Monitoring paid news in the context of electoral reforms

by Joshita Pai

Paid News characteristically is content which results not from the efforts of a journalist but from the consideration given to the media houses for its publication. In certain instances, it is poorly veiled since the content acts as a de facto mouth piece of an electoral candidate or a political party.

Take for instance the news item that was published in the Dainik Jagran on April 15th  2009, in its Ranchi edition which advocated a candidate belonging to the Jharkhand Mukti Morcha (JMM). The said piece stated that the candidate had the “support of every section of the society and that he would win elections from the Palamau Lok Sabha constituency”. What was disturbing about the piece was the absence of a credit line disclosing the source of the news and whether the piece constituted news in the first place.[i] What is interesting to note is the eye-catching presentation of the content compared to the contents on the rest of the page. Clearly, this is textbook instance of paid news which passes of as reportage. An item of this nature conveys an outrageous motive for endorsement in the garb of information.

During the Gujarat Elections in 2012, the newspaper ‘Gujarat Guardian’, which came into existence a couple of months before the Assembly Polls carried two pieces on the same page predicting definitive victory of two rival parties on the same page.[ii]

The paper explores the legal provisions which presently regulate the practice and chalks out a set of recommendations to strengthen the legal framework. The paper is divided into three parts. Firstly, the definition of paid news and its essential demarcation from permissible political advertising. Secondly, the existing legal framework and statutory provisions which may be applied for regulating paid news. Lastly, the author enlists recommendations in pursuit of electoral reforms which primarily rely upon disclosure provisions.

Defining Paid News

Paid news with respect to elections is often presented in the form of delivering information crucial to public interest and other justified coverage under election campaign. The Ministry of Information and Broadcasting[iii] tentatively outlines paid news as any news or analysis appearing in any media (print and Electronic) for a price in cash or kind as consideration.

The Election Commission Handbook distinguishes between paid advertisements and paid news content and suggests that the latter must be unambiguously marked as ‘paid advertisement’. Therefore, political advertisement will be one which is not presented in the garb of news or as objective reporting, but like any other advertising.

The Advertising Code lays down that no advertisement shall be permitted, the objects whereof, are wholly or mainly of a political nature.[iv] Election campaigning and free airtime for promotion of electoral candidates or political parties evades the exact identification of the of paid news and steers clear of the term ‘advertising’. To legitimately regulate paid news, it is essential to distinguish it from acceptable forms of political advertising.

Demarcating Paid News From Permissible Political Advertising

Political advertising constitute activities which relate to promoting an electoral candidate or a political party or a policy proposed by a particular party in order to appeal to the public. In its core, political advertising does not exclusively relate to election time, or political parties or candidates. Advertising on other issues, which reflect important societal debates, such as animal rights, environmental issues, human rights etc., and are generally in the nature of political propaganda or pursue political ends, may be construed as political advertising.[v]

A political advertisement is indicative of the description of the sender or the speaker of the communicated piece. This confirms that the communicated piece is an advertisement. Such speech is not sought to be regulated since it promotes political ideas and reflects the ideologies and policy goals of a party, all the while ensuring that the viewers are aware that the content is not merely informational but also promotional.

Paid News however, is a promotional feat in the guise of an informative and meritorious piece of news. Paid News is distinguishable from political advertising in the sense that there is transparency about the speaker in the latter instance. Further, paid news is communicated as any regular news content which is based on the labour invested in news finding and the merit of the author/speaker; Paid News is rather misleading since it is a manifestation of a transaction between media channels and political candidates or parties, and potentially distorts the right to fair and objective information.[vi]

Existing Legal Framework

The argument in favour of paid advertising lies in the protection of freedom of expression. Political parties should not be limited in their right to have access to the media and any kind of restrictions on paid advertising should be considered a limitation of the individual right to freedom of expression. However, paid news cannot claim the same protection.

  1. Article 19(1) does not afford protection to Paid News

Paid news, by the implication of the definition coined by the Ministry of Information and Broadcasting, falls within the ambit of commercial speech which refers to any speech which proposes a commercial transaction.[vii] Post the Tata Press judgment in 1995, commercial speech has been recognized as speech within the meaning of Article 19(1)(a) of the Indian Constitution.

