2 August 2019

#FOEIndiaSeries | 14. The Mechanics of Regulation

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Mechanics of Regulation



Part III. The Processes of the Law


14. The Mechanics of Regulation


There exist laws which determine what speech is permissible; that is clear enough. There also exist formal mechanisms through which to have the law implemented, to determine what speech is permissible, and to curtail the dissemination of illegitimate speech. These mechanisms tend to function through the judicial system itself, via the use of pre-publication filters such as those of the Central Board of Film Certification, and through the aegis of various self-regulatory industry bodies which deal with various forms of content such as news, general entertainment, and advertisements.
There have also been numerous episodes where the powers that be have discouraged the exercise of free speech fearing that the dissemination of certain speech could lead to law and order problems. The Supreme Court has, however, time and time again indicated that where speech is legal, the State has a duty to protect those who express it. In a 1989 case, it went so far as to say: “We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would t[a]ntamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.” [sic]
Under Article 19(2) of the Constitution which the Supreme Court referred to in this case, the freedom of speech and expression can potentially be restricted on a number of grounds but a disruption of ‘law and order’ is not one of them. With regard to the maintenance of law, it is only the possibility of a breach of ‘public order’ which can be a reason to curb free speech. ‘Public order’ is not quite the same as ‘law and order’ as the Supreme Court had already explained decades earlier, pointing out, in effect, that a breach of ‘public order’ involves a far more widespread and damaging breach of the maintenance of law than a mere breach of ‘law and order’ would be. It said:
“Does the expression "public orde[r]' take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”

Despite its being crystal clear that the State has a duty to protect free speech and those exercising it, it is often the case that those who wish to speak keep themselves from saying all that they would like to say because of the propensity of an assorted group of non-State actors ranging from those with easily hurt feelings to those with an axe to grind rushing to court to attempt to have speech be kept from being disseminated.

Considering how vague the law itself often is in defining what constitutes legitimate speech, and how susceptible to interpretation laws which could suppress speech often are, there is an additional layer of regulation which often occurs before speech is communicated or transmitted: self-regulation. In the language of critics of the law, this is — not without cause — referred to in terms of the chilling effect laws have due to the manner in which they can be deployed, however illegitimately, by those who would prefer not to have certain speech be transmitted to anyone. After all, there is no stopping anyone who chooses to initiate legal proceedings against the dissemination of specific speech, and such proceedings are invariably time-consuming, risky-filled and expensive.

When it comes to corporations which deal with content that is essentially speech whether in the form of television programmes, films, music, or books, it isn’t at all uncommon for them to approach a lawyer before the publication of content to try to ensure that the works they intend to publish do not, at the very least, blatantly violate the law with reference to regulations that govern the content of speech, with reference to proprietary rights which determine who may disseminate specific forms of speech, and with reference to contractual obligations which could determine the permissibility of certain speech. This is simply because it can make sense for people to avoid saying what they do not feel a pressing need to say in order to try to avert the possibility of being drawn into legal proceedings of whatever nature.

Self-censorship doesn't always work as intended, even though there are fairly well laid out processes such as those of film clearance through which it may be conducted, in no small measure because the law too often lends itself to being interpreted by those determined to suppress speech in ways that are extremely hard to anticipate. This isn't entirely because of 'bad drafting' (though examples of less than stellar legislative drafting are not difficult to find) but because the law doesn't account for every possible situation which could potentially arise.

Instead, the law deals in generalities, and therefore necessarily falls short of 'direct applicability' to unique episodes in which free speech issues are raised. And, of course, with speech being what it is, and most people not repeating each other verbatim, each time a free speech issue arises, the issue tends to be unique while the relevant laws, as always, remain generalised. Anyone who deals with speech, whether to check what they themselves say or to assess what others have said, is obliged to deal with this discrepancy. The only saving grace, perhaps, is that it is comparable processes that the law requires regardless if one is clearing or assessing the legitimacy of contract although, of course, the outcomes can be rather different when one clears content for oneself and when an external arbiter such as a judge assesses the legitimacy of one’s content.

In the first category of content regulations appear laws which determine the fundamental permissibility of speech such as defamation law, and the so-called anti-blasphemy law. Clearing content for publication with regard to them of often a dicey affair because although not all potentially problematic content would ultimately be held to be illegal even if legal proceedings were initiated in respect of it, it is not easy to predict how a court would view a specific instance of the expression of speech.
In the second category come laws and business practices which relate to proprietary rights: they determine whether otherwise permissible speech can be legitimately disseminated in light of who may 'own' a specific expression or manifestation of speech. For example, the speech in a book may be legal to disseminate from the point of view of purely substance-related content law but actually disseminating the words in the book could be illegal if the book were protected by copyright and one did not have authorization for dissemination either by law or from the copyright owner. And, so, from the point of view of content clearance, considering proprietary rights essentially involves attempting to ensure that those who intend to disseminate content have the right to do so and that their disseminating content would not result in the commission of infringement or in the unfair use of content.

