Hate speech by media: Will regulation really work?

In the flurry of political developments around the election of the Congress party’s president, perhaps the significance of the Supreme Court’s recent observations on the media and hate speech has been overlooked.

On September 21, while hearing a clutch of 11 writ petitions seeking the court’s intervention to regulate hate speech, Justices KM Joseph and Hrishikesh Roy made some observations that are worth considering and debating.

As reported in the Indian Express, the judges singled out the debates conducted on the electronic media which they held were “the chief medium of hate speech”. This has been pointed out innumerable times, especially this episode of TV Newsance on this platform, but to hear it said from the podium of the highest court in the country carries with it added gravitas.

Speaking about talk shows in television, Justice Joseph said, as reported in Live Law:

“The role of the anchor is very important. Hate speech either...takes place in the mainstream television or it takes place in the social media. Social media is largely unregulated… As far as mainstream television channel is concerned, we still hold sway, there the role of anchor is very critical because the moment you see somebody going into hate speech, it’s the duty of the anchor to immediately see that he doesn’t allow that person to say anything further.”

Furthermore, although the question of whether and how the media should be regulated on hate speech was the primary focus of the discussion in court, Justice Joseph reiterated the importance of press freedom: “Political parties will come and go. But the nation will endure. The press is a very important institution. Without an independent and totally free press, no nation can go forward. It’s absolutely important that we have true freedom. The government should actually come forward, not to take an adversarial stand but to assist.”

Of course, in a democracy, only a free and independent media can take an “adversarial” stand against governments. But taking such a stand at present in India has serious adverse consequences, as is evident from the intimidation of independent media, or what remains of it, and of journalists who dare to be critical.

The case is still being heard. But it has already thrown up several important issues relevant not just to the media but to consumers of media. It asks us to consider, even if we agree that a free and independent media is essential for democracy, whether specific laws are needed to check the role played by the media in spreading hate speech. Balancing freedom with government regulation has always been a tricky issue.

An additional factor was highlighted in this comment by Justice Roy: “Hate drives TRPs, drives profit.” For it is not just the “how” of feeding hate but the “why” of it. Media houses today think of themselves as “profit centres”. Thus, anything that feeds the bottom line is acceptable, including allowing people spewing hate to speak unchecked on television.

Of course, the fundamental problem in dealing with the spread of hate through media is that there is no legal definition of hate speech. There are laws that exist that can be used but these are not specific. In 2017, the Law Commission submitted a 53-page report specifically on this issue and pointed out, “The apprehension that laying down a definite standard might lead to curtailment of free speech has prevented the judiciary from defining hate speech in India and elsewhere.” It recommended changes in the criminal law.

To date, no action has been taken on it.

We must also keep in mind that hate speech is not a new phenomenon. Those of us who covered the communal riots in Mumbai following the demolition of the Babri Masjid on December 6, 1992 cannot forget the role that the media, and one particular newspaper, played in ratcheting up communal feelings. Those were the days when print media was still important.

As Sujata Anandan reminds us in this report, there were several cases filed against Shiv Sena chief Bal Thackeray for hate speech and also against the editor of the Sena’s mouthpiece Saamna. But as journalist and author of Riots and After in Mumbai: Truth and Reconciliation Meena Menon found, many of these cases were either dismissed or not pursued.

Amongst the cases against Thackeray was one filed by a former municipal commissioner of Mumbai JB D’Souza and journalist Dilip Thakore. One of the editorials from Saamna, which they quoted to make their case on hate speech, said: “Streams of treason and poison have been flowing through the cities and Mohallas of this country. These Mohallas are inhabited by fanatical Muslims. They are loyal to Pakistan. Riots occur only in those cities and Mohallas with a growing Muslim population. It is clear from this fact that the root cause of riots lies in the Muslim community and its attitude.”

This case too was dismissed both by the Bombay High Court and the Supreme Court.

Many years later, the ruling in a 1987 case on hate speech against Thackeray was upheld by the Supreme Court. He was debarred from standing for election, which in any case he never did, for a period of six years – later reduced to two. These experiences underline the difficulties of using the law to convict people and, by extension, the media for hate speech.

Justices Joseph and Roy have asked the government to come back with proposals of what can be done to regulate the media on hate speech and suggested that perhaps something along the lines of the Vishaka guidelines, issued by the Supreme Court in 1997 before the law on sexual harassment was enacted in 2013, could be considered.

This suggestion raises many questions.

As an editorial in Indian Express rightly points out, “At the heart of the problem is the political economy of TV news which thrives on hate speech today more than ever. There is little cost to pay for hate speech, there are few incentives for TV at prime time to be fair and accurate. Indeed, most anchors are paid employees of their channels and they know they can get away with peddling hate because someone in the boardroom has taken a call in its favour.”

Corporate ownership of media houses has fed this monster of hate speech because it attracts eyeballs. It is further exacerbated by the silence of those in power, who benefit from it.

At the same time, any kind of regulation will be difficult to enact for numerous reasons, including provisions on freedom of expression in the constitution that the Supreme Court has upheld in the past in other cases and which the Law Commission also bookmarked in its report.

To quote again from the Indian Express editorial: “And when politics fuels, legitimises that hate, judicial interventions are unlikely to work. A new law on hate speech, as the court has suggested, runs the risk of being challenged – and violated – every second given the ceaseless cycle of news and social media.” And concludes: “Nothing is a stronger deterrent against hate speech than those in power speaking up against it, calling it out every time, without fail.”

That last sentiment is clearly wishful thinking given the predilections of the current dispensation. Perhaps a better suggestion is to urge consumers of the media to reject and speak out against the channels that spread hate, thereby shaming these sellers of hate that masquerade as “news” channels.