Module 2

MODULE 2

PRESS, MEDIA AND BROADCASTING REGULATIONS

2.1 HISTORY AND EVOLUTION OF PRESS FREEDOM IN THE UNITED KINGDOM
The history of journalism in the United Kingdom includes the gathering and transmitting
of news. It spans the growth of technology and trade, marked by the advent of specialized
techniques for gathering and disseminating information on a regular basis. In the analysis of
historians, it involves the steady increase of the scope of news available to us and the speed with
which it is transmitted.
Newspapers have always been the primary medium of journalists since 1700, with magazines
added in the 18th century, radio and television in the 20th century, and the Internet in the 21st
century.
Freedom of the press or freedom of the media is the principle that communication and
expression, through various media, including printed and electronic media, especially published
materials, should be overreaching state; its preservation may be sought through constitutional or
other legal protections.

With respect to governmental information, any government may distinguish which materials are
public or protected from disclosure to the public. State materials are protected due to either of
two reasons: the classification of information as sensitive, classified or secret, or the relevance of
the information to protecting the national interest. Many governments are also subject to
sunshine laws or freedom of information legislation that are used to define the ambit of national
interest.
The United Nations' 1948 Universal Declaration of Human Rights states: "Everyone has the
right to freedom of opinion and expression; this right includes freedom to hold opinions without
interference, and to seek, receive, and impart information and ideas through any media
regardless of frontiers”1

1 Article 19, Universal Declaration of Human Rights.

This philosophy is usually accompanied by legislation ensuring various degrees of freedom
of scientific research (known as scientific freedom), publishing, and press. The depth to which
these laws are entrenched in a country's legal system can go as far down as its constitution. The
concept of freedom of speech is often covered by the same laws as freedom of the press, thereby
giving equal treatment to spoken and published expression.

The Glorious Revolution of 1688 in England established parliamentary sovereignty over the
Crown and, above all, the right of revolution. A major contributor to Western liberal
theory was John Locke. John Locke came up with the theory of a social contract which was
entered into by the people with the Government. He argued that the individual placed some of
his rights in trusteeship with the government in return for protection of certain natural individual
rights. He called this the ‘Two Treatises of Government.’

Until 1694, England had an elaborate system of licensing. No publication was allowed without
the accompaniment of a government-granted license.

For example, if any newspaper were to be published or any pamphlet was intended to be
circulated or for that matter any and all types of publications distributing information, they had to
obtain a license from the government to do the same.

Fifty years earlier, at a time of civil war, John Milton wrote his pamphlet Areopagitica. In this
work, Milton argued forcefully against such a type of government censorship and propagated the
idea, writing "when as debtors and delinquents may walk abroad without a keeper, but
inoffensive books must not stir forth without a visible jailer in their title.”2 The question which
he was trying to ask was why were books (information) being guarded like criminals, when
actual criminals were walking the streets with all freedom. Although at the time it did little to
halt the practice of licensing, it would be viewed later as a significant milestone as one of the
most eloquent defenses of press freedom.

Milton's central argument was that the individual is capable of using reason and distinguishing
right from wrong, good from bad. In order to be able to exercise this ration right, the individual
must have unlimited access to the ideas of his fellow men in “a free and open encounter." From

2 John Milton, Areopagitica: And, of Education (Oxford University Press 1973).

Milton's writings developed the concept of the open marketplace of ideas, the idea that when
people argue against each other, the good arguments will prevail.

For example, it is known that the crime of rape is a menace to society at large. In order to
determine the question of whether there should be a special provision of death penalty for
commission of rape, debate has to be pursued, so that free thinking men and women could raise
questions in society being individual and proper representatives of it in order to decide which
laws they want to be governed by. But, if the government tomorrow stifles all discussion on the
subject of rape because they seem to disagree with the general opinion of the public, that would
ultimately harm progress of developing laws which the people actually want to be governed by.
One of the key elements of a democratic nation should be that the people in it have the right to
publicly express their opinion, so that debate pursues determining important facets of society,
which affect every person and his or her way of life.

One form of speech that was widely restricted in England was seditious libel, and laws were in
place that made criticizing the government a crime. The King was above public criticism and
statements critical of the government were forbidden, according to the English Court of the Star
Chamber. Truth was not a defence to seditious libel because the goal was to prevent and punish
all condemnation of the government.

Laws and regulations are created for the welfare of well minded people and also those who
endeavor to develop a civilized society at the behest of reasonable restraint and control. Thus, the
public selects a few people who they think are qualified enough to make these rules and
regulations for them and also give them the power to lead and enforce. But, if it is said that such
governance would apply only to the governed and not the governing, then the concept of
democracy would be absolutely unfounded. “Absolute Power corrupts, absolutely.”

John Stuart Mill approached the problem of authority versus liberty from the viewpoint of a 19th
century utilitarian: The individual has the right of expressing himself so long as he does not harm
other individuals. The good society is one in which the greatest number of persons enjoy the
greatest possible amount of happiness. Applying these general principles of liberty to freedom of
expression, Mill states that if we silence an opinion, we may silence the truth. The individual
freedom of expression is therefore essential to the well-being of society.

Mill’s application of the general principles of liberty is expressed in his book On Liberty: "If all
mankind minus one, were of one opinion, and one, and only one person were of the contrary
opinion, mankind would be no more justified in silencing that one person, than he, if he had the
power, would be justified in silencing mankind".

Today the United Kingdom prides itself as one of the nations with the maximum freedom of
speech and expression.3 It is no doubt one of the most technologically advanced countries too.
But, lately press freedom has been generating a lot of debate in the UK. It is marred with
instances of journalists adopting illegal ways to source information, such as accessing call logs
and text messages of citizens, thereby infringing privacy and data laws. In wake of the latest
scandals and spread of internet media, the country has been pushed to rethink its laws of press
freedom. It is logical to come to the conclusion that freedom of speech should be subject to few
reasonable restrictions (like defamation and obscenity etc.) and should not stifle public opinion
as the free flow of expression is healthy for a robust democracy. But in the wake of the internet
and in the age of smart-phones where everyone, including you and I can start publishing by the
click of a mouse sitting in our private rooms, it has become extremely necessary to reconsider
the basic exceptions to free speech and put them to the test of the internet and new age media.

2.2 PRESS FREEDOM IN THE UNITED KINGDOM

Media content regulation in the UK revolves primarily around codes of practice. These are
drawn up after wide public consultation by various bodies which are either entirely or largely
independent. In some cases, these codes of practice have been developed by bodies with
statutory powers over the media while in others the responsible bodies have been established by
the media or journalists themselves. In addition to these codes, the broadcast media are also
subject to a small number of specific content rules and all media are subject to laws of general
application, such as those relating to defamation, obscenity and hate speech.4

3 Freedom House "United Kingdom." Accessed June 13, 2013. http://www.freedomhouse.org/country/united-
kingdom.
4 Toby Mendel, MEDIA REGULATION IN THE UNITED KINGDOM, Article 19 at
<http://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf> ." Accessed June 21, 2013.

The print media is entirely self-regulating in the United Kingdom and operates free of any
specific statutory rules. The profession has established the Press Complaints Commission on its
own initiative, and this body has developed a code against which to measure journalistic
standards.

For the broadcast media, the Communications Act, 2003 establishes a regulatory body by the
name of Ofcom (Office of Communication). The purpose of the Act is to make provisions about
the regulation of the provision of electronic communications networks and services and of the
use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and
of the provision of television and radio services; to make provision about mergers involving
newspaper and other media enterprises and, in that connection, to amend the Enterprise Act
2002; and for connected purposes.5

Ofcom is the communications regulator. It regulates the TV and radio sectors, fixed line
telecoms, mobiles, postal services, plus the airwaves over which wireless devices operate.6

It makes sure that people in the UK get the best from their communications services and are
protected from scams and sharp practices, while ensuring that competition can thrive.

The Communications Act, 2003 says that Ofcom’s general duties should be to further the
interests of citizens and of consumers. Accountable to the Parliament, Ofcom is involved in
advising and setting some of the more technical aspects of regulation, implementing and
enforcing the law.

Ofcom is funded by fees from industry for regulating broadcasting and communications
networks, and grant-in-aid from the Government.

The various codes of conduct in place in the UK generally provide guidelines for media
professionals, rather than setting clear prohibitions on specific types of content. They represent
an attempt to provide some guidance to the media recognising, however, that the world is almost
infinitely complex and that it is simply not possible to provide clear rules about what is and what
is not allowed in all situations. A variety of competing interests will generally be in play,

5 Communications Act, 2003 available at <http://www.legislation.gov.uk/ukpga/2003/21/contents> Accessed
June 13, 2013.
6 Ofcom. "Ofcom | About." Accessed June 21, 2013. http://www.ofcom.org.uk/about/.

including the public’s right to know, the practical realities of life in the media, particularly the
need to publish in a timely fashion, and various private interests, such as privacy. The need to
balance these competing interests means that the various codes draw heavily on constantly
evolving “community standards” and the concept of the “public interest”. The guidelines are not
laws and, to a significant extent, their proper application depends upon the media maintaining
constant awareness of the prevailing public “mood”, or community standards as broadly
reflected in the codes. This allows them to be flexible and to give the media the space to decide
how it wants to approach difficult issues.7

For these reasons, the codes are almost inherently vague. As a result, there is a great deal of
scope for varying interpretation and application in practice. This means that regulatory and
standard-setting bodies have considerable leeway when measuring the performance of the media
against the standards in the codes. This places a heavy onus upon these bodies who must, on the
one hand, decide whether to uphold complaints from the public and, on the other, be fair and
clear in their dealings with the media.8

2.2.1 Press Complaints Commission

Set up in 1991, the PCC is an independent body which administers the system of self-regulation
for the press. It does so primarily by dealing with complaints, framed within the terms of the
Editors' Code of Practice, about the editorial content of newspapers and magazines (and their
websites, including editorial audio-visual material) and the conduct of journalists. It can also
assist individuals by representing their interests to editors in advance of an article about them
being published.9

In order to avoid the creation of a statutory council, a committee of editors of various press
organs met and set up the Press Complaints Commission in early 1991. A Code of Practice for
the press was drawn up by the committee of editors and all British editors and publishers
committed themselves to upholding the code. A levy on newspapers and periodicals was

7 Toby Mendel, MEDIA REGULATION IN THE UNITED KINGDOM, Article 19 at
<http://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf> ." Accessed June 21, 2013.
8 ibid.
9 Press Complaints Commission at <http://www.pcc.org.uk/AboutthePCC/WhatisthePCC.html> (accessed on 10th
June 2013.

established to fund the PCC and it was established that a majority of those on the PCC would be
lay people. The main purposes envisaged for the PCC were to set high standards for the practice
of press journalism, to disseminate and promote those standards, including through the training
of journalists, to receive complaints against press organs and adjudicate on them, and generally
to ensure that the highest standards of journalism are upheld by the British press.10

The current Code of Practice contains 16 articles dealing with a wide range of issues, including
accuracy, privacy, harassment, intrusion, children, listening devices, discrimination, confidential
sources and payment for articles. Seven of these articles are subject to a public interest
“override” whereby the stated rule may be overcome or modified where it is in the public interest
to do so, taking into account all the circumstances. The application of the public interest override
necessarily leaves a wide scope to the PCC when interpreting the Code.

