By M. C. Rasmin –

The proposed Broadcasting Regulatory Commission (BRC) bill has ignited intense debates and disagreements among various stakeholders. While the draft bill has faced severe criticism, it is essential to redirect the focus of the discussion towards urging the government to ensure that any legislation enacted to regulate broadcast media in Sri Lanka is based on the principles of media independence, meaning complete autonomy from government influence. Simultaneously, it is crucial to prioritize the quality of journalism, the audience’s right to receive fair, balanced, accurate, and diverse information, and the provision of a reasonable space for media outlets to sustain themselves financially.

It is important to recognize that Sri Lanka’s democracy is still in its early stages, and its media landscape is dominated by a few entities that lack independence and operate with profit-making motives, often influenced by individuals in positions of power. Additionally, the country has a long history of weak self-regulation, failing to effectively address instances where responsible and accountable journalism is compromised. This is not to suggest that quality journalism is entirely absent, but the current structure of the media industry does not foster a robust environment for a free press. Therefore, any regulatory measures should include a comprehensive assessment in consultation with the media community itself to align with the reality on the ground.

Examining 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, it raised concerns due to its lack of independence. According to the bill, the authority would be directly appointed by the Minister responsible for media, granting significant power to the Minister to issue guidelines and control stations through state-issued licenses. Such a setup failed to ensure independence from the government’s influence.

Moreover, the bill lacked safeguards and procedural mechanisms to ensure the appointment of impartial and competent individuals to the authority. It also granted the Minister authority to dictate policy and program content, making electronic media susceptible to political agendas and partisan interests. A landmark ruling by the Supreme Court against the entire bill underscored the independence of the judiciary at that time. The Supreme Court emphasized the importance of media pluralism, ownership diversity, and openness, stating:

“Having regard to the limited availability of frequencies, and taking account of the fact that only a limited number of persons can be permitted to use the frequencies, it is essential that there should be a grip on the dynamic aspects of broadcasting to prevent monopolistic domination of the field either by the government or by a few, if the competing interests of the various sections of the public are to be adequately served. If the fundamental rights of freedom of thought and expression are to be fostered, there must be an adequate coverage of public issues and an ample play for the free and fair competition of opposing views” (Athukorale and Others v. The Attorney General, 1997).

In light of the precedents, it is evident that the draft bill under discussion lacks provisions to protect the media from state control and fails to safeguard the autonomous and independent functioning of the proposed Broadcasting Regulatory Commission (BRC). Instead, the bill reflects the government’s motivation to exert control over the broadcast media.

Why regulation? 

Theoretically, broadcast regulation serves various purposes, primarily aiming to ensure the fair distribution of the limited public property of airwaves. It strives for open, transparent, and accountable processes that ensure broadcast media serve the public interest by providing reliable, balanced, fair, impartial, and verified news and information. Additionally, broadcast regulation seeks to incorporate healthy edutainment, although the interpretation of this concept may vary.

Moreover, regulation is regarded as a suitable means to uphold media pluralism, which encompasses not only diverse ownership but also a variety of media types, multiple viewpoints, and diverse content. This diversity is considered essential for a healthy and democratic society. By fostering media pluralism, regulatory efforts aim to prevent media ownership concentration and the dominance of a single viewpoint or narrative. Pluralistic media systems encourage healthy competition among outlets, support journalistic independence, and mitigate the potential influence of powerful entities or interests over the media landscape. Media pluralism plays a crucial role in safeguarding freedom of expression, promoting democratic dialogue, and ensuring an informed citizenry. Additionally, effective regulation can enhance transparency in decision-making processes and accountability mechanisms, thereby building public trust in the regulatory system and maintaining the integrity of the broadcasting industry.

Regulations are often necessary to prevent the promotion of harmful or offensive content, hate speech, or the incitement of violence. They may also include provisions to protect vulnerable groups, such as children, from explicit or violent material. As airwaves are a limited resource, robust broadcast regulation incorporates measures to foster fair competition in the industry and prevent monopolistic practices.

Despite the clear purposes that regulation serves, it is of utmost importance that the regulatory mechanism remains completely free from government influence, ensuring autonomy and full independence. A free and independent broadcast regulation framework is crucial for safeguarding freedom of expression, promoting media pluralism, protecting consumer interests, ensuring accountability, and fostering a dynamic and diverse broadcasting landscape that serves the public interest. Independent regulation guarantees the protection of fundamental democratic rights. By operating without undue political or commercial influence, regulatory bodies can ensure that broadcasters have the freedom to express diverse opinions, ideas, and viewpoints without fear of censorship or reprisal.

Why independence is vital? 