Infringement is fairly well understood at law and involves the exploitation of statutorily-recognised proprietary rights in content without the backing of the law or the permission of rights-owners. These rights could be in the form of various intellectual property rights, and, to avoid violating them, it is important to ensure that those who disseminate the content in which they are embedded own the rights or at least have permission from the rights-owners to share the content. In other words, ‘the chain of title’ must be clear.
When content is created, it usually belongs to its author who could, for instance, be the writer of a film script. Continuing with the example, the author-owner may sell the script to a producer through an assignment deed, who may, after using it in a film, sell the rights to both the film itself and the script underlying it to a distributor who would ordinarily communicate the film in its entirety to the public. The complexity of the chain may vary and the clearance process is intended to ensure that none of the links in it are broken — any breakage may make it illegal of the ostensible owner of the final product to communicate it to the public. And, if the final product is a film, there could be several underlying elements (including music and lyrics) all of which contribute strands to what would ultimately form the chain of title.

In essence, unless specific content belongs to the public domain or is freely available for anyone to use, it must belong to someone. If it belongs to someone, except in a few cases specified by the law where dissemination does not require the permission of the owner, the owner’s permission must be obtained to avoid having the dissemination become illegal.

Apart from rights recognised by statute, however, are also rights recognised by business practice. So, for example, when a reality television show is produced, it usually follows a set format which is detailed in supporting documentation often called a ‘Production Bible’ developed from the stage of the conceptualisation of a show right up to the stage of its production. Business practice, now supported by judicial recognition in many jurisdictions, dictates that the original creator of the format has what are known as ‘format rights’ in the show. Although these rights are not explicitly defined by statute in India, if a production house were to develop a new reality TV show, they would generally obtain ‘format rights clearance’ through a lawyer to try to ensure that its own programme did not inadvertently violate the format rights in a pre-existing reality TV show. And, so, the proprietary rights which are recognised to subsist in content are not strictly limited to those which are defined by statute although it would almost certainly be possible to invoke copyright law in support of a format rights claim.

Proprietary rights are determined by a combination of statutory demand and contractual requirements. There is, however, a third category of law which is purely negotiated within broad limits set down by statute: contractual requirements over and above those mandated by law. For example, for a permission granted for the creation of a film or a book — whether it be permission to shoot at a particular location or to include an image in a book — the persons who grant permission may insist on an acknowledgement of some sort in the credits, or on a favourable mention made of their favourite charity; whatever is expected is usually articulated in a contract. And the limits of what the grantors of permissions may ask for are dictated only by the restrictions imposed by law and the extent to which human imagination may run. So, for example, they cannot legally ask that one commit a crime in exchange for the grant of permission but, assuming that their ‘asks’ are legal and that the relevant contract is valid, part of the clearance process is to ensure that those who receive permissions for the creation and dissemination of their works have fulfilled their contractual obligations.

And a fourth category of law attempts to ensure that statutory demands are met or, at least, that practices are followed which would preempt legitimate claims being made against or in relation to specific content. For example, the 1957 Copyright Act stipulates that there are authors and performers who have a moral right to claim credit should they not be attributed for their work. Due to this, generally, a ‘credit clearance’ would be conducted to attempt to ensure that all those who should be attributed either by law or through contract have in fact been credited in the work. In the case of authors' moral rights, the right is for an author to claim credit and not to be credited. Nonetheless, it makes ethical and business sense to credit authors, if nothing else, to avoid a situation where an author who has the right to claim credit could perhaps stall the publication of a work by rushing to court to claim such credit.

The clearance of content for publication may take place before the content is created — every stage of the creation process may be cleared by lawyers who may look at the concept underlying the content, daily takes in the case of filmed content or drafts in the case of written content, and then at the completed content which, in these examples, would likely be a film, television programme or a book. That said, there are also times when it is only the completed product which would be subject to clearance. A distributor who had acquired a completed film, for example, or a publisher reprinting content acquired from abroad may have the work cleared locally particularly in order to attempt to avoid violating domestic content laws. In such cases, however, the content clearance process could easily become one of attempting to control the potential for damage since it would not be possible to completely rehash content even if it were problematic at such a late stage, and suggested changes would generally be limited to perhaps the deletion of a few scenes, the editing of a few words, and to obtaining licences from the owners of brands which were clearly visible.

