THE FOURTH ‘e’STATE

Ever since the first technologies of mass communications came into existence, society has been grappling with policies and regulations to deal with the use and misuse of media. There have been extremes wherein at one end media has been strangled by excessive controls and at another end some media barons have misused their power to become a thorn in the progress of the society. States have been trying to keep pace with the development of technologies to evolve new strictures and guidelines. However in the last few decade’s mass media has developed at such phenomenal pace that the legislative authorities have found themselves lagging behind in taking the new technologies into their stride. This has left the balance tilted in favour of new media which have been left outside the gambit of control mechanisms. However, on the other hand, entrepreneurs are apprehensive of putting to utility new technologies fearing new laws that may suddenly leave them at a disadvantage. Entrepreneurs fear of being left in the lurch after being neck deep in a project has resultantly left the consumers at a disadvantage as they cannot enjoy the benefits of latest technologies.

This stands all the more true in a country like India, as our present economics and demographics requires any kind of new entrepreneurial initiatives to be highly capital intensive. This leaves us with little doubt that the age old regulations governing the fourth estate are insufficient to meet the new challenges and need to be revamped to ensure that the consumers get media content of the highest standards on one hand and on other hand is assured of access to media through the latest technologies at the cheapest costs.

There have been healthy discussions on the subject, thanks to the various forums created by the vibrant Indian democracy. There have been suggestions for new policies and regulations in the place of old laws. The laws that may stand to be repealed in the instance of a new law are:

• The Indian Telegraph Act 1885
• The Indian Wireless Telegraphy Act 1933
• The Telegraph Wires (Unlawful possession) Act 1950
• The Telecom Regulatory Authority of India Act 1997
• The Cable Television Networks (Regulation) Act 1995

It is evident from these set of laws that each of them have been enacted in a situation wherein a new technology had made an advent on a large scale national level. The early set of laws continues to hold effect over new forms of mass media thanks to the legal interpretation of the word ‘Telegraph’. It has been conveniently interpreted to cover newer forms of media.

Radio

Radio in India has been a monopoly of the government till recently. Now private FM channels and Community radio have been permitted. The licences for FM channels in each city have been auctioned. The I&B ministry has put down nomenclature for the same. The community radio is a much more new phenomenon wherein NGO’s will be allowed to run radio stations at micro-level for the benefit of the local villages. Permissions for community radio are also given by I&B ministry on the merits of individual cases on the basis of some laid down guidelines.

Community Radio is a relatively small phenomenon considering that the broadcast is limited to a radius covering only a few villages. It is expected to function as a utility tool for the developmental works of NGO’s. Similar permissions are being issued to some universities to set up radio stations. In my opinion these campus radio stations should be focused on developing the skills related for Radio Industry in interested students. Such stations can also become popular in the surrounding communities.

I strongly disagree with the present policy of auctioning one or two FM radio frequencies for each city. Permissions for setting up local channels should be granted liberally and should be taxed on income. This will assure in a whole new generation of entrepreneurs and create a huge segment of small scale industry with tremendous potential of employment generation. The only criteria for licenses should be to see that the applicant for the license is not working against the national interests and is not filling the airwaves with obscene content.

Print

The print industry being the media with the longest and most turbulent history has cocooned itself into a complex set of government policies and self-regulations. Numerous autonomous bodies are keeping a watchful eye to ensure freedom of speech in the industry at the same time ensuring that the industry binds to self-regulation on sensitive subjects. Though these have not ensured a completely cordial relation with the other estates, we could still consider it far more satisfactory.

The much talked about ‘Foreign Direct Investment (FDI) in print media’ is the most important issue before the print industry. The majors in the print industry would be welcoming the FDI in the hope that more investment in their organisation would result in more profit. However the big fish will not take much time in devouring the small fish which would result in the winding up of many local publications. Setting up a daily is already such a capital intensive project in the present circumstances, it is not difficult to imagine the fate of a small or socially oriented entrepreneur in a market scenario that allows FDI investments. Further it would be detrimental to the interests of democracy to allow powerful influences on public opinion into foreign hands. It would be falsehood to deny that most major publications are mixing business interests with political inclinations.

