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.