This establishes that paid news could find recourse under free speech. However, the legitimacy of such practice is questionable on many counts. The right to freedom of speech and expression entails with it a significant corresponding right to information.[viii]  The information in this regard necessarily needs to be fair and objective which is not the case in paid news; What really unfolds in the practice is a motive for endorsement is materialized and put on display, not in the form of an advertisement but in the garb of news.

In Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Anr.[ix] The Supreme Court of India observed that “one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry”. It further held that when medium of information is monopolized or influenced either by an authority or private individuals, the democracy is threatened. Article 19(1)(a) was not culled out to disseminate unmeritorious information.

The public’s right to access and obtain fair information is essential since it would facilitate the formation of one’s opinion and viewpoint and debates on matters of public concern, as was observed in PUCL by the Supreme Court.[x] The availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information.[xi]

Further, the right conferred by Article 19(1)(a) is not absolute and is subject to reasonable restrictions. The PUCL judgment of 2003 makes a reference to the U.S. Supreme Court ruling  in Giltow v. New York,[xii] which held that the right to free speech “does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom.”

International Conventions while acknowledging the importance of freedom of speech and expression, have given it the status of a qualified right. Article 10 of the European Convention on Human Rights, Article 19 of the ICCPR and the UDHR provide for the freedom of speech and expression. However, they accommodate restrictions on the impugned if such restrictions fall within the margin of appreciation.[xiii] The margin of appreciation is the threshold which determines whether a compelling situation exists which would necessitate the regulation of a conferred right. The ECHR in 2013 upheld a ban imposed on paid news and specifically stated that such restrictions do not violate Article 10 of the European Convention on Human Rights and a regulation attempting to curb the practice of paid news falls within the margin of appreciation.[xiv]

Article 19(2) of the Indian Constitution provides that one of the grounds for legitimately restricting free speech is establishing that the impugned speech is detrimental to the security of the state. Judicially, this ground has been expanded to include societal interest as well as national interest. The Supreme Court in PUCL held that offences enlisted in the IPC which are likely to disqualify an electoral candidate under Section 8 of the Representation of People’s Act, 1951 is a subject matter of societal interest. Regulation of paid news consequently falls within the legitimate restrictions laid down in the Constitution.

Elections and conduct of electoral candidates by and large affects the public and is undeniably a matter of public interest. Serving information by purchasing spaces in news columns or airtime in news channels throws in question the authenticity of the information as well as the credibility of the news medium. This is not the speech that article 19 seeks to protect.

If the practice of paid news is monitored effectively to streamline it into permissible political advertising, then the readers and receivers of the item would be better placed to assess the credibility of it. Allowing the practice of paid news would on the contrary interfere with public’s access to obtain objective information and dissuade the voters/public from rightfully formulating an opinion.

Such a provision resolves the concerns of a blanket ban on political speech and treads clear of amounting to an excessive measure on regulating speech. In Bennett Coleman, the Supreme Court laid down that while exercising permissible restrictions on speech, the regulation must not go beyond what is necessary to achieve the objects of the law under which they are sought to be imposed.[xv] In the light of such a threshold, the regulation proposed for curbing Paid News is efficient disclosure provisions, only failing which a criminal liability would be incurred. Political advertising is within permissible bounds and would be unaffected by such regulations.

  1. Paid News As a Corrupt Practice

Section 123(4) of the Representation of People’s Act provides that “The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of the candidate‘s election.”

Though Section 123 does not attract penal consequences, it provides sufficient ground for disqualification. Section 8A of the Act, under Chapter III provides for disqualification for membership on account of corrupt practices.

To indict a candidate under this charge, it is essential that the impugned material is untrue. The rationale behind regulating the practice of paid news is not the veracity of the stated facts, but the misrepresentation of it in the form of news.

  1. Restriction on Election Expenses

Section 77 of the RP Act mandates every candidate to keep account of expenses in connection with elections. Section 10A provides that in case of suppression of election expenditure or on account of failure to lodge an account of the same, the candidate is liable to be disqualified for a period not exceeding three years.

