Media Rights: A comparative

analysis of India with other

democracies

SUBMITTED TO: SUBMITTED BY:

Dr.ALAMDEEP KAUR SHIVANI KAUSHIK

1944, LLM-1 YEAR

 ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Dr Alamdeep Kaur for providing me an

opportunity to do my project work in “Media Rights: A comparative analysis of India with
other democracies”.

I would also like to thank all my friends for helping and making the project successful. This
acknowledgement is one way where I can actually thank the people who have been instrumental
in the making of this project. With their help the project was done with ease.

I would like to thank a lot of people without whose co-operation and support working on this
project would not have been so pleasurable and interesting.

-Shivani Kaushik
 Table of Contents

S.No. SUB TOPICS PAGE NUMBER

1. INTRODUCTION 4-5

2. HISTORICAL PERSPECTIVE 6-7

3. CONSTITUTIONAL PROVISIONS 8-11

REGARDING FREEDOM OF MEDIA IN
INDIA
4. OTHER LAWS DEALING WITH RIGHTS 12-14
OF MEDIA IN INDIA

5. RIGHTS OF MEDIA IN BRITAIN 15-19

6. RIGHTS OF MEDIA IN US 20-25

7. RIGHTS OF MEDIA IN FRANCE 26-27

8. RIGHTS OF MEDIA IN CANADA 28-30

9. CONCLUSION 31

10. BIBLIOGRAPHY 32
 Introduction

From times before legal history and beyond legal memory, man has expressed his ideas through
various channels like symbols, signals, speech, script, print and now computer language as well.
Communication is a fundamental human requirement and is the underpinning of all human
dealings since it is the mode through which humans exchange information. The free exchange of
ideas and knowledge take place when there is unrestricted full-fledged communication. The
existence of a free, independent and powerful media is the cornerstone of a democracy,
especially of a highly mixed society like India. Media is not only a medium to express one’s
feelings, opinions and views, but it is also responsible and instrumental for building opinions and
views on various topics of regional, national and international agenda. Since ideas and
information are so important for the growth and survival of a free and democratic society, such a
goal cannot be achieved unless every citizen has a fundamental right to give expression to his
ideas and opinions. This came to be known as the right to free speech and expression; the most
cherished fundamental right, as envisaged under various international covenants and most of the
constitutions including the Indian Constitution. The right to freedom of expression has a wide
ambit which includes the freedom to hold opinions, freedom to impart information, the freedom
to receive information and even the freedom to dissent against the democratically elected
governments of the day1. It is also related to free thinking, imagination and deliberation which
are prerequisites for a human being’s self-realisation. Moreover, it is a vital right to form a good
democratic government where citizens are well informed about political happenings. This liberty
of communication and expression though guaranteed to the public, citizens in particular, it is
through press and media that the information is disseminated in the form of news. Hence, it is
universally accepted that media is the tool through which the freedom of speech and expression
is attained. Though press and media are used interchangeably, the basic difference is that one is
in print form and the other is in electronic form. Both serve the same purpose of gathering,
processing and disseminating information to be provided to the public. For this reason, media is

1
Melville B Nimmer, “Introduction-Is Freedom of the Press A Redundancy: What Does it Add To Freedom of
Speech?”, Vol.26, Hastings Law Journal 639 (1975).
definitely the fourth estate functioning in the domain between the state and the citizens and thus
acting as a channel of information which makes people sufficiently informed. From a democratic
society’s point of view, the media plays a pertinent role by providing information which is
indispensable for two reasons. Primarily, it ensures that citizens formulate proper and updated
views by analysing the authentic and genuine facts as provided by media. Secondly, it provides
information as a “checking function”8 by guaranteeing that the chosen government and its
representatives act upon electoral promises and achieve the desires of those who chose them.
Media thus plays a central role since it is the single means through which public opinion is
engendered2.
The Preamble to the Constitution of India resolves to secure for the citizens of India, liberty of
thought, expression and belief. Focusing on the core objective of the Indian Constitution, the
Preamble assures every citizen of India the freedom of speech and expression, religious
independence and choice of going by one's own belief. The III part of the Indian Constitution
deals with the Fundamental Rights. The Constitution contains the right to freedom, given in
articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered
vital by the Framers of the Constitution. The right to freedom in Article 19 guarantees the
Freedom of Speech and Expression, as one of following six freedoms.
All Indian citizens enjoy a constitutional right to give free expression to their views, opinions
and convictions. They have, for this purpose, the right to seek, receive and impart information
and ideas. As the exercise for freedom of expression requires a medium through which
information and ideas may be communicated, it naturally follows that the medium shall also be
free. Our Constitution does not specially mention the freedom of the media as in the US
Constitution. However, the Supreme Court has, following the above logic, very explicitly ruled
that freedom of the press is included in the guarantee of the freedom of expression, which also
includes the liberty to publish and circulate. The Apex Court has held that there was, therefore,
no need to make a separate provision for the freedom of the press.

2
Shefali Bedi, “Responsibility of media in a democracy”, Vol.7, International Research Journal 235 (2009).
 The Historical Perspective
The laws related to media in India have emerged in due course of time in a drastic manner.
However, there was no press regulation until the British East India Company started ruling a part
of India after the Battle of Plassey in 1757. When newspapers in India were published by only
Europeans expulsion of the editor (printer) was ultimate penalty. The James Augustus Hickey in
1780 started The Bengal Gazette or Calcutta General Advertiser, the first newspaper in India. It
was seized in 1872 because of its outspoken criticism of the Government. Like censorship,
licensing was also a European institution to control the press. It was introduced in Bengal in
1823 through Adam’s regulations3. The East India Company also issued instruction that no
servant of the company should have any connection with a newspaper. Licensing regulations
were replaced by Metcalfe’ Act which was applicable to entire territory of the East India
Company and required that the printer and publisher of every newspaper declare the location of
the premises of its publication. Licensing was, however, reintroduced in 1857 by Lord Canning
and was applied to all kinds of publications. In 1860 Indian Penal Code was passed as a general
law but laid down offences which any writer, editor or publisher must avoid - the offences of
defamation and obscenity.

