Criminalising journalism for investigative missteps is the thin end of the wedge for the profession.
by N. Ram
The military-style “search and seize” raid conducted on October 31, 2022 by the Crime Branch of the Delhi police at the offices of The Wire and the homes of its three founding editors, Siddharth Varadarajan, M.K.Venu, and Sidharth Bhatia, deputy editor Jahnavi Sen, and product-and-business head Mithun Kidambi marks a new low for media freedom in India.
The police seized various devices and the hard disks of two computers used by the accounts staff under cover of investigating a criminal case. This case is based on a complaint made by Amit Malviya, a BJP leader who heads the ruling party’s national Information Technology department, that the three Meta stories published earlier in October by The Wire were a conspiracy to harm his reputation through forgery. The Wire placed on record its demand for the hash value—a unique numerical value used to ensure the integrity of a device and its data—of the mobile phones, iPads, computers, and hard disks seized and for cloned copies of the devices and hard disks seized to be kept at a neutral place. But this reasonable and lawful demand was simply ignored.
|Illustration credit: Lea Dohle/ The Economist|
The First Information Report (FIR) registered by the police against the journalists covers charges under the Indian Penal Code of “cheating and dishonesty” (Section 420) , “forgery for purpose of cheating” (468), “forgery for the purpose of harming reputation” (469), “using as genuine a forged document or electronic record” (471), “punishment for defamation” (500), all read along with provisions covering “punishment for criminal conspiracy”(120B) and “acts done by several persons in furtherance of common intention” (34).
This is a formidable array of charges. Anyone familiar with the basic facts relating to how the Meta stories came to be published in The Wire and the role of Devesh Kumar, the technology consultant hired by the publication monthly, can understand that the criminal case registered is both unjust and over-the-top. Mens rea, “the intention or knowledge of wrongdoing that constitutes part of a crime as opposed to the action or conduct of the accused”, needs to be established and it is clear as daylight that everyone named as accused in the FIR lacked mens rea.
Strangely, Devesh Kumar, who has played the starring role in this affair, is not named in the FIR, although it has been reported that his digital devices have been seized and he has been interrogated by the police, raising suspicions about what the investigation is up to with regard to him. As for the charge of criminal defamation, an editorial in The Hindu calls attention to settled law: “the police should not really be investigating the defamation angle, as Supreme Court judgments are clear that prosecution for defamation should only be at the instance of the aggrieved person, and there can be no police FIR.”
From this, it appears that the targeting of The Wire through criminal prosecution at political behest is, first, to push it into a difficult situation where, as the saying goes, “the process is the punishment”; and, secondly, to make an example of it before the rest of the news media.
A clear & distinctive voice
Now let me come to the journalistic role and responsibility of The Wire and its editors in this sorry affair. Let us first recognise that in the seven years of its existence as an independent and not-for-profit digital news media venture, The Wire has operated with limited financial and reporting resources but done sterling work that few other media organisations do in India. It has handled sensitive information, offered progressive comment fearlessly, and specialised in complex investigations, its Pegasus-India exposé as a partner in an international journalistic collaboration being an outstanding example. In a short period, this digital news venture has emerged on the Indian media scene as a player with a clear and distinctive voice, a player who counts journalistically and politically, and is followed by a growing number of serious readers, listeners, and viewers. No wonder that the far-Right Hindutva regime and its supporters regard The Wire as an adversary to be silenced or put out of action.
Unfortunately, while working on and publishing stories relating to Meta, India, and the BJP, The Wire’s editorial systems failed egregiously. Fed false information and fabricated digital proof by Devesh Kumar, against whom The Wire has lodged a police complaint, it reported that Meta’s “XCheck” programme had granted extraordinary privileges to Malviya, including immunity against review of his posts by content moderators and the right to report any post and have it taken down, no questions asked. When independent experts questioned this, The Wire, after some doubling down on what had been published by relying further on Devesh Kumar’s fabrications, conducted an internal enquiry that detected the fraud, retracted the stories, and editorially apologised to readers. The Wire’s editorial promised to learn from this and put in place robust editorial processes for checking and cross-checking documents and all source-based information, and in future have all technical evidence verified by independent experts before publication.