Anyone can make a complaint to the PCC alleging a breach of the Code of Practice by a
Newspaper or a Magazine. Complaints are free and do not require any legal representation.11

For example, if in the UK a citizen is aware that a newspaper or a magazine and its writer/writers
have breached the Code of Practice, then such a citizen can directly file a complaint with the
PCC, absolutely free of official cost and without the need for legal assistance or representation.

The Press Complaints Commission is a self-regulatory body and is not a statutory body. The
website of the PCC states that - The PCC is an independent body which administers the system
of self-regulation for the press which was set up in the year 1991. It does so primarily by dealing
with complaints, framed within the terms of the Editors' Code of Practice, about the editorial
content of newspapers and magazines (and their websites, including editorial audio-visual
material) and the conduct of journalists.

On reading the above paragraph and on reading the purpose of the Communications Act, 2003, it
is clear that the act is for the regulation of mainly the broadcasting segment, including all
electronic communications networks and services and the PCC is a body which mainly deals

10 Evan Ruth (Legal officer at Article 19) , Media Regulation in the United Kingdom at
<http://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf> (accessed on 10th June 2013).
11 Press Complaints Commission at <http://www.pcc.org.uk/AboutthePCC/WhatisthePCC.html> (accessed on 10th
June 2013).

with editorial content of newspapers and magazines including their websites and editorial audio-
visual material by self-regulating the ethics of editors and journalists.

2.3 OFCOM AND THE COMMUNICATIONS ACT, 2003
The legal duties of Ofcom are to ensure that:12
● the UK has a wide range of electronic communications services, including high-speed
services such as broadband;
● a wide range of high-quality television and radio programmes are provided, appealing to
a range of tastes and interests;
● television and radio services are provided by a range of different organisations;
● people who watch television and listen to the radio are protected from harmful or
offensive material;
● people are protected from being treated unfairly in television and radio programmes, and
from having their privacy invaded; and
● a universal postal service is provided in the UK – this means a six days a week,
universally priced delivery and collection service across the country; and
● the radio spectrum (the airwaves used by everyone from taxi firms and boat owners, to
mobile-phone companies and broadcasters) is used in the most effective way.
The areas which Ofcom does not regulate are:
● Disputes between customers and telecom providers;
● Premium-rate services, including mobile-phone text services and ringtones;
● The content of television and radio adverts;
● Complaints about accuracy in BBC programmes;

12 Ofcom, About us, at < http://www.ofcom.org.uk/about/what-is-ofcom/> (accessed on 10th June 2013).

● The BBC TV licence fee; or

● Post offices; or

● Newspapers and Magazines

It is clear from the above points that Ofcom as a regulator does not regulate newspapers and
magazines, but it states that one of its legal duties is to ensure that people who watch television
and listen to the radio are protected from harmful or offensive material and also to ensure that
people are protected from being treated unfairly in television and radio programmes, and from
having their privacy invaded.13

These duties mentioned above expressly state the mediums of radio and television and do not
mention internet or other electronic mediums.

Example, if a person in the UK is offended by certain content on television or radio, he/she can
approach the Ofcom and give notice to the office of such offending material being broadcasted.

One of the most important functions of the Communications Act is the establishment of a
Content Board to advise Ofcom, and undertake functions on their behalf, in relation to the
content of anything broadcast or otherwise transmitted by means of an electronic
communications network and in relation to media literacy.14

The Content Board is a committee of the main Ofcom Board, with delegated and advisory
responsibility for a wide range of content issues, predominantly dealing with broadcasting. It is
set up under statute, specifically Section 12(1) of the Communications Act 2003.

The Ofcom Board will seek advice and recommendations from the Content Board on any
content-related aspects of decisions it has reserved for itself. All other content-related decisions
are delegated to the Content Board

The Content Board serves as Ofcom’s primary forum for the regulation of television and radio
quality and standards. It is charged with understanding, analysing and championing the voices
and interest of the viewer, the listener and citizen.

13ibid.
14 Legislation.gov.uk. "Communications Act 2003 - Explanatory Notes." Accessed June 13, 2013
http://www.legislation.gov.uk/ukpga/2003/21/notes/division/2.

It will examine issues where the citizen interest extends beyond the consumer interest, with focus
on those aspects of the public interest which competition and market forces do not reach.

Content Board members will consider content issues in three categories:

Tier 1 concerns negative content regulation. It covers matters principally concerning harm
and offence, accuracy and impartiality, fairness and privacy.

Tier 2 relates to quantitative matters, such as quotas for independent television production,
regional production and original EU/UK production.

Tier 3 covers the public service broadcasters; and in this context Ofcom has particular
responsibility for ITV, Channel 4 and Five.

Members will also consider format regulation for radio and will advise the Ofcom Board on
other issues as required.

The majority of Content Board members are part-time and drawn from diverse backgrounds
across the UK. Four are appointed to represent the interests and opinions of people living in
Scotland, Wales, Northern Ireland and the English Regions.

Britain has also developed a strong liberal democratic concept of freedom of expression, which
emphasizes the special role of the media and the particular importance of freedom of the press.
But the right to freedom of the press in Britain must always be balanced against other rights and
interests. The need to protect national security and public order and the rights of individuals to
privacy and reputation will often outweigh the public's interest in knowing certain information.
The balancing of rights and interests is common to all legal systems. However, a liberal
democratic concept of freedom of expression demands that the government shows that its
restrictions on the media are both necessary and as limited as possible.15

There was a furore in England over a media scandal involving Rupert Murdoch’s popular
Tabloid ‘News of the World’. Investigations led to the findings that the press was involved in
widespread phone tapping of celebrities thereby violating privacy laws and journalist ethics.
When it was found that the phones of a murdered schoolgirl and relatives of deceased British

15 Perry Keller, Media Law in Britain at <http://www.britishcouncil.org/china-society-publications-media.pdf>
(accessed on 10th June 2013).

soldiers were also tapped by the press, in particular ‘News of the World,’ the British Prime
Minister ordered for a public inquiry and this led to what is popularly known as the ‘Leveson
Inquiry’. The Leveson Inquiry has been completed and it has made certain suggestions for the
press and media to be self-regulated.
Considering the above scandal, it is important to note that the PCC might be successful as a
regulating body for a long time, especially when it was set-up, but the fact is that it had no role to
play in fixing the above scandal or catching it at the right time. Thus the PCC as a regulator has
failed and in the UK there is desperate need for a new regulator.
On the completion of the Leveson inquiry the British Prime Minister came up with a plan to
appoint a regulatory body for the press through a Royal Charter and not a statute. This move led
to widespread hysteria among the press groups and as of now such a move has been put to
hold.16
The above discussion makes it clear that it is important for the press to be regulated. Reasonable
restrictions on free speech are as important as freedom of expression as itself. The ‘News of the
World’ scandal throws light on the fact that anything, if left unregulated, is bound to abuse its
power.
A balance needs to be struck between freedom of the press and the reasonable restrictions on
such a freedom, in order to safeguard basic ethical and moral rights like privacy.

2.4 HISTORY AND EVOLUTION OF PRESS FREEDOM IN THE UNITED STATES OF
AMERICA
Before the Stamp Act of 1765, most printers in the colonies treated newspapers as any ordinary
printing job, similar to books, pamphlets, and posters. Most of the information in these
newspapers included reprints of other publications, stories of local interest, literature,

16 Patrick Wintour and Josh Halliday, Royal Charter for press regulation is delayed, The Guardian 3rd May 2013 at
<http://www.guardian.co.uk/law/2013/may/03/privy-council-delay-royal-charter> (accessed on 10th June 2013).

advertisements, and opinions. With the introduction of the Stamp Act, the printers became
publishers.17

Samuel Adams, a radical journalist, roused the people by using the colonial press to resist the
Stamp Act, which eventually was repealed. Adams’ response to this success bore the signs of
modern journalism:

“But YOUR Press has sounded the alarm. YOUR Press has spoken to us the words of
truth. It has pointed to this people their danger and their remedy. It has set before them
liberty and slavery…”18

The American Revolution produced many historic newspapermen. Their strong feelings in
support of independence and revolution were poured into their writings, spurring public interest
and education on the issue. In essence, this was the beginning of the press’ role with the
government, developing the press freedom that would later be set in the Constitution.

After the American Revolution, newspapers took a more critical stance with the newly formed
government. Newspapers reported the financial difficulties created by the worthless American
currency and argued against new stamp taxes. When the states began to meet to discuss the
formation of a new central government, the Constitution’s “founding fathers” kept their
deliberations secret. There was no public access, freedom of information, open meetings, or
“right to know” guarantees then.

Although the Constitution contained a clause for freedom of the press in the Bill of Rights, the
government originally set many controls on the press and quieted the opinions of most early
journalists. Later, the First Amendment was put on the back burner when the federal government
muzzled the press through the use of the Sedition Act of 1798, which made any speech or
writings against the U.S. government unlawful.

If India had a similar statute, stating that, “The Indian government if not promoting, was
definitely not discouraging terrorist activities in the Naxalite infested areas through its own
micro outfits in the affected states...” it could be sedition and illegal.

17 Free First Amendment and Constitution Day Education Materials. "First Amendment Resources Freedom of Press
History." Accessed June 13, 2013. http://www.illinoisfirstamendmentcenter.com/freedom_press_history.php.
18 First Amendment Watch “Smauel Adams as Populus”, November 27 2017 at
<https://firstamendmentwatch.org/history-speaks-essays-samuel-adams-populus/>

The focus of American journalism soon began to center on the new capital, Washington D.C., in
1810. Joseph Gales and William Seaton, publishers of the National Intelligencer, brought
objective reports of congressional debates and other governmental events to the public’s
attention. Politics began to play more of a role in reporting as the 19th century progressed.
Slavery, presidential elections, the suffrage movement, temperance, free education and foreign
policy (i.e. the Monroe Doctrine of 1823) were news. Newspapers, which could now be
produced rapidly and more cheaply, were becoming the catalyst to social change by bringing
information on many national issues to the masses.

Throughout the mid-to-late-1800s, newspapers also became more focused on sensationalism.
Stories about love, tragedy, crime and entertainment found their way into newspapers in order to
increase circulation.

Most of the times in India, important and sensitive news like the Arushi Talwar case murder trial
or the killings of senior Congress leaders by Naxalites is sensationalized and pushed into the face
of an average and innocent everyday news gatherer. This might affect or produce undesirable
reactions in the minds of young viewers of people with an impressionable mind.

With Horace Greeley’s 1835 statement that the future was in the west in a New Yorker article,
more newspapers spread throughout the west. Photography was improved, and photos began
appearing regularly in newspapers. This new medium publicized images of the Civil War.
Political cartoons were also an addition to the papers at that time. Such politicians as Boss
Tweed and Abraham Lincoln in turn hated and celebrated the satirical drawings, as influences on
their success, or lack of it, in the political arena.

