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Media, Law and Democracy: Revisiting Regulation in the time of social media

Home/ Media, Law and Democracy: Revisiting Regulation In The Time of Social Media
Course Type Course Code No. Of Credits
Discipline Core NSLG1LP110 4

Semester and Year Offered : Winter Semester

Course Coordinator and Team : 

Email of the coarse coordinator :

Pre-requisites: None

  1. Does the course connect to, build on or overlap with any other courses offered in AUD?

The 6th semester students have already been exposed to a range of courses in constitutional law in which they have encountered the legal and political history of freedom of speech and expression. In this course they will be exposed to a critique of the limitations of “free speech” as a framework to address the complexities of contemporary media regulation. In keeping with the interdisciplinary spirit of the program, the course demonstrates the critical importance of staging a conversation between media theory and legal studies.

  1. Specific requirements on the part of students who can be admitted to this course: (Pre requisites; prior knowledge level; any others – please specify) No requirement
  2. No. of students to be admitted (with justification if lower than usual cohort size is proposed): As per AUD rules
  3. Course scheduling: (summer/winter course; semester-long course; half-semester course; workshop mode; seminar mode; any other – please specify)Semester-long course
  4. Proposed date of launch: Winter 2021
  5. How does the course link with the vision of AUD and the specific programme(s) where it is being offered?

The overall aim of the masters is to equip students with a critical perspective on law and political processes, and within the larger vision of AUD to provide students with  fresh perspectives on the world as well as in their own lives. If there is one phenomenon which is common to students across the spectrum it is their  immersion in various forms of media. The current generation has been termed as “digital natives”, or people who are born within an ecology of digital media. This course offers a critical perspective on media and the specific legal challenges that it poses in relation to other rights and political values. It challenges assumptions that students already have through previous courses on the value of free speech and takes them into a space that challenges these assumptions in light of the realities of contemporary media.

Course Details:

Summary There is no aspect of contemporary social and political life in India which has not been radically altered by the pervasive media ecology that we inhabit. With over 100,000  registered newspapers, 900 television channels  and a vast population active on social media,  our media landscape  is drastically different  from as late as  the 1990s  in which  we had only one state-run television channel. This seismic shift in  infrastructure and access has also been accompanied by a transformation  in our understanding of what media does  and how it ought to be regulated.  The traditional premise of the role of media is grounded on a “democratisation hypothesis” that argues the press and media are an essential part of  democracy and  the protection of their freedom of speech and expression and independence is a necessary condition for truth and accountability in democratic  governance.  This premise,  grounded in liberalism,  further suggests that in a healthy democracy the toleration of  difference and unpalatable opinions  is a virtue that deepens a democratic ethos. This  was certainly an important  premise  in a country where most governments  as well as members of different communities were trigger-happy to use censorship laws.  At the same time this premise appears a little romantic and encounters its limits and in light of  the transformed media landscape.

The contemporary grammar of the public sphere is  characterised by ordinary references  to “fake news”, “going viral”, “deep fake”, “trial by media”  and a ubiquitous  atmosphere of disinformation  where democratic institutions  and procedures  find themselves seriously  challenged by the  instantaneity  of media.  This has in turn created an immense trust deficit in many democratic institutions,  forcing them very often to resort to, and mimic the strategies of media,  to remain relevant.   “Media, Law and Democracy” explores the complicated relationship between free speech, media regulation and democracy. It asks whether the existing framework of free speech  is adequate in addressing not just the democratic but the antidemocratic tendency of media?  How can we imagine media regulation that does not end up  reinforcing state censorship?  What principles may guide  future judicial, legislative, and cultural policy of new media. How do we distinguish between the Democratic underpinning of free speech as articulated as the right of an individual versus its appropriation by corporate media? Is the traditional imagination of the media regulation which is based on a vertical relationship between state and citizen adequate to addressing the challenges of new media and social media which has a much more rhizomatic and diffused architecture?

Objectives

    1.  
  • To develop a political economy understanding of media and power especially with respect to social media and the radical transformations that it brings about in the domain of the legal, political and social.
  • To understand the paradoxes of liberalism that arises from the dominance of free speech as the only normative basis of looking at media.
  •  Understanding the necessity of balancing between freedom of speech and other constitutional values including equality and dignity
  •  Developing an understanding of regulation which is cognizant of the importance of free speech even as it is aware of the potential of “evil media’.

