Media in India has a long history and over the years it has been largely driven by increasing digitalisation and higher internet usage. The laws related to media are deeply rooted in self-censorship, India's legal tradition and in the British colonial era. The earliest regulations can be traced back to 1799 when the Marquess of Wellesley, the then Governor General, introduced the first rules to regulate the press in India.
Today India has multiple legislations, rules, regulations guidelines and policies relating, so much so that it appears that it is an ‘over legislated’ country. However, in the field of media monopolies and media concentration, these very laws and regulations are largely incoherent, unsystematic, insufficient and largely ineffective.
Overall legislation on media concentration lacks uniformity, consistency and effectiveness. In the increasingly changing media landscape, some of the legislation is pretty outdated such as over the 100-year-old Indian Telegraph Act of 1885 which still regulates some aspects of broadcast and digital media. There are range of other laws and regulations which deal with media, resulting in a noticeable increase in the number and severity of restrictions on press freedom, particularly concerning internet use. An important role is also played by state authorities such as the telecom and interior ministry as they issue new guidelines from time to time.
There is no comprehensive framework for disclosure norms for media ownership. Since under the Companies Act, 2013 the data disclosed is based on different parameters and levels of aggregation making the data unusable for comparisons and studies regarding the extent and method of media monopolies and concentration.
There have been several attempts in the past to bring in legislation to prevent media concentration. The Broadcasting Bill, 1997 and Broadcasting Services Regulation Bill, 2006, were proposed but never fructified into statutes/legislation. The Bill of 1996 proposed prohibition of cross media ownership, foreign ownership and proposed that no advertising agencies, political or religious bodies and publicly funded bodies would be granted licenses to own television channels. It also sought to establish the Broadcasting Authority of India.
Similarly, the Bill of 2006 sought to establish an independent regulator and place restrictions on accumulation of interest to prevent media concentration. The TRAI had also given Recommendations in November, 2013 relating to Monopoly and Market dominance in Cable Services. The recommendation included restrictions on market share held by a single cable company in a state. It has also proposed prior approval in mergers and acquisitions between multi-system operators and local cable operators if it results in dominant position to check on monopoly of cable distribution in the country. However, MIB stated that these recommendations were not feasible, were impractical to implement and therefore referred the same issues to CCI for consideration. As of January, 2019, TRAI’s Recommendations relating to ‘Issues Relating to Media Ownership’ dated 12th August 2014, are under consideration by the Inter-Ministerial Committee.
There is no specific definition of media concentration in the existing legislations in India nor is the term defined specifically in terms of audience share, circulation, turn/over/revenue, share capital or voting rights. The media concentration has only been defined and understood in terms of maintaining competitive neutrality and preventing adverse competition in the market. On an overview of the Laws, Guidelines and Regulations issued by MIB and TRAI impacting vertical integration, it is clear that these laws do take into account single person/company or group attempting to “control’ distribution/aggregation in the broadcasting/telecommunications sector.
The blind spots in the legislation relating to media concentration occur not only due a lack of specific definitions of the various terms like vertical or horizontal integration terms, but also due to the various statutes and authorities that deal with different aspects of media monopolies and concentration which leads to different interpretations of the issues as well as jurisdictional issues and conflicts between various authorities. There are number of bodies which regulate media in India such as the Press Council of India which accepts complaints against and by the press in matters relating to a journalist's or media organization's ethical failures, News Broadcasting Standards Authority which is a self-regulatory organization for TV, Telecommunication Regulatory Authority of India (TRAI) regulates telecom sector, Board of Film Certification (CBFC) controls content of movies and television shows, the News Broadcasters Association (NBA) warns, censures and can fine the broadcaster a sum upto INR 100.000 (around USD 1.440) for violation of its Code.
The conflicts arise in legislations or amongst authorities due to the fact media monopolies are gauged on the touchstone of competition. This concept is flawed as competition need not necessarily be able to ensure plurality of news or prevent media concentration. Politically affiliated or owned media outlets occupy an important and expanding space in the media business. However, it is difficult to trace the complex paths of media ownership in India as there is no mandatory requirement to disclose the political affiliation of the owners or their family members.
REGULATORY FRAMEWORK FOR RADIO
The Ministry of Information and Broadcasting (MIB) is the administering body when it comes to public and private television and radio broadcasting. Private FM radio and community radio stations must adhere to the AIR Broadcast Code, which doesn’t permit criticism of ‘friendly countries’, ‘attack of religious communities,’ ‘incitement of violence’ etc.
MIB issues permissions / licenses and monitors content of the broadcasters, while TRAI acts as a regulatory authority. The public broadcaster, Prasar Bharati is a statutory autonomous body established under the Prasar Bharati Act, 1990 which came into existence on 23th November, 1997. The objectives of public service broadcasting are achieved in terms of Prasar Bharati Act, 1990 through All India Radio and Doordarshan, which earlier were working as media units under the MIB and since the above said date became constituents of Prasar Bharati.
Only in the case of Community Radio Stations (CRS) there are laws in place dealing with the ownership wherein the policy relating to CRS states the CRS should have an ownership and management structure that is reflective of the community that the community radio station seeks to serve.
