A New Law Intends to Regulate The Media. It Reads More Like A Control Mechanism
The government is proposing creation of a converged regulatory authority ostensibly to better regulate the print, broadcast and social media.
This is being done because government considers the current regulatory environment to be ‘fractured’: Various government agencies at Federal, Provincial and District levels are directly or indirectly involved in media regulation. Similarly, the code of conduct of print journalism is self-regulatory; Press Council of Pakistan (APNS) regulates issues like code of conduct. Similarly, in the age of mega data and social media, regulatory functions are only limited to ‘criminal acts of cyber crimes’ and FIA holds the mandate to investigate and prosecute cybercrimes.
In the opinion of the government the above clearly indicates that media regulation is fragmented and that a new arrangement has become necessary.
Admitting that media in a democracy ideally should be self-regulatory, the PTI government, however, asserts that there are many reasons that this self-regulatory principle should be revisited. In the opinion of the government there are many merits and demerits of self-regulation, which it has described as follows:
- a) Proximity: Self-Regulatory organizations are by definition more accessible and closer to the industry. They have more resources to access information from within the members.
- b) Flexibility: Self-Regulatory organizations are more flexible than government regulations as they don’t have to go through tough procedural hurdles.
- c) Compliance: The ratio of compliance to self-regulation is much higher than compliance to government rules.
- d) Collective Interest: The compliance also is more robust because of the collective self-interest of the industry.
- e) Resources: Self-regulatory institutions are able to generate more resources through membership fees etc.
- a) Conflict of Interest: The proximity and accessibility of information does not necessarily mean that it will be used effectively and efficiently to regulate. It also means that older and more resourceful members will dominate and use self-regulation to their advantage.
- b) Inadequate Sanctions: Self-regulation also means that no civil or criminal sanction can be imposed through self-regulation.
- c) Under enforcement: It is more likely that interest groups will have more hesitation for self-enforcement resulting in under enforcement of its own sanctions.
- d) Global Competition: Regulation is to be kept minimal so that global competitiveness can be managed. Therefore self-regulation will increasingly become minimalistic.
Then declaring on its own that demerits outweigh the merits without any reference to any of the stake-holders, the government takes upon itself to give a set of rationale for renewed and redesigned regulatory role of government: Pakistan has a rapidly increasing teledensity; Mobile/smart phones are increasingly becoming the choice format to access all kinds of media. PTA regulates cell phones but does not have any regulatory jurisdiction on the content of media reporting projected via cell phones.
It is therefore fit and proper, says the government, that a new regulatory framework may be designed to regulate media collectively in all its formats and that adequate institutional structure may be established with appropriate resource allocation.
Pakistan Media Regulatory Authority
This will be a new statutory institution established for regulating media in the age of Meta data, digital and social media and internet based advertisement (IBA). The proposed institution may also appropriate all current regulatory functions with refinements for the sake of efficiency, transparency and effective regulatory oversight of media.
PMRA shall be an independent statutory authority tasked with ensuring Pakistan’s electronic (private as well as public), print and digital media legislation, related regulations, and numerous derived standards and codes of practice to operate effectively and efficiently, and in the public interest.
PMRA shall be a ‘converged’ regulator to be created to bring together the threads of the evolving media and communications, specifically in Pakistan’s context the convergence of the different forms of media.
With its mission positioned across the components of the converged landscape, the PMRA shall have a strategic purpose of making media in Pakistan’s public interest, as the various scenarios of convergence emerge. It will set a self-regulatory standard, expressed as: ‘To be, and be recognized as, the world’s best converged media regulator.’
In view of the above it is argued by the government that a hybrid regulatory framework may be developed with the right mix of rules and principles/guidelines for regulating all formats of media.
Rules and Principles Framework for Media Regulation: The right mix of rules and principles can be a derivative of following set of approaches:
- Converging all regulatory functions of all formats of media under PMRA
- Transparent and user friendly rules to be formulated
- Guidelines for media to be developed including internet based advertisements and its revenue.
