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RESEARCH PROJECT ON

EMERGING TRENDS IN MEDIA LAW

Submitted to: Dr. Ajay Kumar (Associate Professor Laws relating to Media & Telecommunications)

Researched & Authored By: Aeishwarya Jha Roll No. 307

CHANAKYA NATIONAL LAW UNIVERSITY

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ACKNOWELEDGEMENT

The research on Emerging Trends in Media Law is a part of Media & Telecommunications Law Semester assignment. A humble gratitude is in order, for the subject faculty, Dr. Ajay Kumar, for his pedagogic guidance. Grateful regards for the scholars whose work has been referred and are mentioned in the bibliography. This assignment is relating to emerging trends on the subject area of research.

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RESEARCH METHODOLOGY This project is researched predominately from primary sources such as Constitution of India, Central as well as State Legislations, Case Laws and secondary sources such as Research papers, Judicial Writings and scholarly articles. References have also been made to research papers published and scholarly articles on the concerned realm of law. This project is based on the doctrinal method of research. The segments are structured and written actively. The writing style is descriptive and analytical. The project has been done after a thorough research based upon intrinsic and extrinsic aspect of the assigned topic. The limitation of my project is that my topic being a very wide one, I may have missed upon certain issues which I certainly regret about.

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TABLE OF CONTENTS

ACKNOWELEDGEMENT ......................................................................................................... 2 RESEARCH METHODOLOGY ................................................................................................ 3 I. II. III. INTRODUCTION ................................................................................................................. 5 THE HISTORICAL PERSPECTIVE.............................................................................. 7 THE MEANING AND SCOPE OF ART 19 (1) (A) AND ITS EVOLVEMENT

OVER THE YEARS FOR MEDIA ........................................................................................... 10 IV. REGULATION OF PRINT MEDIA AN ANALYSIS OF ITS EVOLUTION ....... 14

V. TRACKING OF THE CHANGES IN BROADCASTING LAWS OF INDIA ............. 16 VI. REGULATION OF FILMS IN INDIA .......................................................................... 18

VII. AN OVERVIEW OF REGULATIONS FOR ADVERTISEMENT ........................... 21 VIII. IX. REGULATION OF DIGITAL MEDIA ..................................................................... 24 "JUSTICE MARKANDEY KATJU ON THE ROLE OF MEDIA IN INDIA" ........ 26

X. CONCLUDING NOTE ....................................................................................................... 28 BIBLIOGRAPHY ....................................................................................................................... 30

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I.

INTRODUCTION

Blackstonian concept of freedom of press which was expressed as early as in 1769 contained four basic points1. Those still form the crux of the concept of press freedom. They are as follows: Liberty of the press is essential to the state. No previous restraints should be placed on the publications. That does not mean there is press freedom for doing what is prohibited by law. Every freeman has the undoubted right to lay what sentiment he places before the public, but if he publishes what is improper, mischievous or illegal he must take the consequence of his own temerity. The observations of the Supreme Court in R. Rajagopal and another v. State of Tamil Nadu and Others2 are true reminiscence of the limits of freedom of press with respect to the right to privacy. But the legal implications arising out of the concept of 'press freedom' are many and hence they are not confined to the constitutional provisions alone. The different aspects of it infringe inter alia on criminal law , law of contempt, Copyright Act , Official Secrets Act, Freedom of Information Act, Law of torts, Prevention of Insults to National Honour Act etc , to name a few . At this juncture, as we are approaching the sixth decade of our freedom, lets keep in mind the pertinence of freedom of press and what our former Prime Minister Rajiv Gandhi had said about press freedom: "Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by four decades of freedom and indispensable to our future as a Nation." Before the invention of communication satellites, communication was mainly in the form of national media, both public and private, in India and abroad. Next stage was 'transnational media' with the progress of communication technologies like Satellite delivery and ISDN (Integrated Services Digital Network), the outcome: local TV, global films and global information systems.

1 2

Justice A.N.Grover,Press and the Law (1990); pg 7 para 2. (1994) 6 SCC 632

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In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks and bounds on transmission and communication In the due course of this research paper, we would discuss the various aspects of media and the relevant legal checks and bounds governing them.