The requirement of lodging such accounts subjects the candidates to disclose the advertisement expenditure. The provision does not directly deal with political advertising or paid news. However, placing restrictions on election expenses contributes in checking excessive political advertising.

  1. Disclosure Provisions

Mandating disclosure provisions would enable identification of paid news; A disclosure provision correspondingly acts as a disclaimer for the media houses. It reflects that the association between the candidate and the channel/newspaper is purely commercial and that the displayed content has been sponsored.

Presently, the publication/broadcasting of paid news is interpretatively included within the meaning of other document as envisaged by section127A(3)(b) of the RPA. In the event of non-compliance, this provision makes such a default publication an electoral offence.

  1. Judicial Decisions

The Supreme Court of India in Common Cause v. Union of India laid down directions that political parties should also submit a statement of expenditure of elections to the ECI and such statements are required to be submitted within 75 days of assembly elections and 90 days of Lok Sabha elections.[xvi]

Ms. Umlesh Yadav, a sitting MLA from Bisauli in UP was disqualified under section 10 A of the Representation of People‘s Act 1951 for a period of three years for failing to provide a true and correct account of her election expenses which is mandated by section 77 of the Representation of People’s Act.[xvii] Following the above dictum of the Supreme Court, the Election Commission passed an order on 2nd April, 2011 in another case of similar nature against Ashok Chavan, a member of the Maharashtra Legislative Assembly. The commission held that it can go into the correctness or falsity of the account of election expenses filed by Chavan.[xviii] However, in September, 2014, the Delhi High Court set aside EC’s order which held him guilty for suppression of expense account.[xix]

Paid News often involves circumventing the election expenditure provisions and distorts the right to fair and objective information.[xx] Recognizing the effects of paid news, a plethora of reports, recommendations and instructions have qualified paid news as impermissible commercial speech. In an interview conducted recently, the Chief Election Commissioner V.S. Sampath proposed that paid news be made an electoral offence. The EC’s proposal is pending before the government for the past two years.[xxi]

The Chapters I and III of Part VII of the RP Act provide for disqualification of candidature for corrupt practices, and penalty on account of electoral offence respectively. However, there is no provision enabling the imposition of both forms of sanctions.

Recommendations

  1. The disclosure and disclaimer provisions should be made mandatory for all forms of media. The Advertising Code adopted by the Advertising Council of India needs to be amended to this effect since non-compliance of the code amounts to violation of Rule 7(9) of the Advertising code as contained in the Cable Television Network Rules, 1994. A disclosure requirement would not incur a chilling effect since the content is not restricted but only its manner of presentation is regulated.
  2. A comprehensive definition and creation of offence of paid news in the IPC is essential which would attract primary liability of both, the media houses and the candidate/party.
  3. Subsequently, the offence should be included as a ground for disqualification under Section 8 of the Representation of the People Act, 1951, under Chapter III. This would effectively make the practice of paid news, a penal as well as an electoral offence.

Conclusion

It is significant to note that a straightjacket formula to identify paid news is not permissible in several cases. For instance, Jayalalitha owns Jaya Network. There can’t be a blanket regulation on media ownership by electoral candidates. Expressing concern that the lack of restriction on ownership across media segments (print, radio, TV or internet) or between content and distribution could give rise to monopolistic practices, the Parliamentary Standing Committee has urged the Authority to present its recommendations and the Ministry to take conclusive action on those recommendations on a priority basis.[xxii] TRAI, in August 2014 gave a set of recommendations pertaining to media ownership wherein it emphasized that paid news should be defined comprehensively and a framework should be established for examining complaints and taking punitive action against the defaulting media entities. There is little doubt that an institutional response addressing both substantive and procedural issues including evidentiary rules is needed to curb the menace.[xxiii]

It strongly recommends that entities related to political bodies, religious bodies, urban local governing bodies, Panchayati Raj, other publicly funded bodies, and Central and State Government ministries, departments, companies, undertakings, joint ventures, and government-funded entities and affiliates be barred from entering into broadcasting and TV channel distribution sectors.[xxiv] Further, it also suggests that the Press Council of India must be fully empowered to adjudicate the complaints of “paid news’ and give final judgement in the matter.