Television

Television is the medium that became so powerful overnight in the post-liberalisation era that no political authority dared to attract the wrath of the television industry by expounding any kind of regulations.

In-fact the centre banned the advertisements of cosmetics (and similar products) in state owned channels on the premise that Indian ‘nari’ requires no false beauty mask… when they cannot even afford three meals a day. No prizes for guessing where the gigantic advertising budgets of the cosmetic industry were diverted to. In whose interests (read as profits) were such decisions taken.

At the advent of satellite television, unlinking of channels were not allowed from the Indian soil, only to be later reversed. The television boom saw the spreading of the cables across every streets of the country like arteries of information. This became the life line of tens of thousands of unemployed youth as they exploited their entrepreneurial skills and turned into cable operators. The Cable Television Networks (Regulation) Act 1995 was enacted but it did little as the industry watched the cable networks getting dwarfed into the cable mafia. Though the cables crisscrossing over our streets remain illegal, they remain the reason for the consumer getting so many channels at a reasonable cost (at least in most areas). But I sill dare not pick an argument with my cable operator as I know there is no alternative cable operator. So much for the talk for free market and against monopoly…

The Direct To Home (DTH) television that was launched recently made little ripples due to its exorbitant costs. However it remains a technology to be watched out for. However the experience of DTH in African countries which do not have cable penetration leaves us with little doubt that that DTH is no alternative to cable in the present circumstances. The television penetration in these African Countries is less than three percent.

Censorship of television programming has been in much demand by some sections on the face of blasé presentation of violence and obscenity in the small screen. Though I wouldn’t vouch for a control on the lines of film censorship, I still would look forward to a set of guidelines and a regulatory mechanism to judge demands for expurgations of contents of television programs or commercials. Autonomous organisations on the lines of those in print media could be of major help. At the same time it is also important for the regulatory mechanism to formulate strictures from time to time to protect agreements between the producers of television programming & television channels and between advertising agencies and media houses. Such a mechanism has been suggested in the convergence bill (2000) which requires a convergence council on the lines of TRAI to look into such issues. However the bill has been shelved and does have some loopholes considering the functioning of TRAI.

Internet

The medium that has obscured information boundaries has created boundaries for the agility of national laws governing media. Controlling content in this media has been found to be practically impossible for the state. None the less it is possible and necessary to regulate and promote the players in this media operating from our country. The Information Technology (IT) boom witnessed landslide entrance of many entrepreneurs into this medium. The IT bubble burst witnessed an equally fast disappearance of most of these operators. Though many players have managed to wedge a foothold for themselves into this new media, problems galore exist. The primary concern of the users of this medium is the security of online transactions. This concern has been met to an extent by some new laws. However a continuous monitoring of this subject is necessary. It is necessary to give a massive boost to online trade beneficial to our country. The present popularity of websites operating from servers located in foreign countries is leading to loss of massive foreign exchange. This is because advertisers targeting Indian customers are paying foreign websites to reach Indian target audience. The Information and Communications ministry has taken steps to check this by initiating the ‘.in’ campaign.

Telecommunications

It is not only radio, print, television and internet but also telecommunications and film have fallen in the line of convergence. Though telecommunications industry is now governed by the Telecom Regulatory Authority of India (TRAI), it is plagued with issues like internet telephony and other new technologies. The short history of TRAI is marked with allegations of favouritism and corruption. Though telecommunications and mass media differ greatly, their technologies have converged making it necessary to bring them under the realm of a single regulation.

Film

However much the film industry would like to present itself as a distinct medium, the arrival of digital technologies in film production and distribution cross connects it with other forms of mass communications. Film downloads or streaming over the internet has already made its mark. Entrepreneurs are already looking into the possibility of digitally transmitting films from one place to many auditoriums/theatres across the country (and even globe) through satellite. Which laws of the present govern these technologies?

Challenges to new policy:

The most problematic question is the convergence of various media. With technologies of radio, television, film, print, internet and telephony converging, it is proving difficult for one stated law to cover the progression of technology. Technology has already made it possible for television, radio, internet and telephony to be transmitted to the consumer’s home through a single cable for a single payment. In this scenario which law governs this? Which regulator body holds sway on the subject and to what extent? The answer to this question can only be a new ‘future sensitive’ policy supported by laws that are elastic enough to cover any new communications technologies.

