Two Takes on the Right to be Forgotten

Last month saw important developments in the discourse around the right to be forgotten. Two high courts, Gujarat and Karnataka, delivered judgments on separate pleas to have particular judgments either removed from online repositories and search engine results or have personal information redacted from them. The Gujarat High Court dismissed the petition, holding that there was no legal basis to seek removal of a judgment from the Internet. On the other hand, the Karnataka High Court ordered the Court’s Registry to redact the aggrieved person’s name before releasing the order to any entity wanting to publish it. This post examines both judgments to understand the reasoning and legal basis for denying or accepting a claim based on the right to be forgotten.

 Gujarat High Court

According to the facts reproduced in the order, the petitioner in this case had criminal charges filed against him for several offences, including murder, which ultimately resulted in an acquittal. At the appellate stage too, the petitioner’s acquittal was confirmed. The judgment was classified as ‘non reportable’ but nevertheless published on an online portal that reproduces judgments from all superior courts in India. It was also indexed by Google, making it easily accessible. Being distressed about this, the petitioner sought ‘permanent restrain of free public exhibition of the judgement…over the Internet’.

While dismissing the petition, the Court held that it was permissible for third parties to obtain copies of the judgment under the Gujarat High Court Rules 1993, provided their application was accompanied by an affidavit and stated reasons for requiring the judgment. Moreover, it held that publication on a website did not amount to a judgment being reported, as the classification of ‘reportable’ was only relevant from the point of view of law reports. In the Court’s opinion, there was no legal basis to order such removal and the presence of the judgment on the Internet did not violate the petitioner’s rights under Article 21 – from which the right to privacy emanates.

The Court’s dismissal of the argument that a non-reportable judgment is on an equal footing with a reportable judgment is problematic, but hardly surprising. In a 2008 decision, while describing the functions of a law reporter that was a party before it, the Supreme Court observed that “the [law report] publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India” The distinction between reportable and non-reportable judgments was not in issue, but it does call for some introspection on the legal basis and rationale for classification of judgments. In an article on the evolution of law reporting in India, the constitutional expert M.P Jain explains that law reports were created as a response to Indian courts adopting the doctrine of precedent. This is the doctrine that binds lower courts to decisions of the higher courts. Precedent is created when a court lays down a new principle of law or changes or clarifies existing law. Consequently, the decision to make a ruling reportable (ideally) depends on whether it sets a precedent or not. Presumably then, there is a lesser public interest in having access to non-reportable judgments as compared to reportable ones.

While there is a clear distinction between publication in a law report and publication of the transcript of the judgment, the lack of a public interest element could have been taken into account by the High Court while deciding the petition. Moreover, it is unclear how reliance on the High Court Rules helped the Court decide against the petitioner. Third parties may be entitled to obtain a copy of a judgment, but the motivation behind a right to be forgotten is to only make information less accessible, when it is determined that there is no countervailing interest in its publication. At its root, the right is intended to enable citizens to exercise greater control over their personal information, allowing them to live without the fear that a single Google search could jeopardise their professional or personal prospects.

Karnataka High Court

Less than three weeks after the Gujarat High Court’s decision, the Karnataka High Court ordered its Registry to redact the name of the petitioner’s daughter from the cause title as well as the body of an order before handing out copies of it to any ‘service provider’. It accepted the petitioner’s contention that a name-wise search on a search engine might throw up the order, adversely affecting his daughter’s reputation and relationship with her husband. The Court clarified that the name need not be redacted from the order published on the Court’s official website.

Towards the end, it remarked that such an action was ‘in line with the trend in Western countries’ where the right to be forgotten exists as a rule in ‘sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned’.

This statement is problematic. The right to be forgotten emanates from the right to privacy and data protection, which are both regarded as fundamental rights in Europe. Basing the right on ideas of honour and modesty [of women] creates some cause for concern. Further, an important distinction between this case and the one before the Gujarat High Court is that neither Google nor any website publishing court judgments were made parties to it. The claim was based on redaction of information from the source, rather than de-listing it from search engine results or deleting it from a website. This is interesting, because it allows us to think of the right to be forgotten as a comprehensive concept, instead of a singular right to de-list information from search engine results. It provides courts with a choice, allowing them to opt for the least restrictive means to secure an individual’s right to online privacy.

