Guest Post: A Positive Obligation to Ensure and Promote Media Diversity

This post was authored by: Aishvarya Rajesh

A positive obligation with respect to a human right is one that requires States to put into effect both preventive measures against violations (through appropriate legislative, judicial or administrative measures) and remedial measures (access to judicial reform once violations have occurred). This piece examines whether ensuring media diversity can be considered a positive obligation on States under Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), and if yes, what the scope and nature of this obligation is.

Positive obligation on States to create a favourable environment for sharing diverse views  

The right to freedom of speech and expression enshrined under Article 19 of the ICCPR forms the cornerstone of democratic societies. It, along with its corollary freedom of opinion, is vital for the full development of a person and for the true participation in public debate. The ECtHR, in its landmark decision of Dink v. Turkey, has interpreted the right to freedom of expression to include a positive obligation on States to ensure the effective protection of free expression from being wrongfully interfered by private/non-state actors, and for the State itself to create “an enabling environment by allowing for everyone to take part in public debate and express their thoughts and opinions” (¶137). The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has also acknowledged that there has been an increasing recognition that States have positive regulatory obligations to promote free speech and expression in online spaces too. The Joint Declaration on Diversity of 2007, a document prepared by several eminent jurists appointed as Representatives or Rapporteurs by the UN, OSCE, OAS, and ACHPR has similarly identified States’ positive obligation to regulate private actors so as to promote diversity in the media and prevent the undue concentration of media ownership.

The requirement for media diversity as a positive obligation on States may also be seen as emanating from interpretations of different international instruments read together, an outcome that has also been reflected in the decisions of different human rights bodies. For instance, a conjunctive reading of Art.19 and Art.2 of the ICCPR (as with the parallel provisions in the UDHR and regional human rights instruments) can be interpreted to show the positive obligation on States to promote media diversity. This interpretation has been endorsed by the Inter-American Commission on Human Rights in inter alia Baruch Ivcher Bronstein v. Peru, (2001) which opined that “…consequently, it is vital that [media] can gather the most diverse information and opinions” (¶149); and by the European Court in Informationsverein  Lentia  and  Others  v.  Austria (1993) noting, “…Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor…” (¶38).

The positive obligation includes within its ambit an obligation to prevent undue concentration within media eco-systems

A positive obligation on the State to foster an environment where a diversity of ideas and opinions (media diversity) is available to the public can entail a very wide array of obligations on the State. For instance, this raises questions regarding the extent or the scope of this obligation in the regulation of social media intermediaries who have managed to accumulate significant control within the online media space. This sort of control could be seen as giving them the ability to behave in a near monopolistic manner. The Centre for Law & Democracy, in February, 2022 gave their submissions on the Practical Application of the Guiding Principles on Business and Human Rights to the Activities of Technology Companies where they opined inter alia that States can be obligated to undertake measures to promote diversity in an online space that has seen high market concentration by large social media companies.

Concentration within media eco-systems is antithetical to the idea of media diversity

Given that a positive obligation to promote media diversity exists, a necessary corollary of this would be the need to prevent undue concentration within media eco-systems. According to UNESCO, undue concentration in media refers to when one corporate body (or individual) “exercises overall control over an important part of an overall media market”. This would prevent and hinder the ability of people to receive information from multiple sources, which is crucial for the true exercise of the freedom of speech. This is because media monopoly can cloud the ‘marketplace of ideas’, and according to the Special Rapporteur for Freedom of Expression, “leads to the uniformity of the content that they produce or disseminate”. Furthermore according to UNESCO, a media monopoly poses a threat to not just the freedom of expression but by extension also to democracy as it hinders the ability of media to reflect the variety of opinions and ideas generated in the society as a whole.

Obligation to monitor and restrict M&As in the media space

In 2007, the Joint Declaration on Diversity (by the Special Rapporteurs of the UN, OAS and ACHPR and the OSCE Representative on freedom of the media) in broadcasting emphasized the requirement to put in place anti-monopoly (both horizontal and vertical) rules, including ‘stringent requirements’ of transparency enforced through active monitoring. This also covered the need to prevent powerful combinations as a result of merger activity in the media space. The Committee of Ministers of the Council of Europe has emphasized the need for licensing to be made contingent on media platform owners acting in harmony with the requirement to ensure media diversity. UNESCO’s Media Development Indicators, also acknowledge that States are required to prevent monopolies or oligopolies and must take this into account during the provision/renewal of license. The measures that States were required to take to promote media diversity and prevent monopoly were called ‘special measures’ (in the Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition), going beyond those already existing in commercial sectors, which indicates a recognition of the need to secure media pluralism inter alia through ensuring competitiveness in the space.