Independence from government influence is essential to prevent regulatory bodies from being utilized as tools by the ruling party or the government in power. When regulatory bodies are under state control, it can result in detrimental censorship and instil fear among journalists, ultimately impacting the quality of journalism. A regulatory environment that is free from political interference ensures that decisions are made impartially, based on the public interest and objective standards, rather than political agendas or partisan interests. Any degree of political influence makes it nearly impossible to foster media pluralism and diversity, as people are consistently exposed to simplistic viewpoints. State influence can compromise a competitive media landscape that offers a wide range of voices, perspectives, and content offerings. By avoiding the concentration of power and ownership, independent regulation allows for the inclusion of various viewpoints, thereby fostering a healthy democratic discourse. Against this backdrop, it is important to note that the bill currently under discussion lacks provisions for independence and fails to safeguard autonomy, notably in its limited engagement with industry stakeholders. The following are some pressing issues that need to be addressed moving forward:

The composition of members 

The composition of the proposed Broadcasting Regulatory Commission (BRC) raises significant concerns regarding its impartiality and the potential for the abuse of power. The inclusion of ex-officio members, such as the secretary to the Ministry of Media and the Director-General of Telecommunication, both appointed by the President, indicates a clear alignment with the interests of the President. This arrangement raises questions about the independence of the commission from political influence.

Furthermore, the appointment of three additional members by the President, subject to the approval of the Constitutional Council, lacks transparency and accountability. The absence of a clear explanation regarding the Constitutional Council’s power to refuse any name on fair and reasonable grounds leaves room for potential misuse of power in the appointment process.

The current composition of the commission suggests that it could be influenced or controlled by the President, rather than operating independently in the best interests of the public. Such a biased and ambiguous composition undermines the principles of fairness and impartiality that are crucial for an effective regulatory body.

It is particularly noteworthy that the proposed commission does not include members or representatives from the media industry itself. This absence raises concerns about potential government control over how the media should function, which could undermine press freedom and democratic principles. To ensure the independence of the regulatory body, it is essential that it is structurally separated from political influence and includes representation from the media community.

To address these concerns, it is imperative to revisit the composition of the BRC, ensuring that it is free from political interference and reflects a diverse range of perspectives, including those of media professionals. This will help establish a regulatory commission that can effectively and impartially serve the public interest, upholding the principles of independence and accountability.

Removal of members 

Section 9(2) of the provision granting the President the power to remove members of the commission raises concerns regarding 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 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.

To uphold the independence of the Commission, it is crucial to establish clear criteria and transparent processes for member removal. These processes should incorporate objective assessments, independent investigations when necessary, and fair hearings to prevent any arbitrary or politically motivated removals. By implementing these safeguards, the Commission can maintain its integrity and protect itself from undue interference. It is worth considering whether the role of member removal can be assigned to the constitutional council or another body that is independent from political influence. Such an arrangement would provide a more robust system of checks and balances, further safeguarding the independence of the Commission and ensuring that the process of member removal is fair, impartial, and protected from potential abuse of power.

Objectives 

The objective of the commission responsible for regulating broadcasting is undeniably broad and encompasses various aspects of media governance. However, the specific provision 5(h) raises concern due to its vagueness and potential for ambiguity. This provision states the objective to “issue guidelines in respect of broadcasting to enhance the spiritual development and mental health of the people while safeguarding the social and cultural values and entertainment of the people.”

The terms “spiritual development” and “safeguarding cultural values” lack clear definitions and can be subject to different interpretations by individuals or groups. This ambiguity poses a problem as it opens the door for subjective interpretations and potential misuse of power by the commission. Without clear and well-defined parameters, the commission may have broad discretionary powers to determine what content is permissible or prohibited based on their subjective understanding of spiritual development and cultural values. This lack of clarity can lead 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 lack of precise definitions in these areas creates a potential for the abuse of power. The inclusion of “national economy” as a factor is particularly worrisome due to its ambiguity.

To prevent the misuse of such provisions and safeguard media freedom, it is crucial for the government to provide explicit definitions and clarify the scope of national security, national economy, and public order within the context of broadcasting. This clarification would help establish reasonable and transparent boundaries, ensuring that restrictions imposed on broadcasting services are necessary and proportionate.

Considering past experiences of governments attempting to control media, there is a real risk that this provision could be exploited to suppress freedom of the media. It is therefore imperative that the government justifies the need for such a provision and ensures that it is rational and in line with democratic principles.

By striking a delicate balance between protecting national interests and upholding media freedom, the government can address legitimate concerns without compromising the fundamental right to freedom of expression. Clear definitions, transparency, and a cautious approach are essential in avoiding the potential detrimental effects on media freedom.