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II.

THE HISTORICAL PERSPECTIVE

Our freedom depends in large part, on the continuation of a free press, which is the strongest guarantee of a free society.3 Mass Media laws in India have a long history and are deeply rooted in the countrys colonial experience under British rule. The earliest regulatory measures can be traced back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation of the Press Act, which undid most of, the repressive features of earlier legislations on the subject. Thereafter on 18th June 1857, the government passed the Gagging Act, which among various other things, introduced compulsory licensing for the owning or running of printing presses; empowered the government to prohibit the publication or circulation of any newspaper, book or other printed material and banned the publication or dissemination of statements or news stories which had a tendency to cause a furore against the government, thereby weakening its authority. Then followed the Press and Registration of Books Act in 1867 and which continues to remain in force till date. Governor General Lord Lytton promulgated the Vernacular Press Act of 1878 allowing the government to clamp down on the publication of writings deemed seditious and to impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord Minto promulgated the Newspapers (Incitement to Offences) Act, 1908 which authorized local authorities to take action against the editor of any newspaper that published matter deemed to constitute an incitement to rebellion. The chapter on Fundamental rights, Part III in the Indian Constitution, was not incorporated as a popular concession to international sentiment and thinking on human rights in vogue after the conclusion of the Second World War. The demand for constitutional guarantees of human rights for Indians was made as far as way back as in 1895 in the Constitution of India Bill, popularly called the Swaraj Bill, which was inspired by Lokmanya Tilak, a lawyer and a great freedom fighter. This bill envisaged for India a Constitution guaranteeing to every citizen, among other freedoms, the freedom of press.
3

Cf. Herbert Lee Williams, Newspaper Organization and Management, 5th Edn., Pg 347.

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To a certain extent one can say that the debut of press in India was made with commercial interests in mind. It was the contribution of the first British MNC -The East India Company. It was one of those instruments of the British, which was later manipulated by the Indians to serve their interests; as the role of the press underwent a major change and it soon turned out to be one of the most effective weapons Indians had at their disposal during their struggle for freedom from the British. The press was always under the control of the company, but after its press role reversal the necessity to clamp harsh curbs became imminent. Repressive laws were passed and judgments were given curbing press freedom. The Founding Fathers and Mothers of the Indian Constitution attached great importance to freedom of speech and expression. Their experience of waves of repressive measures during British rule, when the nationalist press was bludgeoned by sedition trials and forfeiture of security deposits convinced them of the immense value of this right in the sovereign democratic republic which India was to be under its Constitution. They believed that freedom of expression and the freedom of press are indispensable to the operation of a democratic system. They believed that central to the concept of free press is freedom of political opinion and at the core of that freedom lays the right to criticize the Government. They endorsed the thinking of Jawahar Lal Nehru who said, I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press4. The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right to freedom of speech and expression. It has been held that this right to freedom also includes press freedom. It is an implied or deduced right. The economic and business aspects of the press are regulated under Article 19(1) (g) which provides for freedom of profession, occupation, trade or business which is restricted by Article 19(6) which includes provisions for public interest, professional and technical qualifications and state nationalization- total or partial. According to the constitutional advisor, Dr. B.N. Rau, it was hardly necessary to provide for the freedom of the press specifically, because freedom of expression would include freedom of the

Nehrus speech on 20th June 1916 in protest against the press Act, 1910.

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press5. The views of Dr Ambedkar and Dr B.N. Rau have been vindicated by the Supreme Court. In a series of decisions from 1950 onwards the Apex court has ruled that the freedom of press is implicit in the guarantee of freedom of speech and expression. Consequently freedom of press is one of the fundamental rights guaranteed by the Constitution of India.6 One of the heads of restrictions on the freedom of speech and expression in the draft Constitution was sedition, aptly described by Gandhiji as the Prince of the Indian Penal Code. It was frequently invoked to crush the freedom movement and incarnate freedom fighters, including prominent leaders like Tilak etc. in the heyday of British colonialism sedition was construed by the privy Council in the cases of Tilak7, Wallace-Johnson8 and Sadashiv Bhalerao9 to include any statement that was liable to cause disaffection, namely, exciting in others certain inimical feelings towards the government, although there was no element of incitement to violence or rebellion. To restrict speech under the head of sedition was galling to the framers of the Constitution. K.M Munshi assilated the inclusion of sedition as a head of restriction on freedom of expression and moved an amendment for its deletion. Almost all the members supported K.M. Munshis amendment and sedition did not disfigure the Indian Constitution.

