| 1. INTRODUCTION
This Memorandum provides comments on the
draft Cook Islands "Act to establish the Media Commission" (the draft
Act), which is likely to be placed before the newly elected parliament in
the 2006/2007 session.
If adopted, the Act would establish a
Commission with broad regulatory powers over the media in the Cook
Islands. The Commission would be appointed by the minister responsible for
broadcasting, and while its primary functions would appear to be in regard
to radio and television, it would also have broad regulatory powers over
print and internet media content. It would, amongst other things, not only
license the broadcast media but it would also monitor the extent to which
all media comply with "community standards and expectations" and hear and
decide complaints brought by members of the public. If it upholds a
complaint, it may direct the media outlet concerned to publish a
correction or apology; if the media outlet fails to comply with the
direction, then a fine of up to NZD10,000 may be imposed. It would also
draft relevant codes of conduct for the media, which are then formally
approved by the relevant government minister.
ARTICLE 19 is concerned at both the broad
regulatory sweep that the Commission is likely to have, and at the lack of
independence of the envisaged Media Commission. The Commission would have
regulatory powers over print and internet-based media as well as over
broadcast media. We do not feel that this is appropriate; self-regulation
is internationally recognised as the preferred form of regulation for
print and internet media. We also note that no democratic country in the
world has the kind of controls over internet content as proposed in the
draft Media Act. If the proposed internet content control is pushed
through, Cook Islands would find itself in the company of countries such
as Kazakhstan.
We are also deeply concerned at the lack of
any safeguards to protect the Media Commission's independence from the
government or political or economic interests. The Commission's board is
to be appointed by the Minister - and two of five Board members, including
the chair, will be appointed wholly within the minister's discretion - and
the Commission will be required to act on any policy directives received
from the Government. Coupled with the short terms of office of members of
the board, this will leave the Commission wide open to governmental
manipulation.
We are also concerned at the vagueness of
some of the licensing criteria - in particular, the lack of what any
definition of what "fit and proper" means in the context of what persons
may hold a licence - and at the undue discretion given to the Media
Commission in relation to licence suspension or revocation.
The following paragraphs elaborate on these
concerns and recommendations. Our comments are based on international
human rights law and best comparative practice in media regulation.
Section 2 of this Memorandum sets out the applicable standards in
international law; Section 3 compares key parts of the draft Act against
those standards.1
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2. INTERNATIONAL
STANDARDS
2.1. International and
Constitutional Guarantees of Freedom of Expression
Article 19 of the Universal Declaration on Human Rights (UDHR),2 a United
Nations General Assembly resolution, guarantees the right to freedom of
expression in the following terms:
Everyone has the right to freedom of
opinion and expression; this right includes the right to hold opinions
without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.
The UDHR is not directly binding on States
but parts of it, including Article 19, are widely regarded as having
acquired legal force as customary international law since its adoption in
1948.3 The 1993 Vienna World Conference on Human Rights reaffirmed its
full commitment to the Universal Declaration of Human Rights.4
The International Covenant on Civil and
Political Rights (ICCPR),5 a formally binding legal treaty, guarantees the
right to freedom of opinion and expression at Article 19, in terms very
similar to the UDHR. Although the Cook Islands has neither signed nor
ratified the ICCPR, it is nonetheless an authoritative elaboration of the
rights set out in the UDHR and hence of relevance here.
The Cook Islands own Constitution
guarantees the right to freedom of expression at Section 64.6
The right to freedom of expression is also
protected in the three regional human rights systems, at Article 10 of the
European Convention on Human Rights (ECHR),7 Article 13 of the American
Convention on Human Rights8 and Article 9 of the African Charter on Human
and Peoples' Rights.9 While neither these treaties nor the judgments of
courts and tribunals established under them are formally binding on the
Cook Islands, they provide good evidence of the appropriate interpretation
of the right to freedom of expression as guaranteed by the UDHR and the
ICCPR as well as by the Cook Islands Constitution.