- Preserving code of media implemented by the Supreme Court of Pakistan
- Guidelines issued to media for code of conduct and national security issues
- PMRA to function on corporate patterns with competitive salary structure and benefits package
- PMRA may have the right to make its own rules and regulation approved by a Board comprising members from government agencies, Parliament, media and civil society
- PMRA shall be given the legal authority to impose sanctions if violations occur
- PMRA should contain a wing for forensic cyber audit
- All laws related to media regulation, control or indirect control may be abolished
- A new legislation to be enacted giving legal cover to PMRA and its functions
- The regulation of media may be placed under PMRA.
- Registration of Publication and printing press to be available online
- PMRA Printing Press registration wing to issue e-registration certificate (Urdu and English)
- Old law to be abolished and new Law establishing PMRA to provide legal cover including admissibility of e-registration in court of law
- Legislation including Rules to be framed by a body of legal experts
- Declaration of Publication and printing press
- PMRA to first provide guidelines for declaration and provide platform for E-Declaration
- Old law to be abolished and new Law establishing PMRA to provide legal cover including admissibility of e-declaration in court of law
- These laws require security and physical verification and clearance of publisher and printers that are no more needed in a changed media environment.
- Registration in the authority should be enough for authenticating declaration.
The circulation audit
- A Director Audit shall perform audit of the circulation of publication
- Changes will have to be made in Rules of Business
ABC exists around the world but as an independent organization under a board of stakeholders. For the time being, a consultative board of stakeholders for the purpose may be created in the mass media division to oversee the print media rating as PEMRA is already making regulation for rating of electronic channels.
Complaints against print media
A) Press Council of Pakistan
- Press Council Ordinance, 2002 shall be repealed and provision should be made in new proposed law. A council of stakeholders can be created in new body to supervise the complaint mechanism
- Determining wages and resolution of wage disputes
- Wage Board Award, and ITNE Relevant laws would be abolished
B) Electronic Media Wing
- With the establishment of the proposed media regulatory authority, PEMRA shall merge with other regulatory bodies. All the functions being performed by PEMRA shall be performed by the Electronic Media Wing of the proposed Authority.
c) Telecom & Digital Media Wing
Presently, Digital media is being regulated under Pakistan Electronic Crime Act, (PECA) 2016 and the regulation is only to the extent of blocking the websites. Broadly speaking, the digital media/social media does not have any regulation mechanism except the one mentioned above and that is again to the extent of crime related action.
Mass Media Wing: A new wing regulating mass media and digital version of print media sector will be established. Experts will be hired to regulate this emerging global market. Cyber security experts will also be employed to ensure secure operation of the regulatory function.
Operational Structure of PMRA: Proposed Pakistan Media Regulatory Authority’s jurisdiction shall extend to whole of Pakistan. There shall be a Chairman of the Authority and Executive Director Electronic Media, Executive Director Mass Media, Executive Director Telecom/ Digital and Executive Director Admin and Finance shall report to the Chairman. The respective Wing shall report to its Executive Director. There shall be a complaint redressal mechanism i.e. Legal Tribunal in the proposed authority. A Board of Directors will oversee the organization. The composition of the Board may be broad based.
Analysis: The proposed draft of PMRA law reads more like a complete negation of the ruling party’s pledges made in its election manifesto with regard to the media freedom.
The objectives of the proposed authority appear to be media control rather than media regulation. More likely those who prepared the draft in question were dictated by dictatorial desires rather than democratic aspirations.
According to the Twitter’s biannual report between January and June 2018, the government of Pakistan reported 3,004 profiles to the social networking site for allegedly “inciting violence” and “spreading hate material”, and sent requests seeking the removal of 243 accounts. During the six months immediately preceding, it reported only 674 accounts to Twitter and made 75 removal requests. The unprecedented volume of such actions last year means Pakistan ranks third highest globally in the number of accounts which were either reported or were the subject of requests for removal in 2018. That Russia and Turkey, hardly bastions of individual liberty, precede us on this list is an indication of the direction in which we are headed.
