Media Law

Introduction
• Media: communication outlet to deliver /store
“Information” or data… Mass Media- communication
to the masses.
• Howard Rheingold framed early form of human
communication, Lascaux cave paintings followed by
Chauvet Cave paintings etc.
• Media as modern means of communication channel
was first used by Canadian Communications Theorist
Marshall McLuhan, he stated in Counterblast- “Media
are not toys, they should not be in the hands of
mother Goose and Peter Pan executives. They can be
entrusted only to new artists because they are art
forms.”
• Gradually the idea got popular throughout the globe.
H.L. Mencken used the term ‘mass-media in 1923 to
reach out at the masses.
• Media- medium (the singular form of media)- one of
the means or channels of general communication,
information, or entertainment.
• the medium is the message (McLuhan, 1964).” By
this, McLuhan meant that every medium delivers
information in a different way and that content is
fundamentally shaped by the medium of
transmission.
• people who get the majority of their news from
television may have a particular view of the world
shaped not by the content of what they watch but
its medium.
• Alan Kay, Each medium has a special way of
representing ideas that emphasize particular ways of
thinking and de-emphasize others.
• Evolution:
• Pre-globalization & post-globalization
• Pre-industrial; industrial and electronic age
• Initial printed book of ancient times-The Diamond Sutra,
dated back to the 868 AD was printed using clay type.
• In the history of printed media, the first movable clay
type was used in China around 1041. During middle ages,
wooden-type was used throughout EU.
• It was only in 1440, the invention of metal printing press
by Johannes Gutenberg. He unveiled the secret of
printing based on his research, mysteriously entitled
Kunst und Aventur (art and enterprise). He published
Bible’s New Testament by using this technology. This is
popularly known as ‘Gutenberg Bible’.
• Until this invention, books were painstakingly
handwritten and no two copies were exactly same.
• The printing press made the mass production of print
media possible. Not only was it much cheaper to
produce written material, but new transportation
technologies also made it easier for texts to reach a
wide audience.
• It’s hard to overstate the importance of Gutenberg’s
invention, which helped usher in massive cultural
movements like the European Renaissance and the
Protestant Reformation.
• In 1810, another German printer, Friedrich
Koenig, pushed media production even further
when he essentially hooked the steam engine up
to a printing press, enabling the industrialization
of printed media.
• In 1800, a hand-operated printing press could
produce about 480 pages per hour; Koenig’s
machine more than doubled this rate. By the
1930s, many printing presses had an output of
3000 pages an hour. This increased efficiency
helped lead to the rise of the daily newspaper.
• The Evolution of Media by Michael Noll
• With the discovery of US, settlements took place-
for native European; Britisher- news paper was the
only means to stay connected with the events back
home.
• It has also associated with culture, identities,
belongingness.
• Political scientist Benedict Anderson has argued
that newspapers also helped forge a sense of
national identity by treating readers across the
country as part of one unified group with common
goals and values. Newspapers, he said, helped
create an “imagined community.”
• Role of Media in Indian National Freedom
Movement
Evolution of Media:
Ancient India
• - Education wasn’t wide spread
• - Means for communication was inadequate
• - Concentration on strengthening political system
• - Communication through imperial edict on copper plates, rocks,
stone pillars
• - Daily news published in small pictures convey through painting
Medieval India
• - Aurangazeb pioneered the concept of communication network
• - Waquia Navis, specialist news writers who summaries the
important events and incidents
• - Cofia Navis, secret spies to collect the news from public
• - News Letters covers the local news and expedition of their
leaders.
• - Calligraphy flourished during this period
• Modern Era
• - Christian missionaries can be termed as “Fathers
of Indian Printing Press”.
• - During 16th century printing technology was
brought to India Christian Missionaries – group of
Fathers used to travel through coastal areas to
convey news to public
• - September 15th, 1556 first printing machine set
up in Goa, India.
• September 6th, 1557 first book ‘Doutrina Christ’
was published by St. Francis Xavier, they used
Mental Typeface for printing.
• Printing operations began in Goa in 1556, with the
first printing press being established at the Jesuit
Saint Paul's College in Old Goa, resulting in the
publication of Conclusiones Philosophicas. 1557
saw the posthumous printing of St. Francis Xavier’s
Doutrina Christa five years after the death of its
author. No extant copy of this work is however,
available.
• The individual responsible for the initiation of
printing in India was one Joao De Bustamante
(rechristened Joao Rodrigues in 1563), a Spaniard
who joined the Society of Jesus in 1556.
Bustamante, who was an expert printer, along with
his Indian assistant set up the new press and began
to operate it.
• Among others, four books are known to have
been printed by Bustamante (Rodrigues):
• Conclusiones Philosiphicas (Theses and other
things) in 1556.
• Confecionarios in 1557.