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2.2. The Importance of
Freedom of Expression
Freedom of expression is a key human right, in particular because of its
fundamental role in underpinning democracy. In its very first session in
1946, the UN General Assembly adopted Resolution 59(I) which stated:
"Freedom of information is a fundamental human right and ... the
touchstone of all the freedoms to which the United Nations is
consecrated."10 The UN Human Rights Committee has stressed the importance
of freedom of expression in a democracy:
[T]he free communication of information and
ideas about public and political issues between citizens, candidates and
elected representatives is essential. This implies a free press and other
media able to comment on public issues without censorship or restraint and
to inform public opinion. ... this implies that citizens, in particular
through the media, should have wide access to information and the
opportunity to disseminate information and opinions about the activities
of elected bodies and their members.11
The guarantee of freedom of expression
applies to all forms of expression, not only those which fit with majority
viewpoints and perspectives:
Freedom of expression constitutes one of
the essential foundations of [a democratic] society, one of the basic
conditions for its progress and for the development of every man ... it is
applicable not only to 'information' or 'ideas' that are favourably
received or regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any sector of the
population. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no 'democratic society'.12
Freedom of expression has a double
dimension; it protects not only the individual's right to impart
information and ideas but also the general public's right to receive them.
This is explicit in international guarantees of freedom of expression such
as those quoted above, and has also been stressed by international
courts.13
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2.3. Restrictions on
Freedom of Expression
The right to freedom of expression is not absolute. Both international law
and most national constitutions recognise that freedom of expression may
be restricted. However, limitations must remain within strictly defined
parameters laid down by Article 19(3) of the ICCPR:
The exercise of the rights provided for in
paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
It is a maxim of human rights jurisprudence
that restrictions on rights must always be construed narrowly; this is
especially true of the right to freedom of expression in light of its
importance in democratic society. Any restriction on freedom of expression
must meet a strict three-part test, as recognised by the UN Human Rights
Committee. This test requires that any restriction must a) be provided by
law, b) be for the purpose of safeguarding one of the legitimate interests
listed, and c) be necessary to achieve this goal.
The first condition, that any restrictions
should be 'provided by law', is not satisfied merely by setting out the
restriction in domestic law. Legislation must itself be in accordance with
human rights principles set out in the ICCPR.14 The European Court of
Human Rights, in its jurisprudence on the similarly worded ECHR provisions
on freedom of expression, has developed two fundamental requirements:
First, the law must be adequately
accessible: the citizen must be able to have an indication that is
adequate in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a "law" unless it is
formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail.15
The second condition requires that
legislative measures restricting free expression must truly pursue one of
the aims listed in Article 19(3) of the ICCPR, namely the protection of
the rights or reputations of others or of national security, public order
(ordre public) or public health or morals.
The third condition means that even
measures which seek to protect a legitimate interest must meet the
requisite standard established by the term "necessary". This is a very
strict test:
[The adjective 'necessary'] is not
synonymous with "indispensable", neither has it the flexibility of such
expressions as "admissible", "ordinary", "useful", "reasonable" or
"desirable". [It] implies the existence of a "pressing social need".16
Furthermore, any restriction must restrict
freedom of expression as little as possible. 17 The measures adopted must
be carefully designed to achieve the objective in question, and they
should not be arbitrary, unfair or based on irrational considerations.18
Vague or broadly defined restrictions, even if they satisfy the "provided
by law" criterion, are unacceptable because they go beyond what is
strictly required to protect the legitimate interest.
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2.4. Media Regulation
The guarantee of freedom of expression applies with particular force to
the media, including the broadcast media. As the Inter-American Court of
Human Rights has stated: "It is the mass media that make the exercise of
freedom of expression a reality."19
This does not imply that the media should
be entirely free and unregulated. However, because media regulation
affects both the media's right to freedom of expression and the public's
right to receive information, there are a number of constraints to it.
First, and generally, any licensing system established by States must pass
the 'prescribed by law' and 'necessary in a democratic society' parts of
the three-part test for restrictions stipulated in Article 19(3) of the
ICCPR.20 Second, one of the main goals of regulation must be to promote
pluralism and diversity in the media.21 Third, any bodies with regulatory
powers in this area must be independent of government, both formally,
through the legislation that establishes them, and in actual fact and
everyday practice.22
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3. ANALYSIS OF THE DRAFT
ACT
This section provides our detailed comments
and suggestions regarding the draft Act. Broadly speaking, our concerns
fall into three separate categories: first, a set of concerns regarding
the wide regulatory scope of the proposed Media Commission; second, a set
of concerns and recommendations regarding the independence and powers of
the proposed Media Commission; and third, a miscellaneous set of concerns
on licensing matters.
