Tuesday, July 28, 2015

Press vs Mass Communication

Constitutions of established democracies are precise and explicit. They place few or no restrictions on press and leave it to the law to define and elaborate

Dharma Adhikari
The draft constitution unambiguously includes the phrase "freedom of the press" in the preamble. But the relevant Article and Clauses downplay the term "press".

Past constitutions since 1990 as well as the Government Act 1948 were categorical in consecrating "news work" with this particular term.

Does this mean "the press", traditionally suggestive of serious, hardcore news, is losing its lustre, and with it, also going is the notion of (print) journalism as a privileged calling? News industry, in the throes of convergence, appears unmindful of this change. The draft constitution provides for rights regarding, aam sanchar ("mass communication").

The new formulation is unique. I have tried, but don't seem to locate any constitution in the world with a cache of rights all lumped under "mass communication". The phrasing sounds responsive to consumers of media and recognizes that our converging media environment has become complex and varied. Only that it doesn't appear in the preamble.

Are we about to be offered much more than just "press freedom"? After all, the word "press" is now structurally narrow, antiquated, and constitutes only a small segment of a diverse mediascape. The new media beast, a medley of electronic channels, including broadcast, online, telecommunication, films and social media, has swallowed the press.

The new provision, emphasizing "process", promises more than just the medium or content. But does it provide for the right to unhindered access to any channel, to exercise of any acts of mass communication, to reach whomever we want?

The reality is, words are limited in their meanings, and some rights cost money.

The slippery slope of "mass" is such that it doesn't take a "mass" for a street theater, or a roadside poster, or a car leaflet to become "mass communication". In the same vein, a corporate newsletter, a political campaign, or a piece of advertisement, whatever the channel used, in the public or commercial arena, can be described as mass communication. On closer look, the relevant draft Article and Clauses have nothing on these forms of mass communication.

In terms of acts of mass communication, the draft provides for "reasonable restrictions on any act" from among a list of dozen or more, depending on how we count them. In this sense, it is characteristically Indian in its orientation.

At least in draft, we share with India a controlling attitude. We agree with them on restricting acts in the interest of sovereignty and integrity of the State, in relation to defamation, contempt of court, incitement to an offense, public decency and morality.

The Indian constitution, which does not mention "press freedom", prohibits acts not in the interest of nation's security, its friendly relations with foreign countries, and public order. We don't mind those. But our constitution does bar acts undermining harmonious relations among the federal units or people of various castes, tribes, or communities; acts of treason, discrimination based on ethnicity, caste and gender.

There are too many double entendres. Nationalism, integrity, harmonious relations, defamation, contempt of court, and incitement to an offense have varied meanings. Similar restrictions abound under the Article on "freedom of opinion and expression" as well as Article 55 (b) (5) stipulating that the State shall create "necessary provisions to make the mass communication healthy, clean, protected, responsible and professional." Healthy and clean?

Other constitutions of established democracies are precise and explicit. They place few or no restrictions. They leave it to the law to define and elaborate.

The French constitution, for instance, does not bar "free communication" except that which "is tantamount to the abuse of this liberty in the cases determined by Law". No room for ambiguity.

The US constitution does not even identify restriction. In fact, it prohibits the Congress from making any laws abridging the freedom of the press. The Japanese constitution also specifies no restrictions. Even the supposedly non-democratic Chinese constitution is silent on restrictions.

The German constitution makes freedom of expression "subject to limitations in the provisions of general statutes, in statutory provisions for the protection of the youth, and in the right to personal honor". Just close to a tweet-length.

Better stay clear of innuendos. A democratic approach is to create a fair legal system and a strong self-regulatory environment, especially in journalism. The recent remark by the Information and Communication Minister Minendra Rijal that the press will not be accorded freedom without a commitment to responsibility underlines a political desire to retain restrictions in the constitution, one reason for the chilling relations between the minister and the leadership of the Federation of Nepalese Journalists (FNJ).

FNJ's objections on restrictions are on the mark, but for its active advocacy role, some issues are more a matter of strategy than principle: asking for more than they expect or actually need, for instance, the ostentatious insistence on adding "full" before "press freedom" in the preamble. Seriously, should that redundant qualifier precede every right? Name the State "Full Federal Democratic Republic of Nepal" and nothing less? Even saner suggestions such as making closure, seizure and cancellation of registration of media illegal, and compensation for their breach, could be left for legislation.

A slight touch up on "mass communication" may prove a saving grace for the press. "Media and communication" rights, emphasizing both the form (media, including press, other channels) and function (communication) could help preserve the distinctive role of press in a democracy, thereby satisfying journalists' ego. It also accommodates all forms and classifications of media, such as broadcast, online and telecommunication, which require distinct regulative approaches.

Another consideration is in whether we want to limit the freedom of expression as well as right to information (Article 32) to "every citizen", as provided by the draft. The French, Indian and Chinese constitutions limit it that way whereas the German Grundgesetz provides the right of expression to "every person".

There is also the need to harmonize the constitutional clause on right to information with the RTI Act 2064 (2007), which grants the right to information, and access only to information in the public domain and only to citizens.

The issue of harmonization, regulation and compliance is going to be prickly, due to inevitable tussle over jurisdiction at the federal, provincial and inter-state level. The concurrent federal and provincial powers, as specified by Schedule 6 of the draft, relate "to mediums of mass communication". But Schedule 5 limits the power of provinces to just "radio, FM, television". It is silent on the press. Jurisdiction over monitoring and regulation issues, including frequency distribution (Schedule 4) lies with the federal government.

Avoid government oversight on media. A constitutional provision on an independent media commission or council will help.

Ambiguities can lead to legislative logrolling or unused federal powers. The German constitution reserved the federal right to enact provincial framework legislation on "the press and film industry", only to be repealed later, at least partially. Although it retains that right on "the press", the center has never actually been able to exercise it.

The best thing is that our draft guarantees freedom of expression and the press. Many countries are not as fortunate. In their 2013 study, scholars Zachary Elkins, Tom Ginsburg and Beth Simmons found that only 53.4 percent of the world's constitutions between 1949 and 2006 provided for press freedom. Compare that with 54.8 percent for the period between 1915 and 1948.

The author is associated with Media Foundation. 

Published in Republica, July 28, 2015