Wartime situations often present challenges to the legal limits of press freedom. What was
looked upon as irresponsible reporting during the Civil War led to attempts by civil and military
authorities to impose restrictions upon the press. Appeals by the War Department for publishers
to voluntarily suppress news that was strategic to the war were, however, largely ineffective.
During World War I, near hysteria over the possibility of sabotage led Congress to pass the
Espionage Acts (1917) and the Sedition Act (1918). These acts limited freedom of the press to

such an extent that not only was censorship exercised against pro-German publications but also
against German-language publications and those advocating socialism or pacifism.19

Prior to the 1930s, the Supreme Court position on First Amendment freedoms was to suspend
free speech and press if the expressions constituted a “reasonable tendency” to endanger society.
These expressions were judged by whether they created a “clear and present danger” to society.20

These were the beginnings of press freedom in America, the evolution of the “Fourth Estate.”

Freedom of the Press in the twentieth century has branched into many avenues since its
beginning. It, in many ways, can be likened to a roller coaster ride, where it experiences alternate
highs of unrestricted interpretation of the First Amendment, and lows of censorship and tight
control.

Newspaper journalists seem to have gained advantages over their colleagues in the broadcast
media. The broadcast press has remained closely scrutinized by the government. Policy makers
and the courts justify restrictions by arguing that the airwaves used to broadcast the news are a
limited commodity and not readily available to each individual to gain access to. This was the
reasoning given by the Federal Communications Commission (FCC) and the Supreme Court in
its 1969 decision, Red Lion Broadcasting v. FCC,21 which upheld the constitutionality of the
fairness doctrine. The doctrine held that any editorial broadcasts must give equal time to
opponents to respond on the air. Broadcasters contended that this is a governmental control over
their First Amendment rights to free press and speech; however, the government held that due to
the nature of the medium, it was a legitimate control.

The broadcast media, until very recently, were unable to take their television and radio
equipment into criminal court trials. The courts felt that such an intrusion prejudiced jurors and
could possibly incite individuals outside the courtroom with strong emotions involved in the
outcome of the case. Several Supreme Court cases overturned convictions based on this
reasoning. Thus, the Court ruled against the intrusion to prevent this from recurring. However,

19 Infoplease: Encyclopedia, Almanac, Atlas, Biographies, Dictionary, Thesaurus. Free online reference, research &
homework help. | Infoplease.com. Accessed June 13, 2013. http://www.infoplease.com/encyclopedia/history/press-
freedom-the-history.html.
20 Free First Amendment and Constitution Day Education Materials. "First Amendment Resources Freedom of Press
History." Accessed June 13, 2013. http://www.illinoisfirstamendmentcenter.com/freedom_press_history.php.
21 395 US 367 (1969).

broadcasters are now admitted based on state-to-state regulations and statutes. Thirty-four states
do allow the use of cameras in criminal trials. There are restrictions against cameras in Illinois
and federal courtrooms.

The Rodney King trial and ensuing riots have been used as one argument against such extensive
media coverage of trials. Many blame television for bringing “sound byte” images that lead to
prejudicial feelings and outrage. The saturated O.J. Simpson trial coverage became a market idea
for television stations. Consequently, people have begun to question the need for such coverage,
or at least the amount of it.

The question of allowing cameras, particularly television cameras, into the courtrooms across
America is a complicated one. Of course, the easiest reason to make these allowances is the First
Amendment. Some individuals, however, feel that this may constitute an invasion of privacy in
many instances.

There are some supporters who believe this is a protected freedom that provides a service to the
public. After all, television has played an integral part in every political campaign since the late
1940s. It has brought us a vivid look at the reality of American life – the assassination of a
favoured president, the downfall of another, hearings before Senate and House committees, and
wars. It is, therefore, a natural progression of the media to show the judicial end of our society.

There is a fear among many who decide this issue that TV in court will distort judicial
proceedings, possibly getting the lawyers, the parties in the case, and even the judge caught up in
the publicity and hype that any trial coverage may spark. Also important to consider is which
types of cases are acceptable to be televised? Perhaps all cases would be aired, but would the
public really want to view them? Unfortunately, it seems as though the interests served by
cameras in the courtroom could turn from recording the proceedings for reporting purposes, to
recording them for entertainment.

The privacy question involves protection of witnesses and the families involved in violent
crimes, or the jurors. There is a definite interest in presenting a look into the courtrooms of our
legal and justice system and even a look at our society. This falls within the interest of the public.
Yet, we must look diligently at the motives behind television in courts – is it entertainment, or
factual representation?

The 1960s brought political unrest for journalists and government. The press found itself amid
new legal difficulties, in the guise of profound usage or subpoena power. Libel suits and invasion
of privacy clashed with the press’ and public’s right to know and right to information. The war
years were especially difficult and presented the following dilemma: the press wanting to use its
freedom as stated in the First Amendment versus the government’s potential, self-expressed,
need for secrecy and confidentiality.

This time period also saw the issue of prior restraint come once again to the forefront. In Near v.
Minnesota (1931),22 the Supreme Court defined freedom of the press and prohibited the
government from restraining a publication prior to its distribution. Any restraining action could
only be taken when the contents of a named publication constituted a “clear and present
danger” to society. The Court also reminded the press and others that First Amendment
freedoms are not absolute, and certain expressions did not fall under its protections, such as
obscenity.

Supreme Court Justice William J. Brennan, Jr. became one of the Court’s principal architects of
free expression philosophy. Among his accomplishments that benefited free press was the
creation of Court majorities for the broad theoretical framework that governs expression in the
domain of obscenity and libel. He is also credited with creating the ‘right of access’ that enables
the press to cover government doings.

After the Second World War, many news organizations undertook campaigns against secrecy in
government, maintaining that the withholding of public records threatened freedom of the press.
As world tensions heightened during the cold war in the 1950s and 60s, defence officials often
protested that the mere absence of war did not justify peacetime openness in the press.23

In the late 1960s and early 70s, there were frequent charges and counter charges between
journalists and government officials concerning the withholding of information on the Vietnam
War by the government. The only recognized grounds for prior restraint, national security, was
tested in 1971 when Daniel Ellsberg, a former government employee who believed that
information that should be made public was being withheld by the government, released

22 283 U.S. 697 (1931).
23 Infoplease: Encyclopedia, Almanac, Atlas, Biographies, Dictionary, Thesaurus. Free online reference, research &
homework help. | Infoplease.com. Accessed June 21, 2013 <http://www.infoplease.com/encyclopedia/history/press-
freedom-the-history.html.>

the Pentagon Papers, a collection of classified government documents concerning the Vietnam
War. The government tried to block their publication, but the U.S. Supreme Court, in New York
Times Co. v. United States24, permitted their release.

Also during this period, the questions of subpoena and injunction power resurfaced. Journalists
found it difficult to perform their “watchdog” role with the widespread support of subpoena use.
By 1974, a majority of the states had passed “shield laws” with the intention of protecting
journalists from being forced to reveal their sources of news. However, there was no federal
shield law. The Supreme Court declared in a 5-4 vote, in Branzburg v. Hayes25, that the First
Amendment does not automatically give journalists the right to refuse judicial orders and
subpoenas. It was also during this era that commercial speech was once again afforded protection
under the First Amendment. However, the controversial prior restraint issue remained in the
spotlight, confronting the issues of symbolic speech, gag orders, and protests.26

The 1980s ushered in a more conservative set of Supreme Court judges. The press lost most of
its Sullivan protections against libel. The right to access that the press had previously enjoyed
became more restricted. Yet, out of this decade, courtrooms were beginning to open up to
cameras.

The First Amendment has not been extended to the gathering as well as the publication of news.
The experience of the Vietnam War led the U.S. government to restrict the access of reporters in
combat areas in subsequent military encounters. This practice, used during the 1983 invasion of
Grenada and the 1991 Persian Gulf War, was bitterly resented by many reporters.27

The United States is recognized as one of the topmost ranked nations in the world when it comes
to freedom of speech and expression. Highest value is given to this constitutional right and the
government considers the same to be its foremost priority to protect this right given to its
citizens. The scope of the First Amendment right in the United States is so large that other

24 403 U.S. 713 (1971).
25 408 U.S. 665 (1972).
26 Free First Amendment and Constitution Day Education Materials. "First Amendment Resources Freedom of Press
History." Accessed June 13, 2013. http://www.illinoisfirstamendmentcenter.com/freedom_press_history.php.
27 Infoplease: Encyclopedia, Almanac, Atlas, Biographies, Dictionary, Thesaurus. Free online reference, research &
homework help. | Infoplease.com. Accessed June 21, 2013. http://www.infoplease.com/encyclopedia/history/press-
freedom-the-history.html.

nations have had troubles due to data and information spilling into their jurisdictions over the
internet, which is considered free in the States but is illegal in those other nations.

For example, the Yahoo Memorabilia case between the U.S. and France.

In this case a French court had ruled stating that Yahoo (the internet giant) should remove Nazi
memorabilia from its two sites (as exhibition and sale of Nazi Memorabilia in France is against
the law), namely, yahoo.com and yahoo.fr But, Yahoo being a U.S. company and well within its
First Amendment protection appealed against the French court decision in the U.S. and the U.S.
court ruled that the French decision would not be effective in the U.S.28

It would not be unreasonable to say that due to the wide availability and spread of the internet in
the United States, the concept of press is shifting slowly from the traditional avenues of print and
television to smartphones, tablets and computers of all kinds. Data creation and dissemination is
no longer restricted to physical boundaries but can reach from one point on the globe to another
in seconds. Twitter and Facebook have become the new news bulletins and the global citizen the
new creator of news.

There is no doubt that the world’s second largest and most free democracy is a leader in
technological development. But, it is equally important for it to realise that it needs to keep legal
provisions in consonance with technology.

Since the United States is one of the foremost innovators in technology and thus also one of the
very first adopters of new technology, it will be reasonable to state that they would also be one of
the first nations to adopt laws and regulations for regulating and governing such new
technologies. Thus, future and subsequent adopters of these technologies would have a sample of
legal provisions to refer to while drafting their own laws, relevant for their respective
jurisdictions and in accordance with the socio-economic conditions in their nations.

In the current Indian market, foreign grown technology is readily available like never before. The
Indian online market is a rapidly changing ecosystem. With iTunes entering and selling music in

28 Richard Waters in San Francisco and Patti Waldmeir in Washington, Yahoo loses Nazi memorabilia case,
Financial Times on January 13, 2006 at <http://www.ft.com/cms/s/2/81127f12-83cb-11da-9017-
0000779e2340.html#axzz2WqudGlnx> Accessed June 21, 2013.

India29 and India’s home grown digital Music market to be shut down soon30, it will be
interesting to note how India, a market where there is rampant piracy, deals with the sale of
digital music online.