Sometimes, content which enters the country from abroad is not problematic because there are specific issues with isolated parts of it that may violate the law. On the contrary, it is sometimes the case that there are few specific issues with the speech embedded in the content but that, from beginning to end, it is framed in a way that is inconsistent with Indian beliefs and the Indian understanding of history. Take a book set in India during the Raj, for example. If it were to speak of 1857, it may clearly view history from the point of view of imperialist white English people and be rife with descriptions of Indian savagery and the murder of innocent Europeans completely ignoring the fact that what the English see as a mutiny against their presumably-benevolent rule in the subcontinent, Indians may well view it as a war of Independence against the British and their entirely-illegitimate usurpation of power in India. In such cases, it is unlikely that the book would violate a specific content law in India, and it is entirely possible that a court would treat it as an academic work and not interfere with its author’s freedom of speech. Nonetheless, its entire framework and thesis could be so repugnant to Indian sensibilities that it could well face an unpleasant public backlash in India.

While there are good reasons not to interfere with the speech of authors because of the manner in which they frame issues — after all, it is often only through contested narratives that a semblance of ‘the truth’ may emerge — it is also worth asking whose stories are being told, for whose benefit they are being told, and whose voice is missing from narratives. Speech tends to be an instrument of the powerful to legitimise themselves, and the only legitimate way to counter the processes through which they use speech to reinforce their power tends to be by ensuring that a multitude of diverse voices are heard. Challenging received wisdom is therefore critical to ensuring that tales are not told only from the point of view of the powerful who, incidentally, are more likely to be backed by significant finances than those they have oppressed. This is rarely easy to achieve in practice especially since socio-financial capital tends to help those who are rich and well-placed to get their word out with far more ease than those who are poor and marginalised.

It is possible to ban products such as books and films from being imported into India or exported from India through a notification issued by the Central Government if the government thinks it is necessary to do. These notifications may be partial or conditional, and they must be laid before Parliament. Also, they must be on one of grounds listed by the statute and cannot be arbitrary; the grounds on which content may be banned include maintaining the security of India, public order, decency or morality. The statute also allows for the import or export of goods to be banned to protect copyrights, to protect national treasures of artistic, historic or archaeological value, and to prevent the dissemination of documents which are likely to prejudicially affect friendly relations with any foreign States or which are derogatory to national prestige. And, finally, bans may be effected to prevent laws from being contravened or for other purposes conducive to public interest. If an attempt is made to import or export prohibited banned goods, the goods are often liable to be confiscated.

The 1962 Customs Act, it is worth noting, deals with banning products and not with banning the speech which may be embedded in them. As such, even if the import of a book is banned, it is possible that, depending on the factual matrix, it may be possible to print an Indian edition of the book and effectively bypass the notification banning the import of the book into India from abroad. Also, although it doesn’t explicitly speak of these issues, the law is aware of the possibility of products which are part of the country’s cultural heritage being illegitimately taken out of India. This is an issue which is particularly important at a time when concerns about the repatriation of stolen artefacts and manuscripts from museums and private collections across the world, and, particularly, from States that were once colonial powers is being spoken of increasingly frequently.

Considering that many of these States even today have restrictive visa regimes, the effect of having content effectively hidden away and inaccessible to people who are not given visas could well be to impede scholarship, and to prevent a more complete understanding of historical circumstances from emerging. Although it is easy to criticise product bans and impediments to the cross-border transfer of products containing speech for their potential to curb free speech, there are also times when they may be necessary to preserve the possibility of engaging in speech that is both free and informed not least by ensuring that products in which speech is embedded do not become inaccessible by being sent to far flung shores. These are not easy waters to navigate particularly since a ban does not always suppress speech.

When concerns arise about content being banned or about free speech being illegitimately exercised, the courts can almost always be approached to address concerns. The judicial system can, however, easily resemble a labyrinth to those unfamiliar with it. And to make matters even more complicated, free speech concerns are rarely matters of the law alone. They are informed by popular opinion which is, in turn, developed with inputs from a vast array of social, cultural, religious, economic, and historical inputs not all of whose influence is easily discernible. It is therefore critical not to jump to conclusions about either the desirability of unrestrained free speech or of the illegitimacy of restrictions placed on content particularly since speech, whatever form it takes, tends to mould society for better or worse.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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