Reflections on Media Freedom

7 October 2015 06:30 pm - 0 - {{hitsCtrl.values.hits}}

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“Your pride for your country should not come after your country becomes great; your country becomes great because of your pride in it.”
- Idowu Koyenikan

smond Wickremesinghe (May 29, 1920-September 29, 1985) is one of the most interesting and significant figures in the two-century-old history of the news media and journalism in South Asia. His engagement with the newspaper world over close to four decades divides cleanly into two chapters.
The first chapter covers his hands-on editorial and business leadership of Sri Lanka’s leading newspaper group, the Associated Newspapers of Ceylon, between 1947 and 1973. The second chapter sees contributions of a different kind; moral and strategic leadership, following the nationalization of the Lake House Group of an independent journalism experiment managed by working journalists. During this period, Esmond made forays in the wider realm of politics and foreign policy – a role that brought him to India twice in 1984-1985 on a peace-building mission as President J.R. Jayawardene’s foreign policy advisor. The media experiment involved three newspapers published, evenhandedly in the three different languages of the country. These papers worked, as he told his IPI audience in 1975, on the simple formula of “publishing all the news the Government wants to hide.” It remains a pretty good formula today, in every country where the news media as a relatively independent democratic institution matter.
If I may be allowed to strike a personal note, “Esmond,” as he was always referred to by my father, G. Narasimhan, and my uncle, G. Kasturi, was professionally and personally close to the generation at the helm of The Hindu that preceded me. I recall meeting him, when I was a young man, on a couple of occasions. The two newspaper people from Sri Lanka who were household names in our family, admired for standing up for the independence and freedom of the press, were Esmond and Tarzie Vittachi, editor of The Ceylon Observer and author of Emergency 58, whom I came to know quite well.
Contemporaries both played important roles in the affairs of the International Press Institute, Esmond, as an IPI stalwart and its Chairman between 1966 and 1968, Tarzie as Asian Director between 1960 and 1965. Not surprisingly, the award in May 1965 of the “Golden pen of freedom.”
To Esmond at the Congress of the International Federation of Newspaper Publishers for his “huge five-year battle to maintain Press freedom in Ceylon” (to quote from the citation) was reported in the columns of The Hindu.
So let me say how privileged I am to have this opportunity to share my thoughts at this inaugural award ceremony of the Esmond Wickremesinghe Annual Award for Media Freedom, which marks the 30th anniversary of his death. The theme I have been invited to speak on is media freedom – not so much in the abstract or formal sense as in the real world of today, where big business and, in some cases, political heavyweights are increasingly seizing control over ownership and editorial content across all media platforms.

Sri Lanka has stolen a march over other South Asian nations. It is the first and only country in the South Asian region to have done away with the law of criminal defamation. Let me remind this audience that credit for this must go to the Ranil Wickremesinghe-Government and to Parliament.

Esmond Wickremesinghe

Concept and constitutional protection of press freedom
I assume that no one in this audience has any problem with the proposition that a democratic Constitution and the rule of law must give high priority to freedom of speech and expression as a fundamental right.
Article 19(1)(a) of the Constitution of India, which was adopted in 1950, guarantees “freedom of speech and expression” as a fundamental right.
This right, hard won in the freedom struggle against a highly repressive and censorious British Raj, is deemed to be unamendable thanks to the ‘basic structure’ doctrine propounded by the Supreme Court.