2.4.1 Press Freedom in the United States of America

The First Amendment to the U.S. Constitution says that "Congress shall make no law....abridging
(limiting) the freedom of speech or of the press..." Freedom of speech is the liberty to speak
openly without fear of government restraint. It is closely linked to freedom of the press because
this freedom includes both the right to speak and the right to be heard. In the United States, both
the freedom of speech and freedom of press are commonly called freedom of expression.31

Over the years many philosophers, historians, legal scholars and judges have offered theoretical
justifications for strong protection of freedom of speech, and in these justifications lie the
wisdom of providing free speech to the public at large.

The First Amendment's protection of speech and expression is central to the concept of the
American political system. There is a direct link between freedom of speech and a vibrant
democracy. Beyond the political purpose of free speech, the First Amendment provides
American people with a "marketplace of ideas." Rather than having the government establish and
dictate the truth, freedom of speech enables the truth to emerge from diverse opinions.
Concurring in the judgment Whitney v. California32, Justice Louis Brandeis wrote that "freedom
to think as you will and to speak as you think are means indispensable to the discovery and
spread of political truth."

Freedom of speech is also an essential contributor to the American belief in government confined
by a system of checks and balances, operating as a restraint on tyranny, corruption and
ineptitude.

29 Apple. "Press Info Launches iTunes Store in Russia, Turkey, India, South Africa & 52 Additional Countries
Today." Accessed June 21, 2013. http://www.apple.com/pr/library/2012/12/04Apple-Launches-iTunes-Store-in-
Russia-Turkey-India-South-Africa-52-Additional-Countries-Today.html.
30 The Times Of India. "Flipkart shuts down its year-old Flyte music store - Times Of India." Accessed
June 21, 2013. http://timesofindia.indiatimes.com/tech/tech-news/internet/Flipkart-shuts-down-its-year-old-Flyte-
music-store/articleshow/20342161.cms?.
31 "Freedom of Speech and Freedom of Press." Accessed June 13, 2013.
http://www.lincoln.edu/criminaljustice/hr/Speech.htm.
32 (1927) 274 U.S. 357.

For example, if there was no free speech and the public’s voice never reached governing bodies,
then there would be no formulation of policy or regulations as the government would never
know what the people wanted or expected neither the people would understand the rationale of
the government in a particular scenario. This would surely be harmful to sound principles of
reasonable governance.

For much of the world’s history, governments have presumed to play the role of benevolent but
firm censor, on the theory that the wise governance of men proceeds from the wise governance
of their opinions. But the United States was founded on the more cantankerous revolutionary
principles of John Locke, who taught that under the social compact sovereignty always rests with
the people, who never surrender their natural right to protest, or even revolt, when the state
exceeds the limits of legitimate authority. Speech is thus a means of "people-power," through
which the people may ferret out corruption and discourage tyrannical excesses.

Influential American voices have also often argued that robust protection of freedom of
speech, including speech advocating crime and revolution, actually works to make the country
more stable, increasing rather than decreasing our ability to maintain law and order. Again the
words of Justice Brandeis in Whitney v. California33 are especially resonant, with his admonition
that the framers of the Constitution “knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is good ones.” America has come to
accept the wisdom that openness fosters resiliency, that peaceful protest displaces more violence
than it triggers, and that free debate dissipates more hate than it stirs.

Example: The revolution which took place in a few nations recently, popularly known as the
Arab Spring is an example of the concept that people yearn for free speech. Most nations in the
Arab Spring were dictatorships or were under the rule of tyranny. Free speech was stifled and
there was widespread propaganda. The hatred which fear had bred amongst the people of such
nations, due to decades of repression, ultimately led them to topple the government and for the

33 ibid.

first time elect a government of their own. In the end, free speech won as these very people made
their stories known to the world through social media and the internet.

The link between speech and democracy certainly provides some explanation for the American
veneration of free speech, but not an entirely satisfying or complete one. Amongst the many
flourishing democracies in the world, America has adopted one of the widest traditions of free
speech.

The marketplace of ideas metaphor does not posit that truth will emerge from the free trade in
ideas. It merely posits that free trade in ideas is the best test of truth, in much the same way that
those who believe in laissez-faire economic theory argue that over the long haul free economic
markets are superior to command-and-control economies. The American love of the marketplace
of ideas metaphor stems from the American "constitutional faith" that, given long enough, good
will conquer evil.

The connection of freedom of speech to self-governance and the appeal of the marketplace of
ideas metaphor still, however, do not tell it all. Freedom of speech is linked not merely to such
grandiose ends as the service of the democracy or the search for truth. Freedom of speech has
value on a more personal and individual level. Freedom of speech is part of the human
personality itself, a value intimately intertwined with human autonomy and dignity. In the words
of Justice Thurgood Marshall in the 1974 case Procunier v. Martinez34, "the First Amendment
serves not only the needs of the polity but also those of the human spirit, a spirit that demands
self-expression."

Many Americans embrace freedom of speech for the same reasons they embrace other aspects of
individualism. Freedom of speech is the right to defiantly, robustly and irreverently speak one’s
mind just because it is one’s mind. Freedom of speech is thus bonded in special and unique ways
to the human capacity to think, imagine and create. Conscience and consciousness are the sacred
precincts of mind and soul. Freedom of speech is intimately linked to freedom of thought, to that
central capacity to reason and wonder, hope and believe, that largely defines our humanity.

For example, if a person has never been used to expressing his/her opinion or speaking what she
thinks is right, creativity would die and innovation would be killed and we would never be able

34 416 U.S. 396 (1974).

to live in such a technologically advanced world as we are used to living in now. Thereby,
freedom of speech and expression also leads to the proliferation of ideas and new techniques,
thus, leading to optimum use of the human mind.

While the language of the First Amendment appears absolute, freedom of speech is not an
absolute right. Certain limitations and restrictions apply. Conflicts involving freedom of
expression are among the most difficult ones that courts are asked to resolve. This ongoing
process is often contentious and no one simple legal formula or philosophical principle has yet
been discovered that is up to the trick of making the job easy.

Americans thus continue to debate in political forums and litigate in courts such issues as the
power of society to censor offensive speech to protect children, the permissibility of banning
speech that defeats protection of intellectual property, the propriety of curbing speech to shelter
personal reputation and privacy, the right to restrict political contributions and expenditures to
reduce the influence of money on the political process, and countless other free-speech
conflicts. Free speech cases frequently involve a clash of fundamental values. For example, how
should the law respond to a speaker who makes unpopular statements to which the listeners react
violently? Should police arrest the speaker or try to control the crowd? Courts must balance the
need for peace and order against the fundamental right to express one's point of view.

Discipline is the essence of human growth, discipline requires certain checks. Therefore anything
which is absolutely free would lead to some amount of menace. Thus, it is very important to
attach reasonable restrictions on freedom of speech to protect the privacy, data, reputation, safety
and minds of those who are easily impressionable. Such an approach would lead to healthy
exchange of ideas.

According to the current state of law in America, freedom of speech does not protect the
following: Speech that contains "fighting words" (insulting or abusive language that is likely to
cause "an immediate violent response"); obscenities; language or communication directed to
inciting, producing or urging the commission of a crime; defamation - words or communication
that are false and untrue and are intended to injure the character and reputation of another person;
abusive, obscene or harassing telephone calls; loud speech and loud noise meant by volume to
disturb others or to create a clear and present danger of violence.

Yet while the country continues to struggle mightily to define the limits and continues to debate
vigorously the details, there is surprisingly little struggle and debate over the core of the faith.

Freedom of the press protects the right to obtain and publish information or opinions without
government censorship or fear of punishment. Censorship occurs when the government examines
publications and productions and prohibits the use of material it finds offensive. Freedom of
press applies to all types of printed and broadcast material, including books, newspapers,
magazines, pamphlets, films and radio and television programs.

The Constitution's framers provided the press with broad freedom. This freedom was considered
necessary to the establishment of a strong, independent press sometimes called "the fourth
branch" of the government. An independent press can provide citizens with a variety of
information and opinions on matters of public importance. However, freedom of press
sometimes collides with other rights, such as a defendant's right to a fair trial or a citizen's right
to privacy. In recent years, there has been increasing concern about extremely aggressive
journalism, including stories about people's sexual lives and photographs of people when they
were in a private setting.

In the United States, the government may not prevent the publication of a newspaper, even when
there is reason to believe that it is about to reveal information that will endanger national
security. By the same token, the government cannot:

● Pass a law that requires newspapers to publish information against their will.

● Impose criminal penalties, or civil damages, on the publication of truthful information
about a matter of public concern or even on the dissemination of false and damaging information
about a public person except in rare instances.

● Impose taxes on the press that it does not levy on other businesses.

● Compel journalists to reveal, in most circumstances, the identities of their sources.

● Prohibit the press from attending judicial proceedings and thereafter informing the public
about them.

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines
the freedom of the press guaranteed by the First Amendment. What is meant by the freedom of
the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of
those who crafted the press clause in an era of pamphlets, political tracts and periodical
newspapers, and by the views of Supreme Court justices who have interpreted that clause over
the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio
and television broadcasts, and now Web sites and Internet postings.

The framers' conception of freedom of the press has been the subject of intense historical debate,
both among scholars and in the pages of judicial opinions. At the very least, those who drafted
and ratified the Bill of Rights purported to embrace the notion, derived from William Blackstone,
that a free press may not be licensed by the sovereign, or otherwise restrained in advance of
publication (see New York Times Co. v. United States, 1971.) And, although the subject remains
a lively topic of academic debate, the Supreme Court itself reviewed the historical record in 1964
in New York Times Co. v. Sullivan35 and concluded that the central meaning of the First
Amendment embraces as well a rejection of the law of seditious libel i.e., the power of the
sovereign to impose subsequent punishments, from imprisonment to criminal fines to civil
damages, on those who criticize the state and its officials.

Near v. Minnesota ratified the Blackstonian proposition that a prior restraint or a legal
prohibition on the press’s ability to publish information in its possession will almost always
violate the First Amendment. Near is a landmark, not just because it was the Court’s first
decision to invoke the press clause, but because it established a fundamental precept of
constitutional law that once the press has gotten its hands on information that it deems to be
newsworthy, the government can seldom, if ever, prevent that information from being published.

In cases such as Near and the Pentagon Papers case (New York Times Co. v. United States), the
Court established that freedom of the press from previous restraints on publication is nearly
absolute, encompassing the right to publish information that a president concluded would harm
the national security, if not the movements of troop ships at sea in time of war.

35 376 U.S. 254 (1964).

In this fashion the United States grants one of the highest standards of Free Speech and Freedom
of Press to its citizens. In almost all democracies information which might lead to the
compromise of national security is painfully protected. But in the Pentagon Papers case, which
almost led to the impeachment of the U.S. President Richard Nixon, the courts demonstrated the
actual purview and scope of the First Amendment Right.

In Miami Herald Publishing Co. v. Tornillo36, the Court embraced the analogous proposition
that the government has virtually no power to compel the press to publish that which it would
prefer to leave on the proverbial cutting room floor.

