On the new Private Television Broadcasting Station Regulations

 

30th October 2008

The Minister of Mass Media and Information has on 10th October 2008 promulgated a new set of regulations cited as the Private Television Broadcasting Station Regulations, under powers conferred by the Sri Lanka Rupavahini Act, No.6 of 1982. These new regulations seek to regulate all aspects of private television broadcasting, including classification of stations and services; issue, revocation, and duration of licenses; fee structure; territorial coverage; ownership; duties and responsibilities of private television broadcasters; extended powers of the Ministry; and content controls. 

The Free Media Movement (FMM) strongly believes that the new regulations give cause for serious alarm on a number of points. Our preliminary concerns are as follows:

•    Classification of Private Television Broadcasting Stations: The regulations seek to classify private television broadcasters on the basis of geographical coverage (as international, country-wide or regional stations), on the basis of technology used (as analogue or digital), on the basis of whether a station uses its own or others’ broadcast transmission infrastructure, and on the basis of the method used to access the viewer (as terrestrial, cable, satellite, internet, or mobile telephony based broadcasting station). While classification per se is not inherently problematic for purposes of necessary legal regulation, it is not clear how particularly the head of classification referred to as ‘method used to access the viewer’ would work in practice. For example, it is not clear how the requirement of a license for a broadcaster using the internet or mobile telephony as the method of accessing the viewer would be applied and enforced in practice, given that potentially any person with access to the internet and a mobile camera phone could be regarded as a ‘broadcaster’. In such circumstances, at the very least, the scheme of licensing envisaged by the regulations are impractical and unworkable (whether the legal responsibility under licence lies with a ‘citizen-broadcaster’ or internet service provider. More seriously, however, such a system seriously hampers the freedom of expression using readily accessible modern technology, and which departs from developing forms and methods of expression all over the world.

 

•   Citizenship Requirements: The new regulations provide that an application to the Minister for a licence to operate a private television station may only be made by a Sri Lankan citizen, a partnership in which all the partners are Sri Lankan citizens, a company in which the majority shareholding is held by Sri Lankan citizens, or a statutory body. In the modern context of the globalised economy and trans-national technology, we find this to be an unusual requirement.

 

•  The Ineligibility of Political Parties to obtain a Private Television Broadcasting License: The new regulations prohibit a recognised political party from applying for a license. While in itself this may seem a legitimate restriction, in the Sri Lankan context in which state-owned media institutions operate in practice, not as public service broadcasters, but as politically partisan mouthpieces for the political party in power, we are firmly of the view that this restriction on private broadcasting licensing would serve only to aggravate that anomaly. Moreover, the new regulations require that where a license-holder becomes a member of a political party during the pendency of a license, s/he shall be obliged to surrender the license. This is wholly disproportionate, in that a mere member of a political party is precluded from holding a license.

 

•     Duration of License: The regulations provide that a private television license will only be for the duration of one year. This is inconsistent with the international average of a television broadcasting license, which is generally seven years.

 

•    Cancellation of License: The regulations provide that, among other reasons, a license may be cancelled by the Minister if the licensee broadcasts programmes which are detrimental to the interests of a national security; incite breakdown of public order; incite ethnic, religious or cultural hatred; in violation of any law; morally offensive or indecent; detrimental to the rights and privileges of children; in violation of the code of ethics, standards and practices of television broadcasting. This is an extremely alarming provision which in our view is entirely inconsistent with modern international standards governing the freedom of expression and broadcasting balanced against legitimate competing interests. It gives the Minister an overbroad power of undefined scope to regulate content and opens up the possibility of capricious decisions to cancel licenses and impose punishment.

 

•     Consultative Committee on Television Broadcasting: While such a body is envisaged by the Sri Lanka Rupavahini Corporation Act for the purpose of advising in the administration of that corporation, we strongly believe that such a body – appointed by the Minister and lacking operational independence and legitimacy – is not an appropriate mechanism for taking decisions with regard to such serious matters as the cancellation of licences.

