PAID NEWS: A HURDLE IN FAIR ELECTION
Author: Pooja, pursuing B.A.,LL.B. from Amity Law School Delhi, Affiliated to G.G.S.I.P.U
“The Ballot is stronger than the Bullet”
- Abraham Lincoln
India is the world‘s largest democracy. A vibrant and diverse mass media is an important pillar of democracy in the country. As rightly quoted by Abraham Lincoln, the democracy means rule of the people by the people and for the people. In the democratic setup it is the people who elect their candidate and that elected candidate joins the governing process on behalf of the people. It is therefore very important that the people should select the candidate with utmost care and caution, as their future will be in his or her hands for a considerable period.
Human beings are inquisitive by nature. The tendency to know about the events and changes taking place in its environment is a part of its nature. And therefore media plays a very important role in shaping the minds of the people. Media, which is considered as the fourth pillar of democracy, not only acts as a repository of public trust but also plays a significant role in shaping the human mind. The media virtually controls the minds of the people.
Media is therefore regarded as a powerful tool in democracy. It is also regarded as a watch dog of democracy. Since the power of media is immense, it has a crucial role to play in a democratic setup, especially in country like India.
In past two decades many cases of paid news have been reported, but due to the lack of strong evidence and strict laws many a times no firm actions are taken in such cases. Paid news is an ugly picture of the media. Paid news is a new phenomenon in Indian Media, or we can say mal–practice of media, earlier it was not recognized but now we can assess easily.
In a democratic country like India paid news may be crime against democracy, it is against the right to information, in which information may be corrupt by paid kind of news which hurts the decision making power of the citizen.
Media was recognized as 4th pillar of democracy if it would be corrupted then rule of law will demolish a concern for the entire nation or society. Rapidly changing phase of media into a profit making industry has changed its role and is a means of profit earning venture.
The issue of paid news has been debated for a long time, most recently during the 2012 Gujarat assembly elections, the Jindal Steel-Zee News dispute and disqualification of a sitting UP MLA by the Election Commission of India (ECI) in October 2011 and these cases of paid news rapidly increasing with time as the role of media during election in increasing day by day other than media now we also have social media and today’s election is becoming social media election. Recently in the 2019 Lok Sabha elections a total of 647 cases of paid news have been registered while 909 social media posts were removed from various social media platforms[i].
In this article, I tried to address the issue of paid news in election in India and for this I attempt to analyze, concept of paid news, cause of paid news, implications of paid news, existing laws and framework regarding paid news at the same time also focused on judicial decision and the reports of various committees and commission with a final note of recommendations and conclusion.
CONCEPT OF PAID NEWS
Paid news means publishing any favorable content to any one or publishing any content which will cause prejudice to someone, for the benefit of some other one, at the instance of the latter for exchange of money or other favors. With regard to Paid News, the Election Commission has accepted the definition given by Press Council of India.
The Press Council of India defines the concept of paid news as “as any news or analysis appearing in print or electronic media for consideration in cash or kind”[ii]. Paid news is always undermines the democratic spirits as it misleads the public and making them form an incorrect opinion. It also causes undue influence on voters, who are supposed to be the real rulers in any democratic country. It helps the candidate to spend extra on election campaign, as the amount paid to media to get a favorable coverage is not calculated in the election expenses made by that candidate, who pays media for a favorable coverage.
According to Press Council of India (PCI), “Paid News” has acquired different forms over last six decades from accepting gift on various occasions, foreign and domestic sponsored travels, besides benefits and payment of money. In addition, few stakeholders have cited examples of award ceremonies being sponsored by some media houses wherein industrialists/professionals/personalities, who are the sponsors/regular advertisers for their media houses, are awarded and this is a regular news phenomenon[iii] . According to former Chief Election Commissioner, Shri T. K. Krishnamurthy,
“Paid News” is only one aspect of the problem. We have heard a few cases where the Journalists blackmail the contesting candidates stating that if they are not properly rewarded monetarily or otherwise they would boycott publishing about them or deliberately spread news against them. Here there is no payment as such but it is vindictive action for nonpayment. It would be very difficult to prove the offence here unless and until there is evidence of the blackmail. This seem to be more prevalent in regional papers.”[iv]
CAUSES OF PAID NEWS
Some of the following cause of paid news may be the following:
A. JOURNALISTS AND REPORTERS ARE UNDER PAID
The journalists and reporters are underpaid. Most of the media personnel get a very less wages. Many journalists or reporters work on commissions or on contract basis. On this issue, a former PCI member, Shri Y.P. Halan stated that media owners themselves take the money and the whole system of “Paid News” has become institutionalised[v].
