In the wake of executive magistrates being invalidated to conduct investigative mobile courts by the High Court Division and the subsequent stay order on this decision by the Appellate Division, this essay seeks to explore the greater evils that lie in media undertaking ‘sting’ operations. This write-up tries to decipher the legitimacy of media investigations, the risk that it poses in subsequent proceedings and why the subversion of law enforcement agencies should not be done by media personnel in the name of sensationalized news.
“For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others”- Nelson Mandela
Before the dawn of printed books, the Church had reserved the right to curtail any expression that it found distasteful. However, with the advent of the printing press, the Church and authorities of that time found the number of books to surpass their reach of control. A prohibitory attempt was made by Pope Alexander VI by banning unlicensed printing, which was perhaps the first instance of what we now know of as the term ‘censorship’.
Throughout the passages of history, this subversion of freedom of expression of the press was repeated countless times; Licensing of the Press Act, 1662 of Great Britain, Censorship by the fascist regime of Benito Mussolini, the Reichstag Fire Decree of Nazi Germany, Official Secrets Act, 1923 of India, Eastern Bloc information dissemination, The Golden Shield Project by People’s Republic of China are among the many of the known instances.
Putting these extreme examples aside, even in countries which are lauded for the freedom of expression exercised by their media, it is regarded as a right subject to certain qualifications. For example, in the Republic of Singapore, there exists The Films Act which places bans on production, display and distribution of party political films and places either heavy monetary penalties and/or imprisonment.
Perhaps, as the prominent Indian politician Shashi Tharoor had so eloquently put on in response to the Padmavati controversy, freedom of expression in a democracy is right to subject to certain justifications for the greater good of the masses polarized by factors such as economic status, religion, ethnicity, moral ideology, political beliefs and many more. This essay will venture on to explain and discuss the ethical duties incurred by media and the effects of its subversion.
Sting Operations and investigative journalism
On 24th September 2010, The Delhi High Court delivered its judgment on the case of Anirrudh Bahal v State and made sting operations legal. The duo, Anirrudh Bahal and Suhasini Raj, in a series of sting operations on some Members of Parliament, offered them money for raising certain issues during the Parliamentary session and caught this whole act in the camera. It was eventually broadcasted on national television and viewed by millions.
However, despite this entire exposure, no First Information Report (FIR) was lodged by the Delhi Police against the alleged corrupt politicians. The FIR was eventually filed more than a year later, with both the journalists being charged as an accomplice for abetting the offence under sections 12 and 13 of the Prevention of Corruption Act.
The court faced a unique conundrum: Whether a citizen of the country had the right to conduct sting operations to bring corruption under the authority’s attention by using inducement and persuasion?
The court interpreted it to be a fundamental duty of an ordinary citizen under Article 51A (b), 51A (h) and 51A (j) of The Indian Constitution to expose such duplicity of elected representatives of the nation’s citizens. Accordingly, the court declined to consider the journalist duo as an accomplice in the alleged occurrence. A public official in cases such as these cannot make a claim to defend his right to privacy since it incurs greater public good.
The Supreme Court of India in the seminal case of R. Rajgopal v State of Tamil Nadu (1994) 6 SCC 632 has held that if the infringement of the right to privacy of public officials is related to their official duty, no remedy may be available. Only in his personal sphere does a public official relish rights as every other citizen of the country. The consensus of the court was that if exposing wrongdoing brings greater good, then the use of sting operations to encroach the privacy of an individual is justified.
However, this approach has given rise to certain ethical and legal issues, questions that have often tainted the intent of doing greater good.
Media Ethics: Questions which raise questions
In the early 2000s, a special segment was aired by the Dateline NBC channel in the United States of America titled ‘To Catch a Predator’. Over a period of three years, according to NBC reports, these investigations had led to 200 indictments and 120 convictions of prospective pedophiles and child predators. The popular and thrilling program placed a decoy or an actor/actress posing as a minor across homes in the United States to lure out such perpetrators. At the agreed meeting place, the predator was confronted by the program’s host, who usually after a series of humiliating affirmations, revealed the guilt of the suspect. The predator then usually exited the house as quickly as possible, only to be held at gunpoint by police, wrestled to the ground, and arrested.
At the height of its Trade-Related Practices (TRP), one installment of To Catch a Predator garnered 7 million viewers. But behind the euphoria of bringing the guilty to justice as well as the momentum and thrill relished by its viewers, there was one little problem: jurisdiction of the channel to conduct such sting operations.