Conclusion

A State’s positive obligations under the right to free speech and expression can be viewed as emanating directly from treaty obligations and has also been widely interpreted by a multitude of judicial decisions and eminent jurists. Acknowledging these as sources of international law under Articles 38(1)(a) and 38(1)(d) of the ICJ Statute we can argue that a State’s positive obligations under Art. 19 of the ICCPR and analogous free speech protections under international law must also include within their ambit obligations to ensure media diversity. This includes the protection of both, the rights of the speaker and the audience, under the right to freedom of speech and expression. Some ways in which this can be ensured is through allocation of funds specifically for public interest content and other at-risk sectors; establish holistic and functional market concentration monitoring systems; and also delegate, through co-regulation or self-regulation, a part of the State’s positive obligation directly to the media platforms itself to ensure diversity in its operations. The measures undertaken must be carefully designed and should fulfill the aims of promoting diversity, avoiding monopolistic behaviour, and not put at risk the independence of the media.

Subramanian Swamy v. UoI: Unanswered Arguments

By Anna Liz Thomas

A lot has been made of the Supreme Court’s ruling in Subramanian Swamy v. Union of India, finding criminal defamation laws in India, encapsulated in sections 499 and 500 of the IPC and section 199 of the CrPC, constitutional. Most public commentary has been critical of the reasons and language of the judgment. This post will attempt something different: to highlight the arguments of the petitioners that never found place in the 268 pages of the Court’s judgment. The various petitions are available here.

Non-application of Auto Shankar

Several petitions had relied on R. Rajagopal v. State of Tamil Nadu (the Auto Shankar case) to discuss the evolved standards and tests to be used in the case of defamation. The Auto Shankar case primarily dealt with the question of whether the State or its officials could impose prior restraint on publishing of material that is defamatory of the State or its officials. The case also adopted the American standards for defamation in the case of public officials as laid down in New York Times v. Sullivan. In doing so, truth as a defence no longer required statements to be conclusively established in a court of law. All that the defendant needed to prove was that she had acted after a reasonable verification of facts, and that the publication was not actuated by malice. This provided some “breathing space” for critical speech.

Though the Court in Auto Shankar had issued a caveat that the ratio of the decision was limited to civil defamation and did not extend to criminal defamation, its principles should not be discounted. In fact, these principles attain greater significance in criminal defamation because the threshold for imposing liability is always lower in civil cases as compared to criminal cases. However, by failing to take into account the ratio of the Auto Shankar case, the SC’s criminal defamation judgment has in fact inverted the thresholds. Additionally, by failing to consider the Auto Shankar case, the Court also failed to consider the several arguments made in the Petitions against the partial treatment accorded under S.199(2) towards public officials, and the need for officials to have thick skins in the face of public criticism.

 India’s International Obligations

The petitions also highlighted the various countries that had decriminalized defamation. They also focused on India’s various international obligations to uphold the freedom of opinion and expression under the UDHR and the ICCPR. The UN HRC has noted that the criminalization of opinion would be incompatible with Paragraph 1 of Article 19 of the ICCPR. The HRC has also urged all State parties to consider the decriminalization of defamation, and has stated that imprisonment is never an appropriate penalty. The fact that the ICCPR recognizes the right to reputation under Article 17 and Article 19(3) while simultaneously frowning on criminal defamation is very pertinent. In this context,

Senior Advocate Rajeev Dhavan, applying the Supreme Court’s judgment in Visakha, argued that even without incorporating international treaties in Indian law one could read the obligations into the fundamental rights. The only caveat was that the obligations themselves must not be inconsistent with the fundamental rights. This would mean that one should be able to read in India’s international obligation to uphold free speech and expression into Art. 19(2) such that the scope of “defamation” in the Article is limited purely to civil defamation. The Court however chose not to address this argument. The Court failed to consider any of the international obligations that India holds towards upholding free speech, or the long list of countries that have decriminalized defamation. This line of argument has been cursorily mentioned in the summary of the ASG’s arguments, where it was stated that the mere fact that certain countries have decriminalized defamation does not in itself mean that the Indian criminal defamation law is unreasonable.