The criticism of The Wire’s journalism in the Meta-India stories, and in a couple of investigative articles published earlier, notably a hard-to-believe story by Ayushman Kaul and the same untrustworthy Devesh Kumar about a mysterious super-app known as “Tek Fog” developed by the BJP, is legitimate and necessary. The “Tek Fog” story has now been taken out of public view, pending internal review, and one hopes the publication will soon come out with an authoritative statement on what went wrong in that case. The criticism that the Meta stories, and possibly a few others, published by The Wire, are examples of “confirmation bias”, which is defined as “the tendency to interpret and accept new evidence as confirmation of one’s existing beliefs or theories”, is also legitimate. In a mostly sympathetic article titled “A prominent Indian independent news site destroys its own credibility”, The Economist made good-natured fun of The Wire’s Meta-Malviya story as an example of the well-known tendency of “wanting to believe”—but also pointed to the lesson that “misinformation is generated by all sides”, that “it is often done in good faith”, and that “scepticism is more important than ever.”
With confirmation bias and “wanting to believe”, The Wire is hardly alone, and its recent discomfiture needs to be viewed in proper context. Is there any major news media organisation in India or abroad that can honestly say it has not blundered in sourcing sensitive stories or has not purveyed misinformation and false propaganda or has never been taken for a ride by bad actors? The answer is obvious. A shocking example, with calamitous impact, from 2002-2003: The New York Times, Judith Miller, WMD, and the Iraq War (look up the literature on the subject).
When a media organisation publishes a story or a series of stories based on information that turns out to be egregiously false, it is unquestionably a serious matter. But the remedy must be found within the media organisation and within the profession. Precisely formulated and actionable codes of conduct and institutional mechanisms for self-correction are important to ensure the integrity and trustworthiness of journalism. The Wire’s editors are experienced and ethical journalists and their work is supported by an independent ombudsperson, or readers’ or public editor, Pamela Philipose. Her fortnightly column published in The Wire on November 5, 2022 is helpful for its critical and constructive reflections and the lessons it offers for contemporary journalism. An instructive citation in the ombudsperson’s column is to an article, written by chief leader writer Randeep Ramesh, that The Guardian published for its bicentennial, “What we got wrong: the Guardian’s worst errors of judgment over 200 years” . It’s an extraordinary read.
There has been more than enough gloating over The Wire’s discomfiture and legal troubles in the social media and, to an extent, in the mainstream news media, most notoriously on a couple of television channels adept at doing hit jobs. The question has been raised: was it dishonourable for The Wire to throw Devesh Kumar, its journalistic collaborator, under the bus? The answer is simple: under normal circumstances it should and would have handled the matter internally through journalistic due process; but under the present circumstances it had no choice but to file a counter-complaint for legal reasons and to protect its reputation. Fortunately, in this fraught situation, many professional media bodies, including the Editors Guild of India, organisations of working journalists, press clubs, and individual journalists have rallied in solidarity with The Wire. Further, editorials in major Indian newspapers have come out against the police action and the criminalisation of journalism when it stumbles or takes missteps.
In the midst of all this, the focus should not be taken away from what Meta, which is besieged by controversies and is under intense international scrutiny on various counts, is up to in India. The country which has, at 330 million, the world’s largest number of Facebook users and, at 230 million, the world’s largest number of Instagram users, has a vital stake in ensuring that the harms done by disinformation and misinformation that still circulate freely on these and other social media platforms, including Twitter, are minimised, even if they cannot be eliminated. The Indian news media have their task cut out: they must do careful and rigorous investigation, applying higher editorial standards, of the ways of the social media giants and the effects of the content circulating on their platforms.
Solidarity among journalists, solidarity deriving from concrete issues and based on principles, has never been more important than it is today. Let us remind ourselves that freedom of the press, which is constitutionally guaranteed as an integral part of the fundamental right to freedom of speech and expression, has come under increasing pressure, risk, threat, and targeted assault in India over the past eight years, after a BJP-majority government came to power at the Centre, setting the stage for a communal-authoritarian offensive that has been termed “the second coming of Hindutva.” Let us remind ourselves that in 2022, India ranks 150th (only a little ahead of 157th-ranked Pakistan) among 180 countries and territories figuring in the annual World Press Freedom Index compiled by Reporters sans Frontières (RSF), a Paris-based independent organisation that dedicates itself to freedom of information.
I believe The Wire and the progressive, upstanding, and fearless journalism it exemplifies will emerge stronger thanks to the lessons learned from this serious setback.
Originally published in Front Line, India
N. Ram, former Editor-in-Chief of The Hindu and Frontline , is currently a Director in The Hindu Group Publishing Private Limited. He is the recipient of several journalism awards and of the Padma Bhushan (for journalism), 1990, and Sri Lanka Ratna, 2005.