BALANCING FREEDOM AND RESPONSIBILITIES: MEDIA LIABILITY IN CONTEMPORARY SOCIETY BY: K. HARSHIT KARTHIK

"BALANCING FREEDOM AND RESPONSIBILITIES: MEDIA LIABILITY IN CONTEMPORARY SOCIETY”
 
AUTHORED BY: K. HARSHIT KARTHIK
 
 
ABSTRACT
In Democratic countries Media is regarded as 4th pillar of Democracy. Media keeps a check on Other organs of Government. With development of Technology, people are well aware about the incidents taking place throughout the country. Television, Radio, Newspapers, Blogs have helped the people to have knowledge and make the Government accountable. Freedom attributed to Media is important and that freedom could not be absolute. Article 19 of the Constitution guarantees Freedom. Article 19 (2) has reasonable exceptions like Public safety, National Integrity and so on. Criminal Law of India also imposes restriction on Media in exercising their freedom. Media is not a natural person and how the liability shall be accorded is a question to be pondered. Liability of Media shall devolve into acts against Individuals and acts against the State. The employees liable for such acts can be prosecuted by Individuals or the State. Acts of Media could violate certain laws enacted by State or violate rights of others. In general prudence, Liability of Media could be classified into Civil Liability and Criminal Liability. This regulation is necessary as absolute freedom without restriction would lead to its misuse. The philosophy of Constitutionalism in India has accorded a higher pedestal for Media. Media was earlier regulated by Colonial Laws like Press Act of 1835; Press and Registration of Books Act, 1867; Vernacular Press Act of 1878 and so on. During the era of colonial rule, Britishers regulated Media to ensure that Nationalist Ideologies would not be circulated among different sections of Indian society.
 
Keywords: Media, liability, Sedition, Public Order, National Integrity.
 
OBJECTIVES
To discuss liabilities of Media in different statutes which includes the new criminal laws and to provide a holistic perspective on Judicial Decisions and how they have shaped the scope of Liability of Media.
 
RESEARCH METHODOLOGY
This paper is based on secondary data and information analysed from Scholarly articles, magazines, newspapers, case laws, websites of Central Government of India and Law Journals.
 
RESEARCH QUESTION
·         How to balance freedom and responsibilities of Media?
·         What is the extent of liability of Media?
·         How has Judicial Pronouncements shaped the liability of Media?
 
INTRODUCTION
Media plays a vital role by keeping people aware about the activities of Government and helps people to make Government accountable for its actions. There are different forms of Media like Print Media, Electronic Media and others. Media should not portray any form of biasness towards any political entity. During the pre- Independence era, Indian Nationalists used Media to spread information about Nationalist movements which included Non- Cooperation movement, Civil Disobedience Movement, Quit India Movement and so on. This endures that people could collectively participate in Nationalist movements. Media has a neutral role and this helps people to have their own perspectives based on the information provided by Media.
 
During the colonial era, The Vernacular Press Act of 1878 was introduced which restricted various forms of expression for different kinds of Media heled exclusively by Indians. The controversial Indian Press Act of 1910 contained provisions for censorship and provided punishments for publishing seditious content against the British Empire. During the Emergency period of India in 1970’s which is regarded as darkest era in our Democratic country, Strict penal actions were taken up against Media houses for publishing content pertaining to undemocratic practices of the then Government.
 
In this era of Artificial Intelligence, Media Liability is complicated. Now in this modern world, the number of Newspapers, News channels, Social media platforms, Bloggers on Internet have increased which is difficult to monitor and regulate. There are challenges against spread of fake news on social media platforms, which would cause panic to public. Laws in India should make sure that liability of Media is extended to content generated by Artificial Intelligence.
 
LITERATURE REVIEW
Media Responsibility in Nation Development[1] (2016) by Manish Kumar tries to balance the Rights and liabilities of Media. It explores how Laws pertaining to Defamation have been misused by Government for their own advantage. This paper focused on constitutional provisions and landmark judgements in India and factors which influence Media’s role in Development.
 
Media and History[2] (2015) a chapter by Brendan Dooley discusses about the historical perspective of Media and how Media laws have changed since time. It also explains the emergence of Media in 15th century and its impact on societies and how Media played an essential role in keeping society informed about activities of Government.
 