3.1. Wide Regulatory
Scope of the draft Media Act
Part 2 of the draft Act sets out the functions of the proposed Media
Commission. Clause 13 stipulates 7 separate functions:
(a) to encourage media in the Cook Islands to reflect and develop Cook
Islands identity and indigenous culture;
(b) to encourage the coverage of television and radio broadcasting, and
print media to parts of the Cook Islands that would otherwise not receive
a commercially viable signal or newspaper;
(c) to advise the Minister on codes of publishing and broadcasting
practice;
(d) to advise the Minister on advertising and internet codes of practice;
(e) to hear and determine licensing applications under Part 3 of this Act;
(f) to hear and determine complaints under Part 4 of this Act; and
(g) to monitor the extent to which broadcasters, publishers, advertisers
and internet content providers comply with community standards and
expectations.
Part 4 of the Act lays down, separately,
the kind of 'standards' that the Commission should enforce. In particular,
Clause 24(2) specifies that all media outlets - whether print,
broadcasting or internet - must ensure that their output is consistent
with the following principles:
(a) the observance of good taste and decency, taking into account
community standards and the timing and context of the programme, article,
advertisement or internet content;
(b) the maintenance of law and order;
(c) the privacy of the individual;
(d) the principle of balance that when controversial issues of public
importance are addressed in news and current affairs, reasonable efforts
are made, or reasonable opportunities are given, to present significant
points of view either in the same programme or publication, or in other
programmes or publications within the period of current interest, subject
to the right of all media to put forward editorial opinion provided the
editorial nature of the comment is clearly apparent to the reader,
listener, or viewer as the case may be; and
(e) news and current affairs being truthful and accurate on points of
fact; and
(f) the requirement to deal justly and fairly with any person referred to
in an article or programme, or who is taking part in a programme; and
(g) at certain times of the day, the need for broadcasters to take into
account the young age of potential listeners and viewers.
Under Clause 25, the Minister may adopt codes of practice to elaborate on
these principles, as proposed by the Media Commission after consultation
with broadcasters, publishers, advertisers and internet content providers.
Clause 2 of the draft Act limits its
applicability to only to those websites that originate from or are hosted
within the Cook Islands, or those that are established or hosted overseas
by a person who is ordinarily resident in the Cook Islands.
Analysis and comment
We are concerned by both the proposal that the Media Commission should
have regulatory powers over the internet and print media, and by the vague
nature of many of the proposed media standards.
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Self-regulation for print and internet
media
While it is well-established that broadcasting may be regulated by
law, countries around the world have recognised that statutory regulation
for print and internet media is unnecessary. While statutory broadcast
regulation can be justified by the spectrum available for broadcasting
use, no such justification exists for the print or internet-based media.
Moreover, the principles outlined in Section 2.3, above, dictate that in
order to protect and promote freedom of expression, the least restrictive
means of regulation should be imposed on the media necessary to protect
legitimate interests. Statutory bodies are always at risk of political
interference and abuse; in our experience, they can function
satisfactorily only in well-established democracies with a strong
tradition of the rule of law.
Many established democracies see statutory
regulation of the print media as anathema to press freedom. It is
instructive to note that a recent private members attempt in the United
Kingdom to introduce statutory regulation for the print media was firmly
rejected by the UK Government on the grounds that "no laws should
specifically restrict press freedom. The Government should not intervene
in any way in what a newspaper or magazine chooses to publish. We support
self-regulation and the basis of the Government's relationship with the
independent Press Complaints Commission (the UK self-regulatory body for
the press - A19) is support for effective self-regulation. Newspapers may
not publish whatever they like, but must abide by the law, as we all must,
and that includes laws covering defamatory material ... To conclude, the
Government have no intention of presiding over the end of more than 300
years of press freedom."23
This has also been recognised at the
international level. In a Joint Declaration in 2003, the United Nations
Special Rapporteur on Freedom of Opinion and Expression and his
counterparts at the Organisation of American States and the Organisation
for Security and Cooperation in Europe urged States to recognise the
fundamental differences in nature between print, broadcast and internet
media with regard to regulation.24 And in the African context, a formal
Declaration has been adopted by the African Commission on Human and
Peoples' Rights stating that "[e]ffective self-regulation is the best
system for promoting high standards in the media."25
With regard to internet-based media, the
Council of Europe's Committee of Ministers has adopted a Declaration that
states: "Member states should encourage self-regulation or co-regulation
regarding content disseminated on the Internet."26 This is because the
Internet as a medium is very different from the broadcast or print media.