• Doutrina Christa by St. Francis Xavier in 1557.
• Tratado contra os erros scismaticos dos
Abexins (A Tract against the Schismatic Errors
of the Abyssinians) by Gonçalo Rodrigues in
1560.
• Development of English Education and Spread of
Press
• Colonialization of press
• James Silk Buckingham: Father of Free and Fearless
Press in India
• In 1818, James silk Buckingham, who was a strong
critic of the East India Company, founded the
biweekly Calcutta Journal. The paper created a stir by
its exposure of official lapses. His contribution to
Indian journalism is phenomenal and he can be
credited with the founding father of a free and
fearless press in India. He wrote the earliest
comprehensive enunciation of the freedom of press
and its significance in society in these words:
• If knowledge is a blessing and ignorance is curse, a
well conducted press that dispels the latter and
promote the former must be as deserving of our
support as the school and other public institutions
established for the same purpose since they are
only different branches of the same tree. Of all the
remedies proposed for checking evils inseparable
from the authority exercising almost absolute
power, there is none that can be compared with the
free press. When men know the eyes of the world
upon them and their conduct will be scrutinized by
their enemies as well as their friends, they are more
careful to act justly than when they know that their
deeds will be neither seen nor questioned.
• In the 1830s, the major daily newspapers faced
a new threat from the rise of penny papers,
which were low-priced broadsheets that served
as a cheaper, more sensational daily news
source. They favored news of murder and
adventure over the dry political news of the
day.
• In the early decades of the 20th century, the first major
nonprint form of mass media—radio—exploded in
popularity. Radios, which were less expensive than
telephones and widely available by the 1920s, had the
unprecedented ability of allowing huge numbers of
people to listen to the same event at the same time. In
1924, Calvin Coolidge’s preelection speech reached more
than 20 million people.
• An early advertising consultant claimed that the early
days of radio were “a glorious opportunity for the
advertising man to spread his sales propaganda” because
of “a countless audience, sympathetic, pleasure seeking,
enthusiastic, curious, interested, approachable in the
privacy of their homes (Briggs & Burke, 2005)
• The post–World War II era in the United States was
marked by prosperity, and by the introduction of a
seductive new form of mass communication: television
• In 1946, about 17,000 televisions existed in the
United States; within 7 years, two-thirds of
American households owned at least one set.
• Some social critics argued that television was
fostering a homogenous, conformist culture by
reinforcing ideas about what “normal”
• But television also contributed to the
counterculture of the 1960s. The Vietnam War was
the nation’s first televised military conflict, and
nightly images of war footage and war protesters
helped intensify the nation’s internal conflicts.
• Were it left to me to decide whether we
should have a government without
newspapers, or newspapers without a
government, I should not hesitate a moment
to prefer the latter.-----Thomas Jefferson
• Right to free speech and Expression is
Constitutional gift to the citizen!
• M Nagaraj v. Union of India 2006-
• It is a fallacy to regard fundamental rights as a gift
from the state to its citizens. Individuals possess
basic human rights independently of any
constitution by reason of the basic fact that they are
member of human race…Part III give them
protection.
• Freedom of speech and expression has been
described as the mother of all liberties. In Ramlila
Maidan incident Re (2012) SC stated –the freedom
of speech and expression is regarded as the first
condition of liberty. It occupies the first preference
in the hierarchy of liberties…right to freedom of
speech has taken within its ambit the right to
receive information as well as rights of press.
• The word freedom means the absence of control
by the state. Citizen must enjoy the liberty of
making her own choices, subject only to the
reasonable restrictions on very limited ground.
State of Karnatka v Associated Management of
English Medium Primary & Secondary Schools,
2014- Constitutional bench called upon to decide
whether citizen had the right to choose the
language in which they wish to get education,
Court while quoting JS Mill- argued that freedom of
choose is necessary to nurture individual
personality and autonomy.
• “My freedoms are avenues of choice through
which I may, as I deem fit, construct for myself, my
own course of conduct.”
• Media drives its rights from Art. 19(1)(a) and is equivalent
to the rights enjoyed by the citizens. Thus, media has a
same status in respect of freedom of speech and
expression: Arlold v. King Emperor, 1914- Privy Council
held-
• “The freedom of the journalist is an ordinary part of the
freedom of the subject and to whatever length the subject
in general may go, so also may the journalist”
• MSM Sharma case, 1959- A non citizen running a
newspaper is not entitled to the fundamental right to
freedom of speech and expression and therefore cannot
claim as his FR. Further, being only a right flowing from
the freedom of speech and expression, the liberty of press
in India stands on no higher footing than the freedom of
speech itself.
• Media doesn’t enjoy any special status and immunity over
citizens.
• BR Amedkar stated- The Press is another way of
stating an individual or a citizen. Press has no
special rights which are not given or exercised by
citizens.