In that regard, however, it must be noted that not all media are created equal when it comes to
entitlement to the full protections of the First Amendment’s press clause.

Most significantly, because of a perceived scarcity of the electromagnetic spectrum, the Court
has held that Congress and the Federal Communications Commission (The Federal
Communications Commission regulates interstate and international communications by radio,
television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories)
may regulate the activities of broadcasters operating over public airwaves in a manner that would
surely violate the First Amendment if applied to newspapers.

Even in the broadcast context, however, the First Amendment protects the publication of truthful
information about matters of public concern, not just from prior restraint, but also from
subsequent punishment, at least in the absence of a demonstrated need to vindicate a competing
government interest of the highest order. This formulation has come to be known as the Daily
Mail principle, after the Supreme Court’s 1979 decision in Smith v. Daily Mail Publishing
Co37., in which the Court held that a newspaper could not be liable for publishing the name of a
juvenile offender in violation of a West Virginia law declaring such information to be private.
The protections against subsequent punishments for reporting the truth afforded by the Daily
Mail principle are not absolute, but the barriers to such government regulation of the press are set
extremely high.

36 418 U.S. 241 (1974).
37 443 U.S. 97 (1979).

The First Amendment protects the publication of false information about matters of public
concern in a variety of contexts, although with considerably less vigour than it does
dissemination of the truth. Even so, public officials and public figures may not recover civil
damages for injury to their reputations unless they were the victims of a reckless disregard for
truth in the dissemination of a calculated falsehood. Indeed, private persons may not collect civil
damages for reputational harm caused by falsehoods relating to a matter of public concern unless
the publisher’s conduct violates a fault-based standard of care.

In the past, radio and television broadcasters had an obligation to operate in the public interest.
That generally accepted principle was reflected in a rule known as the Fairness Doctrine. The
rule, formally adopted by the Federal Communications Commission in 1949, required all
broadcasters to devote a reasonable amount of time to the discussion of controversial matters of
public interest. It further required broadcasters to air contrasting points of view regarding those
matters. The Fairness Doctrine arose from the idea embedded in the First Amendment that the
wide dissemination of information from diverse and even antagonistic sources is essential to the
public welfare and to a healthy democracy.

In August 1987, the FCC repealed the doctrine, claiming that it was unconstitutional, although
the Supreme Court had ruled unanimously in 1969 that the fairness doctrine was not only
constitutional but essential to democracy. As a result, the general public is very rarely served
with fair and balanced information.

The Broadcast regulator of the United States, which is known as the Federal Communications
Commission, regulates interstate and international communications by radio, television, wire,
satellite and cable in all 50 states, the District of Columbia and U.S. territories. It was established
by the Communications Act of 1934 and operates as an independent U.S. government agency
overseen by Congress. The commission is committed to being a responsive, efficient and
effective agency capable of facing the technological and economic opportunities of the new
millennium. In its work, the agency seeks to capitalize on its competencies in:38

● Promoting competition, innovation, and investment in broadband services and facilities;

38 FCC.gov. "What We Do | FCC.gov." Accessed June 13, 2013. http://www.fcc.gov/what-we-do.

● Supporting the nation’s economy by ensuring an appropriate competitive framework for
the unfolding of the communications revolution;

● Encouraging the highest and best use of spectrum domestically and internationally;

● Revising media regulations so that new technologies flourish alongside diversity and
localism;

● Providing leadership in strengthening the defence of the nation’s communications
infrastructure.

2.5 HISTORY AND EVOLUTION OF PRESS FREEDOM IN INDIA

Press laws in India have a long history and are deeply rooted in the country’s 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.39

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.

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.

39 Legal Service India - Law, Lawyers and Legal Resources. "Freedom of Press - Author:Madan Singh Choudhary -
Institution: Gujarat National Law University, Gandhinagar." Accessed June 13, 2013,
http://www.legalserviceindia.com/article/l46-Freedom-of-Press.html.

However, the most significant day in the history of press regulations was the 26th of January
1950, the day on which the Constitution was brought into force. The colonial experience of the
Indians made them realise the crucial significance of the ‘Freedom of Press’. Such freedom was
therefore incorporated in the Constitution; to empower the press to disseminate knowledge to the
masses and the Constituent Assembly thus, decided to safeguard this ‘Freedom of Press’ as a
fundamental right.

As stated by the Hon’ble Supreme Court of India in Indian Express Newspapers v. Union Of
India,40 “Although, the Indian Constitution does not expressly mention the liberty of the press, it
is evident that the liberty of the press is included in the freedom of speech and expression under
Article 19(1)(a).” It is however pertinent to mention that such freedom is not absolute but is
qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.

Also as stated by the Hon’ble Supreme Court of India in Sakal Papers Ltd. v Union of India41, “It
is necessary to mention here that, this freedom under Article 19(1)(a) is not only cribbed,
cabined and confined to newspapers and periodicals but also includes pamphlets, leaflets,
handbills, circulars and every sort of publication which affords a vehicle of information and
opinion.”

India has come a long way in respect to press freedom and information democracy- from a few
newspapers and monopolistic opinion, singular television and FM channels to a plethora of pan
Indian dailies in a number of languages and television channels in vernacular languages whose
numbers range in hundreds. Due to penetration of the internet in India, press freedom in India is
at its highest ever. Every national or regional issue whether it is political or sport is debated
extensively on Twitter and Facebook. Indians who were earlier fearful of voicing their opinion in
the scare of offending people in power, have taken to the internet due to the level of anonymity
the online medium offers.

No doubt that the net has led to a small revolution in India when it comes to the freedom of
press, but it has its own drawbacks of misreporting and false claims.

40 (1985) 1 SCC 641.
41 AIR 1962 SC 305.

For instance, in a case where a former Justice of the Supreme Court of India, P.B. Savant filed a
100 crore defamation against news channel TIMES NOW for allegedly falsely showing his
photograph instead of a phonetically similar Justice P.K. Samanta on a television news bulletin
where the latter Justice was accused in a Provident Fund case.42 The channel had mistakenly
taken the picture from an online source and misreported the same for someone else.

According to the latest news reports, the decree of Rs. 100 crore was filed by a Pune trial court.
On appeal to the Bombay High Court, the Hon’ble court asked TIMES NOW to deposit the 100
crore with the court before proceeding with the appeal. The apex court had on 14th November
2011 upheld the order of the Bombay High court of depositing the said money with the court.43

In another instance, a student from a reputed law school in India had recently written a blog post
about the 19 year dispute between the Times Group and Financial Times Ltd. over the “Financial
Times” trademark. The student has been served a legal notice by the Times Group for
defamation and allegedly harming their reputation.44

For some time now in India, a few media giants have tried to control the information which
flows in our country, now due to the internet these media and newspaper giants are having
trouble in maintaining their hold over the flow of information in India.

Today we have a number of mediums through which information is being exchanged every day,
namely, satellite television, cable television, FM, internet, radio, IPTV, satellite radio etc. The
regulations and restrictions which are already in place for certain traditional mediums of press
and broadcasting have to adapt to the new mediums.

New technologies are coming up every day and getting integrated into society at a very high rate.
The penetration of internet-enabled smartphones in a country like ours where the number of
people are one of the highest in the world is an important factor to be taken into consideration

42 India Today "'Rs. 100 crore in damages slapped on Times Now is a bid to muzzle media': The Big Story - India
Today." Accessed June 13, 2013. http://indiatoday.intoday.in/story/times-now-defamation-case-rs-100-cr-fine-
justice-sawant/1/161563.html.
43 The Times of India. "SC asks Times Now to deposit Rs 100 crore before HC takes up its appeal in defamation
case." Accessed June 21, 2013. http://timesofindia.indiatimes.com/india/SC-asks-Times-Now-to-deposit-Rs-100-
crore-before-HC-takes-up-its-appeal-in-defamation-case/articleshow/10734614.cms.
44 SPICY IP (blog). "SPICY IP: The Times Publishing House threatens to sue our blogger for alleged defamation -
we ain't going down without a fight!" <http://spicyipindia.blogspot.in/2013/05/the-times-publishing-house-
threatens-to.html> Accessed June 13, 2013.

while making laws for regulating the freedom of press. Traditional laws need to be amended to
cover new technologies as soon as possible. If these considerations are not taken into account by
the law making bodies of our country, the freedom granted by the Constitution to every person in
India would get diluted and start diminishing.

The technology company Samsung is selling a television in India which functions on gesture
recognition technology, which means that the TV would function and perform tasks by just a
swipe of the hand of its user. Also, Google’s new technology, the Google Glass, would soon be
available in India after its US launch. These new technologies would be extensively bought by
the medium class Indian and it would result in excessive use and functionality. It is important
that the government and legislature take these advancements into consideration and start drafting
laws and integrating these new technologies into the existing legal framework.

2.5.1 Press Freedom in India

We often like to refer to India as the ‘largest democracy’ in the world, largest democracy, purely
on the basis of the number of people trying to be governed by a corrupt and tainted centre with a
supposed democratic scheme of governance.

It is needless to emphasise the importance of freedom of press in a nation like ours. The basic
feature of a democratic nation is freedom of speech and expression which it offers to its people.
The concept of a well informed electorate would fail if people are not provided with the freedom
to express their opinions and if information is scarcely available.

It is equally important to note that anything which is allowed to run completely unregulated is
bound to digress from ethical and moral principles thereby violating people’s rights under the
guise of free speech. There have been various instances in the recent past like, tabloidization of
news, fake sting operations to settle personal scores, paid news especially during elections –
without any concrete action being taken against the wrong-doers. Thus, reasonable restrictions
on free speech are necessary in order to protect the personal rights of people and security of a
nation as a whole.

The Constitution of India guarantees its citizens the freedom of speech and expression through
Article 19(1)(a) as a fundamental right, enforceable if violated at the appropriate forum. This

right guaranteed by the Constitution is not an absolute right and certain exceptions to the wide
scope of this freedom are mentioned in Articles 19(2)

James D. Wolfensen echoed the importance of a free press when he was the president of the
World Bank, he stated, “A free press is not a luxury. A free press is at the absolute core of
equitable development, because if you cannot enfranchise poor people, if they do not have a
right to expression, if there is no searchlight on corruption and inequitable practices, you cannot
build the public consensus needed to bring about change.”45 His statement holds true for a
country like India where the poor have no practical medium of getting their voice heard.

There is no doubt in confirming with the fact that freedom of the press is essential and necessary
for empowering the public with the knowledge it needs in order to make an informed decision as
to choosing a proper government by which it wants to be governed by. But, providing the press
with absolute power of circulating unregulated information may also lead to the press controlling
all the information which the public receives. In a balanced scenario the flow of information
should not be controlled by either the press or by the state. Information should belong to the
public at large and it should be able to afford unbiased and unfavoured news.