It includes small, one-person websites and blogs as well as large and
professionally run news sites such as www.cnn.com; and political party
websites sit 'side by side' with government ministry websites and the site
of the local football or rugby club. These sites cannot all be subjected
to the same exacting standards that are required of broadcasters.27 The
internet is also an international medium: content that is uploaded in New
York can be immediately accessed in Moscow, and the news from Brisbane can
be watched 'live' in Paris, France. There is no shortage of airwaves,
unlike in the broadcast media, and, unlike the print media, no need for
access to a print press and distribution network in order to be able to
publish to a wide audience. Everyone with access to a PC and a telephone
line can publish to a potential audience of millions on the internet.
While this situation can be frightening to media regulators, there is no
evidence that this huge diversity has led to lawlessness: like everyone
else, internet publishers are liable under the laws of the land for
information disseminated by them. If someone based in the Cook Islands
publishes material on-line that is defamatory of another Cook Islander,
then that can be dealt with in the local courts. In other words, there is
no pressing need for the introduction of statutory regulation for the
internet media. It is telling that no democratic country in the world has
instituted the kind of overarching internet content regulation proposed in
the draft Act.
Our overarching recommendation would
therefore be that the Media Commission should have no regulatory or other
powers over the internet or over print media. We see no evidence that
self-regulation for these media in the Cook Islands has failed, nor do we
see any other justification for introducing statutory regulation.
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Broad scope of regulatory functions
Clause 24(2) of the draft Act outlines general content principles,
stipulating, amongst other things, that all media output must be "in good
taste and decency", "taking into account community standards", that news
and current affairs output must be truthful and accurate, and that persons
must be dealt with "justly and fairly". These general principles are to be
elaborated by the Commission in separate codes of practice, and will then
serve as the basis for a complaints mechanism.
While we appreciate the need for
legislation to set out general principles, which are then elaborated upon
in further detail in separate codes and regulations, we believe that a
number of the principles outlined in the draft Act cross the line and are
simply too broad. This is particularly the case with the requirement that
programme output must be "in good taste and decency, taking into account
community standards." Not only is it difficult to find truly commonly
shared values, even within the numerically small Cook Islands community,
the idea of "decency" is also easily abused to suppress political
criticism, particularly when that is expressed in harsh terms. It is
important to recall that while freedom of expression is not an unlimited
right, it does protect speech or expression that some sectors of society
may find offensive.
The requirement to deal 'justly and fairly'
with persons is also very broad and easily abused; as is the requirement
that programming must be "consistent with the maintenance of law and
order"; instead, it would be better if the draft Act more specifically
required broadcasters to refrain from broadcasting material likely to
encourage or to incite the commission of crime. Similarly, the requirement
on news and current affairs output to be 'truthful and accurate' is easily
misinterpreted as an absolute obligation on such programmes to provide
100% true and accurate programming - needless to say, such a requirement
would be impossible to fulfil.
We suggest that the use of all of these
terms is dropped in favour of more precise language. We refer to modern
broadcasting legislation, such as the UK Communications Act of 2003, and
the codes that have been adopted pursuant to that legislation, as an
example of how the wording of the draft Act can be improved in this
regard. It requires, for instance, that news is reported with "due
accuracy"28 - a standard that is subtly but significantly different from
requiring news to be "accurate". Another way of phrasing this obligation
would be to require that newscasters should "strive for" accuracy in their
reporting.
We are also concerned that of the functions
of the Commission listed in Clause 13, the only one that substantively
relates to media content are the first and last ones: that the Commission
should "encourage media in the Cook Islands to reflect and develop Cook
Islands identity and indigenous culture" and that it should monitor the
extent to which the media "comply with community standards and
expectations". We believe that this last functions is too vague to serve
as a meaningful statement of the Commission's functions, primarily because
the meaning of the term "community standards and expectations" is
insufficiently clear. And while the promotion of local content and culture
is not in itself an unsuitable function for a broadcast regulator, we are
struck that there is no overriding requirement on the Commission to
protect and promote the public's right to receive information from a
variety of sources and on a diverse range of matters. We are also struck
that the only mention to broadcasters' right to freedom of expression is
in Clause 14, where the emphasis is on the exceptions to the right rather
than protection of the right itself. Protection of broadcaster's right to
freedom of expression and the public's right to a diverse and pluralistic
media should be among the two key functions of any media regulator.
Recommendations:
* The Media Commission should have no regulatory or other powers over
the internet or print media.
* The draft Act should list protecting freedom of expression and the
public's right to a diverse and pluralistic media as among the key
functions of the Media Commission.