• Source: Freedom of Speech in US – First
Constitutional Amendment: Congress shall make
no law ... abridging the freedom of speech, or of
the press.
• This language restricts government’s ability to
constrain the speech of citizens. The prohibition
on abridgment of the freedom of speech is not
absolute. Certain types of speech may be
prohibited outright.
• The Supreme Court has identified categories of
speech that are unprotected by the First
Amendment and may be prohibited entirely.
• Among them are obscenity, child pornography,
and speech that constitutes so-called “fighting
words” or “true threats.” US v. Stevens 2010.
• Obscenity- Miller’s Test
• Fighting Words: The “fighting words” doctrine
began in Chaplinsky v. New Hampshire, where
the Court held that fighting words, by their
very utterance inflict injury or tend to incite an
immediate breach of the peace and may be
punished consistent with the First Amendment
• In Cohen v. California, the Supreme Court held that words on a t-shirt
that contained an expletive were not directed at a person in particular
and could not be said to incite an immediate breach of the peace.
• Censorship in US: Colonial roots-
• one of the initial case was of John Peter Zenger, who used to write and
publish against governor of New York (1734-35).
• Andrew Hamilton, “nature and the law of our country have given us a
right to liberty of both exposing and opposing arbitrary power by
speaking and writing the truth.”
• During 1830s US Postmaster General refused to allow mailmen to carry
abolitionist pamphlets to the South.
• 1873, Comstock Law-censorship legislation was passed- as Act for the
‘suppression of trade in, and circulation of, Obscene literature and
Articles of Immoral use’
• Smith Act of 1940 made it criminal offence to ‘knowingly or willfully
advocate, abet, advice or teach the desirability or propriety of
overthrowing the government of United States or any State by force or
violence, or for anyone to organize any association which teaches,
advises or encourages such an overthrow, or for anyone to become a
member of or to affiliate with any such association.
• Near v. Minnesota, 1931- SC recognizes the freedom
of press by rejected the prior restriction on
publication. Court declared Minnesota censorship law
targeting publishers of malicious or scandalous
newspapers violates the first Constitutional
Amendment.
• Lovell v City of Griffin, 1938, CJ Charles Evans defined
press as, ‘every sort of publication which affords a
vehicle of information and opinion’. Gradually press
was described as the fundamental personal right by
the court (Branzburg v Hayes)
• The strongest affirmation of the spirit of the first
amendment is echoed in Express Newspaper(p) Ltd. V
UOI, 1950 where working journalist and other
newspaper Employees (condition of service) ad
Miscellaneous Provisions Act 1955 was challenged as
violative of Art. 19(1)(a).
• Court stated: Laws which single out the press for
laying upon it excessive and prohibitive burdens which
would restrict the circulation, impose a penalty on its
right to choose the instrument for its exercise or to
seek an alternative media, prevent newspapers from
being started and ultimately drive the press to seek
government aid in order to survive, would therefore
be struck down as unconstitutional.
• IR Coelho v. State of TN, 2007-freedom of press as a part
of basic structure. Court interpreted this while delving
into the question whether on and from the date on which
the decision of Keshwananda Bharti was delivered, it was
permissible for the parliament to immunise the from
being struck down for violation of FR by inserting them in
ninth schedule. In this context court reinstated although
freedom of press is not expressly provided……
• In Shreya Singhal v UOI, 2015 court draw a parallel
between US and Indian Law- SC acknowledges the source
of inspiration for Art. 19)1)(a)- but at the same time
draws differences- for instance, absoluteness of right
under first amendment – congress shall make no law to
abridge… but court also acknowledges that US Judiciary
never took literal meaning the language, and there are
certain limitation.
• Secondly, first amendment talk about freedom
of speech and press excluding ‘expression’;
whereas Art 19(1)(a)- talks about freedom of
speech and expression excluding ‘press’.
• In US freedom of speech can be abridged
whereas in India reasonable restrictions can be
imposed
• And most importantly, in the words of J
Nariman, in US, during compelling necessity to
achieve govt. or societal object, a law abridging
the freedom of speech.. may pass; whereas the
scope of restrictions under Indian constitution
is subjected to Art. 19(2) and not beyond.
• Right to circulate
• Sakal Papers (p) ltd. V UOI, SC held that state could not
make law that directly impact the circulation of the
newspaper. As it would amount to violation of freedom
of speech. In this case Constitutional validity of
Newspaper (Price and Page) Act 1956 was challenged.
• The Court stated that by providing the maximum number
of pages for the particular price charged, the effect of the
Newspaper Act and Newspaper Order was to compel
newspapers either to reduce the number of pages or to
raise the prices. While the former restricted the
dissemination of news and views by the newspapers, the
latter would have significantly cut down their circulation.
