12th January, 2015 / By Samarika Kumar
The laws that could prevent such monopolies are either limited or absent.
While walking to work one day, I saw an advertisement for CNBC-TV18 proclaiming, “We have stood for Indian business news. We stand for an India that means business.” With the Reliance takeover and editorial tutoring of CNN and CNBC affiliate news channels, that double-edged statement acquires an amusing and disquieting connotation. Has India been reduced to news favouring big business? What is the government doing about it?
Here are five serious problems with the law regulating media monopolies in India.
1.There is no law regulating horizontal monopolies specific to the media industry.
We have media laws in the country which will get you arrested for a Facebook post. We have competition laws which regulate specific markets for competition. But we have no laws regulating media firms specifically to ensure diversity in media ownership. Horizontal monopolies (i.e. monopolies in the same segment of media, such as monopoly in TV channels or monopoly in newspapers) have very visibly appeared in TV news channels. A handful of people control the entire gamut of English news we watch on TV. True, competition law exists to promote competition in all kinds of markets, including media markets, but it is a general law that cannot take into account the particular problem of media monopolies or the integral role that media plays in politics.
Competition law has hardly been sufficient to prevent the rise of media monopolies in the country. The Reliance-Network18 takeover, while a major threat to media pluralism, fell well within legality simply because competition regulations are general in nature, which serve to ensure low entry barriers for new firms in market. Competition law does not serve the special purpose of addressing the pluralism of news and views. Like the Telecom Regulatory Authority of India says, “Media cannot, and should not, be bracketed with general commodities and services. The market for ideas is very different from that for, say, shoes or biscuits. The media serves a higher purpose and needs separate consideration.”
Media serves the valuable task of shaping public opinion. Competition in media markets then, while necessary, is just not a sufficient enough condition to ensure diversity of media ownership. We need more media-specific regulatory mechanisms that can prevent horizontal media monopolies across languages, states and varying kinds of content.
2. There is no law regulating cross-media ownership and vertical integration in the media.
Cross-media ownership (ownership of media in different segments, such as a newspaper, a TV channel and a news website) and vertical integration (ownership of media at different levels of production, such as control over news channel content as well as the Direct-to-Home network which supplies that news channel) are two other sub-problems giving rise to the problem of media monopolies in India. The news you watch on TV, read in a newspaper or access on the Internet, while parading to be different sources, might actually be owned by the same person. Cable operators also often act as local monopolies in distribution, while consistently under-reporting their subscriber base. There are no regulations in place currently to prevent either cross-media ownership or vertical integration. Competition law is not applicable in these cases because it seeks to prevent monopolies within a single market. Cross-media ownership and vertical integration, by their very definition, concern monopolies across multiple markets.
Thankfully, in August this year, TRAI came up with a set of recommendations (which has its own problems though) takes the remarkably brave first step of recommending regulations covering cross-media monopolies and vertical integration. Less thankfully, the existence of these TRAI recommendations seems to have been forgotten by most popular media as well as our esteemed legislators. (Is there some I-scratch-your-back-you-scratch-mine deal going on here? The Radia Tapes provide enough reason to not dismiss that conspiracy theory). Where is the raging public debate on the TRAI recommendations? Certainly not on that news channel playing in the background.
3. There are laws preventing widespread community ownership and use of the media.
While the top-down, big-profit media scene in this country is free from regulation, the bottom-up, less- and non-commercial media sector is abuzz with regulatory bees. Which means, for all practical purposes, that a common woman in India is very unlikely to actually start a media concern of her own to air her or her communities’ views.
Community radio, providing broadcast coverage for small local areas, is a prime example of this excessive regulation. The process for acquiring a licence to start community radio stations covering small areas is mired in bureaucracy. It involves multiple application submissions and personal appearances in multiple ministries in Delhi. If this were not enough to ensure that bottom-up media does not prevail in India, the Central government actually bans coverage of news and current affairs on community radio, which, on the face of it, strikes quite unconstitutional. This, in spite of a Supreme Court judgement declaring broadcast airwaves to be public property to be allocated only in public interest. Such blatant mistrust of the people of India speaks volumes about what needs to change if media monopolies are to be shattered and democratic media to take its place. Other countries do not necessarily mistrust their own citizens like ours does. The Netherlands, for example, has an excellent legal framework which allows for all sorts of non-profit social and economic communities to own and broadcast on their media alongside commercial and political media, thus promoting large diversity in media ownership.
4. There is no comprehensive framework of disclosure norms for media ownership.
Most media firms are private companies, and the corporate disclosure norms for private companies are not as stringent as for public companies – private companies are not mandated to make minutes of their Board meetings, relevant Board decisions and related party transactions public. Corporate disclosures for private and public companies are also made in different formats, leading to unavailability of comparable information. There is a lack of uniformity of format in the publicly available data. Current data on media companies also does not reveal the break-ups of total revenue into, say, advertisement, subscription and syndication revenue, or details of types of foreign shareholding. As a result, we have very little usable information on media ownership patterns in the country.
Taking a regulatory decision in this environment of black-boxed information becomes a wild guessing game. Thankfully once again,TRAI’s Recommendations on Media Ownership come to the rescue to recommend detailed disclosure norms for all media companies. But as pointed earlier, that has been mostly forgotten. Apart from having comprehensive media disclosure norms, we also need to have a mechanism for the enforcement of actual disclosures. This could be built into the broadcast licences granted to the media companies, so that non-disclosure or false disclosure leads to the revocation of licence and other penalties.
5. The lack of media monopolies is not typically linked with issues of freedom of speech and access to media.
Monopolies, oligopolies and the lack of diversity in media ownership or content are issues that are directly linked to questions of freedom of speech and right to information, which are protected as Fundamental Rights under our Constitution. But our courts have often failed to make this linkage. When in the Sakal Newspapers case in 1961, the government sought to bring a regulation to rein in newspaper monopolies, the court declared that such a regulation was in violation of the freedom of speech since it interfered with the speech of newspapers. The Supreme Court thus envisioned a form of freedom of speech which was divorced from the presence of media diversity and right to access the media. Later, in the 1995 Cricket Association case, the Supreme Court revised its stance to at least acknowledge that media diversity and pluralism were an essential part of the right to freedom of speech and expression. But unfortunately, this has not successfully translated into practical measures concerning institutional structures like reforms in public broadcasting and private broadcast licensee obligations.
In other jurisdictions, pluralism in media content, composition and ownership is seen as an integral part of the freedom of speech and expression. The European Court has ruled that freedom of speech is also threatened by the monopoly of even the public broadcaster. Unlike the Indian approach, the regulation for preventing media monopolies then need not necessarily mean the dominance of public broadcasting. Only a legal understanding of the freedom of speech – which includes freedom from interference, right to access, and right to access diverse choices as three related values – can solve the problems that Indian media poses for the common citizen. If not, any attempt to regulate media monopolies will continue to be perceived as a threat to media freedom.