* The use of vague terms such as "good taste and decency" and "community
standards and expectations" in media content standards should be avoided.
* The media content standards should not place an absolute obligation on
media outlets to provide fully truthful and accurate news but instead
require that broadcasters "strive for" accuracy.
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3.2. Enhancing the
Independence of the Media Commission
The draft Act envisages that members of the Board of the Commission will
be appointed by the relevant minister. Under Clause 4, the minister would
appoint two members in his own discretion - one of them would be a lawyer
and would also serve as the Commission's chair; and he would appoint one
each from three to five nominees put forward by broadcasters, publishers
and members of the chamber of commerce respectively. The draft Act does
place certain conditions on who may become a member of the board, for
example to require that they have relevant skills and to prevent conflicts
of interest, but it fails to require that the members themselves or the
board as a whole should function as an independent body.29 Clause 16
stipulates that the Commission ""shall have regard to any policy
directions conveyed to it by the Minister in writing and which are not
inconsistent with the functions or powers of the Commission as prescribed
by this Act", although any such government instructions must be published
in the Commission's following annual report.
Analysis and comment
We are extremely concerned that as envisaged, the Commission will
effectively function as an executive arm of government. There is nothing
in the draft Act to protect the independence of the board or its members,
who are ministerial appointees on a short leash - their term of office is
only three years30 - and the Commission is required to comply with any
directives received from the government save for those that truly and
clearly fall outside the scope of its powers and functions.
This breaches the internationally
recognised requirement that any bodies which exercise regulatory or other
powers over broadcasters and other media must be independent from
government, politics or business interests. This principle has been
explicitly endorsed in a number of international instruments, including
the Joint Declaration by the UN, OAS and OSCE special mandates on freedom
of expression referred to earlier and a specific Recommendation from the
Council of Europe's Committee of Ministers. Central to both is the idea
that regulatory bodies should be established in a manner which minimises
the risk of interference in their operations, for example through an open
appointments process designed to promote pluralism, and which includes
guarantees against dismissal and rules on conflict of interest.31
The Council of Europe's Recommendation
(2000)23 on the independence and functions of regulatory authorities for
the broadcasting sector may be taken as an example of international best
practice in this area. It states, in Chapter II of the Appendix:
3. The rules governing regulatory
authorities for the broadcasting sector, especially their membership, are
a key element of their independence. Therefore, they should be defined so
as to protect them against any interference, in particular by political
forces or economic interests.
4. For this purpose, specific rules should
be defined as regards incompatibilities in order to avoid that:
- regulatory authorities are under the influence of political power;
- members of regulatory authorities exercise functions or hold interests
in enterprises or other organisations in the media or related sectors,
which might lead to a conflict of interest in connection with membership
of the regulatory authority.
5. Furthermore, rules should guarantee that
the members of these authorities:
- are appointed in a democratic and transparent manner;
- may not receive any mandate or take any instructions from any person or
body;
- do not make any statement or undertake any action which may prejudice
the independence of their functions and do not take any advantage of them.
6. Finally, precise rules should be defined
as regards the possibility to dismiss members of regulatory authorities so
as to avoid that dismissal be used as a means of political pressure.
7. In particular, dismissal should only be
possible in case of non-respect of the rules of incompatibility with which
they must comply or incapacity to exercise their functions duly noted,
without prejudice to the possibility for the person concerned to appeal to
the courts against the dismissal. Furthermore, dismissal on the grounds of
an offence connected or not with their functions should only be possible
in serious instances clearly defined by law, subject to a final sentence
by a court.
8. Given the broadcasting sector's specific
nature and the peculiarities of their missions, regulatory authorities
should include experts in the areas which fall within their competence.
The 2003 Joint Declaration by the UN, OAS
and OSCE specialised mandates for the protection of freedom of expression
states simply:
All public authorities which exercise
formal regulatory powers over the media should be protected against
interference, particularly of a political or economic nature, including by
an appointments process for members which is transparent, allows for
public input and is not controlled by any particular political party.32
These same principles are also reflected in
a number of cases decided by national courts. For example, a case decided
by the Supreme Court of Sri Lanka held that a draft broadcasting bill was
incompatible with the constitutional guarantee of freedom of expression.