Expected Learning Outcomes

On the successful completion of the course students would be able to

  • Critically engage with media and media events from a socio-legal and a techno-legal perspective
  • Identify and evaluate the specific tensions that arise between genuine free speech claims and their rhetorical avatars

Overall structure

Module 1: Media & democracy:  Classical conceptions and contemporary realities

(Weeks 1-2)

 In this module we begin by exploring the normative basis of  freedom of speech especially as it pertains to media. We examine the various traditions within liberalism that defend free speech and look at which of them have been preferred by courts in India. In particular we will focus on  the relationship between  democracy and “the marketplace of ideas”  and investigate the limitations of a market-driven conception of democracy and participation and contrast it with thicker ideas of  participatory democracy  as a model of communication.  The module will then locate the neoliberal transformation of media  to understand the limits of existing frameworks of free speech  to deal with  the political economy of media.  Highlighting the dangers of ventriloquizing  individuated free speech to extremely powerful media corporations,  the module lays the ground for understanding the necessity of a more nuanced    approach to law, media and democracy.

Readings

  • Eric Barendt, Four Arguments for a Free Speech Principle in Freedom of Speech, OUP, pp. 6-36
  • Laura Stein, Introduction and Chapter 1, Rethinking Speech Rights in Speech Rights in America: The First Amendment, Democracy, and the MediaVanita Kohli-Khandekar, Chapter 1 and 2, The Indian Media Business, Sage India, 2017.

Supplemental Readings

  • R. Cohen-Almagor, Harm Principle, Offence Principle, and Hate Speech in Speech, Media and Ethics: The Limits of Free Expression, Routledge, 2001.
  • Rahul Bhatia, Fast and Furious: The turbulent reign of Arnab Goswami, Caravan, December 2012
  • Atul Dev and Prvin Donthi, Our man in the studio: Rajat Sharma’s path to becoming India’s most powerful editor-entrepreneur, https://caravanmagazine.in/reportage/man-studio-rajat-sharma-india-tv

Module 2: Overview of Media Policy and Regulation  in India

Week 3 & 4 In this module we turn to the history of media regulation in India.  Examining key historical and technological moments,  the module looks at the troubled relationship between  the state, media and suspicion.   We will focus  specifically on  the  political and religious abuse of censorship laws,  as well as the manner in which laws ( for instance hate speech) that seek to curb free speech in the interest of other values such as  democracy, equality and diversity  end up being used in ways which  are anathema  to the purported values that they seek to promote

 Readings

  • Victoria L. Farmer,  Introduction and chapter 1, Media policy through India's first half-century of independence, Phd These, 2003.
  • Gautam Bhatia, Hate Speech from Offend, Shock, or Disturb: Free Speech Under the Indian Constitution, OUP 2016.
  • Joseph Bain D’souza v. State of Maharshtra, 1995 CriLJ 1316
  • Summary of the Cricket Association Board Case and the models of regulations that exist in different countries.

Supplemental Readings

  • Bhagwati Prasad & Amitabh Kumar, Tinker Solder Tap: Graphic Novel portraying the history of media in India

Week 5 & 6 : Political economy of media:  Revisiting free speech and ownership of media

Given the judicial intolerance towards restrictions on speech per se, the government through the sixties sought to keep the press under a tight leash  through various restrictions (regulation of advertisements,  limitation a number of pages etc) that did not necessarily curb speech but created institutional conditions which made a free press difficult.  At the same time these regulations were designed to check the burgeoning  trend towards media monopolies,  and were meant to encourage and facilitate the growth of smaller independent media.  In the larger story of free speech in India this is a relatively ignored chapter and these cases have largely been celebrated for their advancement of Free speech jurisprudence,  but the focus  on free speech has also meant neglecting the underlying regulatory philosophy  behind these laws.  In this module we revisit the question of law and its relationship to the political economy of media  and infrastructure. We ask what it means to revisit the question of regulation and ownership of media at a time in which we see a vertical consolidation of media alongside the emergence of small independent media houses.

