UNIVERSITY OF MUMBAI LAW ACADEMY

UNIVERSITY OF MUMBAI

Media and Law

Under the guidance of Prof. Kamlesh Kharade

Topic: Media Law and Ethics

Sub-Topic: Media’s Ethical problems including Privacy, Right to Reply, Communal writing
and Sensational and Yellow Journalism.

Index

Topic Page No.

Introduction 2
Media Ethical problems 4
Conclusion 13

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  INTRODUCTION
 Introduction
Communication is the procedure, which we use to exchange information by various methods
and media are the medium or instrument of storing or communicating information. ‘Media’ the
popular term inter-alia used as ‘Press’ denotes the print & electronic information carriers –the
News Papers & Magazines, Radio, Television and currently includes Internet as new Media.
Hailed as the ‘Fourth Estate’, media is the watchdog of the public affairs, informing the society
and vice versa, acts as the forum to advocate the views of the society at large to those at the
helm of public affairs.

The word medium comes from the Latin word medius (middle). The word communication is
derived from the Latin root communicate. Media law covers an area of law which involves
media of all types (TV, film, music, publishing, advertising, internet & new media, etc.), and
stretches over various legal fields, including but not limited to corporate, finance, intellectual
property, publicity and privacy.
Media law is a legal field that refers to the following:
• Advertising
• Broadcasting
• Censorship
• Confidentiality
• Entertainment
• Freedom of information
• Internet
• Information technology
• Privacy
• Telecommunications
And many more.

 Ethics in Media law

Media is mandated to follow certain ethics in collecting and disseminating the information viz.,
ensuring authenticity of the news, use of restrained and socially acceptable language for
ensuring objectivity and fairness in reporting and keeping in mind its cascading effect on the

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society and on the individuals and institutions concerned. You will all appreciate that while
freedom of expression is no doubt a
fundamental right; it has to be broadly guided and bound by societal duties and ethics. This
involved a sensitive balancing act to protect the rights of individuals while exercising the right
of expression.

As Albert Schweitzer, German Nobel Peace prize winning mission doctor and theologian had
remarked “The first step in the evolution of ethic is a sense of solidarity with other human
beings”.

Ethics is a code of values, which govern our lives, and are thus very essential for moral and
healthy life. In the context of the press, “Ethics” may be described as a set of moral principles
or values, which guide the conduct of journalism. The ethics are essentially the self-restraint to
be practised by the journalists voluntarily, to preserve and promote the trust of the people and
to maintain their own credibility and not betray the faith and confidence of the people.

The media all over the world has voluntarily accepted that code of ethics should cover at least
the following areas of conduct.
i. Honesty and fairness; duty to seek the views of the subject of any critical reportage in advance
of publication; duty to correct factual errors; duty not to falsify pictures or to use them in a
misleading fashion;
ii. duty to provide an opportunity to reply to critical opinions as well as to critical factual
reportage;
iii. appearance as well as reality of objectivity; some codes prohibit members of the press
from receiving gifts’
iv. respect for privacy;
v. duty to distinguish between facts and opinion;
vi. duty not to discriminate or to inflame hatred on such grounds as race, nationality, religion,
or gender; some codes call on the press to refrain from mentioning the race, religion or
nationality of the subject of news stories unless relevant to the story; some call for coverage
which promotes tolerance;

For ethics cannot be mired down in a strait jacket. The mandate of the Press Council of India,
as well as similar bodies across the world is to specifically promote the standards of the

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media by building up for it a code of conduct. It is to be appreciated that our legislation very
wisely did not entrust on the council the task of 'laying down' a code of conduct.

 Media Laws in India

Laws in India taking action against wrong done by the medium of media.
The Indian Penal Code, 1860 which makes it an offence a) to incite enmity between different
classes of citizens b to spread any rumours or reports likely to incite members of the Armed
Forces to mutiny or failure of duty c) to cause alarm to any section of the Public whereby there
is an inducement to commit an offence against the State or against public peace d to incite one
class or community against another e) to utter words or to make visible representations with
intent to wound religious feelings or beliefs of another person, or of any class of citizens.