5 6

B. Shiva Rao, The Framing of Indias Constitution: A Study, pp. 219 -20 Brij Bhushan v State of Delhi; AIR 1950 SC 129 7 25 IA 1 8 1940 AC 231 9 AIR 1947 PC 82

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III.

THE MEANING AND SCOPE OF ART 19 (1) (A) AND ITS EVOLVEMENT OVER THE YEARS FOR MEDIA

Freedom of speech and expression means the right to express ones own convictions and opinions freely by means of mouth, writing, printing pictures or any other mode. It thus includes the expression of ones ideas through any communicable medium or visible representation, such as gesture, signs and the like10. The expression connotes also publications and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to the freedom as the liberty of publication. Indeed without circulation the publication would be of little value11. Freedom of expression has four broad purposes to serve:1. It helps an individual to attain self-fulfillment 2. It assists in the discovery of truth 3. It strengthens the capacity of an individual in participating in decision making 4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change In the Romesh Thappar case the court laid down an important principle:So long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to public security is involved, an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be unconstitutional and valid to any extent12.

10 11

Lowell v Griffin, (1939) 303 US 444 Romesh Thappar v State of Madras, AIR 1950 SC 124 12 Ibid.

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Art 19(2) was subsequently amended by the Constitution (First Amendment) Act, 1951, which was enacted with retrospective effect on 18 June, 1951.13 Art 19(2) was subsequently amended by the Constitution (Sixteenth Amendment) Act, which was enacted with prospective. Thus by way of judicial pronouncements over the years there had been a paradigm shift in the application of this article and it became somewhat press friendly although imposing restrictions by way of amendments. The Resultant position The current scenario is that freedom of press is not absolute. It can be restricted provided three distinct and independent prerequisites are satisfied. 1) The restriction imposed must have the authority of law to support it. Freedom of the press cannot be curtailed by executive orders or administrative instructions which lack the sanction of law. 2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2). Restrictions on freedom of speech and expression cannot be imposed on such omnibus grounds as in the interest of the general public.14 3) The restrictions must be reasonable and must not be excessive. The validity of restrictions imposed is justifiable and open for judicial review by the Indian courts Liberty has got to be limited in order to be affectively possessed. For liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalans15 case, observed, man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals. The guarantee of each of the above right is therefore restricted by the Constitution itself by conferring upon the State a power to impose by reasonable restrictions as may be necessary in the larger interest of community. The restrictions on these freedoms are provided in clauses 2 to 6 of Art 19 of the Constitution.
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(2) Nothing in sub clause (a) of clause (i) shall effect the operation of any existing law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said sub clause in the interest of 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 14 Sakal Papers(P) Ltd v Union of India AIR 1962 SC 305 15 AIR 1951 SC 21

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The Liberty of the press as defined by Lord Mansfield consists in printing without any license subject to the consequences of law. Thus the liberty of the press means liberty to print and publish what one pleases, without previous permission. It includes newspapers, periodicals and even pamphlets.16 Freedom of press does not occupy a preferred position in the Indian Constitution which does not recognize a hierarchy of rights. There are however dicta of the Supreme Court describing this freedom as the Ark of the Covenant of Democracy 17.The most precious of all freedoms guaranteed by our Constitution. In Prabhu Dutt v Union of India18 the Supreme Court has held that the right to know news and information regarding administration of the Government is included in the freedom of press. But this right is not absolute and restrictions can be imposed on it in the interest of the society and the individual from which the press obtains information. They can obtain information from an individual when he voluntarily agrees to give such information. In its landmark judgment in the case of Sakal Papers19 the Supreme Court ruled that Art 19(2) of our Constitution permits imposition of reasonable restrictions under the heads specified in Art 19(2) and on no other grounds. Freedom of the press cannot be curtailed, like the freedom to carry on business, in the interest of the general public. In another celebrated decision, Bennett Coleman & Co. v Union of India20 the Supreme Court again came to the rescue of the press. It held that freedom of press entitles newspapers to achieve any volume of circulation and freedom lies both in its circulation and content. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.21

