Legalizing executive control: on the law of online journalism in India

ABSTRACTThis article critiques the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules 2021 (“the Rules”) as they relate to online journalism. The Government’s stated objective for making the Rules is to “level the playing field” of online journalism with print journalism. I examine whether and how the Government satisfies this objective. I make two broad claims. First, the Rules fail to “level the playing field”. The objectives, philosophical approach, and substance of the new regulatory scheme are significantly different from those that govern print journalism, and to the disadvantage of online journalism. Second, rather than “levelling the playing field”, the Rules give the Government overwhelming control of online journalism. The Government exercises ultimate control over the regulatory structures and gives itself unprecedented censorship powers over online journalism. If my claims are correct, the Rules will have catastrophic consequences for online journalism and Indian democracy.KEYWORDS: Digital Media Ethics CodePress Council of Indiaonline journalismPress Commissiondigital media ethics AcknowledgmentsFor research support, I am grateful to Arunima Das, Kaustubha Kalidindi, and Ananya Narain. Thanks to Sukumar Muralidharan, Siddharth Narrain, Aakanksha Kumar, Shohini Sengupta, Keerti Pendyal, Ashaawari Datta Chaudhuri, Sandeep Suresh, Rajesh Nayak, and Neytra Nayak for valuable discussions. Errors are mine alone. To Sagarika Nayak, for her unwavering support during good and bad.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 A notable exception was the Foreign Contribution (Regulation) Act 2010. Sections 3(1)(g) and 3(1)(h) prohibit “any association or company engaged in the production or broadcast of … current affairs programmes through any electronic mode” or their “correspondent or columnist, cartoonist, editor, owner” from accepting any “foreign contribution”.2 Akriti Gaur, Aniruddh Nigam and Sreyan Chatterjee, “The future of news in India” Vidhi Centre for Legal Policy 33 (30 April 2020) <https://vidhilegalpolicy.in/research/the-future-of-news-in-india/> accessed 6 July 2023.3 The lack of specific regulatory frameworks for DNMs and DNM’s ability to engage in target advertising have resulted in dynamic business models in online journalism. See ibid 18–22.4 Press Information Bureau, “Cabinet approves proposal for Review of FDI policy on various sectors” (28 August 2019) <https://pib.gov.in/PressReleseDetail.aspx?PRID=1583294> accessed 6 July 2023.5 Soumyarendra Barik, “Watch: Why New FDI Rules For Digital Media Companies Are Regressive For The Internet Space In India” Medianama (New Delhi, 5 September 2019) <https://www.medianama.com/2019/09/223-fdi-in-digital-media-regressive/> accessed 6 July 2023.6 Ministry of Information and Broadcasting, ‘Soliciting Suggestions/Comments/Inputs from the Stakeholders on the Draft ”Registration of Press and Periodicals Bill 2019’’’ (25 November 2019) <https://mib.gov.in/sites/default/files/Public%20Notice%20%20for%20RPP%20Bill%2C%202019.pdf> accessed 6 July 2023.7 The PRB Act, s 1(1), defines “newspaper” as “any printed periodical work containing public news or comments on public news”.8 The Bill is ambiguous on whether “digital media” covers exclusively digital media organizations or websites of print newspapers and periodicals or both. The office of the “Registrar of Newspapers in India” is vague. The Bill does not define the office nor gives any detail.9 Aniruddh Nigam, “Draft Press Registration Bill is Nothing but a New Collar on an Old Leash” The Wire (New Delhi, 1 July 2020) <https://thewire.in/media/draft-press-registration-bill-colonial-era-law> accessed 6 July 2023.10 Lata Jha, “OTT, digital news content now under I&B ministry ambit; trigger censorship fears” Livemint (New Delhi, 11 November 2020) <https://www.livemint.com/industry/media/ott-digital-news-content-brought-under-ministry-of-i-b-s-ambit−11,605,072,715,455html> accessed 