Freedom of the press is not explicitly mentioned by the Indian Constitution but the Supreme Court of India has, through judicial interpretation, read it into Article 19. It has held that freedom of the press is a combination of two freedoms – Article 19(1)(a), ‘the freedom of speech and expression’, and Article 19(1)(g), ‘the freedom to practise any profession, or to carry on any occupation, trade or business’. The first is clearly the principal component.
Unfortunately, freedom of speech and expression is hemmed in, and to a significant extent undone, by Article 19(2). This provides for restrictions on the fundamental right prescribed by law – some reasonable, most not.
Notable among the unreasonable restrictions that remain on the statute book or in practice are the law of criminal defamation, the undefined power of contempt of court, uncodified legislative privilege, the law of sedition (124A of the Indian Penal Code), other illiberal provisions of the IPC (especially 153A), the Unlawful Activities (Prevention) Act, and other draconian laws enacted in the name of fighting extremism and terrorism.
Further, media freedom in India is considered ‘incomplete’ because the print media and the broadcast media have not been placed on an equal constitutional and legal footing. The higher courts have not judged it necessary to confer effective Article 19(1)(a) protection on radio and television.
Sri Lanka has had a chequered history when it comes to media freedom and independence. Article 14(1)(a) and 14(1)(g) of the 1978 Constitution are more or less analogous to 19(1)(a) and 19(1)(g) of the Indian Constitution (except that Article 14(1)(a) expressly includes ‘publication’ under ‘freedom of speech and expression’). The restrictions “as may be prescribed by law” are seemingly narrower in scope but in key respects, the laws and their enforcement, especially during the long period of the ethnic conflict, have been even more draconian.
The Sri Lanka Press Council Law, No. 5 of 1973, under which the Press Council has sweeping powers to haul up for punishment journalists and newspapers for a variety of purported offences, does not sit well with any modern conception of press freedom. The Press Complaints Commission of Sri Lanka, a self-regulatory mechanism set up by editors and publishers in 2003 and having a well-formulated Editors’ Code, provides a sound and progressive alternative in principle. But it seems to lack teeth, including the power to levy fines against offending newspapers. I think the PCCSL as a credible and independent self-regulatory body can be strengthened by statutory underpinning, allocation of adequate funds by Parliament, and provision of an appellate tribunal that will satisfy legal requirements. It will also be a good idea for the government and Parliament to fast-track the process of settling and adopting the Right to Information legislation, which I learn has been referred for further discussion. May I mention in this connection that India’s experience with the Right to Information Act (RTI), which came into force in 2005, has been extremely positive and rewarding.
But there is one key area where Sri Lanka has stolen a march over other South Asian nations. It is the first and only country in the South Asian region to have done away with the law of criminal defamation. Let me remind this audience that credit for this must go to the Ranil Wickremesinghe-Government and to Parliament. In the Indian campaign for decriminalizing the law of defamation, we have been commending to our government and lawmakers what Sri Lanka did as early as June 2002.

The strengths of history: the Indian case
It is clear that in the South Asian region at least, the contemporary news media largely derive their strengths from history, especially when that history has been uninterrupted, more or less. Let me illustrate this with reference to India. Our press is more than two centuries old. It has always been a highly political press. Its strengths have been shaped by its historical experience and, in particular, by its association with the freedom struggle as well as movements for social emancipation, reform, and amelioration. The long struggle for independence; the sharp ideological and political divides; controversies and battles over social reform; radical and revolutionary aspirations and movements; compromising as well as fighting tendencies; and the competition between self-serving and public service visions of journalism – these have all found reflection in the character and performance of the Indian press over the long term. It is this rich history that accounts for the seriousness, relevance, and public-spirited orientation of the press at its best.
The tradition of a strong and assertive political press has continued and flourished. Investigative journalism is extensively practised, with investigations and exposes of political corruption making quite a splash in the polity. Today satellite television competes with newspapers aggressively in trying to influence the political agenda of the States and the nation. With their expanded reach, these news media together serve as an effective antidote to any trends of de-politicization in society. Further, there is still significant space for the expression of political dissent and contrary political opinions.
Pluralism in the Indian media can be said to reflect the vast regional, linguistic, socioeconomic, and cultural heterogeneity of the subcontinent. A positive factor for both the print media and news television is that over the past quarter-century, their social representation has broadened. For one thing, there has been a rapid feminization of the newsroom. Alongside this, the composition of the journalistic workforce has become more inclusive in socioeconomic and regional terms. However, the number of Dalit journalists in the mainstream news media continues to be insignificant.