16 17

Lowell v Griffin, (1939) 303 US 444 Bennett Coleman & Co. v Union of India, AIR 1972 SC 106 18 AIR 1982 SC 6 19 Sakal Papers(P) Ltd v Union of India, AIR 1962 SC 305 20 AIR 1972 SC 106 21 See also In Re Harijai Singh, AIR 1997 SC 73

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In the case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd.22 The issue was that whether a commercial speech is protected under Art 19(1) (a). The court after an extensive review of the judgments of the US Supreme Court and previous Supreme Court held that Commercial advertisements are entitled to the protection of Article 19(1) (a).

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(1995) 5 SCC 139 at 154

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IV.

REGULATION OF PRINT MEDIA AN ANALYSIS OF ITS EVOLUTION

The Freedom of Press and the Freedom of Expression can be regarded as the very basis of a democratic form of government. Every business enterprise is involved in the laws of the nation, the state and the community in which it operates. Newspaper publishers find themselves more hemmed in by legal restrictions than many other businesses do despite the fact that the freedom of press is protected by the Indian constitution. The various Acts, which have to be taken into consideration when dealing with the regulations imposed upon the Print Media, are: 1. The Press and Registration of Books Act, 1867 This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses. 2. The Press (Objectionable Matters) Act, 1951 This enactment provides against the printing and publication of incitement to crime and other objectionable matters. 3. The Newspaper (Prices and Pages) Act, 1956 This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter. 4. Defence of India Act, 1962 This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper. 5. Delivery of Books and Newspapers (Public Libraries) Act, 1954 According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government. 6. The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 It lays down the minimum standards of service conditions for newspaper employees and journalists.

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7. Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence. 8. Press Council Act, 1978 Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. 9. Due to the restrictive scope of this Article, it is not possible for us to delve into all the other statutes; however, a few of the legislations, which are worth mentioning, are the Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.

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V.

TRACKING OF THE CHANGES IN BROADCASTING LAWS OF INDIA

The broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB 23, the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country. This judgment, thus, brought about a great change in the position prevailing in the broadcast media, and such sector became open to the citizens. The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly set up to govern the All India Radio, the following cardinal principles have ideally been practiced by all Broadcasting and Television Organization; viz: -

To ensure the objective presentation of news and fair and unbiased comment To promote the advancement of education and culture To raise and maintain high standards of decency and decorum in all programmes To provide programmes for the young which, by variety and content, will inculcate the principles of good citizenship To promote communal harmony, religious tolerance and international understanding To treat controversial public issues in an impartial and dispassionate manner To respect human rights and dignity Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier. In pursuance of the Cable
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(1995) 2 SCC 161.

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Television Network (Regulation) (Amendment) Bill, 2002, the Central Government may make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system as and when the Central Government so notifies. Such notification may also specify the number of free to air channels to be included in the package of channels forming the basic service tier. Direct-to-Home Broadcasting Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-toHome TV service in Ku band in India.24

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The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification no. GSR 18 (E) dated 9 th January 2001 of the Department of Telecommunications.

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VI.

REGULATION OF FILMS IN INDIA

India is one of the largest producers of motion pictures in the world. Encompassing three major spheres of activity production, distribution and exhibition, the industry has an all-India spread, employing thousands of people and entertaining millions each year. The various laws in force regulating the making and screening of films are: The Cinematograph Act, 1952 The Cinematograph Act of 1952 has been passed to make provisions for a certification of cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film Certification) with advisory panels at regional centres is empowered to examine every film and sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to sanction a film for public exhibition. In K. A. Abbas v. Union of India25, the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court however observed that, pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotion more deeply and thus, classification of films between two categories A (for adults only) and U (for all) was brought about26. Furthermore, in Bobby Art International v. Om Pal Singh Hoon27, the Supreme Court re-affirmed the afore-mentioned view and upheld the order of the Appellate Tribunal (under the Cinematograph Act) which had followed the Guidelines under the Cinematograph Act and granted an A certificate to a film. The Copyright Act, 1957 According to this Act, copyright means the exclusive right to commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or cinematographic films as per the wishes of the owner of copyright subject to the restrictions imposed in the Act.