The Criminal Procedure Code, 1973 which empowers the State to forfeit copies of a publication
that offends Indian Penal Code provisions relating to public order or security of the state.

The Copyright Act, 1957 as amended up to 1984 which protects the original works of writers,
artists, musicians, dramatist, film and video producers and other creative persons from being
pirated.

 MEDIA ETHICAL PROBLEMS:

 Privacy
 Right to Reply
 Communal writing
 Sensational and Yellow Journalism

 Privacy

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India. It is
guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the
Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and

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expression. It is the right to freedom of speech and expression that gives the media the right to
publish any information. Reasonable restrictions on the exercise of the right can be imposed
by the State in the interests of sovereignty and integrity of the State, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence. Article 21 of the Constitution
provides, "No person shall be deprived of his life or personal liberty except according to
procedure established by law." Courts have interpreted the right to privacy as implicit in the
right to life. In R.Rajagopal v. State of T.N1; and PUCL v. UOI2, the courts observed that the
right to privacy is an essential ingredient of the right to life.

The Indian constitution guarantees a fundamental right to privacy. This was upheld in a
decision of a nine-judge constitutional bench of the Supreme Court in August 2017. This case
was brought to the Supreme Court after the claim in the 2015 by Mukul Rohatgi, the then
Attorney General stated that there is no constitutionally guaranteed right to privacy. This claim
was denied by the nine-judge bench of the court, which found that the constitution does
guarantee a right to privacy. Importantly, the case strikes down M.P Sharma and Kharak Singh,
to the extent that the 2017 judgement holds that Indian Constitution does uphold a right to
privacy.

For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shanka who was sentenced to death
for committing six murders in his autobiography divulged his relations with a few police
officials. The Supreme Court in dealing with the question on the right to privacy, observed,
that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
the country by Article 21. It is a ‘right to be left alone.’ "A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education
among other matters.” The publication of any of the aforesaid personal information without the
consent of the person, whether accurate or inaccurate and ‘whether laudatory or critical’ would
be in violation of the right to privacy of the person and liable for damages. The exception being,
when a person voluntarily invites controversy or such publication is based on public records,
then there is no violation of privacy.

1
R.Rajagopal v. State of T.N
2
PUCL v. UOI

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International Conventions
Internationally the right to privacy has been protected in a number of conventions. For instance,
the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that:

"No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, or to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks."

The UDHR protects any arbitrary interference from the State to a person’s right to privacy.
Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article
17 imposes the State to ensure that individuals are protected by law against “arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.

Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified
the above conventions. The ratification of the Conventions mandates the State to take steps to
enact laws to protect its citizens. Although, human right activists have periodically demanded
that the State take adequate measures to protect human rights of the vulnerable in society, the
right to privacy has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection
to a minor from any unlawful interference to his/her right to privacy and imposes a positive
obligation on States who have ratified the convention to enact a law protecting the same. India
does have safeguards in place to protect identity of minors, especially, juveniles and victims of
abuse. However, there are exceptions when the law on privacy does not apply even in case of
a minor.

The right to privacy, therefore, is not an absolute right and does not apply uniformly to all
situations and all class of persons. For instance, privacy with respect to a certain class of
persons, like a person in public authority, affords different protection as opposed to private
individuals.

Public Person
In case of a representative of the public, such as a public person, the right to privacy afforded
to them is not of the same degree as that to a private person. The Press Council of India (PCI)
has laid down Norms of Journalistic Conduct, which address the issue of privacy. The PCI

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Norms of Journalistic Conduct, recognises privacy as an inviolable human right, but adds a
caveat; that the degree of privacy depends on circumstances and the person concerned.