Various laws were proposed and implemented during the colonial period. Some of them are :

 The Press and Registration of Books Act (25 of 1867)

 Vernacular Press Act 1878
 Telegraph Act 1885
 The Newspaper (Incitement to Offences) Act, 1905
 Copyright Act, 1911
 Cinematograph Act 1918
 India Press Act,1910

3
Dr Rahul Tripathi,”Media Laws in India: Origin,Analysis and Relevance in present scenario”, Vol No.7,
International Journal of Humanities and Social Science Invention (IJHSSI) ,13 (2018)
The chapter on Fundamental rights, Part III in the Indian Constitution, was not incorporated as a
popular concession to international sentiment and thinking on human rights in vogue after the
conclusion of the Second World War. The demand for constitutional guarantees of human rights
for Indians was made as far as way back as in 1895 in the Constitution of India Bill, popularly
called the Swaraj Bill, which was inspired by Lokmanya Tilak, a lawyer and a great freedom
fighter. This bill envisaged for India a Constitution guaranteeing to every citizen, among other
freedoms, the freedom of press. To a certain extent one can say that the debut of press in India
was made with commercial interests in mind. It was the contribution of the first British MNC -
The East India Company4. It was one of those instruments of the British, which was later
manipulated by the Indians to serve their interests; as the role of the press underwent a major
change and it soon turned out to be one of the most effective weapons Indians had at their
disposal during their struggle for freedom from the British. The press was always under the
control of the company, but after its press role reversal the necessity to clamp harsh curbs
became imminent. Repressive laws were passed and judgments were given curbing press
freedom. The ‘Founding Fathers and Mothers’ of the Indian Constitution attached great
importance to freedom of speech and expression and the freedom of the press. Their experience
of waves of repressive measures during British rule, when the nationalist press was bludgeoned
by sedition trials and forfeiture of security deposits convinced them of the immense value of this
right in the sovereign democratic republic which India was to be under its Constitution. They
believed that freedom of expression and the freedom of press are indispensable to the operation
of a democratic system. They believed that central to the concept of free press is freedom of
political opinion and at the core of that freedom lays the right to criticize the Government.

4
B.Mugundhan,”A study on freedom of Press in India: With reference to Article 19”,120, International Journal of
Pure and Applied Mathematics,3958(2018)
 Constitutional provisions regarding
rights of media in Indian democracy

The Indian Constitution does not provide freedom for media separately. But there is an indirect
provision for media freedom. It gets derived from Article 19(1) (a). This Article guarantees
freedom of speech and expression. The freedom of mass media is derived indirectly from this
Article. Our Constitution also lays down some restrictions in the form of Article 19(2).
Regarding the issue of freedom of speech, Dr. B. R. Ambedkar explained the position as follows:

"The press (or the mass media) has no special right which is not to be given to or which is not to
be exercised by the citizen in his individual capacity. The editor of a Press or the manager is all
citizens and, therefore, when they choose to represent any newspapers, they are merely
exercising their right of expression and in my judgement no special mention is necessary of the
freedom of Press at all."

On the matter of the freedom of speech and expression, the first Press Commission5 in its report
said, "This freedom is stated in wide terms and includes not only freedom of speech which
manifests itself by oral utterances, but freedom of expression, whether such expression is
communicated by written word or printed matter. Thus, freedom of the press particularly of
newspapers and periodicals is a species of which the freedom of expression is a genus. There
can, therefore, be no doubt that freedom of the press is included in the fundamental right of the
freedom of expression guaranteed to the citizens under Article 19(1) (a) of the Indian
Constitution."

Justice Mudholkar, a Supreme Court Judge said during Emergency (1975-77), "Pre-censorship,
prohibition on import of printed and published material, placing a ban on printing and publishing
material of a specified nature, demanding security from the press or placing any restriction which

5
First Press Commission of India constituted in 1952 under the chairmanship of Justice GS Rajadhyaksha and
submitted its report in 1954.
would amount to an indirect curb on free circulation of a newspaper or class of newspaper should
confine itself have all been held to be bad in law."

In the Romesh Thappar case6 the court laid down an important principle: - So long as the
possibility of the law being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of Art
19 having allowed the imposition of restrictions on the freedom of speech and expression only in
cases where danger to public security is involved, an enactment which is capable of being
applied to cases where no such danger could arise cannot be held to be unconstitutional and valid
to any extent7.

However the current scenario is that freedom of press is not absolute. It can be restricted
provided three distinct and independent prerequisites are satisfied.

1) The restriction imposed must have the authority of law to support it. Freedom of the press
cannot be curtailed by executive orders or administrative instructions which lack the
sanction of law.
2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2).
Restrictions on freedom of speech and expression cannot be imposed on such omnibus
grounds as ‘in the interest of the general public8’.
3) The restrictions must be reasonable and must not be excessive. The validity of restrictions
imposed is justifiable and open for judicial review by the Indian courts.

In a celebrated decision, Bennett Coleman & Co. v Union of India9, the Supreme court again
came to the rescue of the press. It held that freedom of press entitles newspapers to achieve any
volume of circulation and freedom lies both in its circulation and content. Freedom of press is
the heart of social and political intercourse. It is the primary duty of the courts to uphold the
freedom of the press and invalidate all laws or administrative actions which interfere with it
contrary to the constitutional mandate.

