New Broadcasting Regulatory Act needs inclusive approach to ensure media freedom

The draft bill presents a grave threat to media freedom as it lacks adequate 

provisions to protect media from State control

The proposed Broadcasting Regulatory Commission (BRC) bill has sparked intense debates and disagreements among various stakeholders. The regulation of broadcast media is a critical process that requires careful consideration. Not only does broadcast media have a profound impact on democracy, but the regulatory process itself can also have significant implications for democracy. Therefore, it is crucial that regulation be based on internationally accepted principles, with a primary emphasis on independence, ensuring complete autonomy from government influence. 

Moreover, the regulatory mechanism should reflect media pluralism, the quality of journalism, the audience’s right to receive fair, balanced, accurate, and diverse information, and the provision of a reasonable environment for media outlets to sustain themselves financially. These principles should serve as a foundation, but there may be additional considerations to address.

Reflecting on past experiences, it is worth noting that this is not the first time the Government has proposed a regulatory mechanism for broadcast media. In April 1997, a highly controversial Broadcasting Authority Bill was introduced in parliament. While the bill aimed to establish a new broadcasting authority, concerns were raised due to its lack of independence. The Supreme Court ultimately ruled against it, emphasising the importance of ensuring media pluralism, media freedom, and the accommodation of diverse opinions. Considering these precedents, it is important to critically analyse the strength of the current draft under discussion.

Why is regulation necessary?

Broadcast regulation serves several purposes, primarily aimed at ensuring the fair distribution of airwaves, considering they are limited public property. Additionally, regulation upholds media pluralism, which ensures the presence of diverse ownership, content, viewpoints, and sources of information. By fostering media pluralism, regulatory efforts aim to prevent media ownership concentration and the dominance of a single viewpoint or narrative. Regulation ensures that broadcast media serve the public interest by providing reliable, balanced, fair, impartial, and verified news and information. Furthermore, regulations are often necessary to prevent the promotion of harmful or offensive content, hate speech, or the incitement of violence. Additionally, broadcast regulation seeks to incorporate healthy edutainment, although the interpretation of this concept may vary.

Independence 

To ensure the efficacy of the proposed BRC bill, it is crucial that the regulatory mechanism remains entirely free from Government influence. Such independence is essential to prevent regulatory bodies from being utilised as tools by the ruling party or the government in power. State control can have adverse effects on freedom of expression, media pluralism, consumer interests, accountability, and public interest. Political control may lead to detrimental censorship and instil fear among journalists, thereby weakening the quality of journalism and undermining healthy democratic discourse. Addressing the following pressing issues is imperative as we move forward:

Gateway to State control

The composition of the proposed BRC raises significant concerns regarding impartiality and the potential for abuse of power. The inclusion of ex-officio members, such as the Secretary to the Ministry of Media and the Director-General of Telecommunication, along with three additional members, suggests a politically biased body. This composition raises concerns about state regulation, which is contrary to democratic practices. The proposed BRC should include representation from the media community, ensuring a diverse and inclusive approach. Additionally, the absence of a clear explanation regarding the Constitutional Council’s power to reject any appointment on fair and reasonable grounds leaves room for potential misuse of power in the appointment process. This, in turn, could lead to government control over media functioning, undermining press freedom and democratic principles.

Concerns about decision-making authority

Section 9(2) of the provision granting the President the power to remove members of the commission raises concerns about the concentration of decision-making authority in the hands of a single individual. While the specified conditions for removal may be reasonable, the absence of an additional layer of checks and balances creates the potential for the misuse of power, especially in situations where the rule of law is compromised and the Government seeks to exert control over specific members or influence the media through their appointments.

Ambiguity in objectives

The objectives of the BRC are undeniably broad and vague. Specific provision 5(h) raises concern due to its ambiguity and potential for subjective interpretations. This provision allows the BRC to issue guidelines for broadcasting to enhance the spiritual development and mental health of the people while safeguarding social and cultural values and entertainment. This lack of clarity opens the door for potential misuse of power by the commission, leading to restrictions on freedom of expression, censorship, and limitations on diverse perspectives and creative expression. Similarly, objective 5(k), which aims to ensure broadcasting services continue without compromising “national security,” “national economy,” and “public order,” raises significant concerns. 

The draft bill fails to provide adequate definitions for these terms in the context of broadcast regulation, creating the potential for the abuse of power. The inclusion of “national economy” as a factor is particularly worrisome due to its ambiguity. Considering past experiences of governments attempting to control media, there is a real risk that this provision could be exploited to suppress media freedom.

