The Power of Communication: The Media, Public Space and Participatory Democracy

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Bhairav would talk about the tension in defamation law, between its deontological command (Kant's categorical imperative of truth) and its consequentialism (harm, to reputation or to public peace).

The talk would explore the utility of our present common law construction of libel; and, if it's not too bold, he hopes to make the case that Indian libel law should incorporate a new test of serious and actual harm as its primary defence to libel, and that the defence of truth should be done away with. This is because Bhairav believes that free speech law should strictly construe Mill's harm principle. In other words, lies and rumours after all, if the state can freely engage in questionable propanganda, people should be allowed to spread baseless rumours — are good for health and should not be criminalised.

Background note

The media has been a growth sector over two decades and more of liberalisation. All evidence points towards the media industry having substantially outrun the overall rate of growth of the economy. This is not surprising since advertising which has been the principal driver of media growth, tends to leave behind other sectors in times of economic buoyancy. Technology has been another powerful driver of media growth over the last two decades. From the first glimmers of satellite broadcasting over the C band which enabled local cable operators to provide a menu of untold variety in the early 1990s, to the recent spurt in the “direct to home” transmissions, the Indian TV scenario has been transformed from a tightly controlled government monopoly, to a state of unregulated proliferation.

A further enabling mechanism has been the rapid growth of internet access. The digital divide remains very much a reality and the numbers that are able to tap into the full potential of the internet, is still a rather small fraction of the total population. The proliferation of cellular telephony though, has made limited modes of access a reality for growing numbers. And the damage potential is at the same time manifest in the growth of the politics of rumour.

It has been a central dilemma of the recent phase of media growth in India that the physical infrastructure has expanded, but the rules of the game are yet to be agreed. The official response has been to put in place a doctrine of intermediary liability, which has had a special bearing on the emerging sector of the social media. This is a principle that is being fought in the court-rooms by well-endowed internet giants. But at the level of individual users, section 66A of the Information Technology Act -- enacted in 2009 – remains a source of peril for social media users.

There are worries often expressed that competition among media channels has fuelled a race to the bottom. “Sting operations” which are by definition illegal unless they serve a strong public interest, have become a common recourse. Respect for privacy and personal reputation has become a rather loosely observed component of the code of media ethics.

Incidents in the recent past when media coverage has been directly paid for by political and business entities have fuelled public concerns about spurious and inauthentic information circulating in the public domain merely to serve profit objectives.

Episodes when the media has amplified public discontent and caused severe stress within the apparatuses of the state, have led to frequent expressions of concern. Serving and retired intelligence officials have remarked on the destabilisation potential of the new social media. And current and past prime ministers have spoken of the need to be vigilant about the use of the social media, but also to ensure that the free speech right is respected and the potential of the new media in serving larger national goals is realised.

The global financial meltdown in September 2008 made deep inroads into the fortunes of the media. The months that followed sharply highlighted the vulnerability of the media industry to corporate pressures. Despite its very loud voice and its pervasive presence in the lives of several million citizens, the media industry is dwarfed by India’s major corporate players. Illustratively, the advertising budget of just one among the leading players in the “fast moving consumer goods” (FMCG) space would be of the same order of magnitude as the total revenue of India’s biggest media groups.

This has been the context in which certain very large corporate entities – possibly among a host of smaller ones – have moved into the media space. The official response to this complex of changes has been marked by fits and spurts, which finally subside into indecision and inaction.

Efforts to transform the state-owned broadcasting agencies into public service media have faltered. And with commercial motives being dominant, large numbers of citizens who are of no conceivable interest to advertisers have fallen between the cracks, losing their voice within the public sphere.
Older experiments in using the official media as a vehicle for transmitting a message of development and diversity, have fallen into obscurity and neglect. While the ambitious experiment of using satellite-enabled broadcast media for developmental objectives is yet to be evaluated, the state-owned media are seen to have not transformed their approach according to the times.

Radio, which could be the most democratic and accessible of broadcast media, remains underdeveloped in its potential because of a refusal by the government to surrender its monopoly over news and current affairs content over the media.

A broad-based and critical debate on media policy, which looks at its promise as a space for participatory democracy, has been sorely lacking. This is in part because media industry players have worked themselves into the vantage position of setting the terms of the discourse. The voices of civil society and in particular, of those who stand to gain the most from a broadening of democratic spaces, have remained unheard.

This is the context in which an event under the above title is proposed at the institute. The ground covered in the event could include:

1. public understanding and perceptions of the media;
2. media representations of the “public” – “in” and “out” groups; voices heard and unheard;
3. “development” as represented in the media and the public space;
4. the voice afforded to diverse communities in determining development priorities;
5. the means afforded to diverse communities in voicing their opinion;
6. how the technical means of getting diverse opinions into the public space have evolved: from print, to the tightly controlled broadcasting space, to the unregulated broadcast space of the 1990s onwards;
7. securing transparency and public accountability in the media space;
8. from the perception of the telephone as a luxury irrelevant to the lives of the majority in the country, to its current status as an irreplaceable accessory of everyday life across all categories;
9. the plus and minus side of the ledger on the new communication possibilities;
10. the rights to privacy and personal reputation – reconciling these with accountability and the public right to information;
11. the politics of rumour; the damage potential of rumour and how rumour is also a means of enforcing public accountability;
12. how efforts to politically manage information invariably prove self-defeating, whether it is in the 1975-77 Emergency or today;
13. where do we go for a free and democratic media universe.

The event would seek to look back, look at current realities and look ahead to how things could be made better within a democratic order.