However, the lack of a clear legal basis to allow or deny such claims raises cause for concern. As is already apparent, different high courts are likely to take divergent views on the right to be forgotten in the absence of an overarching data protection framework that grants such rights and prescribes limits to them. In several cases, the right to be forgotten will trigger a corresponding right to freedom of expression and the right to know. The criteria to balance these important but competing claims should be in place for courts to be able to decide such requests in a just manner.

The Supreme Court Hears Sabu Mathew George v. Union of India – Another Blow for Intermediary Liability

The Supreme Court heard arguments in Sabu Mathew George v. Union of India today. This writ petition was filed in 2008, with the intention of banning ‘advertisement’ offering sex selective abortions and related services, from search engine results. According to the petitioner, these advertisements violate Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 (‘PCPNDT Act’) and consequently, must be taken down.

A comprehensive round up of the issues involved and the Court’s various interim orders can be found here. Today’s hearing focused mainly on three issues – the setting up of the Nodal Agency that is entrusted with providing details of websites to be blocked by search engines, the ambit and scope of the word ‘advertisement’ under the PCPNDT Act and thirdly, the obligation of search engines to find offending content and delete it on their own, without a government directive or judicial order to that effect.

Appearing for the Central Government, the Solicitor General informed the Court that as per its directions, a Nodal Agency has now been constituted. An affidavit filed by the Centre provided details regarding the agency, including contact details, which would allow individuals to bring offending content to its notice. The Court was informed that Agency would be functional within a week.

On the second issue, the petitioner’s counsel argued that removal of content must not be limited only to paid or commercial advertisements, but also other results that induce or otherwise lead couples to opt for sex selective abortions. This was opposed by Google and Yahoo! who contended that organic search results must not be tampered with, as the law only bans ‘advertisements’. Google’s counsel averred that the legislation could never have intended to remove generic search results, which directly facilitate information and research. On the other hand, the Solicitor General argued that that the word ‘advertisement’ should be interpreted keeping the object of the legislation in mind – that is, to prevent sex-selective abortions. On behalf of Microsoft, it was argued that even if the broadest definition of ‘advertisement’ was adopted, what has to be seen is the animus – whether its objective is to solicit sex selective abortions, before content could be removed.

On the third issue, the counsel for the petitioner argued that search engines should automatically remove offending content – advertisements or otherwise, even in the absence of a court order or directions from the Nodal Agency. It was his contention that is was not feasible to keep providing search engines with updated keywords and/or results and the latter should employ technical means to automatically block content. This was also echoed by the Court. On behalf of all search engines, it was pointed out that removal of content without an order from a court or the government was directly against the Supreme Court’s judgment in Shreya Singhal v. Union of India. In this case, the Court had read down Section 79 of the Information Technology Act 2000 (‘IT Act’) to hold that intermediaries are only required to take down content pursuant to court orders or government directives. The Court seemed to suggest  that Shreya Singhal was decided in the context of a criminal offence (Section 66A of the IT Act) and is distinguishable on that ground.

Additionally, it was also pointed out that even if the respondents were to remove content on their own, the lack of clarity over what constitutes as an ‘advertisement’ prevents them from deciding what content to remove. Overbroad removal of content might open them up to more litigation from authors and researchers with informative works on the subject. The Court did not offer any interpretation of its own, except to say that the ‘letter and spirit’ of the law must be followed. The lack of clarity on what is deemed illegal could, as pointed out by several counsels, lead to censorship of legitimate information.

Despite these concerns, in its order today, the Court has directed every search engine to form an in-house expert committee that will, based “on its own understanding” delete content that is violative of Section 22 of the PCPNDT Act. In case of any conflict, these committees should approach the Nodal Agency for clarification and the latter’s response is meant to guide the search engines’ final decision. The case has been adjourned to April, when the Court will see if the mechanism in place has been effective in resolving the petitioner’s grievances.