One of the perpetrators had subsequently committed suicide following the humiliation brought on by the media exposure. Consequently, his sister filed a lawsuit accusing the network of “taking over police duties and failing to protect her brother”. United States District Judge Denny Chin allowed the trial to proceed but warned the jury that they may conclude that the network “crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement”.
The covert operation had led to the arrest of some 24 men in the Texas County, but the District Attorney refused to prosecute any of the cases reasoning that the evidence has been marred by the involvement of amateurs and that the suspects and decoys were not in his jurisdiction when the online solicitation took place. Subsequently, legal issues of entrapment also began to see the light which too tainted the attempt otherwise hailed heroic by cable news subscribers.
In short, Entrapment is an inducement to a person by a law enforcement agency to commit a crime, by means of coercion, fraud or inducements. It is usually followed by an attempt to later bring criminal charges against the entrapped individual. If the language used in the persuasion of the persons actually coaxed them into committing the actual crime of ‘solicitation of a minor’, such as in this case, the alleged persons would be able to raise entrapment as an effective defense and may even escape prosecution.
Additionally, the problem with such channel-run sting operations is that they never actually work just in their private capacity. The media personnel often tag along with law enforcement agencies, by which they are regarded as acting in a governmental capacity as a deputy. Hence, ultimately in the dock, the defense of entrapment can be raised against law enforcement agencies, despite a legitimate claim of crime or wrongdoing being raised against the accused.
Moreover, there are legal issues which are often not taken into consideration by the media when they run their so-called ‘sting’ operations. For example, it is legal to place decoys, but it is imperative that the decoys are not entrapping a susceptible individual, but are merely assisting in the arrest of a person who has demonstrated a tendency to commit the crime.
In the notable case of Jacobson v. The United States, the Supreme Court asserted that law enforcement officials go too far when they “implant in the mind of an innocent person the disposition to commit the alleged offence and induce its commission in order that they may prosecute.” If such is the case of law enforcement agencies, which have mostly gone through rigorous training worth billions and billions, imagine the same with a team of an untrained television crew, with the sole goal of creating, instead of reporting, sensationalized news.
For the purpose of reference; even investigative agencies such as the Federal Bureau of Investigation (FBI), while open to tips from the public, find that over-involvement may lead to such dilemmas. “We welcome any tips that help us solve a crime,” said Paul Bresson, an FBI spokesman in Washington. However, he added, “We don’t encourage the public to take action… There are potential risks in trying to take matters into your own hands.”
In the case of NBC, their opinion was that they were simply reporting the news, despite critics saying otherwise. The countless incidents depicted across media portals across the globe, be that Talaash from Bangladesh, Savdaan India from India or To Catch a Predator from the USA, are adulterated with the same ethical violations. The criticisms are that they took up jobs that simply were not theirs to do, that they were not expert enough to carry out the tasks and that the legal presumption of innocence always presides over any sort of exposure that may garner millions of views.
Is it then not warranted that we draw the line somewhere? There should be an authority with due responsibilities outlined since authority without responsibility leads to its abuse. One disastrous consequence was seen in the Professor Siras Case.
Srinivas Ramchandra Siras was a Professor at the Aligarh Muslim University. He was a homosexual in his private sphere. His private acts were captured on camera and were exposed to the institution authorities, and he was eventually suspended. That too was a sting operation. The stand of the Indian Supreme Court is not clear on the topic of LGBT rights, but that by no means allows a sting operation to be carried out in the private sphere of a man and expose consensual acts to a third party. Even then, as per the Anirrudh Bahal v State case, the conduct was not encroaching upon or was not associated with his official duty as a professor. His conduct in public sphere was not reported to be outrageous, and no objections were raised prior to the exposure.
The Indian Penal Code, under section 377, states homosexuality to be a punishable offence. Considering the moral turpitude of the sub-continental culture, the act may be justified for being penalized if it was indiscreetly engaged in and was demonstrated in the public sphere. Nevertheless, even if it is to be penalized, acts carried out in utter secrecy between consenting adults, should rely upon circumstantial evidence not direct evidence by way of actual camera footage. It is highly unethical to capture compromising positions of two consenting adults, let alone calling it a sting operation despite no authorization or whatsoever and exposing it to the general masses.
There could have been a justification if it was a case of unlawful sexual intercourse or molestation. Such was the case during sting operations on ultrasound centers carried out by the Health Officers in Karnataka for “serious enforcement” of the Pre-Natal Diagnostic Techniques Act which bans sex determination of fetuses and consequent abortion of female ones to stop female feticide.
