The broadcast regulation legislation is now on the backburner. The reactions that the Broadcasting Services Regulation Bill, 2007 generated were not unpredictable and would have largely been the same even if the bill was exemplary. The usual noises were made with some terming the content code an assault on the press, others looking warily at the provisions that sought to limit cross ownership, and some others pointing out that there should be no limitations on social service programming.
Since the bill is now in limbo and depending upon the vagaries of the political coalition it may or may not live to see another day, it is a good time to reflect not so much on the finer points of rules and by-rules, but the larger question of what such a bill ought to do, what it tries to do, and to what extent are more and more laws needed in such a domain considering the extant laws on the subject.
A normative issue needs to be clarified. It is more of a belief, and hence liable to be construed as a bias, about legislative actions. Hence, my belief should be shared before I discuss issues pertaining to the Broadcasting Bill. Are more laws better than lesser number of laws? Are elaborate and wordily written laws better than simpler and elegantly written ones? Are ambiguous laws that hand power of enforcement to many government branches better than unambiguous laws that can be vigorously enforced by one or two departments or even better by autonomous bodies manned by non-government functionaries? May be there is an old fashioned liberal, as distinct from the current use of that term, prejudice in the way that these questions have been framed. So be it. The answer to my mind is that one should have lesser laws, simple and elegant ones, and above all, enforceable ones. Let us be a nation of laws and not of law books, to paraphrase a point made by Talleyrand about contemporary France in a missive to Napolean.
If one takes the above notion about laws seriously, then the Bill in the present format does not meet some minimum requirements. It tries to be a bill that is ambiguous, it creates an independent authority and then fills it up with serving government officials, it distributes the authority for infractions, tries to put in place restrictions or guidelines that already have laws to safeguard the norms mentioned there, and above all tries to legislate different fields.
Let us ask of the Bill what is it trying to legislate. Is it a law about transmission, is it about the spectrum, is it about content, is it about reception, or is it about all these and more? What follows is an attempt to look at different parts of the communication that is sought to being legislated upon and to examine what the grounds are for such legislation and whether they should be brought under some legislative framework.
Content is the first part of any communication process and not surprisingly it is the content code that has drawn a howl of protest. This is as good a place to point out that the self-righteousness of those protesting and their own track records are such that there should not be any doubt that regulation is needed at this end of the communication process. If at all most of them should be hanging their hands in shame with the quality of programming, especially news, views, or shooting of the hip programming, which they provide. But is it the government’s business to be doing such regulation? And if so to what extent should it be done and in what matters and are there laws on the subject? It is not for the government to impose codes or guidelines. We have in place a constitution and Article 19 (2) provide for grounds of such restriction. When anyone indulges in speech (i.e. content within the terms of this Bill) that can draw restrictions, post facto though since we thankfully do not have prior restraint, there are provisions in different laws for prosecuting such offenders. The matter ends there. The content code with its nine themes and an additional chapter devoted to news media tries to put in place ethical guidelines that should be the preserve of those who create and transmit such programming. It is obligatory on them to do such programming as they think merits acceptance among the people and which their conscience allows. If they push drivel, let them do so.
The objection at this point will come from those who believe in two things. The inability of the people to protect themselves from such drivel, the use of public property, the airwaves, in transmitting such programs, and the duty of the government to protect the citizens. Let us take this up one at a time. The argument that the government is there to protect its citizen is valid, but an overly paternal view of this is not what we need. People have a fairly good idea of what is good and what is not good, at least in such things as the images and information that they see or view. Also, to suggest that the impact of television or media on people is powerful, as the Bill suggests, is counter to most research on the subject. The strong effects theories are taught to students more as relics of mass communication beliefs and research, and less for their ability to offer valid explanations of social reality. The government should not get too worked up about these powerful effects. The impact is limited and there are lots of extraneous factors that are involved in the process from family to filial groups to education to psychological motivations. This does not mean that the government should not provide mechanism for protection, but that there are other ways in which this should be done, which will be dealt shortly.