Delhi HC hears the the Right to be Forgotten Case

The pending right to be forgotten petition came up for hearing before the Delhi High Court today. The case seeks the deletion of a court order, which has been reproduced on the website Indiankanoon.com, on the ground that it violates the petitioners’ right to privacy and reputation. This post looks at some of the contentions raised before the Court today and its response to them. However, these are mere observations and the Court is yet to take a final decision regarding the petitioner’s prayer(s).

During the course of today’s hearing, the presiding judge observed that all orders of the court constitute public records and cannot be deleted. In any case, it was pointed out that judicial decisions are normally reported and accessible on the National Judicial Data Grid and their removal from a particular website would not serve the desired purpose. Moreover, the court thought that even if the petitioner’s relief was granted, removal of content from the Internet was a technical impossibility.

The Court however did acknowledge that certain information could be redacted from judicial orders in some cases. This is routinely done in cases related to rape or other sexual offences owing to the presence of a clear legal basis for such redaction. In the present case however, the Court appeared unconvinced that a similar legal basis existed for redacting information. The petitioner’s counsel contended that personal information might become obsolete or irrelevant in certain cases, reflecting only half-truths and causing prejudice to an individual’s reputation and privacy. However, the Court observed that orders of a court could not become obsolete, and the balance if any would always tilt towards the public interest in transparency.

On several occasions, the petitioner’s counsel made a reference to the European Court of Justice’s decision in Google Spain, which is commonly credited with creating the right to be forgotten in Europe. However, the Google Spain ruling created a distinction between deleting information from its source and merely delisting it from search engine results. Further, the delisting is limited to results displayed for search performed for a particular name, ensuring that the information continues to be indexed and displayed if Internet users perform a generic search. However, no distinction was made between delisting and erasure during the course of arguments in the present case.

As an alternate prayer, it was argued for the petitioner that his name be anonymised from the court order in question. Here again, the Court felt that there was no legal basis for anonymisation in the present case. In the Court’s opinion, the information in the order was not prejudicial to the petitioner, per se. The fact that information about a family dispute was accessible to the public at large was not seen as particularly damaging.

The Indian legal framework lacks a coherent policy for anonymisation of names in judicial decisions. Under the Indian Penal Code, publishing names of victims of certain offences is prohibited. Realising that the provision did not bar courts from publishing the names of the victim, the Supreme Court held that names should be anonymised from judgments too, keeping the object of the law in mind. However, research indicates that names continue to be published by courts in a substantial number of cases. A few other laws also provide a legal basis for anonymisation, but these are limited to cases such as minor victims of sexual offences or juvenile offenders. On a few occasions, courts have used their inherent powers to order anonymisation of party names in family cases – making the decision dependent on the discretion of a judge, rather than a result of a larger policy objective. Increasing digitization of court records and easy availability of judgments on the Internet has new implications for online privacy. Transparency of the judicial process is crucial, but in the absence of any larger public interest, anonymisation may be warranted in a wider range of cases than is currently permitted.

As a concept, some form of the right to be forgotten may be essential in today’s age. However, it’s successful implementation is entirely dependent on clear legal principles that strike a balance between competing rights. In the absence of a comprehensive data protection legislation, this is difficult. However, besides the question of a right to be forgotten, this petition presents an interesting opportunity for the Court to analyse and perhaps frame guidelines where anonymisation may be adequate to protect privacy, without delisting or deleting any content.

Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14th February, 2017.

Delhi High Court Refuses to make Group Administrators Liable for Content posted by Other Members

In April 2016, two directives issued by two separate state governments in India made social media group administrators (‘administrators’) liable for content circulated by other members of the group. This came in the wake of a series of arrests in India for content posted on WhatsApp. This included arrests of administrators for content posted by other members. In our previous post, we argued that making administrators liable is not legal and severely undermines their right to freedom of speech and expression.

This question surrounding the liability of administrators for content posted by others recently came up before for consideration before High Court of Delhi. In a recent order, the Court recognised the problem of placing this burden on administrators.

In this case, damages for defamation were also sought from the administrator of a Telegram and a Google Group on which the allegedly defamatory statements were published. Recognising the inability of the administrator to influence content on the group, the Court found holding an administrator liable equivalent to holding the ‘manufacturer of the newsprint’ liable for the defamatory statements in the newspaper.