6 July 2023.11 Press Information Bureau, “Government notifies Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021” (25 February 2021) <https://www.pib.gov.in/Pressreleaseshare.aspx?PRID=1700749> accessed 6 July 2023.12 Gaur, Nigam and Chatterjee (n 2) 33; Prannv Dhawan and Vishal Rakhecha, “Regulatory setup for media in India: A look at how existing rules translate to the digital realm” Firstpost (25 January 2021) <https://www.firstpost.com/india/regulatory-setup-for-media-in-india-a-look-at-how-existing-rules-translate-to-the-digital-realm−9,236,421html> accessed 6 July 2023; Niharika Yadav, “The Regulatory Regime for Digital News Media in India – The story so far” The Bastion (18 March 2021) <https://thebastion.co.in/politics-and/tech/the-regulatory-regime-for-digital-news-media-in-india-the-story-so-far/> accessed 6 July 2023.13 Affidavit of the MIB dated 19 September 2020, in Firoz Iqbal Khan v Union of India, Writ Petition (Civil) No 956 of 2020 <https://www.medianama.com/wp-content/uploads/Firoz-Iqbal-Khan-v-Sudarshan-News-MIB-affidavit-21.9.2020.pdf> accessed 6 July 2023.14 ibid [26].15 ibid [21].16 ibid [21]–[28].17 Vasudha Venugopal, “Information and broadcasting ministry looks at regulating online news” The Economic Times (New Delhi, 5 April 2018) <https://economictimes.indiatimes.com/news/politics-and-nation/information-and-broadcasting-ministry-looks-at-regulating-online-news/articleshow/63619859.cms> accessed 6 July 2023.18 ibid.19 Trisha Jalan, “‘I am a Man Who Believes in Self-Regulation’: I&B Minister Prakash Javadekar on Digital News” Medianama (New Delhi, 28 August 2020) <https://www.medianama.com/2020/08/223-digital-news-self-regulation/> accessed 6 July 2023.20 The Wire Analysis, ‘Internal Government documents reveal that the Government perceives a “bias” in digital news and it is interested in managing the narratives that emerge from DNMs. An Annotated Reading Guide to the Modi Government’s Tool-Kit for Managing the Media’ The Wire (New Delhi, 7 March 2021) <https://thewire.in/media/an-annotated-guide-to-the-modi-governments-tool-kit-for-managing-the-media> accessed 6 July 2023.21 Some, however, have questioned the value of uniform regulation across different media. See comments from N Ram and Justice Ravindran in Nikhil Pahwa, “On Self-Regulation of the Media In India – Notes From the Law Commission Consultation” Medianama (New Delhi, 9 October 2014) <https://www.medianama.com/2014/10/223-media-regulation-india-self-regulation/> accessed 6 July 2023.22 Norms of Journalistic Conduct of the Press Council of India under the Press Council Act 1978.23 Programme Code under section 5 of the Cable Television Networks Regulation Act 1995.24 State of Tamil Nadu v P Krishnamurthy (2006) 4 SCC 517 [15], [16].25 Internal government documents reveal that the law ministry highlighted this concern. See Saurav Das, “2 Modi Govt Advisers Warned New IT Rules Beyond Scope of Law, were Overruled” Article 14 (New Delhi, 17 May 2021) <https://www.article-14.com/post/2-modi-govt-advisers-warned-new-it-rules-beyond-scope-of-law-were-overruled> accessed 6 July 2023 (’… the law ministry only noted there was “no specific provision in the IT Act enabling (sic) to impose any penalty or to take penal action against the intermediaries or digital media”’.).26 A Press Council of India press release dated 14 April 2020 clarified that it has no jurisdiction over DNMs. Press Council of India, “Jurisdiction of the Press Council of India under the Press Council Act, 1978” (14 April 2020) <https://www.livelaw.in/pdf_upload/pdf_upload−373,125pdf> accessed 6 July 2023.27 Agij Promotion of Nineteenonea Media Pvt Ltd v Union of India 2021 SCC Online Bom 2938.28 Digital News Publishers Association v Union of India, Writ Petition Nos 13,055 and 12,515 of 2021 (Madras High Court, 16 September 2021).29 Live Law Media Pvt Ltd v Union of India, Writ Petition (C) No 6272 of 2021 (Kerala High Court, 10 March 2021); News Broadcasters Association v Union of India, 2021 SCC Online Ker 