Our notes from the law commission consultation on Media Regulation. Note that some parts may be paraphrased, and some sentences missed:

Justice Ravindran: “Indian media requires regulation. What is needed to be debated is the extent of regulation. What can be the regulations?
– At one end of the spectrum is what is advocated, which is complete statutory regulation, that is the media to be governed by rules and regulations, through a regulator whose members are appointed by the government.
– The second choice is an independent regulator who decides the extent of the regulator.
– The third is an non statutory independent regulator, appointed by the trade associations.
– The fourth is non statutory self regulation, where every media entity creates and provides its own grievance redressal mechanism.

There are persons who advocate the steps of absolute statutory regulation. I may share a few thoughts about how NBSA (News Broadcasting Standards Authority) has felt.

NBSA has worked to the extent: there are 365 news channels. All of them are not really news channels. Some of them are entertainment channels who also show some news. Out of them, about 50 or 60 are members of the News Broadcasting Authority. 120-130 are not members of the NBSA. For the present, even though 60 are members, around 80% of viewership is controlled by most of these. How can a voluntary body be effective when only 60 are members? The 50-60 channels who are members of NBSA are ready to follow the rules. It is the others who refuse to come in, or have gone out. The regulations are meant for them.

This is where you should find a solution. The Cable TV network rules provide that no advertisers who violate the code of advertisers set up by the advertising standards council of India (ASCI) will be allowed to carry advertising. The Cable TV network rules have made the rules binding on all. If the jurisdiction can be done under NBSA to all channels, there may be better discipline. It is necessary to attain a balance between the public interest and the individual right to privacy. As far as several facets are concerned, there is statutory control. There are registration, licensing, telecom regulatory authority of India is there, Press Council Act is there, and there are laws concerning defamation. What is needed is right to privacy and media ownership. What doesn’t require statutory regulation is content and ethical standards. I may be prejudiced in favor of an independent regulator.

N Ram, the Hindu: As far as the legal architecture is concerned, I believe self regulation is the way to go. The second part is: it carries a lot of meaning and a lot of responsibilities. Self regulation, provided it is meaningful and responsible. What are we talking about? Everyone says they’re proud of the press and broadcasting, although there are plenty of complaints. The public is very critical of the practices not just of the fringe but also mainstream. There’s no running away from that. There’s real comparability with the UK situation, although the experience is very different. Something triggered it off: there it was phone hacking, here it is paid news. The British press has not accepted the Leveson report in full, although there are two rival projects, one saying it is Leveson compliant, and the other says its not. On the regulatory issues, there’s much that is worth preserving, we shouldn’t conflate the state of news media with the state of journalism. While there are many good things in this experience, we have a real problem on our hands. The main functions of the press, the credible information function, to the critical function, it is adversarial, claims to be a watchdog, and the third function is an entertainment function – a pass-time function. The first derivative is an agency in public education, the second is … the third derivative is agenda building, the manufacturing of consent model that Chomsky has talked about. Coming to the specific questions raised by the Law Commission. There is hardly any self regulation for the press, whether you’re talking about print or digital platforms. I can say that we have some experience in the Hindu, adopting the Guardian model of an ombudsman, and a readers editor. It is independent of the editorial team, which is supported to do his or her job. This is something that has worked in the UK, and it is working for us. This has not spread. TV hasn’t got it. You cannot have self regulation unless you have an internal system of disciplining your professionals, with a code of conduct.

As for broadcast, the news and current affairs sector, something was done in response to complaints. I’m not talking about inclusivity. I’m talking about the concept of this body. What are the Leveson criteria? It has to be independent, credible, open and transparent. Independent is it not. No adverse implications – you cannot have serving editors. It was flawed from the start. The PCI (Press Council of India) is dominated by people from newspaper industry with news agencies represented, and to make things worse, Members of Parliament. This is not what we want from a self regulation perspective. I don’t know what to do about it. We have to go to first principles, invent it from the start. The PCI and NBSA will not stand. Get rid of the industry people. Have academic journalists and those who can distance themselves from the controversies. Some of them might be truly independent, but that will not sell because you have to distance yourself. The other point: can we leave it purely to the industry? No. We don’t want statutory regulation. The Leveson idea from the UK, that impressed: you need to validate the independent, effectiveness of the self regulation, in a statutory perspective. OFCOM has not gotten into any controversy in exercising its powers. If you give TRAI or any other body with that kind of power, we cannot save broadcasting media from exercising its right to free speech.