It is highly contestable that sting operations carried away by media to boost their TRP ratings will have an effect on the morality of society. Perhaps it will only open doors to more secretive methods and victimization of perpetrators. Justice does not work by means of media trials. Exposure may or may not bring awareness, but it will definitely bring shame and disrepute before guilt is proven. In this case, it forced the Professor to commit suicide. The judiciary is the vested body to decide the consequence of his actions, not a crew of TV channel trying to make the news.
A sting operation may be an expression of right under freedom of speech and expression, and perhaps for greater good too. Nonetheless, it also comes with a duty to respect the privacy of others and better authorities.
Furthermore, these incidents are not isolated or one-off events. In the September 2007, the Delhi High Court issued notices to the Delhi Government and City Police following a suo motu cognizance of media reports that had allegedly exposed a sex racket run by a government-employed school teacher. The claim that she lured her pupils into prostitution was discovered to be entirely fabricated. Imagine the humiliation the teacher had faced prior to this discovery!
We have seen this sort of irresponsible sensationalization again and again, in eons of occurrences. During the barbaric BDR Mutiny of 25th and 26th February 2009, we have seen how despite attempts being taken by law enforcement agencies to probe what was going on inside the premises, media had irresponsibly made news detailing every vantage point, artillery and troops to counter the offensive. As a result, countermeasures were stalled.
We witnessed it again during the horrors of the Holey Artisan incident. Such was the frenzy to dramatize, publicize and broadcast every bit of suspense that was culminating inside the kitchen, that law enforcement agencies had to alter their strategies time and again since countermeasures would be made aware to the delinquents by live telecasts. At one point, the Prime Minister in her speech had to address the media to stand down from their over-zealous attitude regarding the situation.
In the aftermath of the Mumbai attacks, a bench of justices while confirming the death sentence on the prime accused Ajmal Kasab noted that the ‘reckless coverage…gave rise to a situation where, on the one hand, the terrorists were completely hidden from the security forces and they had no means to know their exact positions or even the kind of firearms, and explosives they possessed and, on the other, the positions of the security forces, their weapons, operational movements were being watched by collaborators across the border on TV screens and being communicated to the terrorists.’
Drawing the line
With great power comes greater responsibility and therefore, the right to freedom of expression applies to certain qualifications even to media personnel. With an unrestrained power of investigation and journalism, every institution will be prone to abuse; every liberty no matter how justified may lead to chaos; every good intention will transpire to be a catalyst of personal gain. Investigative journalism, be that live coverage and sting operations, not only carries the torch of freedom of press promised by a democracy, but also carries with it an unassailable duty to respect the privacy of others.
In their pursuit to boost sales and increase TRP ratings, journalism should not become a facet of sensationalism. Accordingly, some laws and provisions should be in order. For example, The 200th Law Commission Report of India has recommended a law to be promulgated for preventing the media from interfering with individual’s privacy. In the words of the Supreme Court Justices presiding over in the landmark case of Time Inc. v. Hill: “The constitutional guarantee of freedom of speech to press is not for the benefit of the press so much as for the benefit of all the people.”
● Clay Calvert; Mirelis Torres, Staring Death in the Face during Times of War: When Ethics, Law, and Self-Censorship in the News Media Hide the Morbidity of Authenticity, 25 Notre Dame J.L. Ethics & Pub. Pol’y (2011)
● Shashi Tharoor On The Padmavati Controversy And Freedom Of Expression
● Delhi High Court, Aniruddha Bahal vs State on 24 September, 2010 (Author: Shiv Narayan Dhingra)
● Internet Censorship: Law & policy around the world https://www.efa.org.au/Issues/Censor/cens3.html
● Article 51 of The Indian Constitution- https://indiankanoon.org/doc/867010/
● The Films Act, Singapore-http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=DocId%3A%22536052a1-84d8-4939-b05d-20225a477a6d%22%20Status%3Ainforce%20Depth%3A0;rec=0
● Supreme Court of India, R. Rajagopal vs State Of T.N on 7 October, 1994, Equivalent citations: 1995 AIR 264, 1994 SCC (6) 632- https://globalfreedomofexpression.columbia.edu/cases/r-rajagopal-v-state-of-t-n/
● Amy Rokuson, To Catch a Predator Gets Caught – Are NBC’s Television Journalists Sacrificing Media Ethics and Legal Procedures for a Chance in the Spotlight, 19 Seton Hall J. Sports & Ent. L. 511, 538 (2009)
● Pant, Saumya (2010-07-01). “Professors hounded out for being Gay”. Mail Today. February 9, The videographers – Adil Murtaza and Sirat forward the footage to AMU authorities, and Siras is fired for “gross misconduct”.
● Jacobson v. United States, 503 U.S. 540 (1992)
● Time, Inc. v. Hill, 385 U.S. 374 (1967)