The social responsibility of the media
Let me now turn to a theoretical issue. Conventional wisdom in the west posits a laissez faire conception of a libertarian press with unbridled rights that no government and no external agency could be allowed to touch.
The social responsibility conception arose in reaction to an extreme and self-serving form of this ‘we are not answerable to anyone but ourselves’ posture assumed by American press barons. In the United States, the first systematic theory of a socially responsible press was presented in 1947 in the report of the Commission on Freedom of the Press, headed by Robert M. Hutchins. The Hutchins Commission laid down five ‘standards of performance’ for a free and responsible press. These were (1) to provide a “truthful, comprehensive account of the day’s events in a context which gives them meaning”; (2) to serve as a “forum for the exchange of comment and criticism”; (3) to offer “a representative picture of the constituent groups of society”; (4) to present and clarify the “goals and values of society”; and (5) to provide “full access to the day’s intelligence.”
The specification of “standards of performance” needs revision and updating. But there can be little doubt that over the long term the conception of socially responsible news media has been influential and has come to stay. A substantial international literature has developed on templates for socially and ethically accountable journalism and also on the constitutive ‘elements of journalism’. This has yielded codes of practice or professional ethics that have privileged such principles as truth telling, freedom and independence, fairness and justice, humaneness, and working for the social or public good. The codes have emphasized such disciplines as fact checking, verification, investigation, rigorous data sourcing and analysis, providing context and meaning, and maintaining perspective.
New approaches, such as ‘open journalism’ and ‘crowd sourcing’, new multi-media forms, and new disciplines, notably ‘data journalism,’ are beginning to change the face of journalism in this digital age.

The situation in India and other South Asian countries is rather different, as is appropriate to a stage of media development when ageing, economic maturity, and the problems of maturity have not yet set in.

A conceptual framework for evaluating media performance
In critically assessing media performance, a clear distinction needs to be drawn and maintained between the state or fortunes of the news media and the state of journalism. The point seems obvious enough but the two states tend to get conflated in public as well media marketing discourse. High growth rates in the media sector may offer opportunities but they do not guarantee quality. I would now like to turn our focus on some relevance and quality issues. To do this, we need a conceptual framework to evaluate news media functions in society.
The long-term South Asian press experience, set in a broader framework, suggests two extremely valuable central functions or roles that the region’s best newspapers have played in modern and contemporary times. These functions may be termed (a) the credible-informational and (b) the critical-investigative-adversarial. An accompanying condition – which evolves over time, typically as an outcome of a democratic or working people’s struggle – is that the political system gives newspapers free or relatively free rein, and a public culture of valuing these functions develops. Performed over time, the two central functions working together build trust in the press, or more accurately, in individual newspapers.
There are also valuable derivatives of the two central, twinned functions. The first derivative is the agency of the press in public education. A second is serving as a critical forum for analysis, disputation, and comment, in which different opinions and ideas are discussed, debated, and have it out. An idealized conception of this is attributed to the American playwright Arthur Miller: “A good newspaper, I suppose, is a nation talking to itself.’’ A third derivative is agenda building. Socially conscious media can trigger agenda-building processes to help produce democratic and progressive outcomes; and this they can do best when an authentic public opinion and a congenial context of attitude, feeling, and critical democratic values and practice exist.
A third function of the news media is the pastime or entertainment field. At its worst, it seeks to purvey escapist entertainment, celebrity worship, vapid talk shows, scandal, and even voyeurism at the expense of everything else. But it can be something quite different – engaging, entertaining, delving into life’s small pleasures, covering hobbies and recreation, pandering to crossword and Sudoku addicts, mixing in humour and satire, lightening solemn, heavy, ponderous journalism, and in general serving the ‘pleasure principle’ as the French use that term.
Now all this is to the good but neither the social responsibility theory nor the conceptual framework for evaluating media performance resolves a major problem – the non-democratic ownership and control structure of the organizations that are entrusted with the constitutionally guaranteed privilege and practice of media freedom.

