Observer Research Foundation, a New Delhi-based think tank, held a seminar last week on Perspectives in Media Regulation: Lessons from the UK, with featured speakers from the Reuters Institute for the Study of Journalism, London. The question, as always, is, can we effectively regulate media in India? Indeed, should the media be regulated? By whom?
The on-going debate on media regulation is in many ways the stuff of the coffee house debates of the sixties, in which jhola-carrying intellectuals diagnosed the ills of the world and prescribed remedies, while the rest carried on running the world in their own ham-handed way.
Perhaps the best indication of this, at last week’s seminar, was in the presence – or otherwise – of a member of the broadcast regulatory body, TRAI. The hosts indicated their seriousness by having Dr Vijaylakshmi Gupta give the keynote address, obviously to set the Indian context before we heard about the UK. Dr Gupta indicated hers by reading out prepared platitudinous speech and then leaving immediately.
And so the coffee house debate carries on….
In a discussion on regulation on another occasion I wondered why the media have a say in whether they wish to be regulated: were the banking, or insurance, or telecoms or airline companies asked if they do? The Chairman of the News Broadcasting Standards Authority answered that was because the media is special, not like any ordinary business, and has a role of national importance. Unlike banks and insurance and…?
If you break the broad regulation issue into its component parts, it comes down to two distinct aspects: ownership and content. Issues of ownership include both, the who? question- who should own the media; and the what? question – what they should be allowed to own, i.e., cross-media ownership.
The ownership question has no real answers. The discussion at another seminar a few weeks ago was perhaps typical. A senior journalist who had recently had a fairly public falling-out with his corporate employers, was critical of non-media corporates owning media companies. He was also not in favour of media conglomerates; owner-editors; journalist-owners; and of government or political parties owning media. I said I couldn’t disagree with what he had said, and asked who then, in his opinion, should own the media. No answer.
The point is not to find fault with this speaker. It is, rather, that this is an unresolvable issue, in which every answer raises fresh questions. What is necessary is not to limit who may and who may not own, but transparency about who does. It calls, as with most things in India, not necessarily for new regulations but first for implementing existing regulations.
The other aspect of the ownership question is cross-media holding: born of the concern that media conglomerates, through cross-media domination, can drive public opinion. That’s a theoretically sound concern, but in practice doubtful at two levels. First, it is questionable whether in the pluralistic environment that is India even the largest media conglomerate can actually drive public opinion.
Second, what is the efficacy of such regulation? Even in the highly regulated and media-rich United States the media business is oligopolistic. And yet, going back to the first question, it is doubtful if any of the six dominant houses is in a position to actually drive public opinion.
The real issue in cross-holding is not, to my mind, when a single company owns properties across print, TV, radio and the internet, but when a broadcasting network owns distribution channels. For a content owner to be in a position to control what gets to the viewer, and so be able to choke the pipeline for its competition, is a serious travesty of consumer rights. In India every major broadcasting network owns distribution platforms, the two biggest networks have collaborated in a joint ventureto distribute content, and there is no law to protect the consumer. That is a serious issue for the regulatory authorities to address.*
The real, vexed question is of content regulation. Can we? Indeed, should we? Self-regulation or statutory? And, all the while,a government that has been trying for five years to regulate audience measurement wants you to believe that it is committed to self-regulation in content! It is the same government that in its previous term tried to create a broadcast regulator who would be not a constitutional authority but be hired and fired by the government. The proposed structure also required each broadcaster to have on its rolls a Content Auditor who would screen content and tell the Editor what to drop or modify and – incredibly – inform the broadcast regulator if the Editor didn’t comply.
The UK currently has no regulation of print media. The response of the press to the Leveson enquiry and the consequent government proposal is to resist any regulatory mechanism, which is to be expected. But it must be said, in fairness, that the News of the World scandal, though huge, was a ‘rarest of the rare’ case that was effectively exposed and dealt with swiftly, which is a great deal more than we can expect. Whether one NOTW should lead to from no regulation to statutory regulation is debatable.
In the US, too, there is no regulatory mechanism – self- or government. It depends entirely on good practice. The Editor is responsible, and owners typically take a back seat on editorial decisions. Would an editor carry content prejudicial to the owner’s interests? Probably not, but in a robust media environment you can’t stop the rest of the world from seeing you.
In India broadcasters, in particular, have made moves to self-regulation by setting up the News Broadcasting Standards Authority (NBSA) and, for entertainment content, the Broadcast Content Complaints Council, both under the aegis of the broadcast industry bodies. A necessary limitation of such self-regulation is that it is limited to the members of these bodies. In the case of news that means 53 channels of 23 NBA member broadcasters. The other 150 known news broadcasters in the country are beyond the pale.
The effectiveness of self-regulation is often questioned because, even if you don’t doubt their intent, self-regulatory bodies do not have the statutory authority to penalise offenders. Members themselves often don’t accept the rulings of the regulators they have created. Indeed, the first time the NBSA indicted a broadcaster the peeved member quit the NBA in protest.
Dr David Levy of the Reuters Institute had an interesting take on the matter. Effectiveness of self-regulation, he said, is a function first of culture: far more than of legal guarantees.In other words, some of us are made that way, and some just aren’t. The implication that we are incapable of self-regulation may raise some hackles but let’s face it, that’s fundamentally true.
The very idea of statutory regulation, on the other hand, is anathema. Those of us of a certain age have actually lived through it in its extreme form, nearly 40 years ago, and can’t begin to contemplate what it might be like in this multimedia age.
So where does that leave us, between the devil and the deep sea?
Giving statutory penal authority to self-regulatory bodies has its own set of issues.The only viable answer seems to be co-regulation. I see a system in which a self-regulatory body such as the NBSA conveys a verdict and recommends a penalty to a statutorily authorised one, such as perhaps the TRAI. If the statutory body does not agree with the recommendation, it must respond to the recommending body through a laid-down process, and the two come to an agreement.
That media owners protest against any and all forms of regulation is not surprising: who wants to be regulated? Every time content is mentioned in the same breath as regulation, even a limit on advertising time, they get all excited about Article 19, freedom of speech, democracy, et al. While no one doubts the sanctity of our constitutional freedoms, there can be no such thing as unfettered freedom. The trouble is, the press think everyone should be accountable and subject to criticism and control – the legislature, the executive and the judiciary; indeed, both Church and State – except themselves.
There is no perfect solution. The best solution is one that protects consumer interest, and that necessarily means some measure of control while enabling and protecting media freedom.----------------------------------------
* This piece was first published in mxmindia.com on 10th February 2014., the day TRAI issued regulations for content aggregators. A welcome coincidence.