Nexus Between Media and Defamation: A critical Review[3] (2023) by Narender Kumar discusses about some land mark Judgements relating to how the offence of Defamation has been misused by persons against whom Media has published content. This paper focuses on liability of Media in cases of Defamation and how Judicial Precedents have balanced rights and responsibilities of media
 
ANALYSIS
Offence of Defamation committed by Media:
Defamation in simple terms means damaging the reputation of a person. Defamation is a civil and criminal wrong. Section 356 of Bharatiya Nyaya Sanhita, 2023 defines Defamation and it includes words which are spoken or published. For example, Author of newspaper article or Blog mentions about a person in his article and defames the person, then he is liable for Defamation. Another scenario would be that if Author does not publish the article then it would not amount to Defamation. This section also states that the person who is defaming other person must have intention (mens rea) to do so. This section also explains about when a person defames a dead person, a corporate entity and others.
 
In Shaik Hussain case, Andhra Pradesh High Court held that if the Author communicated to the Defamed person about such Defamation it would not amount to Publication. The Honourable High Court has expanded the scope of the term “Publication” to include a larger Public.
 
The Victim has right to sue the Publisher irrespective of the Publisher not having knowledge of the Defamation. Publisher can be held vicariously liable for acts of Author. In the case, Ram Gopal vs Nand Lal, Supreme Court of India held that the Publisher shall take due care and diligence before publishing any information in Newspapers.
 
English Law is derived from common law that is it developed from Judicial Precedents. But Indian Law and English Law have different Interpretations about the offence of Defamation. Defamatory words which are merely stated by the Speaker doesnot amount to an offence in English Law except in cases where such statements have been made against the Integrity of the State. Indian Criminal Law doesnot classify as such and both types of Defamation are offences in Indian Law.
 
General Exceptions to the Offence of Defamation:
Defamation in general terms means false statements made against a person. The exception could be that is the statements made are true, then no question of Defamation arises. But the burden of proof of proving whether such statements are true lies on the Author.
 
In case law Shobhana Bhartia and Ors vs NCT of Delhi and Anr, [4], High Court of Delhi held that when subject matter of Defamation is true, then it is an absolute defence and no case of Defamation lies.
 
The second Exception would be Public Good. When statements made by Media hamper Public health, then statements shall be considered Defamatory. It also includes statements made against a group of people or community.
 
The third exception could be a fair comment. When Media publishes a content which is merely a comment, then it doesn’t amount to Defamation. Citizens of India have inherent right to comment on Public Policy, so that they could actively participate in Democratic process. If such comments are not derogatory in nature and made with good intention, then the person making such comments cannot be held liable.
 
Bureaucrats who work for Central or State Government cannot make such fir comment against Public policy as they work for Government. Under Bharatiya Nyaya Sanhita, the word good faith is mentioned as any act done in pursuance of due care and diligence. If any acts are not done with due care and diligence, then such acts donot fall under ambit of good faith. Judiciary while considering matters before it must consider the facts of the case along with due care and diligence.
 
In .V. Hanumanthu Rao v. K.R. Pattabhiram And Anr [5], the High Court of Andhra Pradesh held that a Publisher publishing information about bad sanitary conditions of a Municipality cannot be treated as Defamatory statement. This comment was held to be fair.
 
Principles of Defamation as held in Rajagopal case
In landmark Judgement of Sushil Sharma v. The State (Delhi Administration) And Ors [6], the SC held that Delhi Administration had exceeded its authority when it restricted publishing auto- biography of an accused. No one can predict a work to be Defamatory before its Publication. It is only after publication, Government can sue the Publishers for defamation. This case was regarding autobiography of an accused convicted of various crimes. In his autobiography, he included various conditions of prisoners in Jail and how their rights are violated, the State Government restricted its Publication as it would hamper the confidence people have in Public.
 
Supreme Court held various principles which are guiding in nature for other cases on similar matters. SC held that Article 19 (1) (a) of the Constitution guarantees Freedom of speech and expression to all citizens of the country. So it extends to all forms of Media to express their views and opinions freely except that those views are not defamatory. Article 19 (1) (a) also extends to citizens right to know about the activities of the Government.
 
In cases of Rapes, Women are subjected to mental cruelty. In legal cases too, the name of such victim is not disclosed, so as to keep her identity anonymous. This is called Right not to be known. So, Newspapers and News channels shall not disclose information of victim as it would attract penal consequences.
Members of the Government which includes MPs, MLA’s, and other ministers of both centre and state can only sue for Defamation but not the Government. In this case, SC held that the principles given above are not limited in nature, these principles could be given more scope in later Judgements to come.
 
When it comes to Public Authorities suing the Media for Defamation, the Public Authorities can only sue in their personal capacity and not in their official Government position, as it was held in plethora of cases following common Law of England.
 
Remedies against Media for Defamation
One remedy the injured party could claim from the Media or other entity belonging to Media is damages or compensation. These damages are unliquidated in nature. These damages shall be determined by the Court based on the extent of which the Defamatory statement reached the Public and quantum of damages suffered by injured party. If a person is not of high reputation, then the damages shall be in less in quantum compared to the damages claimed by person of high reputation. If a newspaper doesnot have much circulation, then the damages shall be minimal if the Newspaper company has less circulation of newspapers.
 
