Directorate of Distance Education NALSAR University of Law, Hyderabad Reading Material Post-Graduate Diploma in Media Laws 1.4 Electronic Media and Regulatory Law By: Prof. Madabhushi Sridhar Acharyulu Dean, School of Law, Bennett University Former, Central Information Commissioner & Professor, NALSAR University of Law, Hyderabad (For private circulation only) 1 © NALSAR University of Law, Hyderabad (Print 2019) (For private circulation only) 2 Contents 1. CHAPTER I Convergence of New Media & the Internet 5 2. CHAPTER II Expansion of Electronic Media: Broadcast sector – TV and Radio 25 3. CHAPTER III Autonomy of Public Sector Broadcaster: Prasar Bharti Law 43 4. CHAPTER IV Freedom of Private Broadcasting and Regulations 77 5. CHAPTER V Convergence Regulation 135 6. CHAPTER VI Internet, Social Media & Information Technology Act 2000 179 ANNEXURE I: The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 209 ANNEXURE II: The Cable Television Networks (Regulation) Act, 1995 231 3 4 5 CHAPTER I CONVERGENCE OF NEW MEDIA & THE INTERNET 1.1 Electronic Media: Need for Autonomy: Technology is bringing all kinds of media together. This convergence is visible with palm top computer in the form of smart mobile phone instruments, where we can read newspaper, watch news bulletins, hear the podcasts, have our own web portal to give news or views, communicate audios and videos etc. Like copyright law was necessitated with invention of press, media law began with expansion of print medium. Next to add on was electronic media. When electronic media was under the control of State, the need for its autonomy was felt. The important question asked was: Why should the radio and television i.e. the electronic media be subjected to greater regulation and control than the press media in India and also the other countries in the world? Why has the government always felt the greater need to suppress the electronic media and not the print media? A contention in reply to this question is this: The vast majority of population in India is illiterate. The print media, therefore, is not accessible to the majority of the population. The radio and the television (mass media) reach this part of the population. The government, therefore, wants greater control over this media in order to reach the masses and make her voice heard India is a land of diverse culture and religions. ―The press was left free in private hands to keep vigil over the performance of the government. Not that these functions are exclusive, but emphasis and domain was clear.‖1 Another reason for keeping the media under government control was the cost of infrastructure and the operation of the medium. The costs involved were so huge that no private enterprise would have come forth to invest in the broadcasting, certainly not in the initial years of independence. Once the media came under government control, they were largely misused to build up the image of the party and the leaders at the Center. Also the media became a source of entertainment for the urban middle class and a source of commercial exploitation for the private industries (as advertising). This could have been acceptable in the countries like Britain, where the media is essentially a commercial and entertainment tool and the educative and information functions are left to other institutions. However, as this media was the only mode of educating and informing the vast majority of illiterate population in India, it became necessary to modify the media and mould it to serve the needs of the masses. Autonomy therefore becomes necessary in order to achieve these objectives and to ensure that the media does not functions as the mere mouth piece of the government. 1 J.S. Yadava, ―Autonomy For Whom and For What?‖ Communicator, March 1990, pg 20 6 However Autonomy is essential for real development of the electronic media. In the field of broadcasting the concept of autonomy implies that there is an ―unbridled functioning of the electronic media systems, free from government shackles, but within the aegis of the government.‖2 Though every country in the world recognises the need for autonomy, what is being debated today is the extent to which such autonomy should be given and what kind of autonomy should be granted. Public broadcasters are a vital component of the broadcasting sector in most countries, and will continue to be long into the future. Historically, such broadcasters have often been the only national broadcast medium and they continue to occupy a dominant position in many countries. Funded out of the public purse, they are a unique way of ensuring that quality programmes covering a wide range of interests and responding to the needs of all sectors of the population are broadcast. They thus ensure diversity in programming and make an important contribution to satisfying the public's right to know. Autonomy signifies self-rule. Empowering the government with the hiring and firing authority contradicts the very essence of autonomy. The Government seems to be determined to give a new meaning of the term autonomy as according to the State Minister for Information, "the concept of autonomy did not suit with the era of free flow of information!"3 Autonomy can also be thought of in the terms of professional or functional autonomy i.e. having independence or freedom in the discharge of the functions the organization is entrusted with. Though in the use of this word ‗autonomy‘ the different meaning or faces of autonomy are not always kept distinct but they do not necessarily go together. The most important kind of autonomy is the functional autonomy. Legal and administrative autonomy just assist the functioning of the functional autonomy. There can be instances where we have functional autonomy without legal and administrative autonomy and vice versa. Though legal autonomy does not guarantee functional or operational autonomy, yet it is welcome. Secondly, apart from institutional arrangements, a lot depends on the top personnel in charge. What is needed is a ―fully objective and professional process of formulation of job-specifications, definition of criteria, short-listing and actual selection, with (if necessary) expert professional assistance‖4 Next important aspect is the autonomy of the clientele. However, this issue has become less relevant today as there are a number of private channels also which is giving 2 B.S.S. Rao on Equal Opportunity Broadcasting quoted from ―Government Media- Autonomy and After‖ edited by G.S. Bhargava, Concept Publishing Co. , 1991, pg 13 3 A. H. Monjurul Kabir, quoted from www.banglarights.net/HTML 4 Ramaswamy R. Iyer on Autonomy : Form and Substance quoted from ―Government Media- Autonomy and After‖ edited by G.S. Bhargava, Concept Publishing Co, 1991, pg 43 7 ample ‗autonomy‘ or freedom to choose to the clientele, still we need to understand it because at one time the electronic media failed to give this autonomy to the people. In the light of the educational role of the television we can define this autonomy as the learner‘s autonomy. The media should be aware of the fundamental and the more complex problems involved in planning, developing, producing and presenting educational programs. The media should not only be sensitive to the educational needs of the people but should also be aware of its potential role as an educator. Thus, while trying to achieve the other forms of autonomy it has to keep the objective to attaining a society of ‗learner‘s autonomy‘ in mind. At this juncture it is relevant to discuss the concept of linguistic autonomy also. This is a problem which is cannot be ignored. In a country like India, there are diverse cultures and languages. Earlier, the entire Broadcast used to take place mostly in the national language and no thought was given to the various other languages that were spoken in the country. ―The Journalists at large inculcate, a language which allows autonomy to percolate down to the lowest strata of the society. Autonomy of certain institutions, whether All India Radio, Doordarshan, any public sector organization or universities or other educational institutions would not bring any results, till the nature of modern India state changes in such a way that we would be able to find a balance between the social and individual interests.‖5 What is the use of all the freedom and autonomy that we can possibly dream of if we do not understand what is being broadcasted to us? Television‘s influence over the public makes it a tempting target for those in government who would seek to control public opinion—to devalue democratic processes and eliminate the public voice as a factor in official decision-making. In the United States, the recognition of the media‘s importance to democracy is embodied in the First Amendment to the Constitution, which instructs government to make no law abridging the freedom of speech or the press. Yet even in the U.S. the tradition of press independence has occasionally come under attack from government, and in the New Independent States, press independence may lack deep constitutional or cultural roots. The Working Group therefore met this year to consider ways of protecting television autonomy, as a way to maintain the health of democratic institutions and processes. Though our initial focus was solely on the autonomy of the television and radio broadcaster, it soon became apparent that it was equally important to consider the participation of the community—its autonomy. For without the participation of citizens the highest forms of public discourse cannot take place and the concerns of the public may not reach the political agenda. 5 Hemant Joshi, ― Autonomy and Language‖ Communicator , March 1990, pg 34 8 Autonomy (or freedom, or independence) is about the discharge of power.