Balance in Reporting Privacy and Profit

Technology has catapulted the Fourth Estate to First, giving it a first strike capability. But with this power comes responsibility.

By B G Verghese

New Indian Express, 28 October, 2012

The Indian media has come to feel that it is under siege by both Government and the Courts and that it faces an imminent threat to freedom of expression and the citizen’s right to know. This is a rather exaggerated view of the reality, an important part of which is that with rapidly advancing communications technology media has moved from being the Fourth Estate to the First. Its instant, universal and global reach across all jurisdictions has invested it with a degree of power or first strike capability that even Governments and Courts do not possess.

To the ills of official excesses and judicial overreach one must now add an element of media hubris. This has affected orderly governance and social harmony even to the point of threatening institutional integrity and anarchy in the name of popular sovereignty – the citizens absolute and untrammelled right to know, with a TRP/marketing bonus on the side if you don’t mind.

Privacy is a prized individual right, though it is equally established and accepted that the private affairs of public individuals cannot be always or entirely legitimately hidden behind this curtain. Likewise reputation, another precious right, is built on people’s knowledge of a particular individual or institution and so must not only be, but be seen to be, above suspicion. Institutional privacy and reputations cannot therefore be lightly breached by the media without attracting consequences if made public without due diligence in framing or insinuating charges and permitting due process of law where relevant. Thus trail by the media cannot be allowed to result in prior prejudice or a mistrial or justice by a lynch-mob.

Since these cannons of prudent and fair reporting and commentary have increasingly been breached by sections of the media, though not all, it is not surprising that there should be been calls for regulation. Self-regulation is to be encouraged but is clearly insufficient. And the notion that media regulation is absent in democratic societies is a complete myth and betrays a degree of ignorance of about the world in which we live. Despite unfortunate attempts at control from time to time, the Indian media is by and large among the freest in the world and in some ways enjoys or has assumed a degree of licence that is worrying. Thus cabinet papers, file notings, commission reports, CAG findings and the progress of preliminary criminal investigations are often prematurely leaked and revealed with impunity and immunity all round. Much of this is obviously motivated by disgruntled elements or vested interests with the intent to shift the focus of attention, rewrite the agenda, promote red herrings and mislead public opinion at the cost of innocent victims. Whistle blowers and, in special circumstances, genuine sting operators acting out of public interest need protection.

It is for this reason that the Supreme Court has opined that if a trial court magistrate senses danger of mistrial, he/she may approach a superior court to order that part or aspects of the trial shall not be reported in the interests of justice. This is unlikely to be an everyday experience and it is not the case that the superior courts will in all cases blindly accede to the lower court’s request. The Courts have over the ears been zealous protectors of press freedom and have expanded its width and ambit. It would therefore be churlish to suspect mala fides on their part.

Rather more controversial nevertheless, but not without reason, is the Supreme Court’s direction that RTI Commission benches should include persons with judicial backgrounds as issues of law and legal interpretation are involved. These directives are not intended to usurp power or curb RTI but are intended to streamline processes. How to constitute selection panels needs to be settled. These issues may certainly be debated but should not be rejected ab initio. Civil servants are admirable people with great and wide experience. But they are not the sole font of wisdom.

Objection has also been taken to the Prime Minister’s caution that RTI cannot prevail over the right to privacy and that it should not be used for vexatious queries and fishing expeditions. These observations too are not without merit as also his observation that public-private partnerships to serve a public purpose may also need some protection so as not to undermine the public interest even as blanket exclusion could undermine the accountability of public officials.

The expert group on the right to privacy headed by Justice A.P. Shah has reported that invasion of an individual’s right to privacy may be condoned if this is occasioned by “journalistic purpose” and the citizen’s right to know. However, the committee has left it to the Press Council and Indian Broadcast Standards Associations to determine whether and what public purpose is involved. While this process will throw up a body of case law in due course, it would be more satisfactory were there clear guidance on what constitutes public purpose if and when the media invades privacy. Here again, the values of a free press versus that of a fair trial must be delicately balanced.

We have before us recent cases like those of Salman Khurshid, Robert Vadra and Nitin Gadkari in all of which personal relationships to persons in high places has been cited as validating the concept of public purpose. However, the answer here in each case would be to issue a public contradiction, seek redress from available media councils or file a defamation suit. Salman Khurshid and Navin Jindal, Congress M.P. have both straightforwardly sued their tormentors. Robert Vadra strangely left his defence to the Congress Party and the Haryana Government, after a puny personal effort on his own. This, in a sense, has in some ways justified what his critics allege is the public nexus to which they point.

Nitin Gadkari has been both defended and ignored by the RSS and BJP, but the Party’s President is not helped by the repetition of his own statement in the case of Yeddyruappa to the effect that the then Karnataka chief minister’s action in the mining scam was immoral though not illegal. Equally disturbing has been Congress general secretary, Digvijaya Singh’s remark in defence of Vadra to the effect that the Congress also knew about certain improprieties committed by Vajpayee’s adopted son and Advani’ daughter but the Party never washed rival leader’s family dirty linen in public. Is that morality does not matter for one while the other observes a strict code of honour among thieves. Are these to be our standards of public life?

As a footnote, let us note events. First, the Jindal vs Zee TV case shows that paid news and private treaties continues to flourish to the media’s enduring shame. And secondly, the latest ADR analysis of the self-certified assets of election candidates across parties in Himachal shows both wealth running into crores, in some cases revealing a doubling and more of the assets of re-contesting candidates, and self-certified charges of serious crime in an uncomfortably large number of cases. Himachal seems to be growing truly Golden Apples this season!

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