Another remedy against Defamation would be an Injunction order. Injunction in literal terms to restrain. Injunction could be of 2 types- Temporary Injunction and Permanent Injunction. Temporary Injunction means a restrain which is imposed as an Interlocutory order by the Court. Permanent Injunction as the name suggests means a permanent restrain on the Media. When Injunction is imposed by the Court, the circulation of the news or newspaper shall be restrained, so that it would not cause dagame to the reputation of the defamed person.
 
Seditious acts done by Media
Sedition is an offence which is introduced in India by Britishers during the colonial rule. In various British India Statutes, there was mention of Seditious acts which would amount to offence. During early half of 20th century in India, many Social Reformers like Lala Lajpat Rai, Madhusudhan Ray and others have founded various newspapers like Punjab Kesari and Hindoo Patriot. These newspapers have brought people of various classes fighting against Britishers together. These newspapers questioned British policies, their taxation system and oppressive measures against Indians. So, in order to regulate their activities, Britishers introduced Sedition as an offence in IPC, 1870. After Independence our Constitutional makers have adopted the provisions regarding Sedition in IPC without any protest.
 
Sedition in simple terms means any act which affects the National Integrity and sovereignty of the Country. But the Sedition provision in IPC is prone to be misused by Governments as actions which are against Government could be curtailed in name of Sedition. This would minimise the trust people have in working of the Government. This provisions is most misused and misappropriated by Government in Power as this curtails rights of Media and hampers sound Democracy. In 2023, Parliament of India has passed 3 new Criminal Laws which are Bharatiya Nyaya Sanhita[7] (erstwhile IPC), Bharatiya Nagarik Suraksha Sanhita[8] (erstwhile Crpc) and Bharatiya Sakshya Adhiniyam[9] (erstwhile IEA).
 
The new Criminal Laws donot have provisions pertaining to Sedition and now it is no longer an offence in India. Many freedom fighters like Mahatma Gandhi and Tilak have been held liable for offence of Sedition and tried in British Courts and sentenced imprisonment. In Kedarnath case[10], SC held that Rights of Media should have higher priority as it is important to keep people aware about the functions of Government and make sure Democratic norms are implemented in practice. The freedom attributed to Media is curtailed when Sedition is imposed on them. Sedition is used by Governments of India to eliminate opposite views against Government. Article 19 (2) of Indian Constitution imposes reasonable restrictions on Rights guaranteed under Article 19 (1) which include Public order, morality and health. State could also regulate media on these grounds.’
 
Obscene content displayed by Media
The rights of Media are sometimes misused so as to persuade users. Today young population are subjected to various forms of media which can significantly impact their cognitive abilities, It is necessary that Media shall be careful in portraying advertisements in TV’s, Newspapers and other online platforms. The content which is obscene in nature can be liable for penal consequences. Section 294 of Bharatiya Nyaya Sanhita talks about showcasing any content which is obscene in nature and selling copies of it and punishment for it shall be imprisonment for a period of 2 years with fine of 5,000 rupees.
 
IRW also called Indecent Representation of Women Act of 1986 prohibits indecent displaying of women in various forms of Print and electronic media. IT Rules, 2021 regulates digital content and prohibits unlawful activities on Internet. CBFC also called as Central Board of Film Certification (CBFC) issues a certificate for any film which is to be released in India. It gives various certificates like ‘U’ (watchable by all ages) ‘A’ (watchable only above age of 18). The decision of CBFC has high value and it is final in nature, even High Courts of India cannot order to reverse the decision of CBFC.
 
In case law, D. Ranjit vs State of Maharashtra[11], there was sale of a book which contained obscene images. SC held that the nature of a book whether it is obscene or not shall be decided by significant numbers of society, not a group of people. SC did not clarify what would amount to “significant number” of society.
 
In case law, Naveen Jindal v. M/S Zee Media Corporation Ltd [12], Two Journalists of Zee Media Corp. had been arrested on charges of Extortion of money from the Plaintiff in exchange for not airing negative information about him. The Corporation pleaded before court that it is an attack on Freedom of Press. Accordingly the Corporation sent a 150 crore notice to the Defendant for Defamation.
 
Films like ‘Arjun Reddy’ also faced criticisms for its obscene content. Instagram Facebook, X (formerly called Twitter), and the content displayed by them shall be regulated by DPDP Act (Digital Privacy and Data Protection Act 2023), this act also establishes a Grievance Redressal Officer (GRO) who shall take into account all the complaints received and take appropriate actions necessary. Songs like “Munni badnaam hui[13]” have also faced backlash for their obscene words in lyrics of the song.
 