2735.30 Foundation for Independent Journalism v Union of India, Writ Petition (C) No 3125 of 2021 (Delhi High Court).31 Skand Bajpai v Union of India, Writ Petition (C) No 799 of 2020 (Supreme Court, 9 May 2022).32 The Rules, rule 11(2)(a).33 The Rules, rule 12.34 The Rules, rule 14.35 The Rules, rule 14(2)(b).36 The Rules, rule 14(5).37 The Rules, rule 14(6).38 For a critique of press self-regulation, see The Hon Ray Finkelstein and Rodney Tiffen, “When Does Press Self-Regulation Work?” (2015) 38 Melbourne University Law Review 944, 952.39 Nireekshak, “Decorative Press Council” (1974) 9(25) Economic and Political Weekly 978; Statement by DC Sharma, Press Council Bill, Lok Sabha (29 September 1964) (“if the Press Council is coming into being only for the purpose of censuring some persons, it is not going to achieve much. […] I think that unless we are told about the procedure of this censure, this Press Council will be a body without any teeth. It will be just a kind of advisory body, a body which will pass harmless resolutions, and which will do things which will not carry journalism very far.”).40 Rajeev Dhavan, “On the Law of the Press in India” (1984) 26(3) Journal of the Indian Law Institute 288, 328–29.41 ibid; Nireekshak (n 39).42 AG Noorani, “The Press Council: An Expensive Irrelevance” (2009) 44(1) Economic and Political Weekly 13, 15; Statement by DC Sharma (n 39) (“I feel that the number allotted to working journalists is very very meagre”.); Statement by Shri Warior, Press Council Bill, Lok Sabha (30 September 1964) (“The word working journalist is there but his representation will be a microscopic minority in the Council”.).43 Nireekshak (n 39).44 Sukumar Muralidharan, “Press Council as Bully Pulpit: A Debate on Media That Could Go Nowhere” (2011) 46(47) Economic and Political Weekly 14, 17.45 Noorani (n 42).46 ibid; Nireekshak (n 39).47 See Cable Television Networks (Amendment) Rules 2021, framed under the Cable Television Networks (Regulation) Act 1995. Some minor differences exist. Broadcasters are only subject to the Programme Code while DNMs are subject to the Programme Code as well as the Press Norms.48 The Commission wrote two authoritative reports, in 1954 and 1982, about the history of the Indian Press, state of the contemporaneous press, and directions that future reform should take.49 The First Press Commission, “Report of the Press Commission” (1954) 339.50 ibid 358.51 ibid 359. The Press’ democratic role is well-recognized. See Finkelstein and Tiffen (n 38) 952.52 The First Press Commission (n 49) 359. Similar to “moral” rights, BG Verghese has conceptualized the journalist’s right to free expression as a “social right” and a “social responsibility”. See BG Verghese, “The media in a free society” (1977) 12(18) Economic and Political Weekly 731, 733.53 The First Press Commission (n 49) 360.54 ibid 352.55 ibid 353.56 ibid.57 Statement by Indira Gandhi, Press Council Bill, Lok Sabha (30 September 1964).58 The First Press Commission (n 49) 353–354.59 ibid 360.60 For a list of dates and titles of the debates in both houses of Parliament to the PCI Act 1965, see Dhavan (n 40) fns 346–347.61 In the Rajya Sabha, substantive debates on the PCI Act 1965 took place between 17 August 1965 and 26 August 1965.62 Statement by Vidya Charan Shukla, Statutory Resolution Re. Disapproval of Press Council (Repeal) Ordinance 1975 and Press Council (Repeal) Bill, Lok Sabha (28 January 1976).63 As noted above, parliamentary debates on the PCI Act 1965 took place over two years, while debates on the PCI Act 1978 took place over six months between 1 March 1978 and 31 August 1978. See Dhavan (n 40) fns 346, 347.64 Brownen Morgan and Karen Yeung, An Introduction to Law and Regulation (CUP 2007) 80. On command and control regulation, see Robert Baldwin, Martin Cave and Martin Lodge, Understanding Regulation (2nd edn, OUP 2012) 106–111.65 The Rules, rule 13(1)(a).66 On the other hand, the Government did follow some consultation processes (including inviting comments