2.6 CASE STUDIES ON THE FREEDOM OF PRESS

2.6.1 United Kingdom

The Sunday Times v. United Kingdom46

Facts

This case concerned the notorious drug ‘thalidomide’ which had been taken by a number of
women who later gave birth to deformed children. The Sunday Times began a series of articles
with the aim of assisting the parents in obtaining a more generous settlement for their actions.
One article was to deal with the history of the testing, manufacture and marketing of the drug,
but the Attorney-General obtained an injunction against the publication of the article on the
grounds that it would constitute a contempt of court. The injunction was rescinded by the Court

45 James D. Wolfenson ‘Voices of the Poor’ Washington Post, 10 November 1999, A39.
46 (No. 1) (1979) 2 EHRR 245 available at <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-
57584#{"itemid":["001-57584"]}> (accessed on 10th June 2013).

of Appeal but reinstated by the House of Lords. The Sunday Times filed an application with the
European Commission for Human Rights claiming that the injunction infringed their right to
freedom of expression guaranteed by Article 10 of the ECHR. The Commission concluded that
there had been a breach of Article 10 and referred the case to the Court.47

Held

The interference with the applicants’ freedom of expression was not justified under Article 10(2)
which permits such restrictions ‘as are prescribed by law and are necessary in a democratic
society, for maintaining the authority and impartiality of the judiciary.’ The Court decided that,
though prescribed by law and for the purpose of maintaining the authority of the judiciary, the
restriction was not justified by a ‘pressing social need’ and could not therefore be regarded as
‘necessary’ within the meaning of Article 10(2). Accordingly, the Article 10 rights of The
Sunday Times had been violated.48

Opinion

The European Commission of human rights rightly upheld the rights of Sunday Times and
protected their freedom of expression.

The media should be allowed to report subjects of importance objectively and inform the public
about dangers in society, herein the use of the dangerous drug ‘thalidomide’.

Discussion and publication of current court proceedings should not be held to be in contempt of
court proceedings. If such a view is allowed then, there would be a lack of debate of on-going
trials which could harm society irreversibly.

The ultimate dispute is always decided by the judiciary, but that does not put a bar on well
minded discussion and analysis of the case at a public forum i.e. the media.

In our view, Sunday Times had a right and duty to inform the public about the testing and
manufacturing of the harmful drug. By barring it from disclosing important information to the
public its basic rights of freedom of expression were being grossly violated.

47 Edinburgh Law School. "Media Law (Honours), Edinburgh Law School." Accessed June 22, 2013.
http://www.law.ed.ac.uk/courses/showmessage.aspx?ref=101&id=51127.
48 Human & Constitutional Rights. "European Comm., The Sunday Times v United Kingdom." Accessed
June 22, 2013. http://www.hrcr.org/safrica/limitations/sunday_times_uk.html.

Even in India, in various cases, there is a complete trial by the media in parallel with the actual
trial before the judiciary. But other than those cases where such a trial by media would cause
major public furore, if the judiciary barred the media from conducting their own ‘objective’ trial,
the effects of an important debate in which the society participates and their viewpoint comes
across will be completely defeated.

Reynolds v Times Newspapers Ltd49

Facts

Albert Reynolds had been the Taoiseach (Prime Minister) of Ireland until a political crisis in
1994. The Times had published an article in Ireland to the effect that Reynolds had misled the
Irish Parliament. This article was then published in the United Kingdom. However, the UK
version omitted an explanation that Reynolds had given for the events, which had been printed in
the original article. Reynolds brought an action for defamation. The defences of justification and
fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd
appealed that the defence of qualified privilege be considered; the Court of Appeal denied this.
The appeal to the House of Lords was therefore on the matter of whether the defence of qualified
privilege be extended to cover the mass media.50

Held

Lord Nicholls, speaking for the majority, upheld Lord Bingham's judgement (the court upheld
the claim of qualified privilege), adding to it a list of ten criteria against which attempts to use
the Reynolds defence should be judged:

The elasticity of the common law principle enables interference with freedom of speech to be
confined to what is necessary in the circumstances of the case. This elasticity enables the court to
give appropriate weight, in today's conditions, to the importance of freedom of expression by the
media on all matters of public concern. Depending on the circumstances, the matters to be taken
into account include the following:

49 [2001] 2 AC 127 available at
<http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01.htm> (accessed on 10th June 2013).
50 Reynolds v Times Newspapers Ltd." In Wikipedia, the free encyclopedia. n.d. Accessed June 22, 2013.
<http://en.wikipedia.org/wiki/Reynolds_v_Times_Newspapers_Ltd.>

1. The seriousness of the allegation. The more serious the charge, the more the public is
misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of
public concern.

3. The source of the information. Some informants have no direct knowledge of the events.
Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an
investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not
possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff's side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need
not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will
vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one.
The decision on whether, having regard to the admitted or proved facts, the publication was
subject to qualified privilege is a matter for the judge. This is the established practice and seems
sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a
jury. Over time, a valuable corpus of case law will be built up.51
Opinion

51 United Kingdom Parliament home page. "House of Lords - Reynolds v. Times Newspapers Limited and Others."
Accessed June 22, 2013. http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01.htm.

In the United Kingdom, the decision was hailed as a victory for freedom of speech and
investigative journalism.
The court rightly held that a minimum amount of privilege should be provided to a journalist to
report allegations (keeping in mind the above principles enlisted by the court) even if they
sometimes turn out to be wrong.
The truth always has two stories and two sides. Even after due diligence, some reports are
published which are actually false but it is of great importance to the general public. Such reports
should be an exception to the action of libel.
If a minimum amount of room and space is not given to journalists, it would be next to
impossible to do any investigative journalism.

2.6.2 United States
Near V. Minnesota, 283 52
Facts
In this particular case, J.M. Near and Howard Guilford were publishing The Saturday Press, a
Minneapolis “smear sheet” that delighted in attacking public officials. The newspaper published
accusations that gangsters controlled gambling in Minneapolis, and bootlegging and racketeering
were allowed to flourish because government and police officials were not doing their jobs. The
Saturday Press also attacked Jews and Catholics. Local authorities found an old, unused statute
on the books, one that allowed prior restraint of “nuisance” or “undesirable” publications. The
statute said that a publisher found guilty of producing such a nuisance sheet could be halted by a
judge’s injunction to stop all publication activities. The judge made his injunction permanent, but
told Near that he could again publish if he could convince the court that he would run a
newspaper without objectionable content. Near and Guilford appealed to the Minnesota Supreme

52 Justia US Supreme Court Center. "Near v. Minnesota - 283 U.S. 697 (1931) :: Justia US Supreme Court Center."
Accessed June 22, 2013. http://supreme.justia.com/cases/federal/us/283/697/case.html.

Court, which upheld the trial court’s prior restraint order, ruling that freedom of the press did not
protect publications “devoted to scandal and defamation.”53

The question for the court to determine was: Whether a statute authorizing such proceedings in
restraint of publication was consistent with the conception of the liberty of the press as
historically conceived and guaranteed under the First Amendment.54

Held

The Supreme Court held that the statute authorizing the injunction was unconstitutional as
applied. History had shown that the protection against previous restraints was at the heart of the
First Amendment. The Court held that the statutory scheme constituted a prior restraint and
hence was invalid under the First Amendment. Thus the Court established as a constitutional
principle the doctrine that, with some narrow exceptions, the government could not censor or
otherwise prohibit a publication in advance, even though the communication might be
punishable after publication in a criminal or other proceeding.55

Chief Justice Charles Evans Hughes delivered the opinion of the Court. Invoking Anglo-
American legal history, Hughes found that the English legal scholar, Sir William Blackstone
would have allowed no prior restraint whatsoever, but would have punished criticism of the
government after publication as seditious libel. Chief Justice Hughes, in a double modification
of Blackstone, wrote that prior restraint could be used by the government in limited
circumstances, but declared that Americans have a right—perhaps even a duty—to discuss and
debate the character of conduct of public officers. Hughes wrote that prior restraint could occur
in wartime, for example, to suppress information about movements of troop ships. Similarly
obscene publications could be halted, as could incitements to violence or threats to overthrow the
government. Hughes emphasized the need for a vigilant and courageous press, especially in large
cities. Then he wrote: “The fact that the liberty of the press may be abused by miscreant
purveyors of scandal does not make any less the immunity of the press from previous restraint in

53 JEM First Amendment Project. "Near v. Minnesota, 683 U.S. 697 (1931) | JEM First Amendment Project."
Accessed June 22, 2013. http://firstamendment.cci.utk.edu/content/near-v-minnesota-683-us-697-1931.
54 Law Today. "Near v Minnesota, 283 U.S. 697 (1931)." Accessed June 22, 2013.
http://www.lawtoday.us/http:/www.lawtoday.us/near-v-minnesota-283-u-s-697-1931/.
55 The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the
United States. "Near v. Minnesota ex rel. Olson | The Oyez Project at IIT Chicago-Kent College of Law." Accessed
June 22, 2013. http://www.oyez.org/cases/1901-1939/1929/1929_91/.

dealing with official misconduct. Subsequent punishment for such abuses as may exist is the
appropriate remedy, consistent with constitutional privilege.”56
Opinion
The First Amendment right is the bellwether to free speech rights around the world. It provides
for unrestricted and unhinged freedom of speech that is next to absolute if not completely.
The above judgment established the norm in the United States dealing with prior restraint.
Though it is a very old decision, it still holds true as it is considered one of the foremost
judgments in relation to free speech and prior restraint.
Following the above decision, in the case New York Times Company v. Sullivan57, the U.S.
Supreme Court extended the scope given in Near and stated that, “Statements made regarding
their official conduct (public officials) were only actionable if made with "actual malice,"
meaning a knowing or reckless disregard for the truth.58
The above decision is in line with the broad protection provided by the First Amendment and
emphasises the importance the United States courts provide the constitutional principle.

Grosjean v. American Press Co., Inc.59
Facts
This case involved a Louisiana law that imposed on publishing companies a license tax of 2% of
the gross receipts for the privilege of engaging in advertising in newspapers, magazines or
periodicals if their circulation is more than 20,000 copies per week. Nine Louisiana-based
publishers of newspapers, with circulations of more than 20,000 copies per week each, filed a

56 JEM First Amendment Project. "Near v. Minnesota, 683 U.S. 697 (1931) | JEM First Amendment Project."
Accessed June 22, 2013. http://firstamendment.cci.utk.edu/content/near-v-minnesota-683-us-697-1931.
57 376 U.S. 254 (1964).
58 "Near v. Minnesota." In Wikipedia, the free encyclopedia. n.d. Accessed June 22, 2013.
http://en.wikipedia.org/wiki/Near_v._Minnesota.
59 297 U.S. 233, 1936.

suit to enjoin the enforcement against them of the said provision. They assailed the validity of
the act on the ground, inter alia, that it abridges the freedom of the press.60

Held

The Court considered that the tax was designated as an advertising tax. In the instant case, the
tax operated as a tax of 2 percent on the gross receipts derived from advertisements carried in
their newspapers when, and only when, the newspapers of each enjoy a circulation of more than
20,000 copies per week. The Court considered that the tax, therefore, acted as a double restraint.
First, its effect was to curtail the amount of revenue realised from advertising; and, second, the
Court considered that its direct tendency was to restrict circulation. The Court considered that,
historically, such taxes as the one under consideration, revenue to the government was of
subordinate concern. Instead, the dominant and controlling aim was to prevent, or curtail the
opportunity for, the acquisition of knowledge by the people in respect of their governmental
affairs. The Court considered furthermore that it had no doubt been the intention of the framers
of the Constitution to ensure that such abusive imposition of taxes should not be allowed.