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AIR 1971 SC 481. This view was re-iterated in Life Insurance Corporation of India v. Manu Bhai D. Shah, (1992) 3 SCC 637. 27 (1996) 4 SCC 1.

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Although this Act is applicable to all the branches of media, in some areas it is specific to this particular genre. In the case of a Cinematographed film, to do or to authorise the doing of any of the following acts would lead to the infringement of copyright. Those acts are namely: To make a copy of the film To cause the film, in so far, as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public To make any record embodying the recording in any part of the soundtrack associated with the film by utilizing such sound track To communicate the film by radio-diffusion

The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any unauthorised recordings and prescribes severe penalties, including imprisonment, fines as well as confiscation of the equipment used for the purpose of such recording and exhibition. The Amendments to The Copyright Act also prohibit unauthorized transmission of films on the cable television28. Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 This legislation affords a measure of protection to those employed in the industry by imposing certain obligations on motion picture producers and theatre owners concerning the formers condition of service. Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981 They seek to create means of financial support to cine employees, the seasonal and unpredictable nature of whose employment often leaves them impoverished and helpless. Besides these, there are also a few local legislations, which affect the film medium; viz. 1. The Bombay Entertainments Duty Act, 1923 It imposes a tax on the public exhibition of motion pictures and other forms of entertainment. 2. The Bombay Police Act, 1951 It contains provisions empowering the police to regulate the exhibition of films in the state of Maharashtra (formerly Bombay).

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Refer, Section 37 of the Copyright Act, 1957.

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3. Bombay Cinemas (Regulation) Act, 1953 It provides a scheme for state licensing of cinema theatres and other places where motion pictures are exhibited. Recent Developments: The stage is set for the amendment in the Cinematograph Act 1952. The Committee constituted by the Ministry of Information and Broadcasting, which is headed by Rtd. Justice Mudgal and consists of members like Sharmila Tagore and Javed Akhtar among others, has come up with recommendations to address several issues like arbitrary ban on films, piracy and use of vulgar lyrics in songs29.

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Ankur Pathak & Bharati Dubey, Mumbai Mirror , Cinematograph Act all set to get a makeover Oct 30, 2013, available on, http://articles.timesofindia.indiatimes.com/2013-10-30/news-interviews/43526569_1_censor-boardcinematograph-act-shoojit-sircar, last accessed on November 5, 2013 at 10:47pm.

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VII.

AN OVERVIEW OF REGULATIONS FOR ADVERTISEMENT

Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost. In order to enforce an ethical regulating code, the Advertising Standards Council of India was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising; To ensure that advertisement are not offensive to generally accepted standards of public decency; To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served. Few Complaints filed with ASCI 1. HLLs Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro biocide, when in reality; dandruff is known to be caused by several other factors, besides, microbes. HLLs multi-crore research wing clearly overlooked this aspect. The advertisement has been withdrawn. 2. Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. This claim was found to be totally false. The truth is that build up is a natural biological phenomenon with all contact lenses. The ad was discontinued.

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The other legislations affecting the area of advertising are: Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. In Hamdard Dawakhana v. Union of India,30 the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a). However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd31, a three judge bench of the Supreme Court differed from the view expressed in the Dawakhana case and held that commercial advertisement was definitely a part of Article 19(1)(a) as it aimed at the dissemination of information regarding the product. The Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful. Monopolies and Restrictive Trade Practices Act, 1969 - Section 36 A of the Act deals with 5 major Unfair Trade Practices:

Any misleading, false, and wrong representation either in writing (i.e. in advertisements, warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices;

Sales, where there is element of deception;

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AIR 1960 SC 554. (1995) 5 SCC 139.

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All business promotion schemes announcing free gifts, contests, etc. where any element of deception is involved;

Violation of laws existing for protection of consumers; Manipulating sales with a view to raising prices.