Power and duties of commission

While there are several concerns regarding the objectives and duties outlined in the draft bill, there are a few provisions that raise alarm. For instance, 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 is an important provision, it is crucial to indicate the guiding principles that should inform this duty.

It is essential to implement policies that prevent the concentration of media ownership and ensure diversity in the media landscape. This helps avoid the dominance of a single media outlet and promotes pluralism and competition. Achieving this requires an open and transparent ownership framework. Some countries establish ownership limits or caps to restrict the number of licenses that can be granted to a single institution or individual. However, these limits can be based on factors such as audience reach, market share, or the number of media platforms owned. Additionally, provisions facilitating cross-media ownership should also be considered.

Fair cross-media ownership rules often restrict the ownership of multiple types of media outlets (e.g., television, radio, print) by a single entity. These 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, when implementing such provisions in Sri Lanka, it is important to consider the unique characteristics of the Sri Lankan media landscape and consult with the industry. What works effectively in the UK may not necessarily be suitable for Sri Lanka, and thus a tailored approach is necessary. It is important to note that terms such as “Minister,” “Media,” “Government,” “Regulation,” and “Ownership” used in the UK may not have the exact same meaning or context in Sri Lanka. 

It is crucial to strike a balance between promoting media diversity and considering the specific context of the country. Consultation with stakeholders and industry experts is vital to ensure that any ownership provisions implemented in Sri Lanka are appropriate and beneficial for the media landscape in the country.

Disqualification 

The disqualifications for being a member of the Commission are generally reasonable. However, it is crucial to include a clear provision that disqualifies individuals who are openly aligned with politics and openly advocate for the interests of a specific political party. While some may perceive this as undemocratic, the intention behind such a provision is to ensure that the Commission consists of individuals who are free from partisan motivations. It is important to establish thoughtful instruments and fair criteria that accommodate individuals who can best serve the public interest.

The screening process should involve a comprehensive review of the applicants’ public statements, affiliations, and potential conflicts of interest that could compromise their ability to act impartially. This would help identify any individuals who may have strong political biases or affiliations that could undermine the credibility and fairness of the Commission.

By implementing such measures, it is possible to strike a balance between ensuring the independence of the Commission and avoiding undue political influence. 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. This would help maintain public trust in the regulatory body and ensure that its decisions are made in the best interest of the broader public rather than being driven by political agendas.

Annual license? 

Section 18 of the bill, which mandates obtaining an annual license for broadcasting services within a specific timeframe, raises concerns regarding media freedom and the viability of the media industry.

The provision’s strict timeline for acquiring an annual license, particularly within a short three-month window, can create practical challenges for media entities. It may force rushed decision-making and limit opportunities for careful planning and consideration, potentially compromising the quality and integrity of media content.

Furthermore, requiring 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 impacting their ability to sustain business activities and make necessary investments in the sector.

Such provisions can also discourage new investments in the media industry. The stringent requirements and potential instability may 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 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, enabling a smooth transition while safeguarding their independence and operational continuity.

In order to promote stability and encourage investment, a more 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.

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 implementation of the proposed commission before it can effectively carry out its work. For example, fair and accountable provisions should be developed in consultation with the industry to grant or revoke licenses in a transparent manner. When it comes to the termination or non-extension of licenses, the process should be open and transparent. The grounds for such decisions should be clearly outlined in an instrument that is based on scientific indicators and scores, ensuring a consultative and evidence-based approach.

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 and gain broad endorsement for it.

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.

It is evident that significant groundwork is required for the commission to begin its work. Laws and policies should be unambiguous, leaving no room for confusion or misinterpretation. Adequate consultation with stakeholders, including the industry and media community, should be conducted to ensure that the provisions, codes, and policies are carefully crafted, taking into account the diverse perspectives and interests involved.

By undertaking these measures, the commission can lay a strong foundation for its functioning, ensuring fairness, transparency, and accountability in its investigations and decisions. It will help build trust among the media industry and the public, fostering a regulatory environment that respects media freedom while addressing legitimate concerns and maintaining ethical standards.

Entering to media outlets 

Section 19(5b) grants the authority the power to enter, inspect, and search premises related to a broadcasting service with an entry warrant issued by a Magistrate. While this provision aims to address complaints and ensure regulatory compliance, it raises concerns regarding its potential impact on media freedom.

The power to enter, inspect, and search premises is a significant regulatory tool, but it must be exercised with caution and appropriate safeguards to protect media freedom and prevent any potential abuse of authority.

It is crucial that the provision clearly defines the criteria and circumstances under which such entry and search operations can be conducted. There should be a requirement for a reasonable basis and clear evidence indicating the necessity of the search. Involving a judicial authority, such as a Magistrate, provides an element of oversight and accountability.

