The legal limits of reality television | Part 2: beeps, blurs and scrolls
The first part of this series post on content regulation of reality television dealt with more individualized forms of legal remedies and came to the conclusion that they are quite limited and onerous to enforce. The first part addressed legal sources such as privacy and defamation which may be available to participants, rather than the viewers of these programmes. The present part takes into account the legal remedies available to viewers who form a larger set of stakeholders and who sometimes are left angry, hurt or offended by the content on these reality television shows. This part focuses on the legal regulations which have been devised after taking into account the competing interests of freedom of speech and limits placed on it due to demands for public order, decency and morality.
Regulatory Framework for Television Content
Legal regulation for television content flows from Section 5 of the Cable Television Network Act which provides that, “no person shall transmit or re-transmit through cable service any programme unless the programme is in conformity with the prescribed programme code.” The Cable Television Network Rules, 1994 formed under the act under Rule 6 contains this “programme code”. These rules form the substantive provisions and prescribe certain conditions to which any television programme should be compliant. The conditions listed in rule 6 are as follows:
“Rule- 6. Programme Code. — (1) No programme should be carried in the cable service which:- (a) Offends against good taste or decency; (b) Contains criticism of friendly countries; © Contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes; (d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; (e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes; (f) Contains anything amounting to contempt of court; (g) Contains aspersions against the integrity of the President and Judiciary; (h) Contains anything affecting the integrity of the Nation; (i) Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country ; (j) Encourages superstition or blind belief; (k) Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; (l) Denigrates children; (m) Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups ; (n) Contravenes the provisions of the Cinematograph Act, 1952. (o) is not suitable for unrestricted public exhibition.”
There also some carve outs to these conditions and they are far from absolute. For instance, Rule 6(3) permits programmes for adults after 11 p.m. and before 6 a.m. and Rule 6(5) provides that programmes unsuitable for children must not be carried in the cable service at times when the largest number of children are viewing. As one can gather that Rule 6 contains a laundry list of various criteria which if enforced strictly would leave many a liberal aghast as well as take care of most of the ills of reality television in India. However, the institutions that are enforcing these legal rules and how effectively the rules are being enforced is another story.
Who are the regulators?
The enforcement of the regulation is largely left to the Ministry for Information and Broadcasting. Two specific bodies have been constituted to deal with complaints which arise from violation of the programming code. These are firstly the, (a) Inter Ministerial Committee on Regulating Television Content; and (b) the Electronic Media Monitoring Centre (EMMC). Alongwith these two bodies the Ministry of Information of Broadcasting has issued Order No. F-1203/1/2007-BC. II, dated 19–2–2008 for the formation of State and District Level Monitoring Committee for Private Television Channels.
One can safely presume that the Inter Ministerial Committee on Regulating Television Content is the apex body which issues the orders, advisories and warnings for non-compliance with the prescribed programme and television code. A certain amount of presumption is involved since no rules, regulations, orders or information are available online with regard to the constitution, the powers and the hearing and penalty procedure of the Inter Ministerial Committee. However, one can notice that all orders, advisories and warnings are issued by the Inter Ministerial Committee alone (through a high ranking bureaucrat). It is also revealed that the Inter Ministerial Committee before issuing its Orders, first issues a show-cause notice against programmes which it finds violate the programming code and follows it up with hearing the programmers side of the argument to conclude the hearing. These show-cause notices are issued, primarily to the Channel which broadcasts the programme. What particularly ails the implementation of the programme code is the absence of a notification system where viewers can send in their complaints or follow up on the status of the complaints. What further compounds the problem is the complete absence of transparency in the hearings which are held despite obvious elements of public interest.
The second body which has been recently set up is the Electronic Media Monitoring Centre (EMMC). Again one cannot obtain a copy of the notification constituting the EMMC and the breadth of its powers. Though the EMMC does say it enjoys the power to receive complaints from viewers for violation of the programme code, I very much doubt it sits on judgment on them. Here even though the EMMC has been in function since 2008 most orders which are issued to private channels have no mention of the EMMC. Hence, it seems even though EMMC may have the power to receive and act on complaints, it has so far not exercised this power. With regard to receiving complaints, it would be also appropriate to point out that the EMMC website which ostensibly provides an online complaint system which fails to work. Even the offline complaint form is named with an incorrect file extension and opens up as an html document when it should open up as a PDF document (I am attaching a complaint form here for those who want to get started on this). All these glitches would turn away and frustrate most visitors to the website. It would also be appropriate to point out that the EMMC website suffers from constant downtime (observed over a period of about 2 months).