It has been frequently observed that the news channel or the publication house is run by a relative of an electoral candidate. Kasturi TV is owned by Kumaraswamy’s wife. It is therefore, also the need of the hour to check if such a practice would fall within the ambit of benami transactions in the absence of any other statutory provisions. Framing an all-encompassing definition that takes into account all these contingencies would be the first step forward. Political advertising which steers clear of misinformation and indicates a sponsored endorsement is legitimate and should not be affected by provisions curbing paid news content. Currently the problems of paid content identified above are tackled in a piecemeal manner. Neither is there a blanket prohibition on paid news, nor is there a provision exclusively dealing with political advertisement or paid news. Issues ranging from media ownership by candidates and political parties to media houses exhibiting favouritism on account of personal affiliations with parties are issues which need to be tackled separately.


 

Joshita Pai is an alumnus of HNLU


end notes

[i] Press Council of India, “Paid News”: How Corruption In The Indian Media Undermines Democracy, Paranjoy Guha Thakurta and Kalimekolan Sreenivas Reddy,(1st April, 2010),  pg. 25, accessible at:  http://presscouncil.nic.in/OldWebsite/Sub-CommitteeReport.pdf

[ii]Report of the Election Coverage monitoring Committee on Paid News During Gujarat Election-2012, accessible at: http://presscouncil.nic.in/OldWebsite/Gujarat_Report.pdf

[iii]Issues Related To Paid News, 47th Report  of Standing Committee on Information Technology, (2012-2013),Fifteenth Lok Sabha, Ministry of Information and Broadcasting.

[iv]Rule 7, Advertising Code, Programme And Advertising Codes Prescribed Under The Cable Television Network Rules, 1994

[v]EPRA/2006/02, Plenary Political Advertising: Case Studies and Monitoring, EPRA Secretariat, 17-19 May 2006.

[vi][vi]Handbook for Media, General Election to the 16th Lok Sabha, 2014, Election Commission of India, para 3.5 accessible at: http://eci.nic.in/eci_main/ElectoralLaws/HandBooks/Handbook%20for%20Media%202014.pdf para 3.5

[vii]Tata Press Ltd v. Mahanagar Telephone Ltd., AIR 1995 SC 2438

[viii]P.V. Narsimha Rao v State AIR 1998

[ix] [(1995) 2 SCC 161]

[x]PUCL v. UOI, Writ Petition (civil) 490 of 2002,  509 of 2002, 515 of 2002, decided on 13th March, 2003

[xi] Id.

[xii] (1924) 69 L.Ed. 1138]

[xiii] R (Wood) v Commissioner of Police for the Metropolis [2009] 4 All ER 951

[xiv] Animal Defenders International v. the United Kingdom ECHR (124) 2013

[xv] Bennett Coleman  & Co. Ltd. v. UOI AIR 1973 SC 106, p. 150

[xvi] Writ (Civ) No. 13 Of 2003

[xvii] Writ (Civ) No. 63965 of 2011 (All HC)

[xviii] No. W.P. (C) 2511 of 2011 dated 30th September, 2011.

[xix] HC Sets Aside EC Order Holding Ashok Chavan Guilty, Outlook, http://www.outlookindia.com/news/article/HC-Sets-Aside-EC-Order-Holding-Ashok-Chavan-Guilty/859566

[xx]  Handbook for Media, General Election to the 16th Lok Sabha, 2014, Election Commission of India, para 3.5 accessible at: http://eci.nic.in/eci_main/ElectoralLaws/HandBooks/Handbook%20for%20Media%202014.pdf  para 3.5

[xxi] EC Proposes Making Paid News an Electoral Offence, October 21st, 2014, Outlook, accessible at: http://www.outlookindia.com/news/article/EC-Proposes-Making-Paid-News-an-Electoral-Offence/864718

[xxii] ‘Issues Related To Paid News, 47th Report  of Standing Committee on Information Technology, (2012-2013),Fifteenth Lok Sabha, Ministry of Information and Broadcasting.

[xxiii] Recommendations on Issues Relating to Media Ownership, (August 12, 2014), http://www.trai.gov.in/WriteReadData/Recommendation/Documents/Recommendations%20on%20Media%20Ownership.pdf, para 5.68

[xxiv] Id. At 5.74

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