Media

Since reports on HIV first appeared in the early 1980s, media spins on the epidemic and stereotypes of high-risk populations and behaviour have been less than satisfactory.However, critiques of media responses and actions to HIV/AIDS cannot undermine its importance in defining the epidemic and shaping societal responses to it.

The importance of the media in the HIV/AIDS context has thus been highlighted in its role in informing the public and negating stereotypes, stigma and discrimination associated with various facets of the epidemic. Media may take many different forms and it is essential for regulation to take into account the increased accessibility of different sections of the population to communication, imagery and opinions.

The Freedom of Expression and Information

The freedom of speech and expression is a fundamental right recognised by democratic states and international human rights standards. Article 19(1)(a) of the Indian Constitution provides that all citizens shall have the right to freedom of speech and expression. Simultaneously, the Constitution also recognises in Article 19(2) that this is not an unrestricted right. Traditional restrictions on the freedom of expression and information usually take the form of obscenity, censorship and public interest laws. Thus, Indian criminal law criminalises the publication, circulation etc. of obscene materials. What constitutes 'obscene' however, has been the subject of national and international debate and case law. In India, the broad application of obscenity laws, combined with laws criminalising sodomy, has adversely impacted HIV/AIDS and sexual education information.

The manner in which obscenity, censorship and criminal laws are used to target persons and organisations working to spread awareness and accurate information about HIV conflicts with the duty of the State to promote and protect the right to health information, to appropriate education and to equality and non-discrimination. Traditional notions of restrictions on this freedom are in any case problematic as they have been interpreted to strengthen the hand of the State against individuals, based on the argument that they protect group or national rights.

Restrictions on the Freedom of Information

Restrictions on the freedom of information in the context of HIV/AIDS relate to the right to confidentiality of persons living with HIV/AIDS ("PLHAs") and vulnerable communities. Confidentiality restrictions relating to HIV/AIDS are rooted in the right to life and liberty and while they have been enforced in the case of blood banks or health care relationships, they need to be extended to the media. Where legal cases arise, rules of anonymous reporting need to be enforced. Under Indian law, similar restrictions that exist in the reportage of sex crimes may act as an appropriate legislative precedent for PLHAs as well.

The article argues that appropriate measures should also be introduced to ensure that the media is not used to further pre-existing stigma and discrimination or become a forum for messages that promote discriminatory actions against PLHAs or vulnerable groups. Anti-discrimination legislation to protect PLHAs and vulnerable communities should include legal protections against hate speech or propaganda aimed at PLHAs or vulnerable communities or that instigates HIV/AIDS related violence. Another area of concern in HIV/AIDS related reportage, information and education is ensuring the accuracy of information that the public will rely on. Media regulations could enforce requirements for accurate, scientific and properly researched information in relation to HIV/AIDS.

State imposed understandings of sexuality

The State view of sexuality in India has been particularly paternal and has had a dangerous impact on HIV/AIDS information. In May 2000, the circulation of a controversial AIDS pamphlet entitled 'AIDS and us' led to the arrest of its authors under the National Security Act. The paramount concern of the State in this and other cases relating to HIV/AIDS information has been with the apparent underlying issue of 'promiscuous' sex. State enforcement agencies and the Ministry for Information and Broadcasting, in particular, remain loathe to allow any discussion, information or education that involves sexual activity, health or identities to enter the public sphere in their attempts to maintain and protect what they consider to be Indian culture and values. The impact of such narrow approaches and policies is evident from the recent controversy over HIV/AIDS prevention messages that promoted the use of condoms and their withdrawal on the orders of the Indian Government.

State actions in this context are not limited to restricting media content and extend to the promotion of morally loaded and pro-abstinence messages that do not account for the realities of the HIV/AIDS epidemic. This article argues that in the face of an epidemic that threatens a significant percentage of the citizenry due more to ignorance, stigma and discrimination than to the lack of medical options, state censorship borders on the direct violation of the right to life of its citizens. Human rights standards require that the freedom of information (the right to provide and receive information and education relating to HIV/AIDS) be protected and appropriate restrictions on the freedom of information (relating to confidentiality, non-discrimination and the prevention of hate propaganda) are enforced.