The Ministry of Information Broadcasting has told the Supreme Court that if it wishes to undertake an exercise to regulate media, it should first do so on “digital media”. Vijay Kaushik, an under-secretary in the ministry, in a counter affidavit filed in a case against Sudarshan TV, told the apex court that if it considered appropriate to regulate media, it had “no justification” to confine it only to “mainstream electronic media”. The story was reported first by Bar and Bench.

The Centre has clearly expressed in the open about its desire, if not attempt, to regulate digital media, which includes digitial print media, web-based news portals, YouTube portals and over-the-top (OTT) streaming services.

Background: Earlier this week, the Supreme Court began hearing a plea against Sudarshan TV for airing the programme “Bindas Bol”, hosted by the channel’s editor-in-chief Suresh Chavhanke, which aired episodes on “UPSC Jihad” on the supposed rise in number of Muslims in the civil services. On Tuesday, the Supreme Court restrained the channel from airing the remaining episodes of “Bindas Bol” till further orders.

What did the Centre say?

In the counter-affidavit, a copy of which is uploaded on LiveLaw’s website, the ministry noted that there were already Parliamentary laws or Court judgements that dealt with the “balancing” of journalistic freedoms and responsible journalism. It told the court  the present petition be confined to only to Sudarshan TV and that it may not undertake any exercise of laying down further guidelines without the appointment of an Amicus or a committee of persons as Amicus. It said the each case needed to be decided on a case to case basis, and that a broader exercise that is “too general in nature” is neither warranted not permissible.

No reason to confine regulation to just mainstream electronic media: However, the ministry told the Court if it still considered an exercise of regulation, it had “no justification” to confine it just to mainstream electronic media. It suggested that digital print media, web-based news portals, YouTube channels and even OTT platforms be looked at. It said:

The media includes mainstream electronic media, mainstream print media as well as a parallel media namely digital print media and digital web-based news portal and you tube (sic) channels as well as ‘Over The Top’ platforms [OTTs]

Digital media has faster reach: The ministry submitted that mainstream media (electronic or print), publication or telecast was a “one-time” act. On the other hand, digital media had a faster reach due to a wider range of viewership and had the protential to become viral because of applications such as “whatsapp, tweeter (sic), facebook”.

Considering the serious impact and the potential, it is desirable that if this Hon’ble Court decides to undertake the exercise, it should first be undertaken with regard to digital media as there already exists sufficient framework and judicial pronouncements with regard to electronic media and print media

Existing laws and norms enough for present case: The ministry referred to the Court’s judgement in the Pravasi Bhalai Sangathan vs Union of India (2014) to argue that there already existed laws that penalised hate speech, In its judgement, the Court had noted that the implementation of existing laws — including various sections of the Indian Penal Code, the Information Technology Act, 2000, Code of Criminal Procudure, 1973 and the Cable Television Networks (Regulation) Act, 1995 —  was enough to solve the problem of hate speech.

Similarly, the ministry referred to the Common Cause vs Union of India, 2018 judgement of the Court to argue that there also existed a code for TV broadcasters in the form of the Cable Television Network Rules, 1994.

The ministry submitted that due to the existence of such laws and norms, there was no need to undertake an exercise of regulation merely based on the telecast of one episode or a few episodes by Sudarshan TV.

Why this is important

The Central government had sent mixed signals on the regulation of digital media even in the recent past. Last month Information and Broadcasting minister Prakash Javadekar called for self-regulation of digital news. He was speaking at an event organised by the Internet and Mobile Association of India (IAMAI).

Javadekar had noted that the manipulation of public opinion over social media platforms had emerged as a “critical threat to public life”. He said that he believed in the self-regulation, and that industry bodies and digital media companies needed to decide for themselves. He took the example of how advertisements were handled by the Advertising Standards Council of India (ASCI), calling for a similar mechanism for policing fake news.

With regard to OTT streaming services, Javadekar’s ministry had, in fact, encouraged self-regulation. In March this year, the ministry had called for a meeting of OTT platforms to come up with a self-regulation code. Subsequently, last week the IAMAI released a “Universal Self-Regulation Code”.

However, in a Parliamentary response this week on regulating streaming services, the ministry did not mention its efforts on self-regulation, and instead claimed the such platforms were covered by the Information Act, 2000. The ministry’s silence could be indication that it does not support the self-regulation code.