 

•  The Role of the Minister: In general we find that the role of the Minister within the scheme of intrusive regulation envisaged by the new regulations to be extremely worrisome. Not only is it required that all kinds of organisational information to be supplied to the Ministry by private television broadcasters such as information regarding equipment and organisational structure, but the Minister’s prior approval and permission is required for many matters of day to day operations that would seriously hinder the freedom and autonomy of the media. While almost all aspects of the Minister’s powers under the regulations cause serious concern from the perspective of media freedom and independence, we would in particular mention the provisions which empower the Minister to demand information and interfere in the functioning of private television stations at will, and further the provision which empowers officials to enter premises for purposes of inspection. Moreover, the Minister is empowered to suspend the operation of a station if in his opinion such a suspension is required in the interest of the public interest or national security. Such broad powers are invariably prone to abuse.

 

The abovementioned aspects are only illustrative examples of the many concerns FMM has in relation to the new regime set out in the regulations. However, they are sufficient to show the extent to which the new regulations can be used or abused for illegitimate and political purposes other than reasonable regulation. In our view, these new regulations are misconceived in the way they allow governmental intrusion into the freedom of expression, and media freedom and independence. They are also, in our view, entirely inconsistent with the Constitution and fundamental rights in the manner interpreted by the Supreme Court in its landmark determination in the Sri Lankan Broadcasting Authority Bill Case of 1996.

 

FMM requests the Ministry of Mass Media and Information to withdraw these obnoxious regulations forthwith, and if the aim is to establish a legitimate regime of fair, transparent and accountable regulation, to enter into open consultations with those directly affected, the media profession and broader civil society, so that a proper legal framework in this regard may be developed. Given the recent experience of the government’s contempt and disregard for the freedom of expression and the integrity of the free media, however, FMM reserves the right to explore and initiate any legal action that may be available under the Constitution and law of Sri Lanka to ensure that these regulations are struck down.

Human rights matter – and they particularly matter for journalists.

Jacqueline ParkAsia-Pacific Director
International Federation of Journalists

They matter to our societies and, as journalists, they give us objective criteria we can use to assess how our governments are performing and standards to measure those who hold power in society.

They matter to us in our day to day work. Human rights are essentially the air that we breathe, they frame the environment that allows us to keep our communities informed.

That’s why the International Federation of Journalists is so pleased to have been working with the Sri Lankan journalists community in this Human Rights Prize Summit.

The IFJ is the global union for journalists. It represents 600,000 journalists organised in 130 independent unions in 122 countries, including here in Sri Lanka.

It is the global voice for the rights of the media, and for those of us who work in it.

So, it gives me great pleasure to represent the IFJ on this important occasion as we recognise the courage and great journalism of our colleagues.

Journalists have a duty to examine and reveal the state of their societies. An important test of a well functioning society is the status of human rights – are they upheld or are they violated?

Do all members of the society enjoy their rights equally – children, young people, women and men, different ethnic groups?

The significance of rights in public service journalism is threefold.

• First, good journalism is focused on the rights of citizens as a matter of course, whether in a subtle or an overt way.
• Second, good journalism relies on the right to freedom of thought and expression. This cannot exist where human rights are abused.
• Third, journalists have a right to be protected – to be safe from violence or other abuse –  in carrying out their work.

And unfortunately we have seen too much harassment, aggression and murder of journalists simply for doing there job here in Sri Lanka.

This is a special war – a war on journalism.

We have seen it in the targeted killing of Tamil media workers – no fewer than 14 media workers have been killed in the past two and a half years. This has had the chilling effect of closing down any independent reporting from the North. The LTTE has never allowed independent reporting from areas they have controlled. Unfortunately we are seeing the same now in Government controlled areas.

For the first time we see the use of the Prevention of Terrorism Act used against journalists purely because of their journalism. Tissanayagaram remains in jail for his journalism.