Powers and duties of the commission

While the draft bill raises several concerns regarding its objectives and duties, there are specific provisions that require further discussion. Provision 6(e) states that the commission will determine the number of licenses that a person or broadcasting entity can obtain for providing broadcasting services. While this provision is important, considering past instances of media suppression by ruling governments, it is crucial to establish clear guiding principles that inform the work of the BRC in this regard.

It is essential to implement policies that prevent the concentration of media ownership and ensure diversity in the media landscape, allowing for a variety of fair and alternative viewpoints. Additionally, provisions for fair cross-media ownership should be considered. Such rules aim to prevent excessive control of different media sectors by a single owner. For example, in the UK, the Communications Act 2003 includes cross-media ownership rules that limit the ownership of both national newspapers and television channels by a single entity, promoting media plurality and diversity. However, it is important to recognise that replicating such frameworks from well-developed countries may not be suitable for the Sri Lankan media landscape, which operates in a distinct political, social, and economic context.

Qualifications of members

The public’s trust in the BRC largely depends on its ability to make decisions based on the public interest. However, the draft bill does not include any provision disqualifying individuals who openly align themselves with politics or advocate for the interests of a specific political party, which could raise concerns. While some may perceive such a provision as undemocratic, the intention behind it is to ensure that the commission consists of individuals who are free from partisan motivations. The objective should be to select individuals who are committed to the principles of media regulation and can contribute to the fair and unbiased functioning of the Commission. By considering qualifications that prioritise expertise and independence, the BRC can gain public confidence and effectively fulfil its mandate.

Annual license

Section 18 of the bill, which introduces the requirement for an annual license for broadcasting services within a specific timeframe, raises concerns regarding media freedom and the sustainability of the media industry. The provision’s strict timeline for obtaining an annual license, particularly within a short three-month window, can pose practical challenges for media entities. It may lead to rushed decision-making and limit opportunities for careful planning and consideration, potentially compromising the quality and integrity of media content.

Furthermore, obligating existing license holders to apply for an annual license under the new Act within a specific timeframe imposes an additional burden on media outlets operating under previous acts. This can introduce uncertainties and disrupt their operations, potentially affecting their ability to sustain business activities and make necessary investments in the sector.

Moreover, such provisions may discourage new investments in the media industry. The stringent requirements and potential instability could deter potential investors from committing resources to media ventures. This, in turn, can hinder the growth and development of a diverse and vibrant media landscape. To protect media freedom and foster a thriving media industry, it is crucial to ensure that the licensing processes are fair, transparent, and allow for sufficient time for compliance. The provision should take into account the complexities and challenges faced by media entities, facilitating a smooth transition while safeguarding their independence and operational continuity.

Conduct investigations

Section 19 of the bill outlines provisions for conducting investigations against media outlets; however, it is essential to establish all necessary prerequisites for the effective implementation of the proposed commission. One significant area of concern is the power of the BRC to remove licenses, as the draft bill lacks provisions to ensure accountable, fair, and transparent procedures for license removal.

Subsection (c) empowers the committee to investigate violations of ethics specified in a code of ethics issued under the Act. To ensure the effectiveness of this provision, it is crucial to develop a comprehensive code of conduct in consultation with the media community, ensuring broad endorsement and participation in its creation.

Subsection (d) addresses acts that may lead to monopolistic practices and unfair competition among broadcasting license holders. While this provision is important, it is vital to establish a well-defined, clear, and transparent policy on maintaining media pluralism and diversity before its implementation. Such a policy should be developed in collaboration with relevant stakeholders, including media outlets, to ensure its effectiveness and promote fair competition in the broadcasting sector.

Entering to media outlets 

Clause 19(5b) confers the authority with the ability to enter, examine, and search establishments associated with a broadcasting service, provided that an entry warrant is issued by a Magistrate. Recognising the importance of media accountability and adherence to the law, it is reasonable to accept the powers to enter, examine, and search premises. However, it is crucial that this provision be executed cautiously, accompanied by appropriate safeguards to uphold media freedom and prevent any potential abuse of authority. Regrettably, the current draft bill lacks clearly defined provisions regarding the criteria and circumstances under which such entry and search operations may be conducted. Moreover, it does not include any measures to prevent potential misuse.

Directions from Minister

Section 26 of the draft bill confers upon the Minister the authority to issue general or special directions to the Commission. While it is understandable for a regulatory body to receive guidance and directions from the government, past experiences have highlighted the need for caution in this provision due to its potential implications for media freedom. To ensure the preservation of media freedom and maintain the independence of the Commission, it is essential to establish robust checks and balances on the Minister’s power to issue directions. This will help prevent politically motivated or arbitrary directives that could encroach upon media freedom and autonomy.