and counter-comments) for the Rules as they related to intermediary liability. See Trisha Jalan, “MeitY Seeks Public Comments on Changes To IT Rules Till 15 January” Medianama (3 January 2019) <https://www.medianama.com/2019/01/223-meity-it-rules-public-comments/> accessed 6 July 2023.67 Cellular Operators Association of India v Telecom Regulatory Authority of India (2016) 7 SCC 703 [80]–[94].68 Letter from PK Malhotra to all Secretaries to the Government of India (5 February 2014) <https://dot.gov.in/sites/default/files/o%26m1.pdf> accessed 6 July 2023, stating that “[t]he Department/Ministry concerned might, in addition to placing the proposal in public domain, also hold consultations with all stakeholders”.69 “Indian Press Council” (Accountable Journalism) <https://accountablejournalism.org/ethics-codes/india-press-council-of-india> accessed 6 July 2023, citing Dr Sathyanarayanan Dave v Indian Express (1989–90) AR 111 and Lalit Mohan Gautam v Indian Express (1990–91) AR 1 22.70 The Press Council (Procedure for Inquiry) Regulations 1979, reg 3(1)(f)(i).71 ibid.72 Common Cause v Union of India (2018) 13 SCC 440 [11] (“ … we are of the view, that the Central Government, having framed Rules in the nature of Cable Television Networks Rules, 1994, would be well advised, to frame similar Rules … to formalize the complaint redressal mechanism, including the period of limitation within which a complaint can be filed … ”).73 The Press Council (Procedure for Inquiry) Regulations 1979, reg 3.74 ibid.75 John Pavlik, Journalism and New Media (Columbia University Press 2001) ×ii <https://www.degruyter.com/document/doi/10.7312/pavl11482/html> accessed 7 July 2023.76 Robert Darnton, “The True History of Fake News” (The New York Review, 13 February 2017) <https://www.nybooks.com/daily/2017/02/13/the-true-history-of-fake-news/> accessed 6 July 2023.77 Pavlik (n 75) 89–92.78 ibid.79 Jonathan Zittrain, John Bowers and Clare Stanton, “The Paper of Record Meets an Ephemeral Web: An Examination of Linkrot and Content Drift within The New York Times” 2021 Library Innovation Lab at Harvard Law School <https://nrs.harvard.edu/URN-3:HUL.INSTREPOS:37367405> accessed 15 August 2023.80 Press Council of India (n 26).81 The Rules, rule 13(1)(a).82 The PCI Act 1978, s 13(2)(b).83 ibid, s 13(2)(a).84 ibid, s 13(2)(c).85 ibid, s 13(2)(d).86 Reporters Without Borders, “Online Harassment of Journalists: Attack of the Trolls” (July 2018) <https://rsf.org/sites/default/files/rsf_report_on_online_harassment.pdf> accessed 6 July 2023; Swati Chaturvedi, I am a Troll: Inside the Secret World of the BJP’s Digital Army (Juggernaut 2016).87 Tarunabh Khaitan, “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India” (2020) 14(1) Law & Ethics of Human Rights 49, 88–90.88 The Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act 1955; Working Journalists (Fixation of Rates of Wages) Act 1958.89 Anumeha Yadav, ‘Modi’s labour law “reforms” will dilute your rights as a journalist’ Newslaundry (New Delhi, 22 July 2019) <https://www.newslaundry.com/2019/07/22/modis-labour-law-reforms-will-dilute-your-rights-as-a-journalist> accessed 6 July 2023.90 Preamble to the Maharashtra Media Persons and Media Institutions (Prevention of Violence and Damage or Loss to Property) Act 2019.91 Priyal Shah and Aakanksha Chaturvedi, “Laws for Journalists in India: An Overview” (Social & Political Research Foundation, April 2021) <https://sprf.in/wp-content/uploads/2021/04/SPRF-2021_Journalism-Paper_Curated-Voices_Final.pdf> accessed 6 July 2023.92 ibid.93 The Rules, rule 14(2)(b).94 Robert Audi, “The Function of the Press in a Free and Democratic Society” (1990) 4(3) Public Affairs Quarterly 203, 207.95 ibid.96 Lara Felden, “Regulating the Press: A Comparative Study of International Press Councils” (Reuters Institute for the Study of Journalism, April 2012).97 Angela J Campbell, “Self-Regulation and the Media” (1999) 51(3) Federal Communications Law Journal 711, 713.98 The First Press Commission (n 49) 352.99 These institutions