In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra
Agarwal,3 the court recognised the tension between the right to information and the right to
privacy, especially, with respect to public persons. The case arose from an application filed by
a citizen who was seeking information under the RTI Act on whether judges of high courts and
Supreme Court were filing asset declarations in accordance with full resolution of the Supreme
Court. The court held that information concerning private individuals held by public authority
falls within the ambit of the RTI Act. It remarked that whereas public persons are entitled to
privacy like private persons, the privacy afforded to private individuals is greater than that
afforded to those in public authority, especially in certain circumstances.

1. Sting operations:
The court observed that false and fabricated sting operations violate a person’s right to privacy.
It further, observed, "Giving inducement to a person to commit an offence, which he is
otherwise not likely and inclined to commit, so as to make the same part of the sting operation
is deplorable and must be deprecated by all concerned including the media.”

2. Trial by Media & Media Victimisation

The PCI norms lay down the guidelines for reporting cases and avoiding trial by media. The
PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and
accused as that amounts to invasion of privacy.

3. Safeguarding Identity of Rape Victims:

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim
punishable.

4. Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media should
not disclose the names, addresses or schools of juveniles in conflict with the law or that of a
child in need of care and protection, which would lead to their identification. The exception, to
identification of a juvenile or child in need of care and protection, is when it is in the interest
of the child. The media is prohibited from disclosing the identity of the child in such situations.

3
Supreme Court of India vs Subhash Chandra Agarwal

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Recently, the Supreme Court struck down Section 66A of the Information Technology Act,
2000 which led to arrests of many people for posting allegedly objectionable content on the
Internet.4 The Court also rejected the Centre’s plea that it was committed to free speech and
would ensure the provision was administered in a reasonable manner. While the need of the
hour might be to have effective and robust mechanism to govern the content over social media
and networking sites, the Government must not forget that they cannot curb the constitutional
and fundamental rights and prevent people from expressing their views over the issues
concerning the country, including expressing their appreciation or displeasure on the
functioning of the Government.

The content writer and forwarder must act as a responsible citizen and ensure that such
transmission of content does not lead to loss of life, reputation or dignity of any citizen. The
Government must not forget that acts like Information Technology Act, 2000, were enacted to
safeguard the citizens. That in no way should act as a deterrent or a tool in the hands of the
Government to keep the citizens from exercising their constitutional rights.

Advocate Sumit Batra says, “Though no law can ever completely insulate the users of social
media and networking from the issues or problems cropping out of technological advances,
some basic guiding principles can take care of a lot many issues. While it is permissible to
create, transmit and circulate news or information in social media, the big question that often
arises has to do with a personal sense of discretion something might be offensive for me but
not offensive for others.”

The Council has prepared a report on the issue and framed the guidelines as follows:-
"Right to privacy is an inviolable human right. However, the degree of privacy differs from
person to person and from situation to situation. The public person who functions under public
gaze as a representative of the public cannot expect to be afforded the same degree of privacy
as a private person. His acts and conduct are of public interest ‘public interest’ being distinct
and separate from ‘of interest to the public’) even if conducted in private may be brought to
public knowledge through the medium of the press.

4
Social media law: Knowing the rights of privacy- dailypioneer.com

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The press has, however, a corresponding duty to ensure that the information about such acts
and conduct of public interest of the public person is obtained through fair means, is properly
verified and then reported accurately. For obtaining the information in respect of acts done or
conducted away from public gaze, the press is not expected to use surveillance devices. For
obtaining information about private talks and discussions, while the press is expected not to
badger the public persons, the public persons are also expected to bring more openness in their
functioning and co-operate with the press in its duty of informing the public about the acts of
their representatives".

 Right to Reply

The right of reply generally means the right to defend oneself against public criticism in the
same venue where it was published. The above is a basic yet comprehensive definition of the
right of reply. it originates from the doctrine of fairness. In India the right of reply is not a
constitutional right.