Vanita Kolhi Khandekar: Sometime between 2000 and 2003, two major changes happened. The Film industry got industry status, after 50 years of the industry saying that it should get industry status. At the same time, a few states offered tax sops. There was no major regulation that came into play. It has grown between 5-7 times, and it is growing at a higher CAGR than the industry average. What you see coming out now, is the result of the fact that distribution is organized, production is organized, the money is clean, it goes back into the creative part of the business; it is funding experimentation. 1/3rd goes to the state, 1/3rd goes to the business and 1/3rd to the production business. Radio was a total mess in 2000, by 2006, the industry was a basket case. Look at where is doing today: it is booming. To my mind, and the reason I say this, when we look at media regulation, and self regulation, and statutory regulation, we lose the big picture: we lose perspective. It is a complete ecosystem, and expect them to fix themselves. If 60% of cable networks are owned by politicians, it impacts freed of expression. Everything in this industry is related to everything else. The biggest revenue source for films is TV. The biggest revenue source of music is digital media.

We’ve lost perspective because we’re so fixated on the news industry. There are levers within the business to fix the content part as well. There is this assumption that making money is a bad thing: that commerce and media should not mix, (and that) corporates should not own media. I would rather have a commercial transparent media industry than a black opaque thing. Tehelka imploded in our faces for other reasons, for something which Tarun (Tejpal) did, but for the last 3 years of Tehelka’s life, it made 40 crores of losses, some of it funded by an MP. Who wrote about that? If we put the right regulations in place. We assume that there’s a conflict. If we put mechanisms in place, it can work.

The third point I want to make is that we must understand is that competitive news is barely a decade old in this country. We must remember that 15 years back, we didn’t have much news in this country. It’s a relatively young industry. It hasn’t had the time to mature, but really, TV in the US had 60 years to stabilize. In India, everything is booming simultaneously. Where is the time to sit and think? You need to take small steps: Give the PCI punitive powers, make transparency mandatory, make it mandatory for news channels to become a part of the NBSA.

The Leveson report: it was the seventh such commission that sat to look at Media in the UK. Media owners in this country do not want to discuss their problems. I don’t see enough representation in this forum from the people who matter. Media owners have to take charge of this process, and co-opt the law commission. Why is the government and the TRAI taking charge of this process? As far as content is concerned, you need self regulatory body, and for the larger picture it should be independent of the government.

Our approach to regulation has been scizophrenic: digitization has to be progressive, but in the middle of that, you have ad caps.

Notes from the Q&A session:

1. On a meta regulator for all media, including the Internet:

– No uniform approach to standards of regulation, says N Ram: “Do we hold all media to the same standards or code? The answer has to be nuanced. The rules of the game are somewhat different. You cannot have a uniform or an identical approach to standards. We have lived with statutory regulation with broadcast. It is draconian. As is the charter for OFCOM. If you import it in the Indian context, you’ll have a riot. I disagree with the proposition that because of convergence, you can have one size fits all.”

No meta regulator. The rules of the game are different. You can have statutory underpinning, light tough regulation. The unanswered question is what do you do with people that are left out? This is a big problem facing them in the UK: Self regulation has to be voluntary. There will be still people out of it. Do you go for heavy touch regulation for people who choose to stay out?

– Don’t need separate bodies, says Vanita Kohli Khandekar: What are the basics of the media? Why are we here in this business? We want to get audiences. What is a newspaper or a TV Channel? They’re looking for audiences, who get them to pay, or advertising revenues, irrespective of format. We could discuss technology and broadband, but that is essentially what the media business is about. This insistence that they’re different, at a broad overarching level, what you need to facilitate, will remain common. If the essential principles are the same, I don’t see why you need separate bodies.

One need not divide this into print and the online world: I need a license for print, but net neutrality allows me to do what I want online.

– Separate institutions are better, says Justice Ravindran: As far as the present system, the requirements for print media are different, for electronic media are different. The regulatory guidelines are different. As far as voluntary, independent self regulation mechanisms are different, it is better that each trade and industry has its own mechanism. Maybe when the state steps in… at present, we have separate mechanisms, and separate institutions would be better.

2. On disclosures:

– Everyone knows, says Justice Ravindran: We’re talking about regulation of the media, not (providing) protection to journalists. Problems of print media and electronic media are completely different. After some time, everyone will know who owns the channel. In TN, everyone knows who owns it. It is coming to that. Maybe in the initial stages, people will not know. The problem is how the owners misuse the power.

Disclosure is a matter in which there should be statutory regulation.

– Not faced any issues related to who owns the media, says Vanita Kohli Khandekar: How independent are you when you work for a corporate? I’ve always worked for a private company. I’m a business analyst and I’ve done business writing. I have never faced any interference. I know my owners got complaints from other media owners. It really depends on the company and the institutions and the backbone the owners show. Independent self regulation — you need systems to work, owners will fall in line. I alsocome from old style media companies. I dont know how long my experiences will hold true.

– No one knows what show I’m doing, apart from me, says Ravish Kumar: “Apart from me, no one knows what program I’m doing. I haven’t worked anywhere (apart from NDTV), and if you don’t protect me, I’ll open a chai shop.”