The elephant in the room that is rarely discussed
It is axiomatic that the assertion and practice of media freedom cannot be exclusively against regimentation, control, and heavy-handed regulation by the state and its instrumentality. An internal structure that enables and empowers its journalists to practise freedom, independence, and social responsibility, sets high standards of intellectual and professional performance, and motivates them to achieve these standards is equally important. “Freedom of the press is guaranteed only to those who own one,” the American journalist A.J. Liebling wrote in his “The Wayward Press” column in The New Yorker 55 years ago. “What you have in a one-paper town,” he went on to observe, “is a privately owned public utility that is Constitutionally exempt from public regulation, which would be a violation of freedom of the press. As to the freedom of the individual journalist in such a town, it corresponds exactly with what the publisher will allow him. He can’t go over to the opposition, because there isn’t any.”
Diversity and pluralism have long been considered strengths in the media. Liebling noted that “diversity – and the competition it causes – does not insure good news coverage or a fair champion for every point of view, but it increases the chances.” In several developed countries, media monopoly has developed in a big way, eroding diversity, pluralism, and the values of serious journalism. In his classic work The Media Monopoly, first published in 1983 and updated through numerous editions, and in The New Media Monopoly, published in 2004, Ben Bagdikian powerfully documents and analyses the death of media diversity in the United States. He indicts the process that, by the beginning of the 21st century, has resulted in five large media conglomerates creating “the daily and nightly news world for a majority of Americans.”
The situation in India and other South Asian countries is rather different, as is appropriate to a stage of media development when ageing, economic maturity, and the problems of maturity have not yet set in. But here too monopolistic tendencies and aggressive market practices aimed at aggrandizing market share and killing competition have manifested themselves in both the press, news, radio and television sectors. In India, business groups whose core businesses, such as mining, are a far cry from the news business, and also political bosses of different hue have entered the media scene in several States as proprietors or financiers of newspaper groups and television channels. Critics point out that Indian journalism is facing increasing pressure from advertisers, marketing personnel, corporate managers, and even senior journalists to present and prioritize ‘feel good’ factors – rather than highlight the reality of mass deprivations and what to do about them. Ken Auletta wrote about this trend in a well-researched New Yorker article published in 2012. In several frank conversations with the executives of India’s largest newspaper publishing company, he learnt, why poverty, especially rural poverty, was not a fit subject for news and editorial coverage, why this coverage had to cater to the ‘aspirational’ among young readers (because poverty was “not a condition to which one aspires”), and why a newspaper’s editorial philosophy, which was derived from its business philosophy, had to be one of optimism.
Poverty and mass deprivation, basic livelihood issues, the impact of policies on these issues, the state of agriculture and the countryside remain massively under-covered in Indian newspapers and the broadcast media.Fortunately, there are significant exceptions. P. Sainath’s investigations of rural distress, farmers’ suicides, and mass migrations, which won him several honours, including a Magsaysay award, are in the finest traditions of people-oriented, investigative, agenda-building journalism. Such influential and iconic work, along with the lively contributions of young idealistic reporters on these subjects in various Indian languages, suggest a way out of this bind – provided a public culture of valuing such journalism can be built up.

The business of journalism
Auletta’s New Yorker piece, Citizens Jain, offers an entertaining glimpse of an exotic world of aggressive and unorthodox publishing and business strategizing for growing newspapers that throws out of the window most of the things we have learnt from journalism school or The Elements of Journalism.
The issue of ‘paid news’ exploded in the public sphere in the aftermath of India’s 2009 general election. A section of the press revealed that a large number of newspapers, small, medium-sized, and big, and also several television channels had sold promotional news packages of specified size, using an under-the-table rate card, to candidates in State Assembly and parliamentary elections. Candidates who could not pay, or refused to pay, were blotted out of news coverage. There were special rates for negative coverage of the candidates’ opponents. This involved violations of the law, was tantamount to extortion in several cases, and mocked every rule of ethical journalism. It was every bit of a rogue practice as the UK’s phone hacking affair was. The scandal of paid news led to a damning report by a sub-committee of the Press Council of India and called for external regulation of the press and the private television channels.
It also led to some critical debate on a wider phenomenon – paid news not as a rogue practice but as a deeper and industry-wide phenomenon that was not confined to election coverage. Sainath offers this handy definition: “Paid news is run to pass off an advertisement, a piece of propaganda and advertisement...as news…Paid news does not disclose to the reader that this information has been paid for.”