However, there are certain Norms of Journalistic Conduct laid out by the Press Council of India
which do mention the right of reply. So, courts may consider these norms if approached by any
aggrieved parties to provide equitable relief thus directing the publisher to publish the
correction and/or apology to the aggrieved party.

When public criticism or unfavourable judgement is levied against a person or an organisation,

this person or institution retains the right to present a spirited defence in the very same forum
or venue in an attempt to absolve oneself. This right, referred to as Right of Reply, is an
unwritten one in several countries. In some countries such as Brazil, the Right to Reply is a
constitutional right. Several leading publications and global media houses have Right of Reply
as a part of an editorial policy.

In many international fora, including the United Nations, the Right of Reply has often been
exercised to influence global opinions and to defend national interests against criticism. The
United Nations Association of the United Kingdom defines Right of Reply (in the UN context)
thus – “A right to speak in reply to a previous speaker’s comment, invoked when a delegate
feels that their personal or national integrity has been insulted or slandered by another’s
speech”.

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India’s First Use of Right of Reply

The United Nation Human Rights Council meeting in Geneva witnessed India exercise its
Right of Reply for the first time. For quite some time now, the UN forum has been used by
Pakistan to heap criticism against India’s stand on the Kashmir issue. India has been routinely
abused and often unfairly critiqued. Never before has India interrupted the delegate from
Pakistan in any of the UN meetings or sessions. In fact, the Indian government has often faced
criticism back home for its failure to speak up and present a defence at international forums,
especially at the United Nations.

Things were up for a change in early July 2015 when Pakistan’s delegate started to levy
criticism on India. Pakistan said, “The people of Jammu & Kashmir have been denied their
right to self-determination, subjected to consistent and forceful foreign occupation, and their
democratic rights have been usurped and suppressed by conduction of sham elections at gun-
point… The denial of the right to self-determination was not only the negation of the UN
Charter and key human rights covenants but also of human dignity”.

 Communal Writing

News, views or comments relating to communal or religious disputes/clashes shall be published

after proper verification of facts and presented with due caution and restraint in a manner which
is conducive to the creation of an atmosphere congenial to communal harmony, amity and
peace.

Journalists and columnists owe a very special responsibility to their country in promoting
communal peace and amity. Their writings are not a mere reflection of their own feelings but
help to large extent in moulding the feelings and sentiments of the society at large. It is,
therefore, of utmost importance that they use their pen with circumspection and restrain. iii)
The role of media in such situations is to be peacemakers and not abettors, to be trouble shooters
and not troublemakers.

Guidelines Issued by the Press Council for Observance by the State Governments and the
Media in Relation to Communal Disturbances 1991

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The State Government should take upon themselves the responsibility of keeping a close watch
on the communal writings that might spark off tension, destruction and death, and bring them
to the notice of the Council.

This concept of ‘Community Journalism’ is at the centre of new developments in journalism.

Journalists are able to engage citizens and the experts/elites in the proposition and generation
of content. The shared knowledge of many is far superior to a single individual's knowledge
and conversation, debate, and dialogue lie at the heart of a democracy.

Journalistic Standards: Communal Writings

Scurrilous and inflammatory attacks should not be made on communities and individuals. Any
news on communal events based on rumours will be violative of the journalistic ethics.
Similarly, distorted reporting making important omissions will not be correct.

While it is the legitimate function of the Press to draw attention to the genuine grievance of
any community with a view to seeking redress in a peaceful and legal manner, there should be
no invention or exaggeration of grievances, particularly those which tend to promote communal
discord. It will be highly conducive to the creation of a healthy and peaceful atmosphere if
sensational, provocative and alarming headlines are avoided, and acts of violence or vandalism
are reported in such a manner as may not undermine people’s confidence in law and order
machinery of the State and may at the same time have the effect of discouraging and
condemning such activities.

Defaming a community is a serious matter and ascribing to it a vile, anti-national activity is

reprehensible and amounts to journalistic impropriety. There is no impropriety in publishing
historical facts in order to warn the present generation against repetition of past mistakes even
though these mistakes may not be palatable to a particular community.

