New Delhi: A new report from the Centre for Communication Governance (CCG) at the National Law University in Delhi explains the architecture around hate speech laws and more generally speaking, laws that regulate free speech in India, including freedom of the press.
In March, Smriti Irani, the minister for information and broadcasting, announced that her ministry planned on regulating online media. She conflated social media with online news media and spoke about online media in broad terms, pushing for its strict regulation.
In April, her ministry issued a circular saying that in order to fight the rise in fake news in print and electronic media, the government had decided that journalists who had complaints of creating/propagating fake news against them, would immediately have their press accreditation suspended.
The following day, the Prime Minister’s Office asked her ministry to withdraw it.
CCG’s new report titled ‘Hate Speech Laws in India’ discusses news media in the print, television and online platforms and the various forms of regulation over these platforms. It shows that online platforms are, in fact, already subjected to heavy regulation – in some ways more than television and print platforms – for both news and non-news content.
A letter, signed by over 100 journalists this month, said as much. “To say that there are no norms and guidelines for content online is contrary to facts,” stated the letter addressed to Irani, a copy of which was also sent to the prime minister, and ministers in other related ministries.
With regards to television, the CCG report studies the Cable Television Networks (Regulation) Act, 1955. On print media, it has studied the Press Council of India Act, 1978. Additionally, on online media, it has examined the Information Technology Act, 2000. The report has also looked at non-state, self-regulatory mechanisms like the News Broadcasters Association and the Broadcasting Content Complaints Council.
Television news media
Television media in India (both news and non-news) is governed under the Cable Television Networks Regulation Act 1955 and its rules. The Programme Code and Advertisement Code are set out in the Cable Television Rules.
The Act regulates the operations and content of cable television operators and has a license framework for them. Section 20 is among the most relevant sections of the Act for its ability to prohibit transmission of content whenever it is “necessary or expedient” and in the interest of “public order, decency or morality,” or when there is a threat to the sovereignty, integrity or friendly relations of India with other states. Section 6 as well as the Programme Code is concerned with content that shows contempt for India’s various communities or has the ability to incite violence.
However, the enforcement seems largely restricted to “warnings, advisories and orders” by the ministry of information and broadcasting, drawing upon the Programme Code. In some cases, transmission can be fully prohibited.
Some examples of these sections being enforced include the case of Aaj Tak, which had brodcast a sting operation around the Muzaffarnagar riots (they were issued an advisory), Janmat TV-Live India, which had broadcast a sting operation on prostitutes and Aaj Tak and ABP, which brodcast a conversation allegedly between terrorists.
In one case, the government cancelled the registration of an operator but the Madras high court held that the government did not have that power. Unlicensed channels, without permission to downlink, have also been found to be broadcasting in India (such as Peace TV, which in 2016 was issued an advisory). This case “highlighted the government’s limited capacity for monitoring the illegal telecast of unlicensed television channels. This may imply that the state is not entirely efficient in implementing the licensing system and Programme Code,” states the report.
In other incidents, the Broadcast Editors Association have told channels that the government’s advisories on their coverage were “not mandatory.” When the government has attempted to use this Act and its Programme Code to censure content, the Delhi high court ruled in one case (Star India Private Limited vs Union of India) that the inter-ministerial committee set up by the ministry was not appropriate to adjudicate on programming.
Print news media
Print media (news only) is governed by the Press Council of India, which is a statutory body set up in 1966.
The council itself consists of a chairman and 28 members including members of the parliament and 13 journalists. It is a quasi-judicial adjudicatory body.
The council is limited in powers. The CCG report notes: “The PCI has the power to only censure newspapers or editors, and not the power to impose any punitive sanctions.” The PCI’s powers are defined as being able to “warn, admonish or censure” or “disapprove,” the print news outlet or journalist. They may ask newspapers to publish clarifications.
Online news media
Although the online media space (both news and non-news) seems like the Wild West in terms of the volume of content and the kind of transgressions which proliferate on the platform, Indian laws are reality already quite strict on the online space. These punitive measures were brought in by the previous UPA government and presently, the NDA government is taking them forward rapidly.
The online space is governed by the Information Technology Act, 2000. Some parts, such as Section 66A, were successfully challenged in court and struck down as unconstitutional. But the Act still empowers the government to block, filter and take down content online. The government is also empowered to turn off internet access completely. These are options which are, in fact, exercised by the Indian government on a regular basis, and do not exist just on paper.
Section 66A of the IT Act wanted to ambitiously crack down on information online which could cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.” It imposed a punishment of up to three years along with a fine.
The Supreme Court found this arbitrary, disproportionate and an unreasonable restriction on the right to free speech. The court also said that the speech available online should have the same level of constitutional protection of free speech as that available offline.
In the recent letter written by over 100 journalists, the minister for information and broadcasting was reminded of this:
“It is also worth noting that, according to the Indian Constitution, an individual has the same right to free speech and expression whether by word of mouth, writing, printing, pictures or any other mode. Therefore, restrictions that do not apply to offline speech cannot be used to control online speech either. On the other hand, provisions that apply to offline behavior – such as the IPC – are equally applicable, and regularly applied, to online content.”
However, while petitioners bid goodbye to 66A, the government has looked for ways to reincarnate it – in 2015, a parliamentary committee recommended changes to the IT Act to deal with online hate speech. “Although Section 66A is no longer in force, the government has been examining other ways in which harmful speech online may be criminalised again,” the report states.
Online content is also often taken down entirely, where the government has ordered intermediaries to do so. This is done under Section 69A of the IT Act, which was also challenged in court, but upheld as constitutional. The process of issuing blocking orders is “opaque and the reasoning offered in orders is not subject to public scrutiny,” notes the report.
The online space also bears the threat of total internet shutdowns. Internet has been shutdown following Facebook posts which allegedly sparked communal tensions or when videos of idols being desecrated were being shared online.
According to the new report, between January 2010 and April 2018, there have been more than 164 incidents of internet shutdowns in different parts of India. For this, the state also relies on the Telegraph Act, 1957 and Section 144 of the Code of Criminal Procedure. This is also routine in the state of Jammu and Kashmir.