6
Romesh Thappar v State of Madras, AIR 1950 SC 124
7
Ibid
8
Sakal Papers(P) Ltd v Union of India AIR 1962 SC 305
9
AIR 1972 SC 106
In its landmark judgment in the case of Sakal Papers10, the Supreme Court ruled that Art 19(2)
of our Constitution permits imposition of reasonable restrictions under the heads specified in Art
19(2) and on no other grounds. Freedom of the press cannot be curtailed, like the freedom to
carry on business, in the interest of the general public.

The domain of Art 19(2) of the Constitution contains the grounds on which restrictions on the
freedom of speech and expression can be imposed. Some of them as discussed here:-

1. Decency and Morality

One of the heads on which freedom of the press can be restricted under the Constitution of India
is ‘Decency and Morality’. In matter of morality and obscenity courts do not always reflect
contemporary standards and perceptions though they purport to do so. ‘Obscenity’, ‘indecency’
and ‘immorality’ are equivocal concepts. The standards set for these vary from one society to
another. Judges despite valiant efforts, have failed to evolve a satisfactory definition of
obscenity. Apparently, obscenity, like beauty lies in the eyes of the beholder. Sections 292 to 294
of the IPC deal with this restriction. In India vulgarity and strong erotic language are often
treated as inter-changeable with obscenity. In its recent judgment concerning the movie, The
Bandit Queen11, the court ruled that neither nudity nor vulgarity can necessarily be equated with
obscenity.

2. Defamation

A statement which injures a man’s reputation amounts to defamation. In India Sec 499 of the
IPC contains the criminal law relating to defamation. The civil law on the point is largely
uncodified. Libel laws can have chilling effect on the freedom of the press. The United States
Supreme Court in its landmark decision in New York Times v Suvillian12 ruled that every
inaccurate statement should not be actionable unless it is made with malice. This is because
erroneous statements are unavoidable in free debate in a democracy and must be tolerated if

10
Sakal Papers(P) Ltd v Union of India AIR 1962 SC 305
11
Bobby Art International v Om Pal Singh Hoon , (1996 ) 4 SCC 1
12
376 US 254
freedom of expression is to have ‘the breathing space it needs to survive’ The Supreme Court of
India too has taken a similar stand in R. Rajagopal v State of TN13 (Auto Shanker Case).

3. Contempt of Court

Contempt is another head of restriction on freedom of expression and freedom of the press. the
Supreme Court has upheld the constitutionality of the Contempt of Court Act,1952 on the
grounds that the Act did not impose unreasonable restriction on the right to freedom of speech
and is saved under Art 19(2)31. Courts have frowned upon comments made in the press upon
pending cases. The Punjab High Court ruled that ‘liberty of the press is subordinate to the proper
administration of justice’. The plain duty of a journalist is the reporting and not the adjudication
of cases14.Today the law of contempt is such that in India, the country which proclaims
‘satyameva jayate’, truth is no defense to an action of contempt15. This is a serious anomaly.

13
(1994) 6 SCC 632
14
Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273
15
Bijoyananda v Bala Krishna AIR 1953 Ori 249
 Other laws dealing with Media rights

1. THE PRESS AND REGISTRATION OF BOOKS ACT, 1867:

This Act was enacted with a view to evaluating the present position of books, newspapers, and
magazines in the country at any given time. The most important aspect of this Act is that every
copy of a newspaper shall contain the names of the owner, publisher, and editor printed clearly
on all the copies. The printer of every newspaper is required to deliver to the State Government
free of expense two copies of each issue of the newspaper as soon as it is published. Failure to do
so is treated as an offence.

2. SEA CUSTOMS ACT, 1878:

Section 8 of the Act16 prohibits the bringing into India whether by land, or by sea "any obscene
book, pamphlet, paper, drawing, painting, representation, figure or article." These items can be
confiscated.

3. CONTEMPT OF COURT ACT:

Contempt of Court is one of the reasonable restrictions under Article 19(2) of the Indian
Constitution. This Act was enacted for the first time in the year 1952. Later on this was again
enacted in 1971, which was further amended in 1976.

4. YOUNG PERSON'S (HARMFUL PUBLICATIONS) ACT, 1956:

This Act seeks to prohibit the publication in India of such literature as glorifies crime, violence
or vice.

16
Sea Customs Act,1878
5. PARLIAMENTARY PROCEEDINGS (PROTECTION OF PUBLICATION) ACT, 1956:

This Act was enacted with a view to protecting the publications of reports of proceedings of
Parliament except in newspapers. Section 3 of the Act17 states that no person shall be liable to
any proceedings, civil or criminal in any court, in respect of the publication in a newspaper of
substantially true report of any proceedings of either House of Parliament, unless the publication
is proved to have made with malice.

5.DEFENCE OF INDIA ACT,1962:

This Act came into force during the Emergency proclaimed in 1962. This Act aimed at
restricting the freedom of the press to a large extent keeping in mind the unrest prevailing in
India in lieu of the war against China. The Act empowered the Central Government to issue rules
with regard to prohibition of publication or communication prejudicial to the civil
defense/military operations, prevention of prejudicial reports and prohibition of printing or
publishing any matter in any newspaper.

6. PRESS COUNCIL ACT, 1978:

Press Council Act, 1978 is an Act to establish a Press Council for the purpose of preserving the
freedom of the press and of maintaining and improving the standards of newspapers and news
agencies in India. The Press Council Act empowers the Press Council to make observations in
respect of conduct of any authority including Government, if considered necessary for
performance of its functions under the Act. It can warn, admonish or censure the newspaper, the
news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist
if it finds that a newspaper or a news agency has offended against the standards of journalistic
ethics or public taste or that an editor or a working journalist has committed any professional
misconduct.