The Court reasoned that at the time of making the group, the administrators could not expect members to make defamatory statements. Further, the Court took into account the fact that the statements posted did not require the administrator’s approval. Consequently, the Court found no reason to hold the administrator responsible.

However, the contention of the petitioner that the administrator has the power to ‘add or remove people from the group/platform as well as to filter’ was not evaluated on merits, as it was not the pleaded case of the petitioner. The courts response to such arguments remains to be seen.

In the midst of increasing restrictions on social media groups and administrators, this order is a welcome step. It is imperative that Governments, law enforcement agencies and courts take note to ensure that freedom of expression of administrators and users of such platforms/groups is not undermined.

Facebook – Intermediary or Editor?

 

This post discusses the regulatory challenges that emerge from the changing nature of Facebook and other social networking websites

Facebook has recently faced a lot of criticism for circulating fake news and for knowingly suppressing user opinions during the 2016 U.S. elections. The social media website has also been criticised for over-censoring content on the basis of its community standards. In light of these issues, this post discusses whether Facebook can be considered a mere host or transmitter of user-generated content anymore. This post also seeks to highlight the new regulatory challenges that emerge from the changing nature of Facebook’s role.

The Changing Nature of Facebook’s Role

Social media websites such as Facebook and Twitter, Internet Service Providers, search engines, e-commerce websites etc., are all currently regulated as “intermediaries” under Section 79 of the Information Technology Act, 2000 (“IT Act”). An intermediarywith respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.” Accordingly, they are not liable for user-generated content or communication as long as they observe due diligence and comply with certain conditions such as acting promptly on takedown orders issued by the appropriate government or its agency.

 Use of Human Editors

While Facebook is currently regarded as an intermediary, some argue that Facebook has ceased to be a mere host of user-generated content and has acquired a unique character as a platform. This argument was bolstered when Facebook’s editorial guidelines were leaked in May, 2016. The editorial guidelines demonstrated that the apprehensions that Facebook was acting in an editorial capacity were true for at least some aspects of the platform, such as the trending topics. Reports suggest that Facebook used human editors to “inject” or “blacklist” stories in the trending topics list. The social media website did not simply rely on algorithms to generate the trending topics. Instead, it instructed human editors to monitor traditional news media and determine what should be trending topics.

These editorial guidelines revealed that the editors at Facebook regularly reviewed algorithmically generated topics and added background information such as video or summaries to them, before publishing them as trending topics. Further the social media website also relied heavily on traditional news media websites to make such assessments. Critics have pointed out that the editorial policy of Facebook is extremely inadequate as it does not incorporate guidelines relating to checking for accuracy, encouraging media diversity, respecting privacy and the law, or editorial independence.

Months after this revelation, Facebook eliminated human editors from its trending platform and began relying solely on algorithms to filter trending topics. However, this elimination has resulted in the new problem of circulation of fake news. This is especially alarming because increased access to the Internet has meant that a large number of people get their news from social media websites. A recent research report pointed out that nearly 66% of Facebook users in the U.S , get news from Facebook. Similarly, nearly 59% of Twitter users rely on the website for news. In light of this data, eliminating human discretion completely does not appear to be a sensible approach when it comes to filtering politically critical content, such as trending news.

Private Censorship

Facebook has also been criticised widely for over-censoring content. The social media website blocks accounts and takes down content that is in contravention to its “community standards”. These community standards prohibit hate speech, pornography or content that praises or supports terrorism, among others. In India, the social media website faced a lot of flak for censoring content and blocking users during the unrest that followed the death of Burhan Wani, a member of a Kashmiri militant organisation. Reports suggest that nearly 30 academics, activists and journalists from across the world were restricted from discussing or sharing information regarding the incident on Facebook.

Facebook’s community standards have also been criticised for lacking a nuanced approach to issues such as nudity and hate speech. The blocking of content by private entities on the basis of such “community standards” raises concerns of being too wide and the possible chilling effect that it can have on free speech. As highlighted before, Facebook’s unique position, where it determines what content qualifies as hate speech or praise of terrorism, allows it to throttle alternative voices and influence the online narrative on such issues. The power exercised by Facebook in such instances makes it difficult to identify it as only a host or transmitter of content generated by its users.

