Media and the law
N. R. MADHAVA MENON
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An examination of the legal dimensions of the rights and the responsibilities of the media
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FACETS OF MEDIA LAW: Madhavi Goradia Divan; Eastern Book Co., 34, Lalbagh, Lucknow-226001. Rs. 600.
Media freedom is an important aspect of public law and an essential element of democracy. However, media law is a relatively new concept loosely defined to include those restrictions on media freedom introduced to balance competing values such as security and liberty, privacy and transparency, freedom and accountability. A body of law has grown over the years around media freedom, which jurists and academicians label as media law. Initially it was conceived as "Media and the law" (see Praeger Publishers, N.Y., The Media and the Law, 1975), and the issues raised included the insensitivity of journalists to rights of privacy, the rights of the accused and the victim in criminal cases, and the right of the government to preserve national security secrets.
It was contended that bureaucrats are insensitive to free-press values guaranteed by the Constitution and courts are unaware of the day-to-day challenges the media face while exercising its rights to fulfil its responsibilities. One result of the approach has been to perceive the press and the law (courts) as adversaries, each insensitive of the other's role and responsibilities. A movement away from such a perception is perhaps what is contained in the concept of "media law", an institutionalised version of norms and standards in respect of journalistic behaviour for exercising their freedom while not jeopardising important rights of individuals and the security of the nation. The single most import factor which led to such a changed perception is that more than any branch of government or private institution, it is the judges and the journalists who depend on propriety, morals and credibility for institutional survival.
Media freedom
Facets of Media Law by Madhavi Goradia Divan is a bold attempt to put together a variety of legal materials on issues relating to media freedom which have come up for adjudication in Indian courts during the last five decades and more. Organised in 14 chapters and an appendix, the book not only gives a critical lawyer-like commentary on propositions of media law but also draws certain conclusions delineating the emerging jurisprudence on the subject. It is no doubt a useful handbook for lawyers and journalists for understanding the contours of a legal framework the content of which is still evolving.
The astounding developments in information-communication technology and the status which intellectual property rights is assuming globally have added to the prevailing uncertainties of media law and made it an attractive subject for practitioners and academicians alike. Divan's book, being a pioneering work on the subject, will set the tone and tenor of future debates providing the foundation for yet another area of specialisation in public law. The Broadcasting Bill, the Convergence Bill, the Information Technology Act, the Right to Information Act, the amended Contempt Law are all indicators of the importance and legislative enrichment of media law in the recent past.
Internal control systems
A couple of aspects, which the reviewer felt to be significant omission in the book, may be pointed out. The peer system of justice and the code of conduct, which regulate every profession, exist in the media too. However ineffective it may be, the Press Council and similar bodies do adjudicate disputes and set standards for professional behaviour of journalists. It is difficult to conceive of media law without giving the internal control systems its due importance. Similarly, the issues surrounding what is popularly called "media trial" are too complex and important today to be left out of a comprehensive volume on media law. In fact, from the judiciary's and the litigant's point of view, the single most important aspect of media law is fair reporting and purity of justice.
Development
Media law in the past developed more out of case law rather than statute law. The book has plenty of references on important cases decided in India and few other jurisdictions, thereby making the book a guide for researchers and practitioners. However, this is precisely its weakness too. Judicial decisions are pronounced on a daily basis giving new interpretations to the existing law and unless the book is revised at least every year, it can even be misleading. For example, a new public interest interpretation to defamation law was given recently by the House of Lords whereby newspapers could publish without fear of libel action virtually anything in the name of "public interest", provided they acted in good faith and with responsibility (Mohd. Jameel v. The Wall Street Journal, 2006).
The manner in which the electronic media has resorted to the so-called investigative journalism including sting operations, reporting of judicial proceedings within and outside the court, and manufacturing public opinion through SMS polls and other popular techniques on issues being adjudicated would raise doubts on the limits of public interest journalism and the legitimacy of commercial interest journalism. It is not something, which the contempt law can effectively deal with, nor tort law can mediate. It is going to be an aspect of media law where the issues are complex, values too many, technology cumbersome and commercial interests delicately camouflaged as public interests. The author's observations on `emerging trends' appended to the book reflecting on some of these aspects will soon become the main focus of media law. The challenge before scholars on the subject is to find suitable approaches and appropriate principles to resolve the future conflicts without having to depend entirely on the sense of fairness of a court or a journalist.
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