This is not a problem, for Sri Lankan or for Sri Lankan journalism. Tissa’s is the crisis for world journalism.

In the past decade’s so-called war on terror, this is the first time that a journalist has been charged with terrorism offences purely because of something he has written.

This is a shocking, shocking development and it should be a source of deep shame to the government of Sri Lanka.

The International media community is united in its concern for Tissa and stand with our Sri Lankan colleagues in a global campaign for  his release. 

We see human rights under threat from hate speech from those intolerant of independent critical reporting — endangering the lives of journalists to the horror of our colleagues around the world.

Defence correspondents have been particularly targeted –  beaten, threatened and forced to flee the country — shutting down critical coverage of the conduct of the war.

As the media freedom representative to the OSCE Miklos Haraszti said recently: “There is only one thing more intimidating for free speech than harassment, physical attacks, and murder of media workers; and that is when governments tolerate harassment, attacks, and murders.”

When people know they can attack, abuse and kill journalists without risk,  the crimes are  encouraged and perpetuated.

Where there is apathy and inaction, law enforcement come to seem to share the motives of the perpetrators.

This impunity does not start with the failure to successfully investigate and prosecute murders of journalists.

It starts with hateful attacks against journalists by those in power and the criminalisation of the work of journalists

All this sends a message that it’s open season on journalists.

In all this, Sri Lanka risks being seen as a rogue player. Around the democratic world, governments around the world are recognising that they need to act on their responsibility to protect journalists, a recognition embodied in a recent UN Security Council resolution

These attacks corrode our media and our democracy:

• Beating a journalist not only punished the journalist for their work. It sends a clear message to their colleagues, editors, owners, and to all their families and this has a chilling effect on media freedom and open discussion.

• Violence becomes censorship far beyond the context of the actual controversy; it will impede the press in performing its most important task in defence of democracy, because it is journalists covering human rights abuses and corruption scandals that are most punished with violence.

• The effect of the violence extends to the whole society by collapsing editors’ willpower. Editors are the ones in any democracy that practically define which issues are to be reported and discussed.

• Finally, violence against journalists joins even the forces that commercialise the media. It adds the element of physical fear to the effects that today are pushing the media away from meaningful information, towards empty entertainment.

Despite the deterioration, there are some positive signs. We welcome the Governments moves to put this situation visibly high on the national agenda with the creation of the cabinet subcommittee to look into journalists safety.

The emerging dialogue between the President and government and journalists is another positive step in rebuilding trust and understanding for independent journalism.

Genuine determination and broad support from the government is essential to protect journalists. Government must acknowledge the links between governmental respect for media and the level of societal violence against the media.

Tonight we are here to recognize that despite these difficult circumstances, journalists are fighting back. 

I’m proud to acknowledge tonight the many brave journalists that are not with us — the journalists shot, beaten, jailed, forced to flee — all for doing their job:

I’m also proud to acknowledge the brave media community, led by the five organisations, that continues to stand in solidarity and in the face of many threats for their right to freedom of expression and the public’s right to know.

 

We still have a long way to go in implementing and entrenching the principles of public service journalism across all media in Sri Lanka.

Change is happening and we can be proud of what we achieving and setting in place for future generations of journalists.

Without the solidarity achieved and strengthened in these past few years these times could be much darker.

Tonight we recognize those achievements with the Public Service Journalism prize and the IFJ Human Rights prize.

This year has seen 750 entries and a record number of women shortlisted for the awards. For this the national and provincial journalists organizations must be congratulated. And to the editors that have shown great support for the awards, thank you.

Higher quality of reportage is a concrete outcome of greater professionalism.

That is, more and more we can see the principles of public service journalism in practice, strengthening our profession and strengthening our communities.

Tonight’s awards are a part of that process. They reward the dedication and work of provincial journalists and recognise the real-world value and impacts that high-quality reporting can and does have on the lives of ordinary people.

(Presentation to Human Rights Prize Summit
Colombo, 24 October 2008)