Both involved a direct infringement of the newspapers’
right under Article 19(1)(a). The freedom of a newspaper
to publish any number of pages and to circulate to any
number of persons is an integral part of the freedom of
speech.
• Bennett Coleman & Co v. Union of India 1972- SC held
that newspapers should be left free to determine their
pages and their circulation.
• Indian Express Newspapers (Bombay) (p) ltd. V. UOI,
1985
• Right to Dissent
• Freedom of speech and expression covers the right to
criticise the government. It is pre-requisite of a any
healthy democracy.
• Constitution makers were aware of the fact therefore
they removed the exception to the freedom of speech
as provided in Art 13(2) of draft constitution- which
define sedition- as ‘exciting or attempting to excite in
others certain bad feelings towards the government..’
• This position was well acknowledged by SC in Romesh
Thapper case
• Terminiello v. Chicago, 1949- US SC
• A function of free speech under our system of govt. is to
invite dispute. It may indeed best serve its high purpose
when it induces a condition of unrest, create
dissatisfaction with conditions as they are, or even stirs
the people to anger. Speech is often provocative and
challenging. It may stick at prejudices or preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea…there is no room under our
constitution for more restrictive view for the alternative
would lead to the standardization of ideas either by
legislatures, courts or dominant political or community
groups.
• The case/para was quoted by J Jeevan Reddy
Printers(Mysore) Ltd. V. CTO , 1994; also in Ministry of
Information and Broadcasting v. Cricket Ass. of Bangal,
1995
• Read: F.A Picuture International v. Central Board of Film
Certification, 2004
• Right to Pottery social evil
• Whether enforcement of FR against non-state actors is
permitted?
• Kaushal Kishor v. State of UP, 2016
• Right to portray the historical events
• F.A Picture International, Bombay HC held:
• The protection of the constitution does not extend only to
fictional depiction of artistic themes, Artists, film makers and
playrights are affirmatively entitled to allude to incidents
which have taken place and to present a version of those
incidents which have taken place and represents a of
balanced portrayal social reality. To say that violence that
took place in Gujarat is a live issue and a scar on national
sensitivity, can furnish absolutely no ground for preventing
the exhibition of the film. ..
• Right to receive information
• The freedom of speech and expression doesn’t only
talked about right to speech, express, publish or
propagate information through circulation but also
to receive information. The right to information is
exercised through varied context… through
advertisements, enabling citizens to get vital
information about the life-saving drugs (Tata Press
Ltd. MTNL); right of sports lovers to watch cricket
match (Ministry of Information & Broadcasting v.
Cricket Association of Bengal, 1995)
• Right to Expression beyond national boundaries
• Maneka Gnadhi v. UOI, the operation of fundamental
right is not confined to territory of India. – court
quoted from a article ‘ the constitutional right to
travel by Leonard Boudin.
• Reporting Court proceedings
• Attorney General v. Guardian Newspapers Ltd., It is not because
of any special wisdom, interest or status enjoyed by proprietors,
editors or journalists, it is because the media are the eyes and
ears of general public. They act on behalf of the general public.
Their right to know and their right to publish is neither more or
less than of the general public. Indeed it is the general public for
whom they are trustees.
• Saroj Iyer v. Maharashtra Medial Council of Indian Medicine,
2002, Journalist has a fundamental right to attend proceedings in
court and the rights to publish a faithful report of the proceeding
heard and witnessed in the court.
• Lord Shaw in Scott v Scott, 1913, quoted Bentham, Publicity is
the very soul of justice. it is the keenest spur to exertion, and
surest of all guards against improbity. It keeps the judge himself
while trying under trial.
• Publicity of proceedings is not an absolute rule, the open justice
system must give way when there is higher consideration.
• Sahara India Real Estate Corp Ltd. v SEBI, 2012, a
constitution bench of the SC held that while there was
a presumption in favour of open justice and media’s
right to report case, in exceptional cases, superior
courts had the power to ‘postpone’ reportage for a
limited duration in the interest of justice. orders of
postponement would be subject to necessity and
proportionality.
• Swapnil Tripathi v. SC, 2018- SC directed the live
streaming of court hearings of cases of national and
constitutional importance as pilot project. Court held,
it was a necessary extension of open justice to harness
technology to bring justice to the doorstep; media’s
right to report cases is thus a crucial for the
democracy.
• Reporting legislative proceedings
• Art. 361 A, there is no liability in respect of the
publication of a substantially true report of parliamentary
proceedings.
• The right to report legislative proceedings has often
curtailed in the name of privileges.
• Tej Kiran Jain v. N Sanjiva Reddy-
• It is of the essence of parliamentary system of govt. that
people’s representative should be free to express
themselves without fear of legal consequences. What
they say is only subject to discipline of the rule of the
parliament. .. court has no say generally in the matter.
• Keshav Singh Case
• Right to gender identity: NALSA case; Navtej singh Johar