It may be understood by the silence of the judgment that the Court possibly agreed with the ASG, with respect to the law as it stands in other countries. However, the Court has not provided an explanation as to why the question of India needing to fulfil its international obligations has not been answered. It could be argued that the question does not really need answering given that fostering respect for international law and treaty obligations is only a Directive Principle of State Policy under Art.51, and hence unenforceable. However, given the fact that the judgment has built an argument for protecting the right to reputation on the basis of constitutional fraternity as laid down in the Preamble and fundamental duties under Art.51A which itself is unenforceable, the directive principle of upholding international obligations should have been considered by the Court.

Proportionality in Punishment 

A case that was briefly discussed in the petitions was Lohé Issa Konaté v. The Republic of Burkina Faso, where the African Court on Human and Peoples’ Rights had held that the custodial sanction imposed for defamation was a disproportionate penalty for the act itself. The judgment permitted criminal sanctions in the nature of civil or administrative fines subject to the criteria of necessity and proportionality. The Court also directed Burkina Faso to alter its criminal defamation laws so that criminal penalties were no longer allowed This case would have especially been relevant in Subramanian Swamy since it could have led to a more detailed discussion on the proportionality of the punishment as opposed to the proportionality of the law. The proportionality of S.500 as a punishment was not really contemplated by the Court. If it had been done, it might have been possible to say that the penalty be amended to something more proportionate (for instance to be limited to a fine levied by the State to further the deterrence of defamatory speech), even if the law itself was not repealed. The arguments in the petitions were decidedly more focused on the constitutionality of criminal defamation, and the fact that the process itself was the punishment. The Court is therefore absolved to some extent for not considering how to make the punishment itself more proportionate and reasonable.

Criminal v. Civil Remedies and Disparate Impact

The Petitioners had also dwelled in detail on the differences between having a criminal and a civil remedy. A civil remedy requires the complainant to undertake certain troubles, both physically and financially, if she wishes to see the case through, thus ensuring that only a person with a legitimate claim would wish to file a complaint. A criminal recourse on the other hand merely requires the filing of the complaint for no charge, and the State takes over with the prosecution. In the case of a criminal trial, the threat of criminal sanctions facilitates the harassment and humiliation of the accused, and results in frivolous complaints. The eventual acquittal of the accused, and upholding their freedom of speech, is of little consolation at the end of the prolonged criminal proceedings. Yet again, the Court failed to consider these arguments. It could be argued that every criminal trial suffers from these defects, and hence the Court need not respond to this line of argumentation. Yet, what may be of importance in the case of criminal defamation is the context in which the complaint is often introduced. This context includes the obfuscation of public inquiry by political parties, and the harassment of journalists and bloggers by corporations in order to impose silence. Given this context, one can see the direct connection between the criminalization of defamation and the chilling effect on speech.

While the Court did hold that in the context of the CrPC, an abuse of process or the potential for abuse of a law is no ground for repealing the law itself, the Court failed to notice the fact that the criminal defamation provisions themselves are being used as a tool by the powerful to harass the weak. Whether the Court is even bound to notice disparate impact while deciding on constitutionality is arguable. But the Court has noted in this very judgment that it is “the ultimate “impact”, that is, effect on the right that has to be determined”[1]. If this is indeed, what needs determination, the Court is required to have examined the context of application of criminal defamation laws to gauge the “impact”.

Other arguments

There were several rhetorical ideas that were expressed with respect to the stigma attached to a person who is under trial for criminal defamation and the long drawn process of litigation in criminal courts. The impact on the citizen’s right to know and the change in Indian constitutional norms from the time of the British Raj were also brought up in the petitions. In addition to this there were also arguments targeting the vagueness of the explanations and exceptions attached to S.499. These arguments were not given much consideration by the Court, and even when considered, was done so in a cursory manner, without truly looking at the content of the argument. It has already been noted that the Court has not appreciated the difference between the argument against the constitutionality of criminal defamation, and the argument against the scheme of criminal defamation as laid down in the IPC and the CrPC. Perhaps a more thorough consideration of the numerous arguments made across the twenty-four petitions may have resulted in a better understanding of the distinctions being drawn by the petitioners across their arguments, resulting in a better judgment.

(Anna is a law student at NALSAR University of Law & currently an intern at CCG)

[1] Para 125 of the judgment.