Opinion

This judgment exemplifies the United States constitutional protection of free speech. What is
important is, that free speech and free press should not be meddled with. For a healthy
democracy these two conditions paramount.

Indirectly restricting circulation of newspapers by imposing high taxes on newspaper
establishments is rightly considered as offending the rule under the First Amendment and also
the Fourteenth amendment of due process.

The court in the above case stated, “The newspapers, magazines, and other journals of the
country, it is safe to say, have shed and continue to shed, more light on the public and business
affairs of the nation than any other instrumentality of publicity; and since informed public
opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement

60 Article 19: Defending freedom of expression and information. "United States: Grosjean v. American Press Co. ·
Article 19." Accessed June 22, 2013. http://www.article19.org/resources.php/resource/2389/en/united-states:-
grosjean.

of the publicity afforded by a free press cannot be regarded otherwise than with grave
concern.”61

2.6.3 India

Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors62

Facts

The government came out with a taxation policy wherein it imposed a certain duty on newsprint,
which the newspaper providers had to pay. This duty was exuberant and was harming the
business of newspaper providers. Newspaper makers in order to remain profitable had to pass
this burden onto its readers thereby raising the cost of newspapers to a very high cost. The
contention made by Indian Express Newspapers was that such a taxation policy interfered with
their freedom of speech and expression because it harmed the circulation and readership of news.
Also, because the imposition of this duty was affecting the circulation of newspapers, it was
hence in violation of the freedom of speech and expression of the people too.

Held

The apex court held that taxation of newspapers to a reasonable amount is completely
constitutional and is leviable if it doesn’t affect the circulation of newspapers or infringes the
right of freedom of speech and expression. But the court went on to state that since in the present
case, the levy was very heavy and that it was actually affecting the circulation of newspapers, it
lead to the infringement of the fundamental right of freedom of speech and expression which
included the freedom of the press with the only restrictions on the right being those enlisted in
Article 19(2) of the Constitution and nothing else.

The court stated, “Freedom of expression has four broad social purposes to serve:

(i) it helps an individual to attain self-fulfilment,
(ii) it assists in the discovery of truth,
(iii) it strengthens the capacity of an individual in participating in decision making, and

61 ibid. Information System. Accessed June 22, 2013.
621986 AIR 515, The Judgment

<http://judis.nic.in/supremecourt/Chrseq.aspx.>

(iv) it provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

All members of society should be able to form their own beliefs and communicate them freely to
others. In sum, the fundamental principle is the people's right to know. Freedom of speech and
expression should, therefore, receive generous support from all those who believe in the
participation of people in the administration. It is on account of this special interest which society
has in the freedom of speech and expression that the approach of the Government should be
more cautious while levying taxes on matters concerning the newspaper industry than while
levying taxes on other matters.”

The court stated that even though the First Amendment right in the United States is wider than
the right in our country, even the courts there have accepted the levy of tax on newspaper
establishments.

The court based its decision on the rationale that, “While levying a tax on newspaper industry it
must be kept in mind that it should not be an over-burden on newspapers which constitute the
fourth estate of the country. Nor should it single out the newspaper industry for harsh treatment.
Imposition of a tax like the customs duty on newsprint is an imposition on knowledge and would
virtually amount to a burden imposed on a man for being literate and for being conscious of his
duty as a citizen to inform himself about the world around him. The public interest in freedom of
discussion (of which the freedom of the press is one aspect) stems from the requirement that
members of a democratic society should be sufficiently informed that they may influence
intelligently the decisions which may affect 'themselves.”63

Opinion

Freedom of speech and expression includes the freedom of the press which directly encompasses
the freedom to circulate information such as news and other information important in public
interest. If the circulation of newspapers is hampered, then such a restriction would be
unconstitutional and would violate the right of free speech.

63 ibid.

The court established a sound precedent in the above case by upholding the freedom of speech
and stating that any kind of levy imposed on the newspaper industry should not lead to restricting
the circulation of newspapers.
The court reiterated the principle enshrined in the constitution and emphasised on the point that
only Article 19(2) provides the conditions wherein the right to freedom of speech can be
interfered with and any other factors leading to hampering the right would lead to violation of the
said fundamental right.
The court did not give its ruling stating that any type of tax or duty levied on newspaper
establishments would be unconstitutional. It stated the tax levied on newspaper establishment
should be reasonable and should not lead to hampering the circulation of newspapers.

Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India64
Facts
This case primarily deals with the issue of trial by media, contempt of court, prior restraint on
information and freedom of speech and the freedom of press.
In this case, certain confidential documents were to be provided by Sahara India Real estate to
the Securities and Exchange Board of India (SEBI). These documents contained privileged
information and were not for the purposes of public disclosure. While the above matter between
Sahara and SEBI was sub judice, a TV news channel flashed the details of the confidential
documents submitted by Sahara to SEBI. Sahara contended the SEBI was in breach of its
confidentiality and the reporting of details in the media had prejudiced a free trial.
The court discussed in detail issues like trial by media, prior restraint, contempt of court,
prejudice of trial, freedom of the press and the freedom of speech and expression.
Held

64Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India (Reportable), The Judgment
Information System. Accessed June 22, 2013. http://judis.nic.in/supremecourt/Chrseq.aspx.

The Court came to the conclusion that certain prior restraints and postponement of reporting was
not violative of free speech and free press if they are in the interests of justice and in furtherance
of delivering justice.

The court also deeply analysed the stance in the United States and the United Kingdom on prior
restraint of the press and media and contempt of court.

The court stated, “We are distressed to note that even without prejudice proposals sent by Sahara
to SEBI have come on one of the TV channels. Such incidents are increasing by the day. Such
reporting not only affects the business sentiments but also interferes in the administration of
justice.”

On its analysis of the practices of prior restraint in the United States, India, United Kingdom and
certain other countries the court stated that:

“In the United States the First Amendment is an absolute right, it bars the Government from
making any law that restricts the freedom of speech. Thus prior restraint on the press in the
United States is unconstitutional. The courts in the United States have evolved procedural
devices aimed at neutralizing the effect of prejudicial publicity like change of venue, ordering
retrial, reversal of conviction on appeal etc. In the United States there aren’t any conditions on
free speech like we have in India in the form of Article 19(2).

In England, in the absence of a written constitution, the parliament is supreme. England has the
English Contempt of Courts Act, 1981, which directly empowers the courts to postpone
publication of a report which may prejudice the administration of Justice. To achieve a balance
between a fair trial and fair media rights, postponement of publication works out to be fair means
as it does not directly interfere with the right of free speech and also helps in furtherance of
administration of justice by ensuring a fair and unprejudiced trial.”

The court stated that in India, the freedom of the press is subject to exceptions as laid down in
Article 19(2) of the Constitution and Article 19(2) recognises contempt of court as one of the
exceptions to free speech.

The court, for determining the practise in India, looked towards the decision in Naresh Shridhar
Mirajkar v. State of Maharashtra65, in which it stated that, “As to whether such a temporary
prohibition of publication of court proceedings in the media under the inherent powers of the
court can be said to offend Article 19(1)(a) rights which includes freedom of the press to make
such publication, this Court held that an order of a court passed to protect the interest of justice
and the administration of justice could not be treated as violative of Article 19(1)(a).”
The court stated that, taking Articles 19(2), 129 and 215 of the Constitution into consideration,
prior restraint or postponement of a publication, which might prejudice a trial, were legal and the
courts were allowed to postpone a publication in wanting circumstances.
This particular case revolved around and reiterated what was decided in the Mirajkar case
(supra), that in specific cases in order to protect the administration of justice, the media can be
gagged for some time, as prior restraint or postponement of publication. The courts discussed
issues like open justice, presumption of innocence, freedom of speech, freedom of the press,
prejudice of trial and fair trial before stating that when all alternate methods of protection of a
trial are exhausted (like shifting of venue or postponement of trial) postponement of publication
may be valid.
There are times when a fair trial may be prejudiced due to certain reportage or publication in the
media. Witnesses and victims may hold back and not come out openly in the court in the fear of
the publicity of their statements. In such times, administration of justice should be kept
paramount and the media should be asked to hold back for a reasonable time till justice is
delivered or the process of a trial is over.
In this view, the decision in Mirajkar goes a long way and for the time being sets the tone of
prior restraint in India.

65 AIR 1967 SC 1. (Decision of 9 judges binding on the present court).

2.7 ANALYSIS OF PRESS FREEDOM IN INDIA IN COMPARISON WITH THE UK
AND THE U.S.A

The important question which needs to be answered before any discussion is pursued on the
freedom of the press, especially freedom of the press in various nations with different social,
economic and cultural backgrounds is- what is the press?

With the growth of the internet, the meaning and purview of ‘press’ is ever expanding and
encompassing. Traditionally the press would generally use the mediums of print, radio and
television. But due to advancements in technology, the difference between these mediums is
slowly diminishing. Now, the features of all three mediums can be found on one device such as a
computer.

We know that the press generates information. That information could be political or
entertainment, but the press is one of the basic sources of information. Again, traditionally the
press would be one of the few creators of content and the public would use this content as their
source of information. Now, everyone is creating content at rapid speed in large amounts. The
world of social media (Twitter, Facebook, Google, Instagram etc.) has emerged and gained
unprecedented prominence.

The important point to take into consideration from the above discussion about the state of
freedom of press in different countries- and laws and regulations governing this freedom- is that
all three nations discussed above have some guidelines, voluntary practices, ethical codes, and
self-regulation, if not established laws, to govern the freedom of the press. The United States is
definitely the nation which at least legally guarantees the maximum quantum of freedom of
speech with India and the United Kingdom having similar regulations and voluntary codes.

The problem with the emergence of social media as a creator and distributor of content is who
will regulate such a medium and how will it be effectively regulated if anyone with internet
access can be a part of it.

Example- If I start a blog and start reporting local news on my blog, would the laws governing
the press apply to my blog? What is certain in India is, that the Information Technology Act,
2000 being the only technology law in India will definitely apply to my blog. For that reason, I
would be penalised under the Information Technology Act, for publishing any obscene, indecent

or malicious content on my blog. But, would laws and regulations governing the press affect me?
The answer to that question would be complicated. If I am within my constitutional rights,
stopping me from writing my blog due to unethical reporting would indirectly violate my right to
freedom of speech and expression.