There is no objection in making statements about religious communities if they are couched in
temperate language and are not exaggerated or incorrect.

 Sensational and Yellow Journalism

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Journalism:
Journalism mainly involves practices of print journalism in general, and newspaper in
particular. The role of press is to be a watchdog and act as a catalytic agent to hasten the process
of socially and economic change in the society.
Journalism is the voice of the people about corruption, the government, and the use and misuse
of power. It should be noted that Journalism too is part of the political process, craves for
power, is made up of people with personal ambitions and aversions, preferences and prejudices.

Role of Journalism in society Journalism's role is to act as a mediator or translator between the
public and policymaking elites. Both the government and the press represent the ‘power elites’
and therefore reflect their interests. This is why the interests of the poor are rarely on the agenda
of public discussions.

Yellow Journalism is defined as a form of journalism that features scandal-mongering,

sensationalism, jingoism, or other unethical or unprofessional practices by news media
organizations or individual journalists. Yellow Journalism is not the pure form of journalism,
rather a pure form of business.

In India, this kind of journalism is swamping from last two decades. For example, the coverage
of Arushi Talwar’s murder, Love Jihad, and most recently the case of Indian cricketer
Mohammed Shami. These all along with other cases were subjected to the media trial.

This yellow journalism creates a bandwagon effect. That means when one media is trying to
constantly push the repetitive broadcasting of that event, another media jumps in and picks
the same issue.

Yellow Journalism crushes the privacy of an individual. Media enters into the private realm of
an individual to get access to his privacy. One of the most common tricks is to propagate the
news in a manner that leads to sensationalization by selectively cherry picking them. And when
this sensationalization enters into journalism, objectivity is the first thing that suffers.

Time and again Indian Media has crossed its limits, went on reporting false news. Unethical
journalistic patterns were repeated to serve their best interest. The media is the fourth pillar of
the democracy. It must abide by the responsibilities of the fourth pillar if it has the de-facto to
act as the fourth pillar.

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What Leads to Yellow Journalism?

In a country of a billion, it is next to impossible to let everyone agree on an opinion and reach
a conclusion. I will further take a liberty to establish a link between this business development
with political benefits and selfish motives. In particular about India, a large number of the
media houses are owned by the members of a party or the other. This further question the
credibility of these journalists and hence, yellow journalism is born.

Controlling the media is again a menace to the democracy and its current presence is troubling
all of us already! In this situation, media regulation is the answer. Not a complete overtake by
the government or its agency but a code of conduct implemented by the parliament is required.
This never means to demean the media of this democratic country but binds the hands of yellow
journalism where the senseless stuff does not get to make the headlines and adequate attention
is paid to the matters of national interest.

presenting the illegitimate and the poorly researched articles with catchy headlines being
served with the exaggeration. The idea is to make millions out of overstating the events,
scandal-mongering and sensationalism. Yellow journalism is nowhere near to the basic
objective of the media house. Rather, it can be compared to the art of the business where one
is primarily aiming at earning bucks and to fulfil the selfish means of the indulged parties.

 CONCLUSION

The main objective of media is to serve the people with news, events, incidents and opinions
in the exact manner in which they are actually happening. The freedom of press is a blessing
for the people. However, this blessing can go terribly wrong when manipulation and
mishandling of news comes into picture. The fact that media has played a vital role in keeping
a cheque on the government functionaries cannot be overlooked, but still there are a lot of
loopholes and lacunas that need to be filled. Towards this end, the media's conduct is expected
to be governed with certain amount of professionalism and ethics in the mind. Media should
restrain itself from publication of fake, manipulated or tampered news. Further, it shall not
interfere with the privacy of any individual unless there is dire need of the same in public
interest. It is not only ethical but also the duty of media of any country to preserve and protect
its cultural heritage and values. Media organizations should be more accountable and inclined
towards the interests of the general public.

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