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FREEDOM OF MEDIA: ISSUES AND CHALLENGES WITH SPECIAL REFERENCE TO MEDIA TRIALS BY SOCIAL MEDIA

Author: Dr.J.S.Chandpuri (LLM,UGCNET,PhD), Associate Professor Deptt. of Law DAV(PG) College Dehradun, Uttarakhand.


Introduction

In India, the freedom of media is one of the most important aspects for protection and nourishment of fundamental rights, which enshrined under our constitution. The media is a fundamental institution of society. It plays a very vital role in creating, shaping and reflecting the public. Opinion in a democracy, it establishes, to direct communication between the people and the government. The acts of media is just like a bridge, between the govt. and the people. The media is rightly described as the fourth pillar of the state. But the media can play an effective role only, when if media is free to express its views and articulate its opinion. As air is to life so also freedom of media, without air no life can survive. So also without freedom, no media can exist to play a significant role in all democratic countries of the world, the right to freedom of media is regarded as the very foundation and the indispensable condition for the existence of every other rights. Article 19(1) a) of Indian constitution secures to all its citizen the ‘right to freedom of speech and expression’ unlike the U.S. Constitutional provisions, there is no separate provisions guaranteeing freedom of the media in India. It may be pointed out that the word expression in Article19(1)(a) is used in addition to the word speech and thus is comprehensive enough to cover freedomofMedia, in fact, a number of cases, the supreme court has held that the term freedom of speech and expression includes the freedom of media, absence of a specific mention of freedom of press in the constitution created no difficulty when the court was called upon to protect the freedom in the celebrated case of RomeshThappar V. State of Madras.[1] The Supreme Court has no doubt in propounding that freedom of speech and expression included ‘Freedom of propagation of ideas, and that the freedom of circulation, the court held that liberty of circulation was an essential to the freedom as the ‘liberty of publication’. In this way, the learned judge clarified that freedom of expression included that freedom of propagation of ideas, their publication and circulation. Justice PatanajaliSastri former judge of supreme court had observed that the freedom of media is an ‘essential part’ of the right to freedom of speech and expression as declared under Art. 19(1)(a) of the constitution.[2] ‘In Re Harijai Singh[3] Hon’ble Mr. Justice Faizan Uddin of the supreme court observed that the freedom of media was a part of the speech and expression declared under Article 19(1)(a) of the constitution and thus, the freedom of media was included in the freedom of expression.


Media plays a significant role in society, therefore freedom of media has become indispensable for civil society. In democratic governance system media works as a bridge between public and govt. media is bringing dynamic changes in society through its communication. The contribution of the media cannot be forgotten in the field of people’s living standard i.e. eating habits, education, employment, working pattern, business management and style of living etc. Media make community aware through its information and communications in this regard media acts like a ‘watch full dog’ in society. Media has a reach in all parts of society, whether it is print media, newspaper, magazines or broad casting media, radio, doordarshan, computer or social media i.e. facebook, whatsapp, twitter, email, YouTube and many other apps, are directly connected with society, it has become an integral part of community. Media is the sword arm of democracy, it protect public interest against malpractice and create public awareness. Today when politicians are taking full advantage of their positions, an evil nexus of mafia and crime syndicate is making the life of siphoned out for the personal gain of the influential, and ordinary people are most spectator, media has a greater responsibility to expose such malpractice of concerned person.[4]


Social Media and its significance in Society

Social Media means websites and applications that enable users to create and share content or to participate in social networking[5] such as Google, Facebook, Twitter, Instagram, WhatsApp, Wikipedia, YouTube and other commercial sites etc.