17
Parliamentary Proceedings(Protection of Publication) Act,1956
7. CINEMATOGRAPH ACT,1952

The Cinematograph Act of 1952 has been passed to make provisions for a certification of
cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of
Film Censors (now renamed Central Board of Film Certification) with advisory panels at
regional centre is empowered to examine every film and sanction it whether for unrestricted
exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to
sanction a film for public exhibition18.

8. THE CABLE TELEVISION NETWORKS (REGULATION) AMENDMENT ACT, 2011

The Telecom Regulatory Authority of India (TRAI), in its recommendations on "Implementation

of Digital Addressable Cable Systems in India" had, inter alia, recommended that "digitalization
with addressability be implemented on priority in cable TV services in Non-CAS areas" and,
accordingly, recommended a time-frame comprising four phases for switch over from analog
system to the digital addressable system (DAS) in the cable TV sector. The Central Government
decided to introduce digitalization with addressability in the cable TV services in a phased time
bound manner on a pan India basis. The Act has come into force from 25th day of December
2011.

9. PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) ACT, 1990

The Act provided for the formation of an autonomous Broadcasting Corporation that would
manage Doordarshan and AIR, discharging all powers previously held by the Information and
Broadcasting Ministry. The corporation would inherit the capital assets of Doordarshan and AIR
and would be managed by a 15-member Prasar Bharati Board, including the Directors-General of
the two organizations and two representatives from amongst the employees. The Chair and other
members of the Board would be appointed on the recommendations of the selection committee
headed by the Vice President. A fifteen member Broadcasting Council would address public
complaints. The primary duty of the Broadcasting Corporation was to ‘organize and conduct
public broadcasting services to inform, educate, and entertain the public’ and to ensure ‘a
balanced development’ of broadcasting of radio and television.

18
See http://www.legalserviceindia.com/articles/media.htm last accessed on 21st November,2019.
 Rights of Media In Britain

Media content regulation in the UK revolves primarily around codes of practice, drawn up by a
variety of bodies which are either entirely or largely independent, following wide public
consultation. 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 the codes noted above, 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. 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, two broadcasting acts set out broad categories of material which
should be covered by codes of conduct but leave detailed elaboration of these categories to
regulatory bodies. These acts provide for the establishment of various independent
regulatory bodies which undertake a variety of roles vis-à-vis broadcasters, including
monitoring and applying the codes. The various codes of conduct in place in the UK19 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 recognizing,
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, 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.

19
There are seven codes governing content standards within the media in the UK, one for the press and six for the
broadcast media.
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 Print Media

In the United Kingdom, the print media is essentially self-regulating. There is no statutory Press
Council, no statutory complaints body and no requirement that journalists be registered or belong
to any particular association. In 2011 there was widespread shock throughout the UK at the
revelations of the phone hacking scandal. Accusations were made of extensive criminality in
parts of the press and many people spoke publicly about their unfair treatment at the hands of the
print media. The phone-hacking scandal established the PCC20 was not fit for purpose:
corrections and adjudications were non comparable with fines, challenges lay further up the
hierarchy. Its directors tried to defend the body, arguing it had a portfolio of ‘case law’ and
publishing apologies was an effective tool. Over its lifetime, the PCC’s Code of Practice was
revised 30 times suggesting issues were dealt with by rule changes rather than reprimands. This
led to the Prime Minister setting up an inquiry into press ethics, chaired by the Hon Lord Justice
Leveson. The Leveson Inquiry declared a need for a revolution of press regulation. The Leveson
Report was published on 29 November 2012 and recommended significant reforms to the
regulation of the press.

What has happened since the Leveson Report was published?

On 30 October 2013, a Royal Charter on press regulation was granted, which incorporated key
recommendations from the Leveson Report, allowing for one or more independent self-
regulatory bodies for the press to be established. Any such body would be recognised and
overseen by a Recognition Panel—and those publishers who joined a recognised regulatory body
might expect to receive more favorable treatment if action was taken against them in the courts.

20
Press Complaints Commission.
The Press Recognition Panel came into existence on 3 November 2014. The Royal Charter was
backed by Parliament through the Enterprise and Regulatory Reform Act 2013, which gave
statutory backing to the new arrangements. It was endorsed by many victims of the phone
hacking scandal but was rejected by the bulk of the British print media who claimed that this
approach amounted to “government control of the press21.”

Most national newspapers joined the Independent Press Standards Organisation (IPSO)
which was set up on 8 September 2014, replacing the Press Complaints Commission (PCC).
IPSO has confirmed on a number of occasions that it does not intend to seek recognition under
the Royal Charter. In a further twist, The Independent Monitor of the Press (IMPRESS) project,
first set up in mid-2013 as the development organization for a second regulator, appointed a
Chairman in November 2014, in anticipation of establishing a regulator.

Is the new system compliant with the recommendations made by the Leveson Report?

At present no regulatory body exists for the press that fully complies with the strict requirements
for independence from publishers set out by the Leveson Report. The Leveson Inquiry made 47
recommendations for press regulation, 38 of which related to self-regulators. IPSO, succeeding
the PCC in September 2014, meets just 12 of these recommendations. IPSO is the largest
independent regulator of the newspaper and magazine industry in the UK and exists to promote
and uphold the highest professional standards of journalism in the UK, and to support members
of the public in seeking redress where they believe that the Editors' Code of Practice has been
breached. The Editors' Code deals with issues such as accuracy, invasion of privacy, intrusion
into grief or shock and harassment. IPSO is able to consider concerns about editorial content in
newspapers and magazines, and about the conduct of journalists.