Finally coming to the State and District Level Monitoring Committees for Private Television Channels. Since the constitution of these committees is incumbent on the state governments of each state their adoption seems to have been patchy. Most parts of the country do not seem to have such committees constituted. After several deep-searches Puducherry appears to have constituted one such committee. What is relevant to note that Puducherry is a union territory and is governed by the central government. As of 2008, the only state which has constituted a committee seems to be Jammu and Kashmir. From a juxtaposition of these three bodies, it is quite evident that there is a complete lack of clarity as to their inter-play, individual functioning and complaint receipt mechanism. It is ironic, that the 2008 order on the constitution of Monitoring Committees states that, “It has been noticed that the enforcement of the said Act in many parts of the country is still not satisfactory either due to lack of clear understanding of the role to be played by the District Monitoring Committees or a suitable mechanism to enforce the provisions of the Act.”
How do they act? : Beeps, Blurs and Scrolls
Now presuming that a complaint reaches the Inter Ministerial Committee and a violation of the programme code is made out, the next question to be asked is what penalty is levied and on whom. Once can notice by scrolling through a list put up on the Ministry of Information and Broadcasting’s website that 165 actions have been taken from 18.10.2004–26.04.2010 for violation of the Programming and the Advertising codes against Private Channels. These actions have been in the nature of orders, warnings and advisories. Here the sliding scale starts from an order, being the harshest and an advisory being the softest form of reprimand. With respect to Orders the model has been generally to find a violation and then make the channel run a “scroll of warning”, for a specified period apologizing for the violation of the codes. Such a sanction is reminiscent of the opening credits of “the Simpsons” where Bart Simpson is made to write repetitively on a school black board as punishment for misbehavior. Disciplining a petulant child and a private television channel are two very different acts (This is disregarding the questions on the efficacy of the punishment on Bart himself). Other forms of sanctions which are forced in such Orders are the banning of, the television channel and the retransmission of the offending content. However, one can see that out of the 165 instances cited only two channels have been banned (AXN and FTV). The second form of actions is warnings that are more routinely issued and act as a precursor for an Order in case of non-compliance. The third and the softest is an advisory which informs the channel to model and tailor its content to the broadcasting codes.
Results of these actions have been disappointing, with the sanction vacillating between an extremely harsh ban on the channel (rarely taken) to the usual mild nudge in an advisory. The criteria as to what invites an “order for banning” from an “order for running an apology scroll” are not defined. There are no bright lines as to what constitutes, “good taste” or “decency”. In the absence of these criteria a channel is also left clueless. However this does not cause a chilling effect, one notices quite the contrary. In the search for higher ratings, channels replace script for scandal hoping to shock us into cultivating a taste for reality television. This is hardly surprising since there is a clear absence of a deterrence which has been created by the present system. A case law research also reveals that broadcasters do not routinely challenge such orders/warnings/advisories, they simply comply with them. Given that broadcasters are well funded entities who resist most regulatory interferences into their functioning and revenue streams the reason for this enthusiastic compliance, one can safely assume, is an absence of cost. Think about it, a beeping a cussword, blurring an objectionable visual and when failing , scrolling an apology really does not ask for much. Moreover, since the examinations are on a case-to-case (even though previous warnings may be taken into account), recidivism is encouraged. After apologizing the Channels can go back to airing the same titillating content in a different format (kindoff like bart simpson). The due diligence which is exercised (and that is rare) is the beeping of cuss words and blurring of images which leave little to the imagination. A disclaimer further cloaks the Channels with legal security as they disclaim any liability and the personal views in the content.
Often in the search for legal solutions one finds the absence of law. However, a more common occurrence most Indian’s are familiar with is the existence of a law and the lack of enforcement. This is the case with the regulation of reality television shows in India today. If one moves, from an absolute, non-derogable conception of free speech and agrees to place reasonable restrictions on its exercise, then the filth being peddled today as programming deserves some scrutiny and more sanction. We should no longer allow a person to falsely shout, “FIRE!” in a crowded theater because its their idea entertainment.
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- In India, Reality TV Catches On, With Some Qualms (nytimes.com)