Need for regulation 

It is crucial to emphasise the widespread consensus on the necessity of regulating broadcast media. This collective agreement represents a positive development. However, it is imperative to underscore the urgent requirement for a fair, accountable, and transparent regulatory mechanism that leaves no room for debate. In recent years, there have been numerous instances where certain media outlets have caused significant harm to the democratic process and social cohesion.

For instance, in 2018, following communal clashes in Kandy, certain media outlets irresponsibly propagated hate speech targeting a specific community. Similarly, after the 2019 Easter Sunday attacks, certain television stations continuously disseminated hatred, misconceptions, and suspicion towards a particular community, leading to profound divisions within society. Moreover, during the last two major elections, certain media outlets engaged in fabricating news and promoting misleading narratives to manipulate political decisions in favour of specific candidates or parties.

The COVID-19 pandemic further exposed the dissemination of misinformation by certain media outlets, causing panic and confusion among the public. False information about cures, transmission, and preventive measures circulated, thereby undermining public order. Notably, research conducted by Verité Research in Sri Lanka has highlighted concerns regarding media ownership concentration, with a few influential entities controlling significant portions of the media market. Such concentration can limit the diversity of voices and perspectives, potentially resulting in biased reporting and the suppression of alternative viewpoints.

Proposals and conclusion 

The draft bill presents a grave threat to media freedom as it lacks adequate provisions to protect media from State control. This undermines the principles of media independence and compromises the ability of journalists and media outlets to operate without fear of censorship or reprisals. The provisions in the bill fail to adequately safeguard the autonomy and independent functioning of the proposed Broadcasting Regulatory Commission (BRC), instead reflecting the government’s inclination to exert control over the broadcast media. Therefore, it is imperative to ensure that the proposed mechanism remains independent from state control or the influence of any other groups, functioning effectively and impartially to serve the public interest while upholding the principles of independence and accountability.

If the Government truly values a free press, content diversity, quality journalism, freedom of expression, fairness, and impartial reporting, it should start by reforming the state broadcasters, specifically addressing the violations of these aspirations within the acts governing SLBC and SLRC.

The mechanism requires robust checks and balances. The composition of the BRC should be revisited to provide reasonable representation for industry members, and the mechanism should remain politically neutral. The appointment and removal of members should follow a well-articulated process to prevent state interference and protect the commission’s independence. The bill should include provisions to ensure that when BRC or its representatives enter media outlets, it does not infringe upon press freedom, freedom of expression, or compromise the privacy and confidentiality of journalistic sources and sensitive information, while avoiding censorship and political manipulation.

To promote stability and encourage investment, a balanced and flexible approach to licensing requirements should be considered. Granting licenses for longer periods, such as 10 years, would provide greater certainty and enable media entities to plan and invest in the long term.

Unlike other commissions, the proposed BRC should have its own organisational structure and conduct adequate groundwork, including the development and validation of inclusive instruments such as a code of conduct, criteria for selecting suitable individuals for the BRC, principles guiding ownership, and procedures for license revocation or extension. These processes should involve consultation with the industry and larger stakeholders, ensuring transparency and accountability.

Laws and policies should be clear and unambiguous, leaving no room for confusion or misinterpretation. Before implementing the mechanism, it is important to clarify the definition of broadcast media, the reasons for regulation, and the interpretation of vague expressions such as “spiritual development,” “safeguarding cultural values,” “national security,” “national economy,” and “public order” in the context of broadcast regulation.

Clear guidelines should be established to specify the circumstances under which the minister can issue directions, ensuring that they are necessary, proportionate, and aligned with the principles of media freedom and pluralism.

Given that media is a unique democratic institution, it requires a unique approach. Therefore, it is crucial for this draft bill to undergo an inclusive review process, with the finalisation process being open, transparent, and participatory.

(The writer is a media researcher and academic specialising in journalism studies. He currently holds the position of head of program at the Foundation for Advancing Critical Thinking in South Asia. Throughout his career, he has shared his knowledge and expertise as a visiting lecturer at renowned local universities such as the University of Peradeniya, University of Vocational Technologies, University of Colombo, KIIT University in India, and the University of Jaffna. His doctoral research focused on broadcasting policy within South Asian countries. Additionally, he worked for over 10 years at the Sri Lanka Broadcasting Corporation (SLBC) as a relief announcer, commentator, and news reader. He could be reached via email at [email protected].)