IPSO handles complaints and conducts its own investigations into editorial standards and
compliance. It also undertakes monitoring work, including by requiring publications to submit
annual compliance reports. IPSO has the power, where necessary, to require the publication of
prominent corrections and critical adjudications, and may ultimately fine publications in cases

21
‘Questions remain over new press regulator IPSO as it launches’, The Drum (8 September 2014):
http://www.thedrum.com/news/2014/09/08/questions-remain-over-new-press-regulator-ipso-it-launches
[accessed 21st November,2019
where failings are particularly serious and systemic22. IPSO is a self regulator paid for by its
member publishers though the Regulatory Funding Company.

Broadcasting Regulations

The British media operate a liberal model of media system. The media system in Britain consists
of several meso-systems: television, radio, newspapers, magazines, the new media, the music
and film industries. The system operates a public-private ownership model - the government
owned British Broadcasting Corporation (BBC) is the largest broadcast provider and the
Independent Television Commission (ITV) plc, the major competitors. News Corporation
operates a number of leading national newspapers. In terms or political parallelism - lines of
division within the political system - the British media, system operates a neutral philosophy.
This implies that 'there is no division within the media industry along political party lines of
division within the political system. It is observed that political parallelism (as practiced in the
British system) is as a result of commercialization of the media into highly capitalized and
profitable businesses. The media have thus become independent on governments subsidy and
support from influential individuals, who may have political learning. Also, in practice, the
British media system exhibits information-oriented journalism and professional model of media
governance in the broadcast sector. By implication, social responsibility is the guiding
normative principle of the British media due to its formally autonomous system and
professional regulatory model. In terms of professionalism, the British media system is
strong, non-institutionalised and self-regulatory. Control is therefore decentralized - there is
no central authority of the government regulating the system. Currently, the British broadcast
system operates a market-driven business model except with the state owned BBC on which
there is an indirect control through the setting of license fee. The legal regulation of the media
in Britain is in the Communications Act 2003 - an Act of the parliament of the United
Kingdom. The Act repealed the Telecommunications Act of 1984 and introduced the Office of
Communications (Of com) as the industry regulator. Among other measures, the Act introduces
legal recognition of community radio and removed restrictions on cross-media ownership. It

22
See https://en.wikipedia.org/wiki/Independent_Press_Standards_Organisation, last accessed on 23rd
November,2019.
however discountenances the use of other people's Wi-Fi broadband connections without
permission. More remarkably, the Act allows non-Europeans to fully own British television for
the first time in the country's history (Communication Act 2003). The British media system is
under government approved regulatory authority of the Office of communications which
presides over licensing, research codes and policies, complaints and protection of the radio
spectrum from abuse. It has regulatory and competition authorities over the broadcast,
telecommunications and postal industries of the media system in the United Kingdom. Its
activities include setting up regulatory guidelines for television and radio broadcasting, telephone
and broadband sector, spectrum licensing and protection, regulation of postal services and
consultations with industry stockholders and the public to help it make policy and regulatory
decisions based on evidences presented23.

23
See https://www.article19.org/data/files/pdfs/publications/uk-media-regulation, last accessed on 23rd
November,2019.
 Rights of Media in US

The United States operates a liberal model. The industry has even a longer history of liberalism
than the British system, having evolved an earlier commercial press that has largely displaced
affiliations to political parties and trade unions.The United States has also evolved a purely
commercial media industry - press and broadcasting - earlier than Britain, until the formation or
small Like in the British system, the American media exhibit a neutral, commercial and
information oriented journalistic practice unlike the French commentary approach. But while the
British media exhibit external pluralism, the American media exhibits internal pluralism in term
of political parallelism which generally low in the two countries, but lower in America, Political
affiliation in the American media has declined substantially. Similar to the British system the
American media practice is highly professional, non-institutionlised and self-regulatory. It is a
market-donated industry. While public broadcasting is strong in the British system (with which it
shares the liberal model) it is relatively indistinct in the American system. State regulation of the
media in the United States’ model of liberalism is even more limited than in Britain. The First
Amendment to the United State Constitution plays a central role in shaping the operational
framework that makes many kinds of government regulation in the United States impracticable
in legal and political terms. Government only creates a favorable legal framework to promote
America’s ideals of a free marketplace of ideas necessary to expand the media and public sphere.
It also provides basis infrastructure to promote commercial media. Media ownership in the
United States is predominantly private, with no nationally-owned public outfit like the BBC.
America operates a decentralized private ownership model in which the media are owned by
private concerns and there is no government’s central authority controlling media operations.
The American media system consists of newspapers, magazines, radio, television, books internet
and several different new media. The country also has a vibrant music industry as well as media
conglomerates, which tend to lead to global landscape. The industry operates a free market
system encouraged by the passage of the Telecommunications Act of 1996, which promoted
deregulation and convergence leading to mega mergers, further concentration of media
ownership and emergence of multinational conglomerates. There are six corporations that control
about 90% of the American (and by extension, global) media called The Big Six namely:
Comcast, The Walt Disney Company, News Corporation, Viacom and CBS Corporation .The
America media system is acclaimed to enjoy greater freedom than any other system in the world.
There is no direct or indirect government control over the press through subsidies, licensing
labour policies or any other official means. Broadcasting is under the regulatory authority of
Federal Communications Commission (FCC) created by the Communications Act of 1934 to
regulate telecommunications and broadcasting sectors of the media industry. This marked the
beginning of media pluralism in America. The 1975 Cross Media Ownership Rules of the FCC
banned the ownership of a daily newspaper and broadcast station covering the same community
to ensure a diversity in communication through different outlets and to limit media
concentration. The Telecommunications Act of 1996 repealed the cross media ownership rule to
encourage completion in the ‘public interest’. The law resulted into mergers of several
companies which still operate till today. In 2002, the FCC ruled that newspaper/broadcast cross-
ownership regulation was no longer necessary in the public interest to maintain competition,
diversity and localism. This rule was revised in 2007 and FCC made provisions to take each case
on its merits to determine if cross-ownership would affect public interest (Jonathan, 2009) Hence
the FCC ruled that a company could own a newspaper and broadcast station in any of the top 20
media markets, provided that there are at least eight media outlets in the market. It is noteworthy,
that the American media system berths its media legislation on public interest, the sort that is not
distinctively advocated in the British system. There are no laws prohibiting foreign investment in
the United States media, except the ownership rules that apply to all. Foreign journalists are not
subjected to special visa restrictions nor restricted from disseminating news to the home
countries. However, foreign companies are still not significant players in the American media
industry, except in the book publishing sector.