In today’s society, the use of social media has been a necessary daily activity. Social media is typically used for social interaction and access to news and information, and decision making. It is a valuable communication tool with others locally and worldwide, as well as to share, create and spread information. The recent development in wireless technology have introduced new means and directions of communication, million of people all over the world are now engaged in political, economic cultural and educational discourses due to the vast expansion of the world wide web. Indeed, Social media has transformed people’ lifestyles and has introduced a new pattern of social interaction.[6] According an estimate more than 67% of internet users are engaged on Facebook and You Tube. As of the first quarter of 2019, twitter averaged 332 million monthly active users, while the Instagram has become the 4th most downloaded mobile app of the world.[7] TheWhatsApp has become the world’s most popular messaging application by 2015-16[8] and has over 2.9 billion users worldwide as of February 2022. It has become the primary means of electronic communication in multiple countries and locations, including Latin America, the Indian subcontinent and large parts of Europe and Africa.[9]YouTube is the second most-visited website after Google search, according to Alexa interent rankings. YouTube allows users to upload, view, rate, share and to playlists, report, comment on videos and subscribe to other users. “Socialmedia plays a vital role in todays’ social life, it isa web-based online tools that enable to people discover and learn new information, share ideas, interact with new people and organizations. More than 46% of people spent 30% of their time in social networking platforms. Nowadays more than 86% of all business have a dedicated to social media platforms as part of their marketing strategy. Almost 60% of marketers are devoting the equivalent of a full work day to social media marketing for development and maintenance. Social media has quickly entered the educational field, it has also introduced online learning, which is becoming more popular among students all over the world.[10] Overall social media can be considered as a foundational shift in daily activities and lifestyles. It is also a step toward a new communication environment.


Media Trials by Social Media – The term trial means and includes that any decision of a court in respect of any suit or proceedings on the basis of sufficient evidence. Trial primarily denotes the function of judiciary, by which they dispose out the fact in issue of parties of the suit. But nowadays this work is being done by broad casting media, print media as well as social media.


In the blind race of TRP the media has ignored the real or true fact, and only distorting imaginary facts are being presented before the viewers. “Social Media trial is wherein the individuals themselves do a separate investigation of facts and form public opinion against the accused even before the court takes cognizance of the case, it creates prejudices in the public and sometimes even judges”.


Social Media trial is a phrase describing by various social media appliances, such as Facebook, Youtube, WhatsApp, Twitter, Instagram etc. coverage on a case through an attempt by such media to hold the accused guilty even before the trials begin in competent court. “The Social Media usually portrays the accuses a villain not based on facts but only to sensationalize the news, which causes damage to the dignity of the accused. Media through their trail attempts to reincarnate itself into a public court and interfere with court proceedings. It fails to analyze the vital gap between on accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and guilt beyond reasonable doubt’.[11]


Not only in personal matter of an individual but also in matter of public importance or public interest social media acts unilaterally in haste without sufficient evidence, which can be very harmful or derogatory to the unity and integrity of the nation. For example, recently, in Banaras, without disclosure of the report of enquiry commission on Gyanvapi mosque, various social media sites had given their verdict, as a result of which Hindu-Muslim organizations as well as the entire country facing the environment of anarchy, a part from this various social media are working to get support to public opinion through online, infavour and disfavour of Mandir-Masjid, whch is not a good sign for the unity and integrity of the country. The case of murder of his mother by a 16 years old boy in Lucknow, is making headlines these days on Social media. Everyday a new facts are coming out in this incident. In the initial days, the media had come to conclusion that the accused boy used to play PUBG and his mother had scolded him hence he did so out of anger. But later stories depict the illicit relationship of the deceased with someone else. Whatever be the case, the character of a person cannot be revealed publicity among the people. This is just against to the dignity of deceased person. No vice journalists or who do not know the law, interfering in the personal matter of people, make them prime news of social media and themselves appear in the role of judge only for the fame of name. Not only this, they create pressure on people for reporting under the privileges assumed by themselves.