Conclusion

The discussion above demonstrates that while Facebook does not behave entirely like a conventional editor, it would be too simplistic to regard it as a host of user-generated content.

Facebook is a unique platform that enables content distribution, possesses intimate information about its users, and has the ability to design the space and conditions under which their users can engage with content. It has been argued that Facebook must be considered as a “social editor” which “exercises control not only over the selection and organisation of content, but also, and importantly, over the way we find, share and engage with that content.” Consequently, Facebook and other social media websites have been described as “privately controlled public spheres” i.e much like traditional media, they have become platforms which provide information and space for political deliberation.

However, if we agree that Facebook is more akin to a “privately controlled public sphere”, we must rethink the regulatory bucket under which we categorise the platform and the limits to its immunity from liability.

This post is written by Faiza Rahman.

NDTV INDIA BAN: A CASE OF REGULATORY OVERREACH AND INSIDIOUS CENSORSHIP?

In a highly contentious move, the Ministry of Information and Broadcasting (‘MIB’) issued an order banning the telecast of the Hindi news channel ‘NDTV India’ on 9th November, 2016. The MIB imposed this ‘token penalty’ on NDTV India following the recommendation of an Inter-Ministerial Committee (‘IMC’). The IMC had found the channel liable for revealing “strategically sensitive information” during the coverage of Pathankot terrorist attacks on 4th January, 2016. The ban has, however, been put on hold by the MIB after the Supreme Court agreed to hear a writ petition filed by NDTV India against the ban.

The order passed by the MIB raises some important legal issues regarding the freedom of speech and expression of the press. Since the news channels are constantly in the race for garnering Television Rating Points, they may sometimes overlook the letter of the law while covering sensitive incidents such as terrorist attacks. In such cases, regulation of the media becomes necessary. However, it is tricky to achieve an optimum balance between the various concerns at play here – the freedom of expression of the press and the people’s right to information, public interest and national security.

In this post, we discuss the background of the NDTV India case and the legal issues arising from it. We also analyze and highlight the effects of governmental regulation of the media and its impact on the freedom of speech and expression of the media.

NDTV Case – A Brief Background:

On January 29, 2016, the MIB had issued a show cause notice to NDTV India alleging that their coverage of the Pathankot military airbase attack had revealed vital information which could be used by terror operators to impede the counter-operations carried by the security forces. The notice also provided details regarding the alleged sensitive information revealed by NDTV India.

In its defence, the channel claimed that the coverage had been “balanced and responsible” and that it was committed to the highest levels of journalism. The channel also stated that the sensitive information allegedly revealed by the channel regarding critical defence assets and location of the terrorists was already available in the public domain at the time of reporting. It was also pointed out that other news channels which had reported on similar information had not been hauled up by the MIB.

However, the MIB, in its order dated January 2, 2016, held that NDTV India’s coverage contravened Rule 6(1)(p) of the Programme and Advertising Code (the ‘Programme Code’ or ‘Code’) issued under the Cable TV Network Rules, 1994 (‘Cable TV Rules’). In exercise of its powers under the Cable TV Networks (Regulation) Act, 1995 (‘Cable TV Act’) and the Guidelines for Uplinking of Television Channels from India, 2011, the MIB imposed a ‘token penalty’ of a day’s ban on the broadcast of the channel.

Rule 6(1)(p) of the Programme Code:

Rule 6 of the Code sets out the restrictions on the content of programmes and advertisements that can be broadcasted on cable TV. Rule 6(1)(p) and (q) were added recently. Rule 6(1)(p) was introduced after concerns were expressed regarding the real-time coverage of sensitive incidents like the Mumbai and Gurdaspur terror attacks by Indian media. It seeks to prevent disclosure of sensitive information during such live coverage that could act as possible information sources for terror operators.

Rule 6(1)(p) states that: “No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.”