Article 19(1)(a) of the Indian Constitution discovers its underlying foundations in the main
change of the constitution of the United States of America. The primary alteration peruses:
Congress might make no law regarding a foundation of religion, or forbidding the free exercise
thereof, or shortening the right to speak freely, or of the press, or the privilege of the general
population serenely to collect and to request of the legislature for a review of grievance.
Dissimilar to the principal revision to the American constitution, the Indian constitution doesn't
not make a particular or separate arrangement for the flexibility of the press.
Even speech that enjoys the most extensive First Amendment protection may be subject to
“regulations of the time, place, and manner of expression which are content-neutral, are narrowly
tailored to serve a significant government interest, and leave open ample alternative channels of
communication.” Furthermore, even speech that enjoys the most extensive First Amendment
protection may be restricted on the basis of its content if the restriction passes “strict scrutiny”
(i.e., if the government shows that the restriction serves “to promote a compelling interest” and is
“the least restrictive means to further the articulated interest”)

Unprotected Speech

The Supreme Court has identified categories of speech that are unprotected by the First
Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and
speech that constitutes so-called “fighting words” or “true threats.” In a 2010 case, the Court
made clear that it would not be likely to add more categories to the list of types of speech that
currently fall outside the First Amendment’s purview, but it did not entirely rule out the
possibility that other forms of unprotected speech exist24.

1. Obscenity

Obscenity is unique in being the only type of speech to which the Supreme Court has denied
First Amendment protection without regard to whether it is harmful to individuals. According to
the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity
“was outside the protection intended for speech and press.”25

The Supreme Court has created a three-part test, known as the Miller test, to determine whether a
work is obscene. The Miller test asks: (a) whether the “average person applying contemporary
community standards” would find that the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.

24
U.S. v. Stevens, 559 U.S. 460 (2010)
25
Roth v. United States, 354 U.S. 476, 483 (1957).
The Supreme Court has clarified that only “the first and second prongs of the Miller test—
appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine
applying contemporary community standards.”26 As for the third prong, “[t]he proper inquiry is
not whether an ordinary member of any given community would find serious literary, artistic,
political, or scientific value in allegedly obscene material, but whether a reasonable person
would find such value in the material, taken as a whole.”

2. Child Pornography

It is unprotected by the First Amendment even when it is not obscene; that is, child pornography
need not meet the Miller test to be banned. Because of the legislative interest in destroying the
market for the exploitative use of children, there is no constitutional right to possess child
pornography even in the privacy of one’s own home.27

3. Fighting words and true threats

So-called “fighting words” also lay beyond the pale of First Amendment protection. The
“fighting words” doctrine began in Chaplinsky v. New Hampshire, 28 where the Court held that
fighting words, by their very utterance inflict injury or tend to incite an immediate breach of the
peace and may be punished consistent with the First Amendment.

4. Defamation

Defamation is a false statement about another person that tends to damage the reputation of that
person. It is unprotected by the First Amendment. While defamation is not typically punished as
a crime, it is a tort in all jurisdictions. Defamed plaintiffs can and often do sue publishers of
defamatory statements for heavy damages.

26
Pope v. Illinois, 481 U.S. 497, 500 (1987)
27
Osborne v. Ohio, 495 U.S. 103 (1990)
28
Chaplinsky v. New Hampshire 315 U.S. at 572
While defamation is inherently unprotected speech, the Supreme Court has recognized that some
limitations on defamation actions are necessary to avoid having a “chilling effect” on media
reporting of issues that are relevant to the public concern. Therefore, the Supreme Court ruled in
the seminal case of New York Times v. Sullivan,29 that plaintiffs who are public officials
wishing to sue news outlets must show “actual malice,” which, in this context, means that the
defendant news outlet must have known that its statement was false or at least have acted with
reckless disregard for the truth.

5. Commercial Speech

Commercial speech, which means speech designed to sell products or services rather than to
make political points or express political ideas, is not protected to the same extent as political
speech. While political speech that is false cannot be punished (unless it is also defamation),
commercial speech may be regulated or prohibited to ensure that it is truthful and not misleading
to potential consumers. Moreover, commercial speech can be prohibited if it encourages illegal
activity (as opposed to political speech encouraging illegal activity, which is protected unless it
meets the definitions of incitement or fighting words that we discussed earlier).

Moreover, states may even regulate truthful advertising that does not promote illegal activities if:

(1) It serves a substantial government interest;

(2) It directly advances that interest; and

(3) It is not more extensive than necessary to achieve that interest.30

6. Other Compelling Interests

No constitutional right is absolute as every right must give way to competing interests that are
more compelling. A regulation may limit free speech if it is necessary to achieve a compelling
government interest. This describes an analytical process known as “strict scrutiny.”