In the same context, Press council of India, in its Sub-committee Report on “Paid News” relating to 2009 General Election, suggested the following:- “Media organizations should refrain from the practice of engaging stringers and correspondents who double up as agents collecting advertisements for their organizations and receiving a commission on the revenue that accrue from advertisements instead of receiving stipends or retainers, if not, regular salaries. If working conditions and conditions of job security for journalists are improved and the autonomy of the editorial staff upheld in media companies, this would to an extent curb the phenomenon of paid news”[vi]
B. PRIVATE TREATIES
Private Treaty is an agreement between the media company and another non-media company in which the - latter transfers certain shares of the company to the former in-lieu of Advertisements, space and favorable coverage. “Private Treaties” are another form of paid news and they militate against the rights of people to be informed accurately and truthfully. This syndrome has been brought to the notice of the Press Council by the Securities and Exchange, Board of India (SEBI).
C. LACK OF AUTONOMY OF THE JOURNALISTS
In most cases, the managers of a media house strike a deal with a party to publish paid news, who then force their editors to cover news in favour of the entity that pays them. Thus, journalists are reduced to work as marketing agents, advertising copywriters, etc. The managers, instead of the journalists, play a more influential role in the selection and presentation of news from which revenue would be generated. Such interference sours the relationship between management and journalists and leads to a toxic work environment.
D. LACK OF CLEAR DISTINCTION BETWEEN EDITORIAL SECTION AND MANAGEMENT
The primary cause for erosion of independence is journalism is contract system employment. Because of this the status of journalist was reduced to marketing agents. Political parties, leaders, self-proclaimed religious leaders, corporate houses etc. make agreements with the owners of newspapers and TV channels. In exchange of money these newspaper and television channel publish reports in their favour. Advertisements are presented before the readers and viewers in the form of news, analysis, special reports etc. The reader or viewer does not realize the fact that it is not independent assessment; rather it is published in exchange of money.
IMPLICATION OF PAID NEWS
Incidents of paid news are arising both during election and non election time. However its impact on general public comes in big way during elections in India. The effects of election time paid news phenomena as enumerated by the PCI in its report of 2009 are as follows[vii]
The reader or the viewer does not get a correct picture of the personality or performance of the candidate in whose favour or against he decides to cast his vote. This destroys the very essence of the democracy.
Contesting candidates perhaps do not show it in their election expense account thereby violating the Conduct of Election Rules, 1961 framed by the Election Commission of India under the Representation of the People Act, 1951.
Those newspapers and television channels which received money in cash but did not disclose it in their official statements of accounts have violated the Companies Act 1956 as well as the Income Tax Act 1961 besides other laws.
Paid News in the General and Assembly Elections have indicated as to how democratic process is being affected by this syndrome. The impact of paid news is such that people blindly trust the politicians or parties and also take decisions to buy any product or service on the basis of false information without considering its authenticity.
As a result, consumers are deceived and honest entrepreneurs who focus on building product quality is also at loss. In this way through paid news, those candidates who spend more money on paid news during elections are brought ahead of the qualified candidates and thus paid news is a major obstacle in the path of fair elections in India. Because of paid news criminal undeserving candidate move forward in the elections and this way it destroy or damage the five years of any area. In such a way paid news is weakening the democratic system of our country.
EXISTING LAW AND LEGAL FRAMEWORK
A. ARTICLE 19(1) DOES NOT AFFORD PROTECTION TO PAID NEWS
The argument in favour of paid advertising lies in the protection of freedom of expression. Political parties should not be limited in their right to have access to the media and any kind of restrictions on paid advertising should be considered a limitation of the individual right t freedom of expression. However, paid news cannot claim the same protection. Paid news, by the implication of the definition coined by the Ministry of Information and broadcasting, falls within the ambit of commercial speech which refers to any speech which proposes a commercial transaction[viii].
The commercial speech also falls under the ambit of free speech and expression under Art 19(1) of the constitution. However the right to freedom of speech and expression entails with it a significant corresponding right to information[ix]. It further held that when medium of information is monopolized or influenced either by an authority or private individuals, the democracy is threatened[x]. Hence the paid news is not protected as free speech under Art 19(1) of the constitution.
B. PAID NEWS AS A CORRUPT PRACTICE
Section 123(4) of the Representation of People’s Act ( RP Act) provides that “The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of the candidate‘s election.”
Though Section 123 does not attract penal consequences, it provides sufficient ground for disqualification. Section 8A of the Act, under Chapter III provides for disqualification for membership on account of corrupt practices. To indicate a candidate under this charge, it is essential that the impugned material is untrue. The rationale behind regulating the practice of paid news is not the veracity of the stated facts, but the misrepresentation of it in the form of news.