Rule 6(1)(p), though necessary to regulate overzealous media coverage especially during incidents like terrorist attacks, is vague and ambiguous in its phrasing. The term ‘live coverage’ has not been defined in the Cable TV Rules, which makes it difficult to assess its precise meaning and scope. It is unclear whether ‘live coverage’ means only live video feed of the operations or whether live updates through media reporting without visuals will also be considered ‘live coverage’.

Further, the explanation to Rule 6(1)(p) also leaves a lot of room for subjective interpretation. It is unclear whether the expression “to bring terrorists to justice” implies the counter operations should result in fatalities of the terrorists or if the intention is to include the coverage of the trial and conviction of the terrorists, if they were caught alive. If so, it would be highly impractical to bar such coverage under Rule 6(1)(p). The inherent vagueness of this provision gives wide discretion to the governmental authorities to decide whether channels have violated the provisions of the Code.

In this context, it is important to highlight that the Supreme Court had struck down Section 66A of the Information and Technology Act, 2000 in the case of Shreya Singhal vs. Union of India, on the ground of being vague and overboard. The Court had held that the vague and imprecise nature of the provision had a chilling effect on the freedom of speech and expression. Following from this, it will be interesting to see the stand of the Supreme Court when it tests the constitutionality of Rule 6(1)(p) in light of the strict standards laid down in Shreya Singhal and a spate of other judgments.

Freedom of Speech under Article 19(1)(a)

The right of the media to report news is rooted in the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Every right has a corresponding duty, and accordingly, the right of the media to report news is accompanied by a duty to function responsibly while reporting information in the interest of the public. The freedom of the media is not absolute or unbridled, and reasonable restrictions can be placed on it under Article 19(2).

In the present case, it can be argued that Rule 6(1)(p) fails to pass the scrutiny of Article 19(2) due to inherent vagueness in the text of the provision. However, the Supreme Court may be reluctant to deem the provision unconstitutional. This reluctance was demonstrated for instance, when the challenge to the constitutionality of the Cinematograph Act, 1952 and its attendant guidelines, for containing vague restrictions in the context of certifying films, was dismissed by the Supreme Court. The Censor Board has used the wide discretion available to it for placing unreasonable restrictions while certifying films. If the Supreme Court continues to allow such restrictions on the freedom of speech and expression, the Programme Code is likely to survive judicial scrutiny.

Who should regulate?

Another important issue that the Supreme Court should decide in the present case is whether the MIB had the power to impose such a ban on NDTV India. Under the current regulatory regime, there are no statutory bodies governing media infractions. However, there are self-regulatory bodies like the News Broadcast Standards Authority (NBSA) and the Broadcasting Content Complaint’s Council (BCCC).The NBSA is an independent body set up by the News Broadcasters Association for regulating news and current affairs channels. The BCCC is a complaint redressal system established by the Indian Broadcasting Foundation for the non-news sector and is headed by retired judges of the Supreme Court and High Courts. Both the NBSA and the BCCC regularly look into complaints regarding violations of the Programme Code. These bodies are also authorized to issue advisories, condemn, levy penalties and direct channels to be taken off air if found in contravention of the Programme Code.

The decision of the MIB was predicated on the recommendation made by IMC which comprises solely of government officials with no journalistic or legal background. The MIB should have considered referring the matter to a regulatory body with domain expertise like the NBSA that addresses such matters on a regular basis or at least should have sought their opinion before arriving at its decision.

Way Forward

Freedom of expression of the press and the impartial and fair scrutiny of government actions and policies is imperative for a healthy democracy. Carte blanche powers with the government to regulate the media as stipulated by Cable TV Act without judicial or other oversight mechanisms pose a serious threat to free speech and the independence of the fourth estate.

The imposition of the ban against NDTV India by the MIB under vague and uncertain provisions can be argued as a case of regulatory overreach and insidious censorship. The perils of such executive intrusion on the freedom of the media will have a chilling effect on the freedom of speech. This can impact the vibrancy of the public discourse and the free flow of information and ideas which sustains a democracy. Although the governmental decision has been stayed, the Supreme Court should intervene and clarify the import of the vague terms used in the Programme Code to ensure that the freedom of the press is not compromised and fair and impartial news reporting is not stifled under the threat of executive action.