29
376 U.S. 254
30
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, (1980)
Examples of compelling interests include national security and giving people fair trials. So, for
example, the government may punish people who disclose secret military information in
wartime. Judges may also issue “gag” orders, preventing attorneys and parties from discussing
pending cases in public to avoid tainting the jury pool. Judges may also, and often do, admonish
jurors to avoid discussing pending cases outside of their deliberations31.

31
See https://lawshelf.com/videos/entry/freedom-of-speech-exceptions-categories-of-speech-not-protected, last
accessed on 23rd November,2019.
 Rights of Media in France

The media system in France is characterized by low newspaper circulation as well as elite and
politically oriented press. There is high political parallelism in the system, with external
pluralism and commentary oriented journalism as the operational principles. Journalistic
practice in France is reflective of a wide range of political view points and low level of
professionalism, despite the country’s long history of democracy. This is why journalistic
style in the system emphasizes the commentary approach for the purpose of shaping public
opinion more than providing information. Government model of broadcast governance is the
control model, with politics playing overriding influence on control. The system exhibits weak
professionalism inn media practice and the press is elite-centered, accounting for relatively low
newspaper circulation in the country. But the broadcast media are masses-centered. There is a
strong state intervention in the system due to the weak economy. In France, the State supports
the newspaper industry basically through provision of subsidies. Media policy in France is being
developed by the national government, assuming a central policy, but is also a competitor in the
market place of consumption. This is being done by the government through direct funding and
supervision of public broadcasters to provide contents that meet cultural objectives. The main
government-related agency for regulation of broadcast in the French Republic is the CSA
or ConseilSuperieur de L’Audivisuel which is translated as Supreme Audio-visual Council.
The CSA was formed in the year 1989 out of France’s independent regulatory agency established
in 1986. All televisions and radio operations – terrestrial, cable and satellite – fall under the
regulatory jurisdiction of the CSA. Media ownership in France, joint ownership pattern is
followed. The media ownership is shared between the state and other commercial companies.
The state is very prominent in broadcasting, while the other companies dominate the print media.
This ownership model is a sharp contrast to the British model in which government ownership is
low and the American system where ownership is predominantly private. There is no company
that maintains a dominant market position nationwide. The French is protected against
advertising from supermarkets, lawyers, cinemas, amongst others, as they cannot advertise on
television or radio. Radio France is the major commercial station in France’s public sector.
Licensing of the mass media in France is mixed. Private broadcast media are licensed by the
CSA. Radio stations are licensed for five years while television stations are licensed for ten
years. As regards media legislation, an important law about the freedom of the press was passed
in 1881. A law dating to 1982 in the audio-visual field made it opened to private operators, and a
great number of rules protect freedom of expression for every king of press in France. Journalists
have had to abide by a code of conduct for quite a long time for the purpose of accountability.
The national union for journalist, adopted one in 1918. Since 1990, the chairmen of newspapers
and audio-visual companies have prepared and imposed new codes on their journalists mostly to
avoid legal proceedings and sometimes for ethical considerations. The most remarkable of these
has been enacted by regional Western paper, Quest-France, which has inspired many other codes
of this kind. Otherwise, a law of 1935 protects the independence of (particularly the so-called
clause de conscience, which enables journalist to leave a newspaper whose owner has changed).
Advertisers are ruled by the Auto rite de Regulation Professionelle de la Publicite (ARPP),
Authority of professional Regulation of Advertisement, and all TV commercials and controlled
by the Higher Audio-visual Council. The ConseilSuperier de I’Audiovisual (CSA) allocates
licenses and frequencies. This regulation board was created in 1989 (later than the Canadian
authority which is behind the British and American regulators). It issues emission authorizations
and distributes Hertizian frequencies. It is funded by the state and the president of France
appoints a third of its full time members. This makes the CSA a completely government body
and the control/regulatory model in France centralized.

Recently, numerous journalists have been charged with revealing state secrets and questioned by
France's intelligence services. French media fear that press freedom is at risk under President
Emmanuel Macron32.

32
See https://www.dw.com/en/in-france-media-worry-about-press-freedom/a-49350052, last accessed on 23rd
November,2019.
 Rights of Media In Canada

The Canadian media system, like the British and American systems, exhibits the liberal model.
The system reflects the needs of multicultural groups of people in the country as well as the
political structure. Section 2(b) of the Canadian Charter of Rights and Freedoms33 states
that everyone has "the freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication. Ordinary, Media policy is mostly
described as a relatively obscure field of activity that concerns politicians, media owners and
regulators. The public is largely absent. Canada media system is counter example of this
statement, as it has been created largely in the public spotlight. It can therefore be inferred that
the media in Canada operates a normative philosophy of social responsibility. In respect to
European media, the degree of influence of various actors is directly related to their proximity to
political decision makers. This is certainly true in Canada as well. Nevertheless, studies showed
that Canadian media policy making is also marked by a remarkable and possibly unmatched
degree of transparency, resulting in a rich public discourse on media which inevitably makes the
system more accountable to the people it is supposed to serve.34 Consequently, the media tend to
be free to report events. The Broadcasting Act35 states that there should be “freedom of thought,
belief, opinion and expression including freedom of the press and other media of
communication”. Little wonder, there are over 200 cable and digital TV services including ones
aimed at children, business community, aboriginal people, older citizens, gay and religious
viewers. The freedom to air is much essential and evidenced in the numerous kinds of
programming disseminated to these heterogeneous audiences. However, the policy also stipulates
that these wide ranging freedoms are subject to “such reasonable limits … as can be
demonstrably justified in a free and democratic society”. The extent of demonstrably justified is
not stated as this phrase can be a hidden trap for the media practitioners. Although, Canada is
among the countries with decentralized media system, much of Canadian public policy is

