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All around the world, media ownership, as a subject matter, is seen as an essential factor in determining the extent of diversity that would be reflected in the publication of information through media. This is why the acquisition of Network 18 Media Group and the TV 18 broadcast network by the Reliance group for a sum of Rs. 4000 crores were studied at length.In India, the authority for granting permissions and monitoring content of broadcasters is vested with the Information & Broadcasting Ministry (MIB). Similarly, the Press Council of India acts as the authority to regulate print media. The flexible nature of the regulations that govern this segment and the interest of big conglomerates in this sector has paved the way for cross-media ownership which in turn has made this setup oligopolistic. Such a market form in this sector restricts the diversity in information published. Media, being a primary source of formulation of public opinion, is regarded as the fourth pillar of a democracy. The reliance that people have on media as a source of information makes it an important tool for the formation of public opinion.
It is seen that large and powerful lobbies acquire both vertical and horizontal ownership in this market as there are almost no restrictions regarding ownership in the set of regulations that have been laid down by the concerned ministry. It has been highlighted by the Mahalanobis Committee report on Distribution of Income and Levels of Living that the extent of linkage between industries and newspapers that exist in India doesn’t prevail in any other democratic country.Further, the social and political influences that subsist within these groups lower the credibility of media as a neutral entity. There have been several attempts by non-profit organizations and research teams towards analyzing the situation and requesting the ministry for forming relevant regulations in this regard but so far minimum to nil success has been achieved. If this practice continues, there are possibilities of the creation of a monopolistic market in this area which as a result would also affect some of the fundamental rights granted by the constitution to the individuals, thereby resulting in a clash of interests.
This article attempts to advocate the need for such regulations and further analyzes the violations of fundamental rights which will occur if such a market is created in this sector.It is to be regarded that by the word ‘media’, this article restricts its scope to newspapers, TV and online media channels, radio, and magazines only.
Cross-Media Ownership: Its genesis, effects, and creation of a monopolistic market
Media, as a market entity, contains both vertical and horizontal ownership i.e. ownership in both production and distribution of services and acquisition of a variety of enterprises in the sector such as newspapers, TV channels, magazine groups, etc. The absence of any significant restriction on this enables a single conglomerate to acquire both vertical and horizontal ownership in this sector, thereby giving it the opportunity of exercising a fair amount of control over the industry. This is known as cross-media ownership. There are regulations on the ownership of companies and recommendations given by the Telecom Regulatory Authority of India (TRAI) in place. Additionally, there have been legislations by the government in the past concerning this subject matter. However, it should be regarded that there is no specific regulation concerning cross-media ownership. Several arguments have existed regarding whether there is a need for such rules or not; the claim put forth by the opposing side primarily being that with the advent of the internet, Indian media has increased its scope to online dissemination of news, allowing multiple startups and online media groups to enter in this competition. Thus, consolidation, in the present market is not possible. However, the fact that consolidation does occur in the Indian media industry was affirmed by a recent study which claimed that almost all the media houses in the country are occupied by a small quantum of groups making its control restricted to a few hands. This makes this industry an oligopolistic market which further reduces fair competition in this sector.
In 2014, TRAI presented a report to the Information & Broadcasting Ministry which defined the words ‘control’ and ‘ownership’. It regarded holding 20% or more of the total share capital in an enterprise as a qualification of ownership/control and in case of indirect control the multiplicative rule is to be applied for determining the question of ownership. Further, 50% or more voting rights or the same percentage for appointing the members in the board of directors would also constitute to be a form of control. Additionally, having a de facto control over agreements, contracts, or for that matter understandings in an enterprise would also account for ownership. This report proposed four rules for the regulation of cross-media ownership in India and also acknowledged the ASCI report of 2009 which gazed significance in this area.Though, none of the four rules recognized the need for regulating the shareholding of lobbies in a media house that have political affiliations yet the rules were significant in terms of maintaining fair competition in this sector.
According to ASCI’s report, the Indian media’s situation, in this regard, wasn’t monopolistic until 2009. However, a decade later, in the present scenario, the increasing interest of influential lobbies in this industry, the growth in their economic potential and the flexibility in the FDI regulations for this setup has accounted for more concentration and consolidation in ownership which can make monopoly step in, in this market.This calls for measures to be taken in this area which would foster diversification, plurality and will reduce the probability of arising of unfair competition in this market.