The airwaves are indeed the property of the public and any use of these airwaves should be compensated. But terrestrial television is the preserve of the government via an apology of a public service broadcaster. We will come to radio in a moment. All the television channels from which we are sought to be protected come over a wire that as a consumer I allow into my home. Or they come over an antenna that I install. If I do not want such a service there is no way that they can come in unannounced into my home. Also, such airwave spectrum that the channels use to upload their programming and also for these to be downloaded at various points in the country from where they can be sent using cable wires is an issue of spectrum management and not of content regulation. Spectrum management is akin to the use of different frequencies by mobile phone companies or others who use the frequency spectrum for their business needs. As such the spectrum management belongs to the realm of telecommunications management and should be clubbed with the work of the telecommunication authority rather than a separate broadcasting authority. The content regulation of radio is a legitimate ground because it belongs to the realm of terrestrial broadcasting. Hence, a separate guideline for them when allocating frequencies may be given. Here too, however, the overriding presence of Article 19 (2) implies that all that these radio broadcasters have to do is to ensure that they do not contravene those constitutional provisions.
Let us come to that third, or rather the intervening, moment that is transmission. It should by now be clear that all transmission issues are related to distribution of frequency spectrum and hence, they also should be governed by the telecommunication regulatory authorities.
This brings us to two issues that remain of interest in the Bill: cross-ownership and protection of consumers’ interest whether it is from false advertising, display of programming that caters to prurient interests, violence, inability to distinguish between news and non-news among other things.
Cross-ownership is an important issue and diversity of ownership is a contributing factor, though not the only one, in ensuring diversity of opinion and a vibrant market place of ideas. But the important thing here is that what we need is a cross-ownership legislation that covers all media and not just broadcasting media. It is not enough to make sure that a television channel owner does not also own a radio station. More crucially one has to ensure that the same owners do not have control over the print, radio (if it also includes news programming), and television in one area. The normative argument is that when sources of information are under one owner then it is unlikely that differing viewpoints will find place in the outlets that belong to such an owner. With barriers to entry being more difficult for print, cross-ownership legislation has to bring print media entities within its ambit. The Broadcasting Bill is an incomplete piece of legislation on this important issue. And it bears mention that those who think that the existing MRTP Act is enough for this purpose are mistaken because notions of market share, connivance, and cartel practices being what they are, already steps should have been taken against some media owners in some markets. A detailed and properly thought-out legislation is needed on this.
As for protecting the consumers’ interests, what is needed is to bring media services under the ambit of consumer protection statutes and to do so in a manner where transgressions can be penalized swiftly and commensurate to the infraction. Consumer Protection Act should be reasonably amended to provide readers, viewers, and listeners with adequate protection. An instance would help make this point. When a reader reads a newspaper the person has a reasonable guarantee that there are two elements in the newspaper. There is the editorial matter and there is the advertising matter. The advertising matter is paid for by the advertiser and the editorial matter is dependent on the judgement of the editorial department. Whenever there is advertising matter that looks like (and appearances are important here since they are only conveyor of such difference) editorial matter, such advertising matter should be labelled as advertising. In those cases where media companies accept payment for disguising advertising as editorial material, they practise a form of deception. This deception in the service that they offer to the readers constitutes a clear breach of consumer interest since he is being given something that he has not paid for. Such actions should be brought under the purview of consumer protection courts and since readers/viewers/listeners are treated not as public, but as consumers they deserve similar protections. Many such cases of deception or other such ways in which the media consumer are cheated can be enumerated. All of these have to be made liable for prosecution.
What we now have as a Broadcast Bill is a hotchpotch of ideas and intentions put under the umbrella of broadcasting. There is neither clarity nor specificity in the intentions nor is there any effectiveness in its mechanism. As such what is called for is not for a tinkering with this Bill, but of reformulating another bill or bills that are specific and cogent.
Appeared in Vidura.
