the legal limits of reality television

PART 1: THE MALAISE

(This is a 2 part blog series examining the legal responses to reality television shows in India. Such shows with a view to gain viewership are frequently containing offending and scandalous content. The first part explains the problem as well examines whether the laws of privacy and defamation provide any legal recourse against such programming. The second part deals with the institutional systems and laws which can be availed by viewers who may be offended by reality television shows.)

Reality Television in India

There has been quite some debate on whether Indian has a lower sense of privacy as compared to western countries. The limited empirical data at hand would make one believe that we as Indians do not value privacy as much as others. Though it would be unwise to prescribe to such an outright prescription in the absence of detailed studies, there is a sense that we are inherently inquisitive. We share a culture where prying questions are asked casually and regularly. Hence it is not surprising that reality television shows which provide a keyhole into the lives of others have gathered substantial traction and are quite popular. According to latest Industry reports the reality television accounts holds, “over 13 percent of the general entertainment space” in India.

With this growth in viewership, there has been a growth in reality television shows and an intense competition amongst them to catch a bigger share of the eyeballs. The contest amongst these reality-shows has not always promoted the best forms of television programming. The plots and the themes of most of these programs become more lurid dealing with taboo topics such as, testing the fidelity of a romantic partner (Channel V truth love or cash and UTV Bindass Emotional Atyachar) and revenge on an ex-romantic partner (Channel V Axe your Ex). Here even the content is garnished with abusive language (MTV Roadies), denigration of minorities (MTV Splitsvilla) and even threats of physical violence (UTV Bindass Dadagiri). Such shows are also not shy from showing skin and suggestive visuals (SET-INDIA Mujhe Iss Jungle Se Bachao and NDTV Big Boss). Such programming, it seems often ends up entertaining as well as offending many people. India may have an inquisitive society but it also has a deeply conservative one. The internet is littered with blog entries, comments and queries all searching for an answer for a legal limit to the often shocking and titillating content one encounters on television. The most common of these questions point towards recourses to laws on privacy and defamation. The first part of this blog post discusses these two remedies.

Privacy Rights in India, thick glass walls since 1947

Several entries can be found on this blog relating to privacy rights. These entries set-out the right to privacy in some detail; you can also read it with a recent article which notes the extent of privacy rights in India. What one finds from reading all this literature is that the right to privacy is a weak/soft right in India (“weak/soft” being lawyer talk for hard to enforce). The right to privacy can be enforced only in a specific set of circumstances and that to through litigation. The way the privacy right is shaped and developed has been through court decisions rather than through statute. Now what limits the privacy right in India is that these court decisions have been the result of litigations filed by private individuals against the state. Hence the law which has been developed is in many respects limited in its application only against state entities. Hence one finds that the law is severely limited in its application against private parties. This is not to say that a court will not entertain any action against a private telecaster or media outlet when someone cries privacy; however it is doubtful that these actions will succeed in the case of reality television programmes.

The first reason why such an action will probably fail is due to the nature of the privacy right. The privacy right is a personal right granted to an individual and it is for that individual to guard and enforce it. Here the public even though it may be enraged with the invasion of privacy into the life of another can do precious little except fret or change the channel. If the person whose privacy is invaded does not complain or file a legal action, then the channel remains unpunished and a third-part cannot file an action on its behalf. This is what probably explains the paucity of legal actions against reality TV Shows. One can notice that the participants on these shows are aspiring models, actors, singers and musicians. They not only hope to gain immediate financial benefits from participation, but also hope to gain publicity and accrue gradual social and economic benefits. Here a little controversy or invasion of their privacy is to their benefit and not to their detriment. Hence, one will not see participants filing cases and taking broadcasters and producers to court.

The second reason why most such cases will not succeed touches upon the issue of consent to the invasion of privacy. Most reality television shows are filmed with a number of participants who are made to sign contracts for services. These contracts contain express clauses which are based on the waiver of any privacy rights the participants may have enjoyed before. Now there are two undercurrents which should be appreciated here, (a) the clauses will be drafted by the show’s producers and will broadly worded; (b) since there is no statute to protect such a right to privacy there will be no impediments in the enforceability of such clauses and the, “privacy assignment” will be valid. Such a clause will guarantee that even when there has been a “misuse” of the information (which one can see usually happens), and the participant never intended that certain information may be a captured and telecast, the producer will be well within the contract to air the footage. Hence, a participant will lose all control, physically and legally over privacy on entering such a contract.

Relevant to this discussion would be the decision of the Delhi High Court in the Case of Indu Jain v. Forbes [IA 12993/2006 in CS(OS) 2172/2006 (High Court of Delhi, 12th October 2007)]. The case concerned an effort by Indu Jain (matriarch of the Bennett, Coleman group) to stop Forbes from featuring her family, in the Forbes List of Indian Billionaires. There were detailed arguments on privacy made in the case, though the court eventually came out against Indu Jain and allowed the publication. One of the key points on which the case turned was the initial supply of information and cooperation of the representatives of Indu Jain with Forbes. The court reasoned that a person who voluntarily provides information about themselves would be naturally precluded from claiming privacy or protection on it later. Hence one can see that the privacy argument is a complete non-starter.

Truth as an Defense (defense is sometimes an offence)

Now let’s skip to defamation. Defamation can be complained of in two ways, filing either by, (a) civil — a suit for damages and permanent injunction asking for the footage not be aired, an apology and damages; or (b) criminal — filing a FIR (First Information Report) initiating a criminal proceeding under Section 499 of the Indian Penal Code, 1860 (both the remedies can be availed of concurrently).

Reality Television

Image by badjonni via Flickr

With regard to a civil action for defamation there is no statute which prescribes the ingredients for defamation. The law with regard to civil defamation has developed through precedent, where decided cases create the substantive wrong of defamation as well as the legal remedy for it. Here we rely greatly on English common law such as the classic definition of defamation given in Scott v. Sampson (1882) 8 QBD 491 as, “a false statement about a man to his discredit”. As one can see the issue of falsity and veracity are overbearing factors in civil defamation. Here often though the content which is telecast may be damaging, it cannot be termed defamation as it is true! In the absence of video manipulation, scripted commentary it would be hard to maintain a civil action for defamation.

Now coming to criminal actions for defamation, as stated before the law for criminal defamation is contained under Section 499 of the Indian Penal Code. The initiation point for a criminal action is a visit to the local police station to file a complaint. Now on the basis of the complaint it is within the discretion of the police officer to file a First Information Report. The First Information Report commences the state function of criminal policing after which, a questioning of the accused is done, there are arrested, presented in court and so on. However, one finds regularly that getting a FIR registered is no simple task and usually police officials are quite reluctant to register it. Moreover, truth is again a defense in cases of criminal defamation. What becomes clear is that the personal rights of privacy and defamation are effectively insipid against the Reality Television Shows. In the next part of this blog-series there is a discussion of the regulatory structure which hopes to control this malaise. It is titled as “beeps and scrolls” and it hopes to examine the institutional structures devised to control minimum standards in television broadcasting and content programming.

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