Friday, September 14, 2007

Sardesai and Noorani on regulating media sting operations

Yesterday's HT features an editorial by Rajdeep Sardesai on this issue. Taking a somewhat different stance than other establishment figures in the media (see this previous post for details and links), Sardesai accepts that it is indeed upto the media to take primary responsibility. Here are extracts from his piece:

"Let’s be honest: the sting has become a legitimate weapon in a journalist’s armoury, the hidden camera and its sophisticated variants are now part of the media landscape. Every channel, large or small, has used the hidden camera, often to devastating effect. Let’s also be clear: every sting involves an element of deception. Then, whether you are posing as a defence dealer or an NGO, (or, as in the Khurana case, a schoolgirl), the sting necessarily involves luring someone through false pretence: as a result, the lines between an exposé and entrapment can often be very thin.

In the United States, the law and professional news organisations have stepped in to define the limits of the hidden camera. Take for example CNN’s policy guidelines on this. It clearly states, “The information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.” Second, the expectation of illegal behaviour or wrongdoing should be strong (i.e. no fishing expedition). Third, before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information. Fourth, hidden-camera shoots must have the prior approval of the senior news management. In some instances, permission of the federal authorities may also be required before the shoot. Moreover, simply because it is ‘good television’ is not a good reason to use the hidden camera. Bottomline: a hidden camera can be an important tool for solid, investigative journalism, but must be subject to well-laid out rules and procedures.

India is different. We have no law that governs sting operations, no internal guidelines in most news organisations, and an unclear right to privacy. At the same time, we are a notoriously opaque society, with an history of corruption and non-accountability. In such a system, a blanket ban on sting operations, as was hinted at by a Supreme Court judge, is no solution.

... ... ... The question is who will decide what is in the ‘public interest’: the government (as it wishes to do in the Broadcast Bill), the viewers (who continue to have a Jekyll-and-Hyde approach to the blurred images), the courts (who see themselves as custodians of morality) or the editors (who are well paid to ensure standards)? In the final analysis, notions of public interest must necessarily be subjective, exercised on a daily basis in a 24x7 news wheel by those who are responsible for channel content.

... .... ... Perhaps, the latest controversy provides news practitioners with a final opportunity to evolve a much-needed industry code of conduct before the government steps in. Self-regulation is only part of the answer: how would self-regulation ensure a uniform adherence to standards in an industry where everyone, from political fixers to real estate sharks, believe they can bring out a news channel? Unless there is an industry-prescribed broadcasting code of conduct with strict penal provisions for non-observance, news journalism is in danger of hurtling down a slippery slope of normlessness, with a resultant loss of credibility."

In a separate column, which was apparently published before the Khurana episode, A.G. Noorani argues that any move to ban sting operations altogether would be unconstitutional:

"In recent months, many people have attacked sting operations. They are called subterfuges or misrepresentations in legal parlance. Before any minister goes about drafting a law to suppress it or a judge decides to censure it, some reflection is required. For, the sting is protected by the Constitution. The fundamental right to freedom of speech and expression, guaranteed by Article 19(1)(a) includes, as the Supreme Court has held, press freedom and all that is necessary to ensure it; for example freedom of circulation. It also includes the right to know, the court has repeatedly ruled citing US and UK cases. The US Supreme Court has ruled that it includes a “right to gather information” and, further, that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The press enjoys a preferential right to attend courts to report trials. “In a sense this validates the media claim of functioning as surrogates for the public.” That is the test. Article 19 (2) permits on the right only “reasonable restrictions” by law only on specified grounds. A blanket ban would be unconstitutional. No Indian court would ignore the formidable material in support of the sting. No Information and Broadcasting minister should either. As far back as 1885, W.T. Stead made news for the Pall Mall Gazette when he exposed prostitution by buying a 12-year-old girl. It led to a change in the law. No judge would send him to prison today as one did then."

After surveying attempts at regulating such operations in the U.S. and U.K., Noorani offers the following prescription:

"It is vain to expect any help from the Press Council. Leading figures in the media, print and electronic, should themselves draw up a code of conduct as a yardstick by which the public could judge their conduct. They might well set up a voluntary Court of Honour to monitor observance of their code."

2 comments:

Dilip said...

My feeling is that self-regulation is unlikely to happen without some degree of governmental pressure. The media market is intensely competitive and not yet stabilized which makes the idea of resorting to unsavory methods more tempting especially for the newer and upcoming channels. Since the final judge by default is a public that rarely remonstrates and success defined by the publicity advantage that accrues, it is likely that left to themselves, the lowest common denominator in terms of behavioral ethics will continue to prevail.

I wonder whether there is not a way to overcome the grounds behind this wariness of governmental regulation. I think that the general manner in which governments proceed on these issues is what gives cause for this sentiment. Such bills (like the Broadcasting Bill for example) often tend to simply lay down relatively broad principles for the regulatory framework (wording such as ‘protection of public order, friendly relations with foreign states, communal harmony’, etc.) and leave it to the committee/board/panel/group duly appointed (for which procedures are usually properly elaborated in the bill) to decide on the specifics. One does not really know until after the bill is passed and the committee constituted, what regulations will ensue, how much clarity they exhibit and how acceptable they will be. Even then, their application is likely to be on a case-specific basis using balancing tests. The media simply does not trust a government body with that kind of power for a simple reason: they are seen to be willing to do the government’s bidding because they get to decide the test, how it applies in a given case, they are under no clear obligation to follow precedent and importantly, balancing tests, without bright red lines, can be made to come out either way with even an expectation of following precedent sidestepped by establishing a tenuous distinction through clever sophistry, and the journalist/media-house facing the fire essentially ends up getting to know the limits of permissibility in every case only after the fact when they are already in the dock. One way to overcome this would be for the government to give up the idea of comprehensive regulation and instead, adopt an incremental approach. Instead of trying to acquire for itself the authority to define public interest, it can make a more modest start by seeking to limit itself, in writing a bill, to some narrow and well-defined instances where the public interest is not served or in other words, privacy or other ethical concerns outweigh the public interest. Of course media houses and individuals may find ways around it, indeed are likely to do so, but newer provisions can then be added with experience to address inadequacies after due debate upon each of them.

shama said...

Being a journalist and now a journalism lecturer, I personally feel that media today is very clearly misusing the rights it enjoys.sting operations might be beneficial for the society but time and again its proved that media is stepping on the wrong stone.several sting operations are found out to be fake. The constitution of India nowhere clearly protects the Right to Privacy. Its high time media ties itself with chains of Code of ethics and Social Responsibility. Self regulation is something that just wont happen in our society,i feel. Checking and Cross Cheking information must be done and certain precautionary measures as done by US law will definitely offer a helping hand in reducing the fake operations. At the least, it does protect the reputation of an individual to a certain degree.