Before embarking on formulating a new policy or set of laws, it is necessary to first list out what the policy is trying to achieve. There will be naturally be a lot of difference of opinion on the subject, but the broad objectives may be as follows:

1. To have a regulatory mechanism for issuing licenses/permissions to operate any media.
2. To ensure that the media does not fall into the hands of anti-nationals / militants or other detrimental forces.
3. To ensure that there is healthy competition between the various media entities and environment for all round growth of media.
4. Address issues related to Freedom of press, Right to privacy, Freedom of Speech, Right to information and Right to know.
5. Reasonable Restrictions: To ensure that the media is not misused by particular sections to influence public opinion and to ensure that sensationalism does not take over authenticity of information.
6. Ensure minimum rights and security to journalists and other employees.
7. A mechanism to speedily judge any disputes between the media entities. A set of guidelines to support the same. The mechanism to award damages.
8. Ensure the autonomy of the above mechanism.
9. To be elastic enough to ensure that any new technologies come under the realm of the policy.

Alternatives

In 2000 the convergence bill was formulated by the I&B ministry. The bill has been shelved since then. It would be prudent to briefly look into its structure and loopholes.

The Communication (carriage and content) Bill, 2000 requires the creation of Communication Commission of India. To ensure its autonomy only the president can remove the chairperson or any member that too only for misconduct after enquiry by sitting or retired Supreme Court Judge. In the words of the framers … “It is expected that the commission will be able to take a broad view of the converging sectors, and respond flexibly to the emergence of new services, as also to ensure a consistent approach to regulation of related activities. As different organisations diversify their activities across the convergent sector, a regulator with the breadth scope and expertise expected of this commission would (it is hoped) make the law move to new heights of achievement. However, there are concerns about the transparency and accountability of a single regulatory body: and we have suggested provisions to overcome these misgivings in a new statute. We continue to support the principle that Independent Regulators must conduct regulation on an arms-length basis. Without this, the risk of ad-hoc political involvement in economic regulation will increase regulatory risk, and influence adversely the ability of the companies to invest and operate in a settled climate. This principle is even more significant and sensitive in connect with the regulation of content. It is now accepted in most countries that Government must be seen to stand back from controls, and confine themselves to set up a general institutional framework.”

The members and chairman of the Communications Commission are to be appointed by a collegiums comprising of The Prime Minister, The Leader of Opposition in Lok Sabha, Leader of the House in the Rajya Sabha, Leader of the opposition in Rajya Sabha and the Ministers in-charge of Information and Broadcasting and Communication in the central government.

The Convergence Bill which aims to bring all forms of mass media and telecommunications authority has come under the critical scanner of public debate. It has been criticised that the convergence council has lost its original meaning because of the detailed guidelines incorporated in the bill, to which the council has to abide by. Apprehensions have also been raised regarding the method of appointment of the members and chairman. The chairman being a political appointee could become a political puppet and be biased. It has also been pointed out the person who may be appointed may not have any technical understanding of the various fields concerned.

Conclusions:

I am personally apprehensive about a completely independent authority as we can see from experience that many such similar independent regulatory authorities have been biased and corrupt. The governments have also escaped responsibility of anti-people decisions by stating that the issue is under the domain of an independent regulatory authority. However many of these decisions are made behind the curtain by the political authorities.

The people in power are elected democratically and these people cannot escape responsibility by appointing independent authorities who can not be questioned. The authorities appointed should be under the concerned ministry, but should be allowed to function freely while abiding by a set of guidelines.

To meet the logistical regulatory requirements of the various media’s that are continually reshaping and converging, the government should formulate a clear set of guidelines. A regulatory authority should issue licences, permissions, settle disputes and give clarifications under these set of guidelines. Whenever an issue crops up regarding which the guidelines are no clear, the regulatory authority should give a justifiable ruling and should request the framers of the guidelines to make clarifications and additions in this regard. To be implemented this concept is not as easy as said. The framing of such a regulatory mechanism would churn up many complicated issues that would require infinitesimal attention. No complains for that, considering that we are dealing with the fourth estate of democracy. Any slackness in prying with this pillar of democracy could have catastrophic consequences.