C. RESTRICTION ON ELECTION EXPENSES
Section 77 of the RP Act mandates every candidate to keep account of expenses in connection with elections. Section 10A provides that in case of suppression of election expenditure or on account of failure to lodge an account of the same, the candidate is liable to be disqualified for a period not exceeding three years. The requirement of lodging such accounts subjects the candidates to disclose the advertisement expenditure. The provision does not directly deal with political advertising or paid news. However, placing restrictions on election expenses contributes in checking excessive political advertising.
D. DISCLOSURE PROVISION
Paid news is a commercial transaction and it is interpreted as ‘other document’ under section 127 A(3)(b) of the RP Act . Disclosure of those documents and transactions to the ECI is mandatory under RP Act. Mandating disclosure provisions would enable identification of paid news. A disclosure provision correspondingly acts as a disclaimer for the media houses. It reflects that the association between the candidate and the channel/newspaper is purely commercial and that the displayed content has been sponsored.
The Supreme Court of India in Ministry of Information and Broadcasting Vs M/s Gemini TV Pvt Ltd and others[xi] held that that all the political advertisements proposed to be issued on TV Channels and Cable Networks by any registered political party/any group or organization/ association/individual candidate shall be pre-certified by the designated certification committee at various levels to be constituted by the Election Commission of India. Consequent upon the Supreme Court judgment, the Election Commission issued an order vides its letter dated 15th April 2004 to the CEOs of all the States/UTs to constitute such committees.
In the case of Smt. Umlesh Yadav v. Election Commission of India[xii], but for the first time, the untruth of a candidate is unraveled and an elected candidate Ms. UmleshYadav, a sitting MLA from Bisauli in UP is disqualified under section 10 A of the Representation of People‘s Act1951 for a period of three years for failing to provide a true and correct account of her election expenses. She approached the Allahabad High Court regarding this matter, which upheld the decision of ECI and disqualified her from contesting elections.
The scope of the above section 10A came to be considered by the Supreme Court. The Supreme Court held that an incorrect or untrue account of election expenses could not be said to have been lodged in the manner required by law and that the Election Commission could go into the question of the correctness or falsity of account of election expenses lodged by a candidate under the said section 10A[xiii].
RECOMMENDATIONS OF COMMITTEES AND COMMISSIONS
A. PRESS COUNCIL COMMITTEE ON PAID NEWS
After 2009 general elections and later during Maharashtra legislative assembly elections, much heated debate and discussion revolved around these issues saying that prominent newspapers and news television channels have sold off their news space and earned crores of rupees during the elections. Keeping this in mind, the press Council of India constituted a committee to investigate on matters related to paid news.
A two member sub-committee comprising of Shri Paranjoy Guha Thakurta and Shri K..Sreenivas Reddy presented a unique report examining the phenomenon of paid news observed during the LokSabha elections. However surprisingly The Press Council of India (PCI) has decided not to forward the detailed report on “paid news”, prepared by its sub-committee, following divisions within the Council, with some members objecting to the fact that specific media houses had been identified as offenders in that document. Mr. Thakurta said he was disappointed that the meeting decided not to annexe the sub-committee’s report. “I argued that it is important to make the report public through which we might shame those in the media responsible for this pernicious practice[xiv].
The report recommend that The Press Council of India should constitute a body of mediaprofessionals with wide representation at the national/state/district levels to investigate either suo moto or on receipt of complaints of instances of “paid news” and the recommendations of such a body after going through an appellate mechanism should be binding on the Election Commission of India and other government authorities. Other than this the report also recommends several suggestions to curb the cases of paid news
B. STANDING COMMITTEE OF LOK SABHA-47TH REPORT OF INFORMATION TECHNOLOGY
The Department-Related Parliamentary Standing Committee on Information Technology presented its 47th report on the “Issues Related to Paid News” in the Lok Sabha on May 6, 2013.The Committee is headed by Mr. Rao Inderjit Singh.
The Committee recommended establishment of either a single regulatory body for both print and electronic media or enhancing punitive powers of the PCI and setting-up a similar statutory body for the electronic media. Such regulator(s) should have the power to take strong action against offenders and should not include media owners/interested parties as members.
The Committee observed that existing penal provisions have not served as an effective deterrent for the practice of paid news and stricter penal provisions are needed. The Committee recommended that the ECI (Election Commission of India) should have the authority to take punitive action against electoral candidates in cases of paid news. It endorsed the ECI’s proposed amendments to the RP Act and urged the government to provide the ECI with more powers to deal with paid news.
The Committee expressed concern that the Ministry of Information Broadcasting (MoIB) and self-regulatory bodies have not conducted any study to evaluate the mechanism adopted by other countries to tackle the problem of paid news. Taking note of the Justice Leveson Report on the press and existing regulatory structure in the UK, it asked the MoIB to consider the report’s recommendations and progress of their implementation while dealing with the issue.