respectively are the University Grants Commission, the Bar Council of India, and India’s National Academy of Letters.100 cf Noorani (n 42) 15. Noorani claims that Supreme Court judges have been “ignorant” in discharging their duties.101 The Rules, rule 14(5(f).102 The Rules, rule 15(2).103 The Rules, rule 16.104 An “Authorised Officer” is “an officer of the [MIB] not below the rank of a Joint Secretary to the Government of India” who is empowered to issue directions under the Rules. See The Rules, rule 13(2).105 The Rules, rule 16(2).106 Article 19(2) of the Constitution subjects the right to freedom of expression to any “law” that amounts to “reasonable restrictions … in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.107 Shreya Singhal v Union of India (2015) 5 SCC 1.108 Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009.109 Freedom House, “Freedom on the Net 2021: India” <https://freedomhouse.org/country/india/freedom-net/2021#footnoteref29_e0dzq58> accessed 6 July 2023.110 The Wire Analysis, “In Sum and Substance, New Digital Media Rules Establish a Confusing Playing Field” The Wire (New Delhi, 28 February 2021) <https://thewire.in/government/new-digital-media-rules-confusing-playing-field-newspapers-tv-channels> accessed 6 July 2023 (“ … there has been so far no publicly documented instance of Section 69A of the IT Act being used to remove a news article or media report”.).111 Ministry of Information & Broadcasting, “No new provision added on blocking of content” (27 February 2021) <https://mib.gov.in/sites/default/files/Press%20Release%20dated%2027.2.2021.pdf> accessed 6 July 2023.112 The Wire Staff, “Govt Blocked Over 25,000 Web Pages, Sites, Social Media Pages From 2014–2021” The Wire (17 March 2022) <https://thewire.in/government/govt-blocked-over−25,000-web-pages-sites-social-media-pages-from-2014–2021> accessed 6 July 2023.113 Press Information Bureau, “Ministry of I&B blocks 22 YouTube channels for spreading disinformation related to India’s national security, foreign relations and public order” (5 April 2022) <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1813603> accessed 6 July 2023.114 The Rules, rule 14(5)e.115 Chinmayi Arun and Sarvjeet Singh, “Online Intermediaries in India” (2015) NOC Online Intermediaries Case Series 24–26 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2566952> accessed 6 July 2023.116 I am grateful to an anonymous reviewer for sharing this insight.117 KA Abbas v Union of India (1970) 2 SCC 780.118 ibid [9].119 ibid.120 ibid.121 The PCI Act 1978, s 14(1).122 ibid, s 14(2).123 Dhavan (n 40).124 Magistrates may “direct any person to abstain from a certain act … if such Magistrate considers that such direction is likely to … [lead to] a disturbance of the public tranquillity, or a riot, or an affray”. See Code of Criminal Procedure 1973, s 144.125 See, for example, the facts leading up to Virendra v The Punjab State AIR 1957 P&H 1.126 State of Uttar Pradesh v Lalai Singh Yadav (1977) 1 SCR 616.127 Ramlila Maidan Incident v Home Secretary Union of India (2012) 5 SCC 1; Anuradha Bhasin v Union of India (2020) 3 SCC 637.128 For a recent critique, see Gautam Bhatia, “The Meesha Judgment: Book Bans and the Supreme Court’s Dangerous Grandstanding” Indian Constitutional Law and Philosophy Blog (5 September 2018) <https://indconlawphil.wordpress.com/2018/09/05/the-meesha-judgment-book-bans-and-the-supreme-courts-dangerous-grandstanding/> accessed 6 July 2023. For a discussion of the important case law around this section, see Chinmayi Arun, Arpita Biswas and Parul Sharma, “Hate Speech Laws in India” Centre for Communication Governance (April 2018) 57–65 <https://drive.google.com/file/d/1pDoIwlusnM3ys-1GAYbnTPmepU22b2Zr/view> accessed 6 July 2023.129 The Review Committee, set up under Rule 419A of the Indian Telegraph Rules 1951, comprises three members: the Cabinet Secretary, Secretary to the Government of India in charge, Legal Affairs, and Secretary to the Government of India, Department of Telecommunications.