To return to the theme of hyper-commercialization and what it means for journalism. Auletta’s top media interlocutors had no inhibitions in telling him that “we are not in the newspaper business, we are in the advertising business…a derived business...of aggregating a quality audience’’ for advertisers to “facilitate consumption.”
Auletta was educated in easy rationalizations of the practice of ‘advertorials’– an ad-sales initiative that opened a section of the newspaper to promotional or puff pieces paid for by celebrities, brands, and well-heeled ego-tipsters, and written not by ad agencies but by the newspaper’s reporters. There was some kind of indication that this section was paid for but a reader needed “a magnifying glass to be alerted’’ to the disclosure in small print.
The New Yorker writer also learnt about another business innovation originating from India’s largest newspaper-publishing company but now fairly common in the media industry –‘private treaties,’ a programme under which newspapers offer ads to smaller and medium-size companies in exchange for equity. The conflict-of- interest implications of this initiative for editorial coverage of these companies by the newspapers have been much discussed among journalists and critics of the Indian media industry.
Another deeply worrying trend is the buying out wholly or in large part of major media organizations by large business groups whose core businesses have nothing to do with the media. The aim is to use established media single-mindedly to further their business interests. The motives could vary: it could be to ingratiate themselves with political parties or the Government and position themselves and their core businesses favourably for the award of licences and territories; it could be to acquire oppositional political clout; or it could be for complex reasons hard to fathom.
Media take-overs, mergers, and the process of conglomeration have been happening in the developed world for a few decades now. The media world has long been accustomed to the ways of Murdochism and to the even bigger story of how five mega corporations – Time Warner, Disney, News Corporation, Bertelsmann, and Viacom – came to own most of the newspapers, magazines, books, radio and TV stations, and movie studios in the United States. But it was the $315 million acquisition in 2011 of the Huffington Post – an independent, idealistic and pioneering free-to-air online news and opinion site founded by Ariana Huffington – by multinational technology company AOL that made people sit up and wonder what was happening in the digital media space. AOL, in turn, was acquired by Verizon Communications, a broadband and telecom giant, four years later.
Around the time of India’s 2014 general election, a major television group with a sizeable following, a hard-won professional reputation but fragile finances was taken over by India’s top business group, leading to the exit, before and after the election, of several journalists, including one of India’s best-known television personalities. The post-takeover scenario in this case is still unfolding. There has also been market buzz that some Indian newspapers that have been bleeding financially for years have landed themselves in a position of complete financial dependence on big business patrons to keep afloat. As the fragile finances of several established old media organizations come under increasing pressure from a combination of factors in this digital age, the prospects of take-over by big business groups with core businesses unrelated to the media will grow stronger.
This brings me back to the point that the two states – the fortunes of the news industry and the state of journalism – ought not to be conflated.
Manipulation of news, analysis, and comment to suit the owners’ financial or political interests; the downgrading and devaluing of editorial functions and content in some leading newspaper and news television organizations; systematic dumb- down, led by the nose by certain types of market research; the growing willingness within newspapers and news channels to tailor the editorial product to sub-serve advertising and marketing goals set by owners and senior management personnel; hyper-commercialization; price wars and aggressive practices in the home bases of other newspapers to overwhelm and kill competition; advertorials where the paid-for aspect of the news-like content is not properly disclosed or disclosed at all; private treaties; rogue practices like paid election campaign news and bribe-taking for favourable coverage. These negative trends are likely to get strengthened when the news media become subsidiaries, branches, and agencies of mega-corporations whose core business interests lie elsewhere. If this is what it takes to have thriving newspapers and other news media, then there is something seriously wrong with this growth path.

What is to be done?
We can now abstract from the particular to indicate a future scenario for the news media. It is likely that under such conditions, pressure from politicians and the public to impose external regulation through legislation will increase. For the media organizations, demonstrating that transparency, accountability, and social responsibility are more than slogans would no doubt help. So would codes of values and codes of good practice binding journalists and the media industry, and instituting self-regulation mechanisms such as independent news ombudsmen within major news organizations.
But these necessary measures are likely to be no more than surface-level remedies. The real challenge is to find economically sustainable and politically astute ways and means to loosen and eventually to break the stranglehold big business has been establishing over the news media to the detriment of free and independent journalism in a seemingly irreversible historical process.

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Reflections on Media Freedom

Sri Lanka has stolen a march over other South Asian nations. It is the first and only country in the South Asian region to have done away with the law of criminal defamation. Let me remind this audience that credit for this must go to the Ranil Wickremesinghe-Government and to Parliament.

The situation in India and other South Asian countries is rather different, as is appropriate to a stage of media development when ageing, economic maturity, and the problems of maturity have not yet set in.

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