C. ELECTION COMMISSION OF INDIA ( ECI)
The ECI issued a circular dated August 27, 2012 that comprised a comprehensive set of guidelines on paid news. They were further incorporated in the Handbook for Media for the Lok Sabha General Elections, 2014.
The ECI proposed an amendment to the RP Act to provide that publishing and abetting the publication of ‘paid news’ for furthering the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate be made an electoral offence under Chapter III of Part VII of the Act with a punishment of a minimum of two years imprisonment[xv]
D. TELECOM REGULATORY AUTHORITY OF INDIA ( TRAI)
TRAI, in August 2014, provided a set of recommendations pertaining to media ownership wherein it emphasized that paid news should be defined comprehensively and a framework should be established for examining complaints and taking punitive action against the defaulting media entities. It noted that there is little doubt that an institutional response addressing both substantive and procedural issues including evidentiary rules is needed to curb the menace[xvi]. It strongly recommended that entities related to political bodies, religious bodies, urban local governing bodies, Panchayati Raj, other publicly funded bodies, and Central and State Government ministries, departments, companies, undertakings, joint ventures, and government funded entities and affiliates barred from entering into broadcasting and TV channel distribution sectors. Further, it also suggested that the Press Council of India must be fully empowered to adjudicate the complaints of “paid news’ and give final judgments in the matter.
E. 20TH LAW COMMISSION REPORT
In March 2015 Justice Ajit Prakesh Sah , Chairman of Law commission Submitted 255th Report titled Electoral reform to Minister of Law and Justice. Report Fist time included it in Chapter VI, Paid News and Political Advertising, In this report Election Commission’s View was recognized and consider as electoral offence, and recommended as amendment in Chapter III of part VII of Representation of people Act 1951, the pattern to be adopted are using the existing mechanism of expenditure ceiling to curb the menace[xvii].
The present media revolution has helped people in making an informed decisions and this has led to the beginning of the new era in the democracy. Today, we are living in the world, where media is nominated increasingly. The mass media has an iron grip as well as the thinking facilities of society. The media has its negative and positive effects but, politics would not be what it is without the media. Media acts as an interface between a citizen and the Government.
Media is a very powerful tool, with the ability to make and break the opinion of common man. It has the capacity to charge perceptions or evoke emotions. This is what it has gained faith of public.
The conclusion drawn from this study on paid news is that paid news is a phenomenon that tries to portray lies and half-truths and depict them as complete truth. This offence is done with the objective of presenting or publishing advertisements in the form news content in order to benefit a corporate entity, political organization, group or a person. The study has clearly revealed the fact that paid news has not only affected the readers / viewers, honest producers and political parties but the credibility of whole media has suffered greatly.
Earlier people used to believe everything they read or watched, but with the advent of paid news, many people do not believe in the news broadcasted or published by media. Media has lost the trust of a large proportion of its readers and viewers. This situation is no less than an alarm of danger to the state of media.
Therefore there is immediate need of criminalization of paid news for this firstly we need amendment in Representation of People Act and Indian Penal Code (IPC) other than this there is need of effective implementation of law because law is nothing without its implementation
[i] https://www.business-standard.com/article/news-ani/647-cases-of-paid-news-registered-during-ls-polls-eci-119051900696_1.html [ii] Standing Committee of Lok Sabha-47th report of Information Technology , May 2013 Page no. 10 [iii] ibid at Page No. 6 [iv] ibid at Page No. 6 [v] Standing Committee of Lok Sabha-47th report of Information Technology , May 2013 Page no. 17 [vi] ibid at Page No. 19 [vii] Press Council of India Report on Paid News dated : 30/07/2010 at Page no 5 [viii] Tata Press Ltd v. Mahanagar Telephone Ltd., AIR 1995 SC 2438 [ix] P.V. Narsimha Rao v State (1998) 4 SCC 626 [x] Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Anr, (1995) 2 SCC 161 [xi] (2004) 5 SCC 714 [xii] Writ (Civ) No. 63965 of 2011 (All HC) [xiii] LR Shivaramagowda v. TM Chandrasekhar (AIR 1999 SC 252) [xiv] https://www.thehindu.com/news/national/PCI-sidelines-sub-committee-report-on-ldquopaid-newsrdquo/article16215657.ece [xv] Handbook for Media, General Election to the 16th Lok Sabha, 2014, Election Commission of India, para 3.5 . [xvi] Recommendations on Issues Relating to Media Ownership, August 12, 2014, at para 5.68. [xvii] Law Commission Of India Report No.255, Electoral Reforms available at https://lawcommissionofindia.nic.in/reports/Report255.pdf