Civil Liability of Media
Media can be held liable for copyright infringement. Copyright includes a cluster of rights. Copyright includes literary works, musical, artistic works and others. Without proper authorization from the copyright owner and using the protected content by Media shall amount to copyright infringement. The copyright owner can sue the Media for damages. If infringement of copyright is performed by Newspaper company, following which the newspaper has large circulation in an area, then the Newspaper company shall compensate the injured party. In India Copyright Act of 1957 regulates Copyrights. The Copyright owner can also exercise injunction against publishing such copyrighted content. Injunction is a legal order imposed by Court which restrains a person from committing an act. If Injunction is imposed on Media, then the Media cannot sell, publish or make copies of that copyrighted content. The copyright owner can also sue the media for fines and penalties. In case law Viacom vs YouTube, Viacom sued YouTube for airing their content without permission or authorization, US Court of Appeals ruled the decision in favour of Viacom and extended the applicability of rights of Copyright in Digital spectrum.
 
Civil Liability of Media also extends to Defamation. Defamation is both a civil offence and criminal offence. In civil nature, Media can be held accountable for both Libel (written form) and slander (oral form). If Media publishes information about a person’s personal life without obtaining his permission, then Media shall be liable for Defamation. This also extends to spreading false news about a person so as to damage his reputation. If person gives consent for publishing information about himself, then it doesnot amount to Defamation, even if the published content contains defamatory statements.
 
CONCLUSION
Media plays an important role in ensuring that people are aware about activities of Government and gives them an opportunity to question the Government. This helps to maintain citizens informed. In Democracies of the world, Rights of Media have been given a higher pedestal like in USA. While various rights are attributed to Media, it is necessary that Media renders its duties so that it would be accountable for its actions. It is necessary that media shall not incite to hate speech, Defamation, spreading fake news which would cause public panic so that people’s trust in Media remains.
 
Article 19 (1) (a) of Indian constitution guarantees Right to freedom of speech and expression. It also extends to a person’s right to obtain information as well. This freedom attributed to Media is not absolute in nature as Article 19 (2) provides reasonable restrictions like public health, morality and National integrity. Media is often regarded as watchdog of Democracy as it keeps an account of day to day actions of Government. Media should be neutral in their position and should not take any side as it would lead to biasness. But today, we see various Political parties owning different News Channels which questions the Neutrality of Media.[14]
 
Criminal and Civil Liabilities of Media ensure that Media could be held liable for its actions. Article 21 of Indian Constitution guarantees Right to life and Personal Liberty. In K.S. Puttaswamy vs Union of India[15] Judgement, SC has held that Right to Privacy is an integral part of Article 21. While publishing information, Media shall take note of Privacy of individuals and not publicise sensitive information about people. Media cannot publish information which shall hamper National security, integrity and information about in house meetings of Ministers of both Central and State Government. It also extends to classified information pertaining to Patrol points in Indo- Pakistan Borders, Army camps and others. Various laws came into existence to regulate Media and hold them accountable for their actions.
 
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[1] Manish Kumar, Media Responsibility in National Development, 3 Int J. ISC, 9-19 (2016).
[2] 2 JAMES D WRIGHT, INTERNATIONAL ENCYCLOPEDIA OF SOCIAL & BEHAVIOURAL SCIENCES  11-18 (2d ed. 2015)
[3] Keshav G, Nexus Between Media and Defamation A Critical Review, THESIS IN TANTIA UNIVERSITY (Jan. 29, 2025, 11:00 AM), http://hdl.handle.net/10603/475611
[4] Shobhana Bhartia and Ors vs NCT of Delhi and Anr, (2007) Crl. 2398 (India)
[5] Y.V. Hanumanthu Rao v. K.R. Pattabhiram And Anr, AIR1975AP30 (India)
[6] Sushil Sharma v. The State (Delhi Administration) And Ors, 1996 CRILJ3944 (India)
[7] The Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 1992 (India).
[8] The Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 (India).
[9] The Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).
[10] Kedar Nath Singh v. State of Bihar, 1962 A.I.R 955 (India).
[11] Ranjit D. Udeshi v. State of Maharashtra, 1965 A.I.R 881 (India).
[12] Naveen Jindal v. M/S Zee Media Corporation Ltd, 2015 A.I.R (NOC) (DEL.) (India).
[13] trnsl- “Munni became infamous”
[14] The Hindu Data Team, India’s Press Freedom has rapidly declined in recent years: Data, TH, May 15, 2024.
[15] K.S. Puttaswamy v. Union of India, A.I.R 2018 SC (SUPP) 1841 (India).