Parles mango drink Maaza gave the advertisement of Maaza mango and the MRTP issued a notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared from fresh mango while actually preservatives were added to it. The company had to suspend production pending enquiry.

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VIII. REGULATION OF DIGITAL MEDIA32 USA was the first to implement the provisions of the WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty. It enacted the Digital Millennium Copyright Act 1998 that discussed protection of technological measures by dividing it into two categories being a measure that prevent unauthorized access of data and measures that prevent unauthorized copying. Thus it prohibits circumvention of technological measures controlling access The second limb of the DMCA 1998 was it dealt with the technological measures used by authors to protect their copyright. However, this was severely criticized by the critics who state that this legislation prevented scientific research and academic development; although the DMCA had a good impact in updating copyright law for the digital environment, as it was the first legislation of its kind. . The Digital Economy Act 2010 was enacted by the Parliament of the United Kingdom regulating digital media and was introduced by Lord Mendelssohn; it received Royal Assent on 8 April 2010, and came into force on 8 June 2010. However, the Open Rights Group, privacy and consumer rights organizations criticized the online copyright infringement provisions viz section 3 to 18 of the Act, because it partly had a proposal of a graduated response scheme, which could eventually disconnect Internet accounts used for persistent copyright infringement. The Group took their concerns to the House of Lords and raised issues about the impact on businesses offering Internet access to their customers, such as libraries and universities. An Indian Perspective: In India the Copyright Act does not fix a liability on the ISPs for infringement of Digital Copyright. Therefore, as an initiative the Information Technology Act 2000 redressed issue of fixing liability on the ISPs for infringement. It states that no Service Provider was responsible for an offence committed or for violations happening without his knowledge, if the service provider has exercised all due diligence to prevent the violations. Indian law resembles the provisions of the US Home Recording Act 1992, as section 52 of the Indian copyrights Act 1957 describes the concept of fair use exception. It exempts works done

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Emerging trends in Digital copyright law Growing technology and digitalization entail a protective regime, available on, http://www.helplinelaw.com/business-law/ETDCL/emerging-trends-in-digital-copyright-law.html, last accessed on November 5, 2013 at 10:54pm.

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for private use or for criticizing or reviewing of the work. However the major drawback in Indian law is the Indian Copyright Law does not implement the anti circumvention provisions under the WCT and WPPT, as US and UK have done. Therefore, there are no provisions that prohibit circumvention of digital rights management systems in India. Therefore, there is piracy happening benefiting the users, who are getting copyrighted material at half the cost. On the contrary the owners are getting publicity, fame and prosperity vis s vis loosing out on opportunity to sell their original works that would have yielded them good revenue. The only remedy at the moment is to initiate legal action under the Copyright Act to prevent piracy.

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IX.

"JUSTICE MARKANDEY KATJU ON THE ROLE OF MEDIA IN INDIA"

If we study the history of Europe when it was passing through its transition period, i.e. from the 16th to the 19th Centuries, we find that this was a terrible period in Europe, full of turbulence, turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was only after passing through this fire that modern society emerged in Europe. India is presently going through this fire. We are passing through a very painful period in our history. Historically, the print media emerged in Europe as an organ of the people against feudal oppression. At that time the established organs were all in the hands of the feudal despotic authorities (the king, aristocrats, etc). Hence the people had to create new organs which could represent them. That is why the print media became known as the fourth estate. In Europe and America it represented the voice of the future, as contrasted to the established feudal organs which wanted to preserve the status quo. The media thus played an important role in transforming feudal Europe to modern Europe. In the Age of Enlightenment in Europe the print media represented the voice of reason. Voltaire attacked religious bigotry and superstitions, and Rousseau attacked feudal despotism. Diderot said that Man will be free when the last king is strangled with the entrails of the last priest. Thomas Paine proclaimed the Rights of Man, and Junius (whose real name we still do not know) attacked the despotic George III and his ministers33. Louis XVI, while in the Temple prison saw books by Voltaire and Rousseau in the prison library and said that these two persons have destroyed France. In fact what they had destroyed was not France but the feudal order. In the 19th Century the famous writer Emile Zola in his article J Accuse accused the French Government of falsely imprisoning Captain Dreyfus in Devils Island only because he was a Jew. In his lordship the Indian media should be playing a role similar to the progressive role played by the media in Europe during the transitional period in Europe. In other words, the Indian media should help our country get over the transition period and became a modern industrial state. This it can do by attacking backward, feudal ideas and practices e.g. casteism, communalism and

33

(see Will Durants The Story of Civilization: Rousseau and Revolution)

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superstitions, and promoting modern scientific and rational ideas.