It has been seen that in India and even in the United Kingdom, the courts can pass gagging
orders or put prior restraints on the press from publishing material in relation to a particular
matter. But, if some random person who is privy to certain prejudicial information, uploads the
content anonymously online, would that person be in contempt of court? Technically, such a
person would be in contempt as he would prejudice the fairness of the trial and infringe the gag
order, but such a person is not necessarily the press. Plus in the digital world, it is not always
elementary to determine the identity of a person.

The vast reach of the internet is changing and affecting the legal environment very rapidly. Many
times, old laws do not necessarily adapt to new changes in technology. Then arises a need for
new and more detailed laws.

India needs the enactment of new laws in relation to the digital and online world. The density of
the internet population might be concentrated in our country but it is definitely not small in
number.

One thing which is very clear from the discussion on press freedom is that some reasonable
regulations are necessary for a healthy environment. This is very evident from the events in the
UK and the findings of the Leveson inquiry.

Thus, new laws need to be drafted to reasonably regulate the vast amount of data being created
everyday by everyone on the digital medium. India needs to keep in mind its economic, social
and cultural condition and make appropriate laws for such rapid generation of content.

2.8 BROADCASTING

In computer networking, telecommunication and information theory, broadcasting is a method of
transferring a message to all recipients simultaneously. Broadcasting can be performed as a high
level operation in a program, for example broadcasting message passing interface, or it may be a
low level networking operation, for example broadcasting on ethernet.

2.9 HISTORY AND EVOLUTION OF BROADCASTING IN THE UNITED KINGDOM

2.9.1 Early Development66

After World War I, commercial firms that regarded broadcasting primarily as a means of point-
to-point communication took the first initial efforts in broadcasting. In 1919, human voice was
broadcast successfully for the first time from a transmitter in Ireland across the Atlantic. It led to
the erection of a six-kilowatt transmitter at Chelmsford, Essex. From this spot, between 1919 and
1920, two daily half-hour programs of speech and music were broadcast. However, opposition
from the armed services, fear of interference with essential communications and a desire to avoid
the “commercialization” of radio led to a ban on the Chelmsford broadcasts. The Post Office
claimed the right to impose the ban. It ruled that experimental broadcasts had to be individually
authorized. Nevertheless, about 4,000 receiving-set licenses and 150 amateur transmitting
licenses issued by the Post Office by March 1921 were evidence of growing interest. When these
amateurs, grouped into 63 societies with a total of about 3,000 members, petitioned for regular
broadcasts, their request was granted in a limited form: the Marconi Company was authorized to
broadcast about 15 minutes weekly. The first of these authorized broadcasts, from a hut at
Writtle, close to Chelmsford, took place on Feb. 14, 1922. Shortly thereafter an experimental
station was authorized at Marconi House in London, and its first program went on the air May
11, 1922. Other stations were soon to follow.

2.9.2 Formation of the BBC

By this time, developments in the United States had demonstrated the commercial possibilities of
radio but also suggested a need for greater order and control. The Post Office took the initiative
in encouraging cooperation between manufacturers, and on Oct. 18, 1922, the British
Broadcasting Company, Ltd., was established as a private corporation. The company’s revenue
came from half of the 10-shilling license fee for receivers and a 10 percent royalty on the sale of
receiving sets and equipment. Provincial stations were provided for, and all stations were to
broadcast “news, information, concerts, lectures, educational matters, speeches, weather reports,

66 History of Broadcasting at <http://www.britannica.com/EBchecked/topic/80543/broadcasting/25189/Formation-
of-the-British Broadcasting-Company> Accessed June 17, 2013.

theatrical entertainment.”67 TheBritish Broadcasting Company was a monopoly. As a result,
British radio developed in a more orderly manner than elsewhere. However, issues of
broadcasting, such as control of finance, broadcasting of controversy, relations with government,
network organization, and public-service broadcasting became apparent, and solutions were
sought in the United Kingdom earlier than elsewhere. In 1927, upon recommendation of a
parliamentary committee, the company was liquidated and replaced by a public corporation, the
British Broadcasting Corporation (BBC), answerable ultimately to Parliament but with day-to-
day control left to the judgment of the Board of Governors appointed on the basis of their
standing and experience and not representing any sectional interests. The BBC retained its
monopoly until the creation of the Independent Television Authority (ITA) in 1954. The BBC
experimented with local radio in the late 1960s and expanded the number of local stations in the
early 1970s. In 1972, the ITA became the Independent Broadcasting Authority (IBA), which
assumed responsibility for establishing and regulating independent radio and television stations.
Regional and network production companies are appointed by the IBA; the companies sell
advertising time, but advertisers are not allowed to sponsor programs.

2.9.3 History and Evolution of Television Broadcasting in the UK

Television broadcasting in the UK, as in most of Europe, was introduced as an extension of radio
broadcasting. The UK was unusual in developing a television service before 1939. Its
development was the responsibility of the BBC. An experimental television service began in
1936.68

2.9.4 The Early Years: 1936–55

In the beginning, the new television service was constrained, in terms of both geographical and
social ‘reach’. Initially a limited service for the metropolitan middle class, it was a long time
(including close down from 1939–46, because of the disruption of the Second World War)
before the single BBC channel was widely available. It was 1952 before the signal could be
received by 81 per cent of the population. The television service required a viewing license on

67 Formation of the British Broadcasting Company at
<https://www.britannica.com/technology/broadcasting/Formation-of-the-British-Broadcasting-Company>
68 Case Study: An Outline History Of TV in The Uk at <http://www.mediastudentsbook.com/content/case-study-
outline-history-tv-uk> Accessed June 17, 2013.

top of the existing radio license, and by 1955 the number of television license payers had risen to
four and a half million (out of around fourteen million households).

2.9.5 A Universal Public Service: 1955–82

The highly controversial introduction of ‘commercial’ or ‘independent’ television (ITV) in 1955,
in London and then around the country (set up partly with public service rather than simply
commercial principles), did much to fire up the BBC, which was allowed to introduce a second
channel with colour and a higher resolution picture in 1964. Colour transmissions began in 1967.
It was 1985 before the old system was finally switched off – an interesting comparison with the
current timetable for switching to digital broadcasting in a very different television environment.
In this period, ITV companies were obliged to operate on a purely regional basis, serving a
distinctive community and abiding by tight regulatory controls laid down by the franchising
authority, the IBA (Independent Broadcasting Authority – at first the ITA or Independent
Television Authority). Filmed American series became commonplace on UK television during
this period and ‘live links’ via satellite introduced overseas news and joint broadcasting events.
ITV was first known as ‘commercial television’ and was depicted as ‘vulgar’ by some middle-
class audiences. It was some time before the quality of ITV programming was recognised in
drama productions such as Armchair Theatre (1956-74).

2.9.6 The Beginnings Of Pluralism: 1982–90

Channel 4 went on air in 1982 with a new remit, to widen the range of programming and to serve
a diverse range of audiences not served by the BBC and ITV. Channel 4 was innovative in
several different ways. It was a public sector organisation that was funded via advertising
revenue, initially sold by the ITV companies. It didn’t make its own programmes, but
commissioned independent companies as a ‘broadcaster-publisher’ and created a new form of
television channel. Channel 4 promised a wider spread of viewpoints and a third source of news
and current affairs during a period of great social unrest in the UK. In Wales, S4C was also set
up as a public service broadcaster-publisher. This period saw the UK introduction of satellite
broadcasting (two companies, Sky and BSB began broadcasting, but Sky soon took over BSB to

form BSkyB) and the re-emergence of cable television (it had previously been used to relay
terrestrial signals and some local services) offering a variety of channels on broadband cable.

2.9.7 The Multi-Channel Environment: 1990 Onwards

The Broadcasting Acts of 1990 and 1996 legislated for a new television environment in which
regulation of ‘independent television’ was loosened, Channel 4 gained control over its own
advertising revenue from ITV, and digital broadcasting promised to provide even more channels
than analogue cable and satellite, as well as ‘interactivity’ and computer services. Channel 5 was
launched as a final terrestrial channel (i.e. analogue bandwidth was now used up). Throughout
the previous thirty-five years, the BBC and ‘independent television’ (i.e. ITV and later Channel
4) had shared the audience on a roughly equal basis. From now on, the audience share of ‘other
broadcasters’ would grow steadily, undermining the settled terrestrial broadcasting environment.

In the United Kingdom all broadcasting is regulated by the Office of Communications (Ofcom)
as established by the Communications Act, 2003.

2.10 HISTORY AND EVOLUTION OF BROADCASTING IN THE UNITED STATES

2.10.1 History and evolution of Radio Broadcasting in the United States

The first known radio program in the United States was broadcast by Reginald Aubrey
Fessenden from his experimental station at Brant Rock, Mass, on Christmas Eve, 1906. Two
musical selections, the reading of a poem, and a short talk apparently constituted the program,
which was heard by ship wireless operators within a radius of several hundred miles. Following
the relaxation of military restrictions on radio at the conclusion of World War I, many
experimental radio stations often equipped with homemade apparatus were operated by
amateurs. The range of such broadcasts was only a few miles, and the receiving apparatus
necessary to hear them was mostly in the hands of other experimenters, who, like the
broadcasters, pursued radio as a hobby. Among the leading personalities of this early period

was David Sarnoff, later of the Radio Corporation of America and the National Broadcasting
Company, who first, in 1916, envisaged the possibility of a radio receiver in every home.69

Developing networks

The National Broadcasting Company began regular broadcasting in 1926, with telephone links
between New York and other Eastern cities. NBC became the dominant radio network, splitting
into Red and Blue networks.

Despite the power shift, AT&T maintained the ability to share patents with Westinghouse, GE,
and RCA. This led to the Justice Department filing an anti-trust suit against all four companies in
May 1930. To avoid trial, AT&T withdrew from the patent alliance in 1931 and the remaining
three companies developed their own divorcement plan which left RCA as the sole owner of
NBC.

A Federal Communications Commission decision in 1939 required NBC to divest itself of its
Blue Network. That decision was sustained by the Supreme Court in a 1943 decision, National
Broadcasting Co. v. United States, which established the framework that the "scarcity" of radio-
frequency meant that broadcasting was subject to greater regulation than other media. This Blue
Network became the American Broadcasting Company (ABC). Around 1946, ABC, NBC,
and CBS began regular television broadcasts. Another TV network, the DuMont Television
Network, was founded earlier, but was disbanded in 1956.

2.10.2 Growth of Commercial Radio

From this beginning the evolution of broadcasting was rapid; many persons who wanted to hear
music from the air soon created a demand for receivers that were suitable for operation by the
layman. The increase in the number of listeners in turn justified the establishment of stations
especially for the purpose of broadcasting entertainment and information programs. The first
commercial radio station was KDKA in Pittsburgh, which went on the air in the evening of 2nd
November, 1920, with a broadcast of the returns of the Harding-Cox presidential election. The
success of the KDKA broadcast and of the musical programs that were initiated thereafter

69 History of Broadcasting at < http://www.britannica.com/EBchecked/topic/80543/broadcasting/25189/Formation-
of-the-British Broadcasting-Company> Accessed June 17, 2013.