Nation.
- Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country.
- Encourages superstition or blind belief.
- Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals.
- Denigrates children.
- Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups.
- Is not suitable for unrestricted public exhibition.
The Press Council of India Act of 1978 established the Press Council of India (PCI) with an object to preserve freedom of press and to maintain and improve the standards of newspapers and news agencies in India. When the content published is found to be in violation of the Code then appropriate recommendations are made or punitive action directed.
This position was affirmed by the Supreme Court in Common Cause vs. Union of India & Ors.2000 in an order in 2017, when the issue regarding a complaint redressal mechanism against television and radio channels was brought before the Court. The Apex Court recommended that the Government should create a statutory framework for grievance redressal by virtue of its rule making power under section 22 of the Cable Television Networks (Regulation) Act, 1995 by which the Government is empowered to make Rules pertaining to the Programme Code. Till the date government is yet to follow the recommendations by Hon. Apex Court.
“If you don’t read the newspaper, you’re uninformed. If you read the newspaper, you’re mis-informed.” – Unknown
Considering overall facts stated, it is important to examine whether media is acting within the restrictions to freedom of speech and expression or principals laid down by Hon. Apex Court frequently. For the time being of scattered provisions for privacy protection and reputation, these principals laid down by judiciary prepare a solid ground for need of proper laws and redressal mechanism with implementation for protection of privacy and reputation taking into account fair reporting by media.
[Prithviraj Borhade, Dayanand Kakade]
[The Authors are final year law students at Pune University ]
Views expressed here are personal only.
1) Indian Constitutional Law by M.P Jain.
2) Republic Of Rhetoric by Abhinav Chandrachud