34

In his lordship opinion a

large section of the Indian media (particularly the electronic media) does not serve the interest of the people, in fact some of it is positively anti-people.

34

"Justice Markandey Katju on the role of media in India".The Hindu (Chennai, India). 5 November 2011.

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X.

CONCLUDING NOTE

There are differing views of the status of press and media freedom in India. Some external observers consider the Indian news media to be in an enviable position in the developing world, their freedom, space, stability, and security derived from history, constitutional protection, the workings of a democratic political system, and their own rapid growth and expansion over the past quarter-century. Others, mostly media insiders, believe these advantages are offset to a considerable extent by an illiberal framework of laws, dating back to the British Raj, which cover criminal and civil defamation, contempt of court, legislative privilege, official secrecy, national security, and incitement to offences and have a chilling effect on freedom of expression.35 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. Freedom of the press is a fundamental right not explicitly mentioned by the Constitution of India. Fortunately, judicial interpretation has derived it from Article 19 and placed it on firm ground. Specifically, the Supreme Court of India 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 practice any profession, or to carry on any occupation, trade or businesses. The first is clearly the principal component. It is subject to reasonable restrictions that can be imposed by law for the purposes specified under eight heads in Article 19(2) and for no other purpose. Article 19(1) (g) is, however, subject to reasonable restrictions that can b e imposed by law in the interests of the general public. It has also been held that the restrictions must meet judicial standards of reasonableness. No such protection has been conferred on television and radio, whose status within the Article 19 framework can only be described as nebulous, insecure, and yet to be settled. Secondly, newspapers in independent India function within a benign system of registration; since there is no licensing, they cannot be de-licensed. By contrast, while terrestrial television is a state monopoly and All India Radio alone is allowed to do news and current affairs radio broadcasts

35

N. Ram, The Changing Role of the News Media in Contemporary http://www.thehindu.com/multimedia/archive/00863/Contemporary_India__863821a.pdf, November 5, 2013 at 9:40pm.

India, available last accessed

on on

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from within India, private television channels and FM radio stations function under a licensing system and can be taken off the air for alleged serious transgressions of the rules. Paradoxically, in practice, while the press has a statutorily established watchdog, the Press Council of India, in place, there is no legal regulatory framework for private satellite television channels, which have attracted growing public complaint that they are a law unto themselves. This paradoxical situation demands well-considered, progressive reform. The aim of such reform must be to expand the scope of media freedom but also to ensure professional and social accountability.

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BIBLIOGRAPHY Text Books: 1. Press and the Law (1990) by Justice A.N.Grover 2. Cf. Herbert Lee Williams, Newspaper Organization and Management, 5th Edn 3. B. Shiva Rao, The Framing of Indias Constitution: A Study 4. Will Durants The Story of Civilization: Rousseau and Revolution News Articles: 1. Ankur Pathak & Bharati Dubey, Mumbai Mirror, Cinematograph Act all set to get a makeover Oct 30, 2013, available on, http://articles.timesofindia.indiatimes.com/201310-30/news-interviews/43526569_1_censor-board-cinematograph-act-shoojit-sircar 2. Emerging trends in Digital copyright law Growing technology and digitalization entail a protective regime, available on, http://www.helplinelaw.com/business-

law/ETDCL/emerging-trends-in-digital-copyright-law.html 3. "Justice Markandey Katju on the role of media in India".The Hindu (Chennai, India). 5 November 2011 4. N. Ram, The Changing Role of the News Media in Contemporary India, available on http://www.thehindu.com/multimedia/archive/00863/Contemporary_India__863821a.pdf

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