The Law Commission of India floated a Consultation Paper on Media Law in May 2014 to elicit the views of all the stakeholders. The Law Commission is looking into the following questions:
1. Social Media and Section 66A of the Information Technology Act, 2000 2. Cross Media Ownership 3. Media and Individual Privacy 4. Regulation of the Media 5. Paid News 6. Opinion Polls 7. Trial by Media and Rights of the Accused 8. Defamation 9. Publications and Contempt of Court 10. Regulations surrounding Government owned media.
These responses which were originally due on June 2014, can now be submitted till August 15, 2014. The Law Commission’s notice regarding the same is available here.
At this juncture however, we would like to bring to your attention the responses filed by Amnesty International and the Alternative Law Forum, Bangalore. They are available here and here.
The common recommendations found in both these responses is with respect to criminal and civil defamation. Both response papers advocate the repeal of Sections 499 and 500, IPC which criminalize defamation. The reasons for this are also similar in both the papers, which are the chilling effect and the stifling of free and even necessary speech caused by the existence of these sections as well as the disproportionate nature of the criminal penalty to the economic harm suffered by defamatory speech. It is also noted that the mere existence of civil law remedies show that criminalisation is “unnecessary for the protection of reputations.” Amnesty particularly noted that criminalisation of defamation breaches India’s obligations under International Law. On civil defamation, both papers noted that there was misuse of these laws in India. Amnesty particularly noted instances where heads of educational institutions, pesticide industries and large media houses either filed defamation suits or threatened to file the same against journalists, environmental activists and student bloggers.(The example cited by Amnesty for a threat to file a defamation suit against student bloggers was SpicyIP’s own Aparajitha where a legal notice was sent to her by the Times Publishing House. Our post on the same and Shamnad Sir’s response is available here and here) The recommendation of both papers is to codify the law on civil defamation at the first instance. While ALF also suggests putting in sanctions to weed out frivolous complaints and vexatious litigation, Amnesty suggests a revamping of remedies to defamation such that they are proportionate to the harm suffered. Amnesty recommends that corrections and apologies should be offered as remedies as well.
Amnesty additionally deals with the issues of contempt of court and S.66A, Information Technology Act, 2000.On the issue of contempt of court, Amnesty recommends that S.2(c)(i), Contempt of Courts Act which states that an act scandalising or lowering the authority of the Court is criminal contempt to be repealed, as it is not only inconsistent with the right to freedom of speech and expression but also unnecessary for legitimate public interests. Additionally, Amnesty recommends the removal of the words “tend to” which increases the uncertainty about the scope of the offence of criminal contempt. In any event, Amnesty argues that the defence of truth must be considered in all circumstances without imposing any additional requirement. With respect to S. 66A, IT Act, 2000, Amnesty recommends either the repeal or substantial revision of the section, as it is “imprecise and over-broad” in its current form. Amnesty argues that many of the restrictions on online speech under S.66A is unnecessary and inconsistent with the right of free speech. Moreover, it is likely to result in chilling effect and to increase the likelihood of arbitrary arrests and detention under this section, which goes against the fundamental idea of the Internet as a tool for political freedom. Amnesty also recommends a review of existing restrictions on speech and expression under the IPC to ensure that they are in accordance with international standards.
ALF also gave additional recommendations on the issues of regulation of cross media ownership, privacy and trial by media. On regulation of cross media ownership, ALF suggests measures such as restrictions on anti-competitive practices across media markets, restriction on number of media entities owned in a particular geographical market, restrictions on extent of shareholding in media entities by a single person or company or others sharing interest with that company/person,restrictions on number of media entities owned in a particular geographical market on basis of dominance in market and on the basis of turnover to address concerns of concentration. ALF also suggests that mergers and acquisitions guidelines are necessary to prevent concentration of media ownership, that mandatory disclosure norms must be imposed on media entities and that there should be regulation on who can enter into broadcasting “to foster and protect the values of our Constitution.”
On the issue of having a statutory provision dealing with privacy in the context of sting operations, ALF’s recommendations was that an independent judiciary should be the penultimate authority as there are “sensitive issues at stake”, that this provision should apply not only to sting operations as they are currently conducted but also to include breach of individual data and privacy by any other means and technologies and that such a provision ought not to be optional but must provide a remedy to individuals to pursue claims. With respect to the term “identifiable larger public interest” under Cable TV Networks (Regulation) Act, 1995, ALF recommends that “the notion of public interest must be determined on the basis of principles that are in accordance with fundamental rights and duties, on a case-to-case basis and that there must be stronger laws and remedies that protect the right of privacy of an individual.”
On the final issue of trial by Media, ALF’s submission notes that a trial by media could lead to the public pre-judging the issue, prejudicing the presumption of innocence and consequently, the need to strike a balance between right to free speech and the right to fair trial. ALF’s recommendations are that enforceable standards of measuring fairness in the reporting of an ongoing legal proceedings must be evolved by avoiding speculation, disclosing sources and postponing the reporting if it seems likely that the reporting will have an adverse effect on the outcome of the trial.
These are the two prominent responses that came to our attention. The attentive reader would have noted that even both these responses taken together do not cover all the questions raised by the Law Commission. Therefore, we at SpicyIP would urge all the stakeholders who haven’t yet submitted a response to make the best use of this opportunity and to submit your response either by post to to the Member-Secretary, Law Commission of India, Hindustan Times House, 14th Floor, Kasturba Gandhi Marg, New Delhi – 110 001 or by email at [email protected].
please see the sixth sense technology videos and livecasts. I think it is quite difficult ot trace privacy and media