Under the draft bill, the Minister had substantial power over appointments
to the Board of Directors of the regulatory authority. The Court noted: "[T]he
authority lacks the independence required of a body entrusted with the
regulation of the electronic media which, it is acknowledged on all hands,
is the most potent means of influencing thought."33
We therefore recommend that, at a minimum,
the draft Act should require that both the Commission as a whole and its
individual members serve independently and in the public interest. The
following wording could be used:
The Media Commission shall enjoy
operational and administrative autonomy from any other person or entity,
including the government and any of its agencies. This autonomy shall be
respected at all times and no person or entity shall seek to influence the
members or staff of the Media Commission in the discharge of their duties,
or to interfere with the activities of the Media Commission, except as
specifically provided for by law.34
In order to enhance their independence,
Board members should serve for at least five years, and they should be
appointed in an open and democratic process, with input from civil
society. They should not be appointed by a member of the executive arm of
government - such as a government minister - but rather by a multi-party
democratic forum, and the Media Commission should not be required to
follow policy directions conveyed to it by the minister. The Board as a
whole should be reasonably reflective of Cook Islands society, and the
Commission should have sufficient long-term funding to enable it to carry
out its legitimate functions without undue pressure from the government.
We refer to ARTICLE 19's own Access to the Airwaves - Principles on
Broadcast Regulation and Freedom of Expression, which compiles best
international practice in the area of broadcast regulation, for more
detail on the relevant regulatory principles.
Recommendations:
* The draft Act should protect the independence of both the Commission as
a whole and of its members.
* Board members should be appointed in an open and democratic process and
by a multi-party democratic forum, with input from civil society.
* The Media Commission should not be required to follow policy directions
conveyed to it by the minister.
* Board members should serve for at least five years.
* The Commission should have sufficient long-term funding to enable it to
carry out its legitimate functions without undue pressure from the
government.
* The Board as a whole should be reasonably reflective of Cook Islands
society.
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3.3. Miscellaneous
Criteria for the issue of a licence
Under Clause 19, a broadcasting licence may be refused if the Commission
deems the applicant not to be a "fit and proper" person to hold such a
licence. The meaning of the term "fit and proper" is not defined.
While we are aware that the term "fit and
proper" is used in broadcasting laws in other countries, we are concerned
that the term remains ill-defined. This means that the term is easily
abused for political purposes, for example to refuse a licence to a person
or company whose editorial line is likely to be critical of the government
of the day. Our concerns in this regard are heightened by the close ties
between the Media Commission and the government, which we criticise in
Section 3.2 of this Memorandum.
Licence revocation
Clause 22 allows a licence to be suspended or revoked for any of six
reasons:
(a) a breach of any provision of the Act or regulations made thereunder;
(b) a breach of a licence condition;
(c) failure within 3 months of the date on which it is due, to pay the
licensee's annual licence fee or any penalty thereon;
(d) failure to commence carrying on broadcasting of the type specified in
its licence within 3 months after the issue of its licence;
(e) failure to carry on broadcasting of the type specified in its licence
for a period exceeding 3 months; or
(f) on the written request of the licence holder.
Paragraphs (2)-(9) of clause 22 contain
some procedural and fair process considerations to be followed by the
Commission.
We are concerned that licence suspension or
revocation is a very serious measure that should be taken only in response
to serious and repeated breaches of key licence conditions, or important
other statutory requirements, and only if lesser sanctions have failed to
have an effect. For example, a broadcaster that incites to racial hatred
and has been fined repeatedly for incitement to racial hatred could
legitimately be stripped of its licence. The draft Act, however, fails to
require either that the sanction should be proportionate, or that a
graduated approach is followed. Thus, under the draft Act, a broadcaster
could have its licence suspended for a failure to abide by a very minor
licence condition - or, indeed, for a failure to abide by the very vague
requirement in Clause 24 that broadcasts should be "in good taste". This
would constitute a clear violation of the broadcaster's right to freedom
of expression, which would however be legal under the draft Act so long as
the procedural requirements of Clause 22 are complied with and the
broadcaster is given proper notice and an opportunity to respond.
Recommendations:
* The draft Act should list exhaustively the detailed grounds on which a
licence may be refused, rather than use the catch-all consideration of
whether an applicant is "fit and proper" to hold a licence.
* The draft Act should require that any sanction that is imposed on a
broadcaster for failing to abide by the law or its licence conditions is
proportionate to the breach.
* The draft Act should require that sanctions are instituted in a
graduated fashion.
* Licence suspension or revocation should be imposed only in response to a
serious breach of a licence condition or the law, and only when lesser
sanctions have failed to remedy the breach.
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