Guest post by SMARIKA KUMAR
TRAI published a set of recommendations on issues relating to media ownership on 12 August 2014. A summary of the key points of these recommendations may be found here. But what do these recommendations imply for the freedom of speech and expression in India? This post is an attempt to contextualise TRAI’s recommendations against this question.
From No Regulation on the Business of Speech to Some Regulation on the Business of Speech
In its introductory chapter, TRAI says that the objective of its recommendations is to achieve plurality of views and opinions in media. It states:
“The objective of these recommendations is not, in any sense whatsoever, to curb the media or deprive it of its rights – that, in fact, would be a disservice to the Indian citizen – but to put in place suitable safeguards that would ensure citizens the right to obtain objective, unbiased and diverse views and opinions.” (para 1.5)
This is a remarkable move because the idea of media plurality has remained contested in the understanding of Article 19(1)(a) of our Constitution, which guarantees the right to freedom of speech and expression to Indian citizens. The whole dance began in 1961 with the judgment of Sakal Newspapers v. Union of India, where the government sought to regulate the number of pages a newspaper could carry. Since such regulation would make newspaper prices of smaller newspapers comparable to big newspapers, the government argued that it would enable the smaller newspapers to secure larger circulation. One can clearly see how this was an attempt at enabling plurality in the newspaper business, so that the smaller voices are not stifled by the big voices.
The Supreme Court however rejected this argument, saying that such regulation, even though it purported to govern the newspaper business, had a direct implication on circulation. Circulation of newspapers was found to be is an essential component of the freedom of speech and expression. The regulation was therefore held to be unconstitutional. The ruling however, failed to appreciate that such regulation could also potentially promote plurality among newspaper voices.
This vision of Article 19(1)(a) at work in the Supreme Court judgment in Sakal believed that freedom of speech and expression could be best served by the absence of restraints on the newspaper business. So when TRAI proposes regulations and restraints on the media business in its recommendations, it effectively turns the tables to say that the freedom of speech and expression, is in fact, best served by the presence of some restraints on the media business.
Since Sakal, the Supreme Court has recognised plurality of broadcasters as an important component of the freedom of speech and expression. But the TRAI recommendations go further: Not only do they recognise that plurality is important for freedom of speech both in print and in broadcast, but they also recognise that such plurality is achieved via some regulation of media business, rather than no regulation of media business. In this, TRAI does a commendable job.
The Missing Link Between External and Internal Plurality
The failure of TRAI’s noble endeavour however emerges when it comes to figuring the details of a regulatory framework that will preserve plurality in media. The regulations proposed by TRAI work at two levels: At the level of external plurality, and that of internal plurality. TRAI explains:
“Ensuring both external plurality, namely multiple voices in the national media market, and internal plurality, i.e. presentation of a range of facts and news in an unbiased manner by a media outlet, are fundamental in the working of a democracy.” (para 1.6)
While it is good to formulate measures for both plurality voices (external plurality) and plurality of what those voices say (internal plurality), it should not be forgotten than internal plurality is often dependent on external plurality. What is said in the media is influenced by the structure of the media enterprise from which that voice emerges. Case in point is Reliance issuing directives to its newly acquired news channel CNN-IBN, on how to cover certain political groups and some of the biggest industrial enterprises. Had the Reliance-Network18 combination not been approved, such direct interferences in the integrity of media content would have been much more difficult. TRAI’s recommendations on internal plurality, while dealing with issues of paid news, privacy, and ownership of news channels by political parties (Chapter 5) fail to connect these issues to the larger concerns of the nature of the structure wherein these issues occur, i.e. concerns of external plurality.
Market Plurality v. Media Plurality
What does it mean when one talks about the external plurality in media being an issue of public interest? It means that it is in the public interest to ensure that enough people, groups and entities with differing opinions and diverse viewpoints are able to find a voice or representation in the media. It also means that viewers or audience engaged with media get a diverse range of news, from diverse entities, when they read different newspapers and watch different news channels. This is how one understands media plurality and the importance of the role it plays in nurturing an inclusive public discourse.
TRAI’s recommendations on mechanisms to ensure external plurality in the media (Chapters 3 and 4) however, are based upon the idea of market plurality, which is not the same as the abovementioned concept of media plurality. Market plurality is an idea which focuses on the sustenance of competition in a media market. Originating from the realm of competition law, market plurality typically means ensuring low barriers to entry in a market, which can be a media market, and ensuring that a market player does not abuse its dominant position. So for example, when the Competition Commission of India allowed the Reliance-Network18 combination, it was ensuring that the objective of market plurality was achieved. But it would be laughable to say that media plurality was also preserved through this combination.
