Opinion The Bigg Debate
Why India should consider channel zoning
On November 16,the ministry of information and broadcasting concluded that the show Bigg Boss 4 was against good taste and decency and that it was unsuitable for children. In a two-page order,it directed the channel to shift the programme from its present prime-time spot at 9 pm to any time after 11 pm. The order was promptly challenged before the Bombay high court,and for now the show will remain at its lucrative prime-time spot. However,this episode has raised the larger question of the governments power to regulate free speech. While the I&B ministrys view of what constitutes indecency may be highly questionable,the methodology it employed in the November 16 order speaks volumes of how the governments attitude towards indecency has changed.
Channel zoning,or in the words of noted constitutional scholar Lawrence Tribe,erogenous zoning,is not unknown to constitutional schematics. Put simply,this takes place when a regulator decides not to ban an indecent programme but to allow it to be shown at a certain time,typically during a late-night time slot. For example,in the famous seven dirty words case (FCC vs Pacifica,1978) a man in New York City read out indecent sexual and excretory words in a 12-minute monologue on a radio broadcast in the afternoon. A father travelling in a car with his son complained that this was inappropriate timing,and the US Supreme Court agreed. While engaging in channel zoning the regulator seeks to balance competing interests: protecting free speech and regulating perceived indecency. Its motive force is the principle that adults cannot be forced to watch only what is fit for children.
Despite the First Amendment in the American constitution,arguably the strongest protection afforded to free speech anywhere in the world,the Public Telecommunications Act 1992 prohibits indecent programming to be shown between 6 am and 10 pm on public broadcasting stations. This law was upheld by the DC circuit court in 1995 (Action for Childrens Television vs FCC) because it gave indecent but not obscene speech a safe harbour after 10 pm. Similarly,the broadcasting code of the UK communications regulator,Ofcom,requires television broadcasters to observe the watershed,that is,material unsuitable for children can only be shown between 9 pm and 5.30 am. Often,as the night progresses,the restrictions loosen and become more permissive.
At first,it seems as though this system paternalistically and unfairly decides for us what we can and cannot watch. But that is not how channel zoning works. First,by directing a channel to display a programme later on in the evening,the regulator does not tell us what we cannot watch. Second,by pushing the time of the programme further,the regulator does not directly protect children either. Instead,what channel zoning does do is give parents the authority to decide what their children will watch. This is based on the probability that when it is late at night,there is a greater likelihood that the parent will be at home,and that consequently the parent will have greater control over what her child will watch. Of course,the parent may certainly decide that there is nothing wrong with the show,and that her children are free to watch it.
But the important point here is that channel zoning gives parents the authority to make that decision,rather than deciding for parents outright.
Of course,television channels could argue as they have in the past that parents have other devices by which they can monitor the content their children watch for example,blocking chips or other child-lock devices. Shifting the time slot,it is sometimes said,is pointless when parents have far more potent devices at their disposal to protect their children. While this may be true,it is highly doubtful if every household in India which has a television set also has the money (or the sophistication) to buy a child lock device. The blocking chip argument may consequently not apply as forcefully in India.
Further,those households which have child-lock systems probably also have television recording devices (the equivalent of Tivo in the US). To these households then,it makes no difference if a show airs at 9 pm or 12.30 am,and consequently the timing of the show should not matter to the television channel.
The I&B ministry in its November 16 order has made a content-based value judgment about how tasteful a programme is,which is reprehensible. One mans water is anothers whisky. However,despite deciding that the show was in bad taste and indecent,the government permitted it to be shown after 11 pm and by doing so,believe it or not,the Indian government granted a safe harbour to indecent speech. Although the governments definition of indecency may not have changed,its attitude towards indecency has. This must be certainly applauded.
The writer,an associate attorney at a law firm,is based in Los Angeles express@expressindia.com
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