However, it is vital to ensure that the process of issuing warrants is fair and impartial, free from undue influence or manipulation. The authorities must demonstrate a legitimate need and justification for conducting the search, specifically related to addressing a complaint or regulatory violation. To safeguard media freedom, the provision should also include specific safeguards, such as defining the scope and limitations of the search to ensure it is proportional to the alleged violation. It is important to protect the privacy and confidentiality of journalistic sources and sensitive information during the search process.

While the power to enter, inspect, and search premises can be a necessary regulatory measure, it should be accompanied by strong safeguards to protect media freedom, prevent abuse, and maintain public trust in the independence and integrity of the media. By striking the right balance between regulatory requirements and media freedom, it is possible to ensure effective oversight while upholding fundamental principles of a free and independent press.

Directions from Minister

Section 26 of the draft bill grants the Minister the power to issue general or special directions to the Commission, and it places a duty on the Commission to comply with and ensure compliance with these directions by any operator. While it is reasonable for a regulatory body to receive guidance and directions from the government, this provision raises concerns regarding its potential impact on media freedom.

The lack of clarity surrounding the scope and limitations of the Minister’s authority to issue directions is problematic. Without well-defined boundaries, there is a risk that these directions could be used to exert undue influence or control over the Commission, compromising its independence and ability to act in the best interest of media freedom.

To safeguard media freedom and protect the independence of the Commission, it is crucial to establish checks and balances on the Minister’s power to issue directions. Clear guidelines should be put in place to specify the circumstances under which directions can be issued, ensuring that they are necessary, proportionate, and aligned with the principles of media freedom and pluralism.

Moreover, mechanisms must be implemented to prevent politically motivated or arbitrary directions that could infringe upon media freedom. These mechanisms could include requirements for transparency and accountability in the process of issuing directions, the involvement of independent bodies or stakeholders in reviewing and scrutinizing such directions, and the provision of avenues for recourse or appeal if the directions are deemed to be in violation of media freedom.

While recognizing the importance of effective regulation, it is essential to strike a balance that upholds media freedom, guarantees the independence of the Commission, and ensures that any directions issued by the Minister are in line with democratic principles and respect the rights of media outlets to operate freely and independently without undue interference.

Need for Regulation 

It is important to emphasize that there is a broad consensus regarding the necessity of regulating broadcast media. While this agreement is a positive development, it is crucial to highlight the urgent need for a fair, accountable, and transparent regulatory mechanism without any room for debate. The following specific examples illustrate why regulation is essential in the Sri Lankan broadcast media landscape:

Divisive Reporting and Hate Speech: In 2018, certain media outlets faced criticism for their biased reporting and the dissemination of hate speech targeting specific communities, following communal clashes in Kandy. This irresponsible behavior further fueled tension and discord within society. Similarly, after the 2019 Easter Sunday attacks, a few television stations continuously spread hatred, misunderstanding, and suspicion towards a specific community, leading to significant divisions in society. During the last two major elections, certain media outlets fabricated news and created misleading narratives to influence political decisions in favor of specific candidates or parties. Several studies conducted by various organizations substantiated these claims. Such practices compromise the impartiality and objectivity of news reporting. Regulation can establish guidelines to ensure fair and balanced reporting, promoting transparency and fostering public trust in the media.

Misinformation during COVID-19: Throughout the COVID-19 pandemic, there were instances of misinformation being disseminated by certain media outlets, causing panic and confusion among the public. False information about cures, transmission, and preventive measures circulated, underscoring the need for regulation to combat the spread of misinformation and ensure accurate reporting during public health crises.

Invasion of Privacy: Numerous cases have surfaced where the privacy of individuals, particularly public figures, has been violated by certain media outlets. Instances of intrusive reporting and the publication of private information, including personal conversations and images, have been observed. Regulation can protect individuals’ privacy rights and prevent unwarranted intrusion by media organizations.

Media Ownership Concentration: As per the media monitoring research done by verité Research Sri Lanka has witnessed concerns regarding media ownership concentration, with a few powerful entities controlling significant portions of the media market. This concentration can limit diversity of voices and viewpoints, potentially leading to biased reporting and the suppression of alternative perspectives.

Conclusion 

In conclusion, it must be emphasized that the draft bill under discussion poses a severe threat to media freedom, as it clearly allows for systemic state control over the operations and content of broadcast media. This undermines the principles of media independence and compromises the ability of journalists and media outlets to operate without fear of censorship or retribution. It is imperative for the ministry or the working groups responsible for drafting the bill to actively engage with the media industry and other stakeholders, validating the draft and ensuring the finalization process is open, transparent, and participatory. Perhaps it would be meaningful to initiate a conversation around the previous draft proposed by Prof. Samarajiva’s team.