The concept of “relevant market” becomes useful, if the goal is to ensure market plurality, but not necessarily media plurality. Nevertheless, it is “relevant market” which crops up in TRAI recommendations: “Relevant market” is used to identify markets in which concentration of ownership is to be prevented, and then the level of concentration is proposed to be measured using the HHI index. Therefore, to prevent cross-media ownership concentration, TRAI proposes the identification of print and television news media, based on language and geography as the “relevant market.”
Using the market plurality rationale, it does not make sense to measure concentration across language markets, but only within language markets, because the structure, needs, demand and supply for each language market is different. But think: A large population of India speaks more than one language. So if I listen to a news channel in English and read a newspaper Hindi, and both the news channel and the newspaper are owned by the same entity, then media plurality which should be exposing me to multiple voices, can hardly be said to exist.
Additionally TRAI has kept silent on regulation of horizontal ownership of media, which means tacitly agreeing that the current competition law regime is adequate for the purpose. But competition law ensures market plurality, and not media plurality. How is then competition law supposed to ensure that horizontal combinations like that of Walt Disney and UTV are prevented, because they harm media plurality? Well, it has not. The upshot of the matter is that competition law and its concepts serve only market plurality. As a result, they can apply to the governance of media only when media is understood as a set of markets.
Why is the Technical Important? : Identifying Problems, Losing Solutions
In the Introduction to its recommendations, TRAI states that “the media serves a higher purpose and needs separate consideration” (para 1.12), and that “the media has a unique role in the democratic scheme” (para 1.3), and that ensuring plurality in media is an important component of this scheme (para 1.6). These statements reflect an understanding of media and its speech in the cultural context of its production and its implications for a democratic culture.
But when TRAI begins framing the regulatory mechanism for media, it completely abandons this cultural perspective on speech. Instead it treats media and its speech purely as an economic product, rather than also recognising its cultural aspects when framing its proposed regulations. This is evident when mere market plurality is sought to be preserved via the regulations, rather than also ensuring media plurality.
Elsewhere, it has been argued that the TRAI recommendations reflect the government’s understanding of freedom of speech in Sakal. I would like to point out that such an argument can be formulated only in ample ignorance of the technical aspects of TRAI recommendations. The government’s understanding of freedom of speech in Sakal imbibed the cultural aspects of speech by using promotion of media plurality as the basis of the design for its regulation of the number of pages. By recognising media plurality as an important component of speech culturally, the government in Sakal, unlike competition law, sought to actually take positive measures to promote smaller newspapers. Consequently, government regulation did not reduce speech merely to an economic product.
TRAI’s understanding of freedom of speech, on the other hand, seems schizophrenic. While it pays lip service to media plurality, and the importance of understanding speech as a cultural player in the Introduction, its proposed regulations merely import a competition-law-based conception of speech as an economic product, to governance of cross-media ownership and vertical integration.
This is where the understanding of the technical issues in legal and administrative regulations becomes so important. Taking the example of these recommendations, TRAI identifies the problems of media ownership and diversity excellently by using the perspectives of both economics and culture. But the solution TRAI endorses in the technical aspects of its recommendations respond to only one aspect of the problem it identifies: the economic; in other words, that of market plurality. TRAI fails to design technical recommendations which also take into account the cultural perspective on media.
Good regulatory designs in governance can only be formulated when it is understood that technical concepts are not value-neutral or vision-neutral, but in fact also stem from a particular understanding of speech. This implies that the same technical concepts (like that of “relevant market” and “HHI index”) cannot be used to serve the needs of both economic and cultural issues arising from lack of diversity in media ownership. If however technical concepts are treated as value-neutral and are used across the board to address different kinds of problems, the governance framework will always be beset with an internal contradiction. Such internal contradiction will result in a situation where the solutions never seem to respond to the problems, and hence cease to be effective. It is imperative that TRAI recognises this and sets out to respond to what it has missed in its understanding of freedom of speech and expression by ignoring the cultural component of speech in its proposed regulations. This is crucial if freedom of speech and expression is to be comprehensive in India.
Smarika Kumar is a lawyer and researcher at Alternative Law Forum and can be contacted at email@example.com