Readings

  • Edward S. Herman & Noam Comsky,  Introduction and chapter 1 of Manufacturing Consent: The Political Economy of the Mass Media,
  • Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
  • Bennett Coleman and Company v. Union of India, AIR 1973 SC 106
  • Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515
  • Gautam Bhatia, The Meaning of 'Freedom': Free Speech and Economic Structure in Offend, Shock, or Disturb: Free Speech Under the Indian Constitution, OUP 2016.

Week 7 to 8 :  Contemporary Media and Democratic rights

In this module we turn away from the heroic accounts that exist of media and its upholding of democracy to an uglier aspects of media  and the ways in which media itself emerges as one of the greatest threats to freedom of speech and expression,  civil liberties and democratic rights.  We focus particularly on the conflicts between freedom of the press on the one hand and the right to a fair trial on the other. Using contemporary case studies from India, the module will pose the question of whether a balance between free speech and other democratic values can be maintained.

Readings

  • John Jervis, Introduction, Chapter 2, 7, Sensational Subjects: The Dramatization of Experience in the Modern World, Bloomsbury 2015.
  • Nandita Haksar, Tried by the Media: The SAR Geelani Trial, Sarai Reader 04: Crisis Media, 159
  • 200th Law Commisssion Report on Trial by Media, available at http://lawcommissionofindia.nic.in/reports/rep200.pdf
  • Trial by Error: The Aarushi Files, http://www.arre.co.in/series/aarushi/
  • Avirook Sen, Extracts from Aarushi, Penguin 2015
  • Joyojeet Pal et al, Anatomy of a Rumour: Social media and the suicide of Sushant Singh Rajput, https://arxiv.org/pdf/2009.11744.pdf

Week 9 to 13: Social Media & Media Regulation Theory

Using examples and case studies from India of the use of particular social media including WhatsApp, Twitter and instagram, in the last module we  turn to the contemporary challenges of the rise of disinformation in a post  truth era and the significant impact that it has  on conceptions and practices of democracy.  This module will focus on concepts and ideas that attempt to move the debate beyond the conundrum of liberalism and provide fresh perspectives on theories of democratic communication as well as different models of the regulation of media including the vexed question of self-regulation.

The module will be divide into the following themes.

  • Social and Anti-Social Media in India
  • Regulation and the response to Disinformation
  • Rethinking Media: Towards a theory of Freedom and Evil

Readings

A. Social and Anti-Social Media in India

  • Amber Sinha, The Networked Public : How Social Media is Changing Democracy, Rupa 2019., pp.1-70
  • Shekh Moinuddin, Mapping Political Re/Tweets in India from The Political Twittersphere in India
  • Pallavi Paul, Objects as Exhibits: Performance of the Forensic, Sarai 2015, http://sarai.net/objects-as-exhibits-performance-of-the-forensic
  • Cass R. Sunstein, Chapter 1 and 2, #Republic: Divided Democracy in the Age of Social Media
  • Nina Schick, Introduction to Deepfakes: The Coming Infocalypse, Twelve 2020

B. Regulation and the response to Disinformation

  • Philip M. Napoli, Introduction, Social Media and the Public Interest: Media Regulation in the Disinformation Age
  • Tony D. Sampson, Introduction & Chapter 1 Virality: Contagion Theory in the Age of Networks
  • Angela Condello, Chapter 1 After the ordeal: Law and the age of post-truth in Angela Condello & Tiziana Andina, Post-Truth, Philosophy and Law,
  • Robert N. Spicer, Introduction and Chapter 3 : Free Speech and False Speech: Political Deception and Its Legal Limits (Or Lack Thereof),

C. Rethinking Media: Towards a theory of Freedom and Evil

  • Alexander R. Galloway & Eugene Thacker & McKenzie Wark,  Introduction and Chapter 1 Excommunication: Three Inquiries in Media and Mediation (TRIOS)
  • John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition, pp.1-45

Pedagogy:

  1. Instructional design The course will be a combination of lectures, case studies, thematic discussions, Case Law discussions and presentations.
    1. Special needs (facilities, requirements in terms of software, studio, lab, clinic, library, classroom/others instructional space; any other – please specify)None
    1. Expertise in AUD faculty or outside The faculty members at SLGC with training in both law and media theory are well equipped to teach the course
    1. Linkages with external agencies (e.g., with field-based organizations, hospital; any others)None
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