In the celebrated case of R. Raj Gopal Vs State of Tamil Nadu[12] popularly known as ‘Auto Shanker Case’ the supreme court has expressly held that ‘Right to privacy’ or the right to be let alone is guaranteed by Article 21 of the constitution. A Citizen has right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for damage, further the court has emphasized that the following cases, viz. a female who is the victim of a sexual assault, kidnapping abduction or a like offences should not further be subjected to the indignity of her name or her photographs and such incident should not published in media.[13] The Social Media trial is an intrusion and an ethical breach as well as an invasion on right to privacy. Recently, a news was circulated on Facebook, in which a 50 years old man is married to a 25 years old girl, they are brutally persecuted and harassed by social media. This incident is just an example. Nowadays hundreds of such incidents are prevalent on social media, and the administration is sitting as silent. It has become a trend that social media performs the function of the judiciary of investigating the truth. But the media mostly fails to bring out the truth and takes its decision only on the basis of presupposition.


‘Families and relatives of people accused of crimes have recently used the influence of social media to reopen proceedings. In the cases of the murder of Jessica Lal, PriyaDarshaniMattoo, NitishKatara, BMW and Aarushi murder, media influence was observed in full swing. In 2015, A Delhi Women, Jasleen Kaur, posted a photo of a man, Sarvjeet Singh on facebook and accused him of sexual harassment. The facebook post went viral which was followed by a media trial labeling the man a ‘pervert’, Delhi kadarinda (The Delhi’s predator). Four years later, the man was later found out to be innocent by the Delhi Court and was acquitted of all the charges. The widespread use of social media influence the legal process. More importantly the regular usage of platforms such as twitter and Facebook represent threats to the fair trial ideal.[14]


Article 19(1)(a) of the constitution guarantees to all citizen ‘the right to freedom of speech and expression. Clause (2) of this article, at the same time provides some restriction on this rights, the freedom of speech and expression is not an absolute right and restriction can be imposed under sovereignty and integrity of India, the security of state friendly relations with foreign states, public order, decency or morality or relation to contempt of court, defamation or incitement to an offence. It maystated that the exercise of right conferred by Article 19(1)(a) carries special duties and responsibilities.[15] Section 2 of the contempt of Court Act 1971 interference in the administration of justice specifically referred to as contempt in the definition of criminal contempt. Social Media reporting is inadmissible evidence and putting it into the public domain, the media draws the judge’s attention to details that are not to be addressed in adjudicating the case and could subconsciously influence the judge’s judgement under our legal system, a suspect/accused has the right to a fair trial and is presumed to be innocent until proven guilty in a court of law. Thus their prejudices emerge as a vice to society that is influences public minds. Sometimes the social media presents the judgement passed by the court in the form of social debates for making them to criticism of public. The most famous example is the Km Nanavati case[16] where the public opinion affected the conviction of the accused.


Impact of Media trial on Legal System

Social Media mostly takes the decision without properly knowing the facts or truth of incident. Due to the thirst and hunger of name and fame, social media often reaches the conclusion hastily, which creates difficulties for the judicial process as well law and society. ‘Trial’ refers to the function of judiciary, it denotes a proceedings which is convened before the court and any decision would be taken by the court on the ground of sufficient evidence. This is an adjudicating process which only exercised by judiciary. The absence of any strict code of conduct, allows people on the social media platforms to be largely active in voicing opinions especially ones that may have an effective role in framing the opinions of others. Ideally, in a democratic society, it is healthy to have a functioning social media for citizens to be able to express opinions freely under the ‘Freedom of speech and expression’ clause. But in the age of prevalence existence of social media, the fact is that many of the news in social media may be paid, fabricated and false. Furthermore, these ‘fictions’ evidence cause defamation to persons who have been acquitted by the courts based on a legal trial and on the grounds of lack of proof beyond reasonable doubt. Because of social media defamation, the accused victims in these cases face difficulty in resurrecting their reputation in society, ultimately jeoparding their rights to dignified life, causing serve psychological and physical harm. Due to absence of cross examination and sufficient evidence, social media sometimes acts to favors for a particular person rather than entire incident of the matter. It may be possible in media trial, to benefit one person at the cost of another, which is against the principle of natural justice. In few years back the law commission report even suggested a law to tackle trial by media. Trial which unprecedently goes over social media can be a contempt of court and even defamation in certain cases. The commission suggested the prohibition of elements that can provide to be prejudicial towards the accused. Justice Sikari even remarked about hard it hits the case when the people on the media decide and publish. What should be the outcome of a case. Trial by social media on private matters of an individual is a violation of their right to privacy, which tarnishes their dignity and reputation in open society. Not only this, in the absence of reality, whatever it shown by media, people accept it as correct, as a result, it led to harm the unity and integrity of nation.