In the Policy Guidelines of FM Radio Broadcasting Services, 2011, a political party is disqualified from applying for a permission to operate a channel. If a family member is a director in the same company, then as per the Companies Act, 2013 and other legislations, the family member’s name would be disclosed in the annual report though not as a family member but as a person who holds a particular position in the company. Though there is no requirement to disclose any affiliations to a political party or its family members in any media company however in the self-regulatory guidelines of NBSA regarding Election Broadcasts, it has been stated in Guideline 2 that “News channels shall disclose any political affiliations, either towards a party or candidate…” whereby the public can gauge whether a particular news channel, if it discloses it political affiliation to a party, is either funded by the party or is essentially owned by such political party.
Even though radio seems to have more regulation, including on concentration control, the fact that private FM stations are barred from producing independent news renders the public Prasar Bharati the monopolist in the news radio.
REGULATORY FRAMEWORK FOR PRINT MEDIA
The Press Council of India (PCI) is a statutory body which regulates print media in India. It was set up by the Press Council Act of 1978, and consists of a chairman and 28 other members. Its primary objective is to “preserve the freedom of the press and to maintain and improve the standards of newspapers and news agencies in India”. The PCI can investigate and issue a report. It also can "warn, admonish, censure or disapprove" those it finds at fault, but it has no powers to enforce nor impose any penalty on individual journalists and publications. There are also other laws which deal with the regulations imposed upon the print media which include the Press and Registration of Books Act, 1867 which makes registration with an appointed Authority compulsory for all printing presses. The Newspaper (Prices and Pages) Act, 1956 empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter. A few other legislations which deal with the press are the Contempt of Courts Act, 1971 and the British-era law Official Secrets Act, 1923 which has been used against journalists and whistleblowers.
REGULATORY FRAMEWORK FOR TV
The Indian Telegraph Act 1885 is the British-era law which was used by the British to control and restrain telegraph communications during their rule in India. Despite the law being outdated, it still forms the basic foundation of India’s regulatory framework for most modern communication devices, irrespective of their underlying technology, including broadcasting services, satellite radio and the Internet. It has been invoked often by the state-owned Doordarshan to claim telecast rights for cricket matches. There are series of other laws and legal frameworks which govern broadcasting in India which include the Cable Television Networks (Regulation) Act, 1995, Telecom Regulatory Authority of India Act. 1997, Prasar Bharti (Broadcasting Corporation of India) Act 1990, Policy Guidelines for downlinking of Television Channels and Guidelines for obtaining DTH license among others. News channels are governed by self-regulation body, the News Broadcasters Association (NBA).
LAWS RELATING TO NET NEUTRALITY
There is no specific legislation, statutes or acts governing Net Neutrality in India. In principal, the government has accepted the regulatory framework which states that the ‘Government is committed to the fundamental principles and concepts of Net Neutrality i.e. keep the Internet accessible and available to all without discrimination.’ The issues of licensing and allocation of spectrum are dealt with by Department of Telecommunications (DoT) of the Ministry of Communications while as regulatory aspects are dealt with by TRAI. The DoT amended license rules by incorporating clauses related to net neutrality which bars service providers from discriminating against internet content and services by blocking, throttling or granting preferential higher speeds.
With regard to disclosure of information and transparency regarding ownership, investment and revenue sources of media companies, the general law dealing with companies and enterprises is The Companies Act of 2013, SEBI Regulations and the Press and Registration of Books Act.1897. The Companies Act, 2013 requires certain disclosures to be made by the companies, under its provisions which are mandatory including Section 92 of the said Act requires that every company prepare an annual return in a prescribed format disclosing its shares, debentures, other securities and shareholding pattern; details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them.
The Section 137 requires that a copy of financial statement be filed with ROC including a consolidated financial statement, if any, along with all the documents which are required to be attached to such financial statements duly adopted at the annual general meeting of the company within thirty days of the date of annual general meeting in such manner, with such fees or additional fees as may be prescribed. More specifically, with regard to electronic media, all media companies are required to divulge the details of director, share of equity capital, shareholding pattern, foreign investment, source of funds by virtue of Policy Guidelines for Uplinking of television channels, 2011 in India’ issued MIB.
There are also a number of laws that criminalise freedom of expression. The legal regime undermines, stifles, restricts and curtails the enjoyment of freedom of expression guaranteed by the Constitution. The restrictions mentioned in the Constitution under Article 19(2) being security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offence, and sovereignty and integrity of India are the restrictions on the media’s free speech rights.
However, several such legislations have either been framed or have been retained with amendments from the colonial era which affect free speech of media such as the India’s anti-espionage act called the Official Secrets Act. The colonial-era Act was meant for ensuring secrecy and confidentiality of the state, mostly on national security issues, has been repeatedly used against journalists and whistle-blowers. Similarly, Section 66 A of the IT Act, 2000 which was struck down by the Supreme Court as unconstitutional, had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet.
A dominating trend in the regulation of the mass media in India over the past few years is the government’s increasing control over Internet and social media and in some states like insurgency hit state of Jammu and Kashmir, the local government often controls media by withholding advertising revenues.