Making Sense of The Current Trend In Light of The Constitution
The right to freedom of speech and expression encompassed in Article 19 of the Indian constitution as a fundamental right acquires a crucial role in formulating the stance and viewpoint of the populace in so far as it facilitates in arriving at well-informed conjectures. To this extent, it becomes important that the masses get an extensive sweep of narrative. The agglomeration of media ownership has expostulated now and then in the view of the fact that such concentration influences an array of voices within the media house. This argument finds support in the landmark judgment delivered by the Supreme Court of India in Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal wherein it was professed that ‘the right to receive and impart information’ is incorporated within the broader right of speech and expression. The court highlighted that “A successful democracy posits an ‘aware’ citizenry” and it is important that there exist multiplicity and heterogeneity in terms of vision and perspective on prominent public issues. This is attainable when the readers have a genuine choice of sources to select information from. This idea of diversity is certainly not feasible in a monopolistic market. This contention should not be comprehended to mean that an entity holding the entire industry would necessarily block dissemination of opinions of a certain kind or allow a specific kind of data, of its choice, to flow into the public domain. We, as the authors of this article, assert that diversity in ownership would certainly increase the plurality of opinion, which is an essential feature of this organ. Further, it would also increase the credibility of media by keeping alive the confidence that it enjoys among the masses.
The government, in the past, has endeavored to control the concentration of media ownership by a few legislations, like the one of 1956 when it sealed the approval of Newspaper (Price and Page) Act through which it prescribed the number of supplements that a newspaper establishment can come out with and the number of pages that can constitute the newspaper in accordance to its price. This was done to avert the unfair competition that the smaller newspapers are exposed to by their ineffectiveness in attracting advertisements and to also hold back full grown establishments from being the dominant sources of information dissemination. Similarly, in 1972, the government, inter alia, forbade newspaper organizations with 2 or more newspapers from starting new newspapers without regard for other specifications like the language of print or the area of publication. In 1981 as well, the government classified newspapers based on readership, import duty was differentially levied and newsprint was also charged distinctly with the view of empowering the smaller newspapers to keep pace with the bigger ones. These pieces of legislation were called into question in the court of law, the first one in Sakal Newspapers v Union of India, the second one in Bennett Coleman and Others v Union of India, and finally the third one in Indian Express Newspapers v Union of India. In all these three cases prominence was awarded to the fundamental right guaranteed under Article 19(1)(a). It was in the case of the Cricket Association of Bengal that B.P. Jeevan Reddy J. opined that granting someone the right to use airwaves “at his choosing” would mean that only a few, privileged people would employ sway over the media. By using media to their advantage they would engage in disseminating misinformation to further their interest, thereby besmirching the principle of plurality. In his minority opinion in the case of Bennett Coleman and Others v Union of India, Justice K K Mathew reasoned that it is of utmost importance for public good and welfare that vast circulation of facts and figures have many and various origins. This, in other words, would mean that the ideas are not put through any authoritative process. He identified two interests, one that of an individual to be able to put across his views and the other of the society to be in a position to embark on the “wisest course”. Justice Mathew, while citing Time v Hill, also cognized that the freedom of speech and expression is more for the people than for the press. Hence, it can be perceived that to realize the usefulness of free speech and expression, it is not enough to merely provide the citizenry with the opportunity to read and know. It is also important that people are given genuine choice concerning the diverseness of sources of information. It is ultimately under the policies of a media house that something is published. In case of a monopoly arising in this segment, the absolute decision-making power would vest with a single entity or a group of entities having the same interest. This, in turn, could impose limits on diversity in terms of the views and the content published would then narrate the facts from a single perspective.
In this light, it also becomes necessary to include the idea of fair competition. In Bennett Coleman, the court found the impugned legislation to be violative of Article 14 for it, in the eyes of the court, discriminated against those whose papers published more number of pages. It is, however, a matter of fact that the bigger newspapers attribute more space to advertisements as compared to the smaller ones. The idea of fair competition in this regard demands that the newspapers be put on a scale of equality and unequal must be brought on an equal footing. This needs to be done without overlooking the need to prevent the concentration of media ownership.
The current market form assumed by the media is oligopolistic but if the trend of acquisition of media houses by only one entity persists then the nature of the market form will turn into a monopolistic one and then the plurality of views talked about at various instances will be out of the question. As feedback to the TRAI’s call for remarks, the Delhi Union of Journalists highlighted how the comments of journalists have been subjected to implicit censorship, and their voices been suffocated under not being in accord with the policies of their employers. In their viewpoint freedom of the press means “freedom of press persons to voice their opinion”. Rational limitations can be put on cross-media ownership and as long as they ensure multiplicity and diverseness, they can, in no way, be said to erode the right to freedom of speech and expression. If the editorial autonomy is not watched over, then the media will go astray from undertaking its commission as a watchdog and will only communicate what the commanding group desires from it.
ABOUT THE AUTHOR(S)
Deepika Kacholia is a first year student at Dr. Ram Manohar Lohiya National Law University, Lucknow
Utkarsh Srivastava is a first year student at Dr. Ram Manohar Lohiya National Law University, Lucknow
In content picture credits: Crashcourse