Conclusion and Suggestions

Social media has reached every facet of human activities and become integral part of society. Social media is playing its important role in the society. Social Media has positive impact as well as some negative consequence in society. The cry of ‘fake news’ has become common place and consumer confidence in even traditional media outlets has been significantly eroded. In blind race of TRP the media as well as social media has ignored the ethic and only distorting – imaginary facts are being presented before the viewers. The social media has become accustomed to taking unilateral decisions without scrutiny of facts and cross-examination, it creates prejudices in the public and sometimes even judges. Sometimes media creates doubt the integrity of the judge who delivered the judgement. The trend of social media trial adversely affects the reputation of a person accused of an offence, by its pre-trial publication. It leads to the gross violation of his right to a fair trial, adversely affects the witness and also subconsciously affects the judges and lawyers. Neither a vigilant media can take the place of independent and impartial judiciary, nor judiciary can take the place of free and impartial media. Both are indispensable for the smooth functioning of our democratic tradition and the press should in no way be allowed to jeopardize the functions of the court.


The social media must not forget the social responsibility thrust upon it by respecting the powers of the judiciary as well as the right and dignity of the people in the larger interest of democracy. It must not unduly interfere with the functions of the court, inviting contempt proceedings against the media. The social media must perform the responsibility of restoring and maintaining the faith of the people in the honorable judiciary by restraining itself from unwarranted prejudicial publication which interferes with the fair trial of the accused and the administration of justice. Apart from this, circulation of inaccurate, baseless, graceless, misleading or distorted material on social sites should be a punishable offence. Comment on caste, religion or community, disclosure on social sites should be generally avoided or should be punished. Social media should not show or write anything that would provoke or incite personal violence or injuring on the right to privacy. Paramount interest of state, society and rights of an individuals should not be jeopardized. Violation of right to privacy should be made an offence punishable under the Indian Penal Code.

Besides this a strong legislation is required, by which a reasonable restriction could be imposed on social media. Apart from this social awareness programs as negative impact on society should be organized by NGOs, Govt. and Academic institutions from time to time. The Govt. should constitute an empowered committee to monitor or watch on social media which should give its report to the govt. from time to time.


References [1] AIR 1950 SC 124 [2] Brij Bhushan V. State of Delhi AIR 1950 SC 129, See also Indian Express News Paper V. Union of IndiaAIR 1985 SC614 [3] AIR 1997 SC 73 [4] Kashafmurtaz655@gmail.com, see also Role of Media by Dr. J.S. Chandpuri & Km. Kavita Devi : International Journal of Law management & Humanities Vol. 4, Issue 4 at page 1187 [5] Jyoti Suraj Harchekar – Impact of social media on society IJERT Vol. 6 Issue 07 July 2017 [6] ivypanda.com The Role of Social Media in Modern Society Essay [7] Miller Chance (Dec. 17, 2019) these were the most downloaded app and games of the decade. [8] Leo Sun (Sept. 11, 2015) Facebook Inc’s, WhatsAppHits 907 million users. [9] The Top 500 sites on the Web Alexa Internet. [10] Steemint.com – Social Media in Today’s World@King3071, 57 in #life. [11] https://blog.ipleaders.in/social-media-trails-threat-society. [12] AIR 1995 SC 264 [13] See also section 228-A of IPC 860, which prevent social victimization or ostracism of the victim of sexual offence. This section penalize the identity of victim of sexual crime. [14] Social Media trials : A threat to the society and legal system (blog, ipleaders.in) [15] See also – Constitutional law of Indi : By Dr. Narendra Kumar (Ed. 2019) Allahabad Law agency Faridabad Haryana). [16] Km Nanavati V. State of Maharastra AIR 1959 SC 446.