33
See https://en.wikipedia.org/wiki/Freedom_of_the_press#Canada, last accessed on 22nd November,2019.
34
See https://thecanadianencyclopedia.ca/en/article/media-and-the-law, last accessed on 22nd November,2019.
35
Broadcasting Act was passed in 1991
detemind by the third arm of government especially in the areas of broadcasting and
telecommunications. In the real sense of it, there are other regulators other than the third arm of
the government which regulate the policies of the media. The Supreme Court and the provisions
of the Canadian Charter of Rights and Freedoms which came into effect in 1982 are the major
ones that have been empowered to effect the policies. The Supreme Court has decided a number
of cases involving the rights and power of the mass media.36 Among these judgments include
whether TV advertising could be aimed at children, the right of tobacco companies to advertise,
the legality of government restrictions on the publication of poll results 48 hours before an
election, on the legitimacy of libel and hate laws and on whether pornography legislation places
unacceptable limits on a person’s right to privacy and expression. The mass media in Canada are
majorly owned by private concerns while a limited number of them are government-owned.
However, the structure of Canada’s media industry is constantly changing through mergers,
acquisition and creation of new companies. This is as result of emerging business opportunities
brought by changes in technology which has invariably eroded the traditional boundaries
surrounding media markets.

The Canadian government regulates media ownership and the state of media through the
Canadian Radio and Telecommunications Commission (CRTC). The CRTC, whose
members are appointed by the federal government, regulates all aspects of electronic media in
Canada and enforces the Broadcasting Act as well as the Telecommunications Act. Among the
principal powers that the CRTC exercises is the power to grant, renew and set the conditions for
broadcasting licenses. There is license hearing before the license is eventually issued and it is at
this point that democratic accountability is exercised. The media practitioners appear in front of
the Commission to answer question about their past performance as well as explain their plans
for the future. Members of the public are invited to write to the Commission if they have
concerns or wish to express their views. When new licenses are at stake, broadcasters are
allowed to wage campaigns to mobilize civic and community group to their side by endorsing
their applications. Although newspapers and magazines are unregulated, broadcasting comes
under the aegis of the Broadcasting Act of 1991.

36
See https://freedomhouse.org/report/freedom-press/2016/canada,last accessed on 23rd November,2019.
Section 337, which is the main level of the act, stipulates that Canadian broadcasting is a public
service, comprised of public, private and community elements, and that broadcasters must air
programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity’. The
most controversial parts of the Act are the sections that deal with Canadian unity and identity.
The Act states that broadcasting must serve the needs and interests, and reflect the circumstances
and aspirations of Canadian men, women and children including equal rights, linguistic duality,
the multicultural and multiracial nature of Canadian society and the special place of aboriginal
peoples. Broadcasting is also seen as being essential to the maintenance and enhancement of
national identity and cultural sovereignty. The CBC is now expected only to contribute to shared
national consciousness and identity. Another core provision of the Act ensures that broadcasting
outlets will be owned and controlled by Canadians. This is a sharp contrast to the American and
British systems where broadcast outfits could be owned by foreign business concerns. Apart
from the CRTC, there are other regulators which are interest groups and industry self-regulation.
The interest groups are made up of public interest group and associations representing the
creative sector, some of which have considerable influence. As for the industry self-regulation,
the audience created their own mechanisms for regulating the activities of the media, most
especially television. It is a matter of refusing to watch the TV programmes that they dislike.
This is more difficult with newspapers, especially in cities where there are only one or two local
papers. But in broadcasting, programs that do not capture the interest or imagination of the
public or that do not have pleasing or compelling formulas, can die a quick death. It should also
be noted that as personal video recorders have begun to make inroads, more Canadians are
viewing TV programs ‘by appointment’. A variety of audience measurement devices are used to
track program success. The Bureau of Broadcast Measurement uses the traditional diary system
although it is experimenting with a portable people meter that can detect inaudible codes
embedded in the audio portion of TV programs. The Canadian Broadcast Standards Council
(CBSC), which is supported by the CAB, strengthened its voluntary code of conduct on TV
violence in 1994. The CBSC has also developed a code of ethics and a code of conduct with
regards to sex-role stereotyping.

37
Section 3 of the Broadcasting Act,1991
 Conclusion

The comparative analysis carried out in this confirms the assertion that the media system in
every society is a reflection of the socio-political philosophy of the society, deliberately
fashioned after the pursuance of national goals. It is instructive to note that the government is the
chief player in shaping a country’s media system, though there are various stakeholders
interrelating with the system. There is a sharp divide in the rights of media in countries under the
purview of this paper. Media in India has been given a bundle of rights however with reasonable
and justified restrictions. In India media has a very strong role to play and is recognised as the
fourth pillar of democracy. In France there is a strong government intervention in media
operations, which brings it under the polarized model. This reflects in the country’s media
ownership, control, political parallelism and media professionalism. The United States, Britain
and Canada share the liberal model attributes with the former exhibiting the highest level of
liberalism. While the American and Canadian systems exhibit internal pluralism, the British
system practices external pluralism. Media in USA, Canada and Britain operate market-driven
media system but Britain combines this with a strong public broadcasting. In terms of normative
philosophy, all the media system under consideration exhibits traits of social responsibility that
calls for self-regulation among professionals. But government control of the media is most
pronounced in the French system through subsidies; strong in the British media through
government ownership of broadcasting; moderated by the Canadian government’s concerns
about national identity, which calls for state control on foreign media product; and minimal in
the United States. Conclusively, the United States media exhibit full liberal media model along
with India, where media has been granted a number of rights with exceptions being reasonable
restrictions,
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 Durga Dass Basu, Commentary on the Constitution of India, Lexis Nexis Butterworths
Wadhwa, (2011)

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