Don’t be fooled by the withdrawal of I&B guidelines

The fourth estate would be naive to take the withdrawal of this directive at face value. The government has just fired a warning shot across the bows knowing fully well that the guidelines were anchored in quicksand.

Written by Manish Tewari | Updated: April 4, 2018 9:24:43 am
Don’t be fooled by the withdrawal of I&B guidelines Smriti Irani-led I&B ministry had earlier announced measures to contain fake news, saying a journalist’s accreditation could be permanently cancelled if he or she is found generating or propagating fake news. (Express Photo by Prem Nath Pandey/File)

On April 2 at 9:03 pm, the Information and Broadcasting ministry posted a communiqué on the website of the Press Information Bureau, entitled ‘Guidelines for Accreditation of Journalists Amended to Regulate Fake News.’ By the following afternoon, strategically responding to full-throated protests from the journalist community as well as some media owners, the prime minister ordered the withdrawal of the circular. But it did not matter. The purpose had been realized and the message driven home to the intended audience.

Since these macabre guidelines are now temporarily withdrawn, but continue to have very ominous implications and a chilling impact on Freedom of Speech and Expression as contained in Article 19 of the Constitution, it would be appropriate to reproduce the said circular in full.

“Noticing the increasing instances of fake news in various mediums including print and electronic media, the Government has amended the Guidelines for Accreditation of Journalists. Now on receiving any complaints of such instances of fake news, the same would get referred to the Press Council of India (PCI) if it pertains to print media & to News Broadcasters Association (NBA) if it relates to electronic media, for determination of the news item being fake or not.

Determination is expected to be completed within 15 days by these regulating agencies. Once the complaint is registered for determination of fake news, the correspondent/journalist whoever created and/or propagated the fake news will, if accredited, have the accreditation suspended till such time the determination regarding the fake news is made by the regulating agencies mentioned above.

The Accreditation Committee of the PIB which consists of representative of both PCI and NBA shall be invariably be reached out to for validating any accreditation request of any news media agency. While any confirmation of publication or telecast of fake news having been confirmed by any of these agencies, the accreditation shall be suspended for a period of 6 months in the first violation and for one year in the case of 2nd violation and in the event of 3rd violation it would be cancelled permanently.

While examining the requests seeking accreditation, the regulatory agencies will examine whether the `Norms of Journalistic Conduct’ and ‘Code of Ethics and Broadcasting Standards’ prescribed by the PCI and NBA respectively are adhered to by the journalists as part of their functioning. It would be obligatory for journalists to abide by these guidelines”.

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On the face of it, these guidelines appear to be innocuous. For, everyone is concerned about the proliferation of rumors, innuendo, conjecture, obscenity, canards and downright lies in the public space. Given that social media platforms have become all pervasive, everybody and their grandmother is now a broadcaster without any restraint or responsibility.

However herein lies the difficulty. When the I&B ministry issues such loosely worded open-ended guidelines, it lends itself to suspicion as to whether the intent of the exercise was as kosher and innocent as it is was made out to be.

First and foremost how do you define “News”? Is there any statute, guideline, notification or Circular of the I& B ministry that provides an unambiguous definition of “News”? The answer is no.

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The Broadcast sector is regulated through two sets of executive and legislative processes. These are the Policy Guidelines For Uplinking of Television Channels From India, the Cable Television Regulation Act 1995 and the rules of 1994 made therein. The uplinking and downlinking guidelines in Para 3 defines News as follows: “For the purpose of these guidelines, a News & Current Affairs TV channel means a channel which has any element of News & Current Affairs in its programme content”. The Cable Television Networks Regulation Act 1995 and its rules in the definition section of either of the respective statutes do not have any definition of News.

The Press and Registration of Books Act 1867 principally regulates the Print Sector. Here too, “news” is not defined. Likewise the Information Technology Act 2000 that is the overarching legal architecture for cyberspace, which while defining “information” does not define “news.”

Thus except for an ambiguous, undefined and desultory reference in the Uplinking and Downlinking guidelines, there is no official or even unofficial government text that defines the “news.” Even Black’s law dictionary, while defining a Newspaper does not define the word, although some general-purpose English language dictionaries have been brave enough to venture down this thorny and convoluted path.

The question, therefore, is that when you don’t have a definition for news, how can you define what “Fake News” is?

This reality is not lost on the ministry. This definitional ambiguity troubled me when I headed that remit as there was a difficulty in holding non-News and Current Affairs channels – meaning, entertainment, sports and religious TV channels — accountable for violating their licensing conditions when they ran slanted political content that could be prima- facie be classified/labeled as News and Current affairs.

This precisely was the loophole that was exploited by Industry bodies in the media when they pushed back strongly against the inclusion of both Paid News and attendant Penalties in the proposed amendments to the Press and Registration of Books Act 1867, towards the end of 2013.

It is perhaps for this reason that even four and a half years later the amendments to the said act still continue to hang fire. In fact during my time in office we had been in active consultation at an inter-ministerial level with other stakeholders and mandarins of the media industry, to resolve some of these definitional questions. But a consensus on agreed language proved difficult to arrive at. It is highly doubtful that after May 2014, anyone in the new government seriously pursued these issues for they are both protracted and its media priorities are different.

It, therefore, would be extremely astonishing that the I&B bureaucracy would not have pointed out these major definitional stumbling blocks when proposing such policy Guidelines.

Then why was it done? It does not require rocket science to figure that one out. After making media owners crawl on all fours for four years, perhaps the government was smelling a whiff of rebellion or sensing the green shoots of assertion.

The next best thing, thus, was that if you can’t control the owners any longer, cut the legs from under their establishment – namely, the journalists who provide the raw feed by instilling a spectre of fear, through intimidation and coercion, by threatening them with the loss of accreditation on any specious and frivolous complaint, through a process that can at best be termed a classical kangaroo court.

You could then proceed to turn jurisprudence on its head by directing the suspension of accreditation on a mere complaint, thereby holding the journalist prima-facie guilty and having to prove his innocence.

The fourth estate would be naive to take the withdrawal of this I&B directive at face value. The government has just fired a warning shot across the bows knowing fully well that the guidelines were anchored in quicksand. They were not aimed at the journalistic fraternity who are celebrating their victory today, but at media owners. This is not Looking London-Shooting Tokyo. This is textbook fascism.

Manish Tewari is a lawyer, former Union minister of Information and Broadcasting, national spokesperson of the Congress party and Distinguished Senior Fellow at the Atlantic Council. He tweets @manishtewari

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