Toby Mendel, Executive Director, Centre for Law and Democracy, issued a note in November making critical appreciation of the proposed PMRA.
Stating that to some extent the PMRA Policy appeared to be aimed at improving and especially streamlining the regulation of the media in Pakistan. The Note, however, points out that at the same time, the document fails to address the main problems with the current system, one of which is that you need a license to operate a newspaper. Indeed, it appears to exacerbate these problems by extending the regulatory regime beyond newspapers and broadcasters to include “digital/social media in Pakistan”. Under international law, licensing is not considered legitimate for the print media and even systems of registration for this sector are looked upon with suspicion. There is no warrant for attempting to extend licensing to the digital sphere.
The provisions relating to the actual establishment of the PMRA are fairly general in nature and so leave much to be determined by the text of the actual law that is prepared. And since it will not be an independent body in the sense in which that is meant under international law, i.e. not merely a formally autonomous body but a body which is structurally independent of government its very nature runs directly counter to clear international law.
There are, among other things, a number of technical errors, for example, the section “Tenure of members” refers to “ex officio members” even though such members do not appear to be envisaged. The section “Members of the authority” refers to fees and expenses being provided for each meeting, even though many of the members are full-time (and so should not get paid an additional fee for attending a meeting).
According to the section “Functions of the Authority”, PMRA is to be responsible for “regulating the establishment and operation of local, foreign electronic, print and digital/social media in Pakistan.” But while there is nothing formally wrong with allocating such a broad mandate to an (independent) body, it runs counter to the practice in the vast majority of countries, where regulation of the print and broadcast sectors falls under different regimes and, as relevant bodies, and where regulation of the digital sector is either done entirely separately or is attached only to the digital operations. There is good reason for this because these are very different media sectors, which require very different treatment. Lumping them together under one regulator can lead to a one-size-fits-all approach to regulation, which is inappropriate.
In the modern world, it is extremely difficult for states to regulate even foreign broadcasting let alone foreign print media, which may be accessed over the internet. When it comes to foreign digital media, very limited options are open to states. They may seek to regulate the use, by their citizens, of these media but they simply cannot regulate these media directly. As Pakistan knows from its own experience, all they can do is to block entirely the access to these forms of media, at great social and political cost and even then it is relatively simple for citizens with even basic technical knowhow to get around such bans.
The section of the PMRA Policy “Establishment of the Authority” makes it clear that it will be a formally autonomous body corporate, while the section “Members of the Authority” makes it clear that it will consist of a Chairman and an “appropriate” number of other members. The Chair will be appointed by the Federal Government, three other members will be appointed by the Federal Government to head the electronic, print and digital divisions, while the four provincial governments will appoint one further member each. There is no provision for the involvement of any other actors, including civil society. As such, in essence, the body will be entirely appointed by government, with the Federal Government appointing one-half of the members, including the chair. This completely fails to protect the independence of the Authority. The Federal Government also has the power to “establish Councils of Complaints”, with no indication of how this will happen or any suggestion of limits on its powers to control the Councils.
There are at least some conditions on members, namely that they have a “masters or professional degree” and at least 20 years of expertise in a relevant field. The latter is far too rigid. According to the section “Tenure of members”, members are eligible for reappointment, with apparently no limit being placed on this. Removal of members by the “Government of Pakistan” is also envisaged, among other things on highly discretionary grounds such as “moral turpitude” and even “conduct unbecoming of a gentleman”.
The Federal Government has the power to set policy for the sector. This is appropriate. However, when a question arises as to whether a matter is or is not one of policy, “the decision of the Federal Government shall be final.” This is entirely inappropriate; such questions should be decided by the courts according to established criteria.
Content is one of the areas where the PMRA Policy is most unclear. It includes a few direct statements on content issues. The same section refers to the idea that an Ethical Code of Practice for all three media sectors (electronic, print and digital) will be “laid down in the Schedule to the PMRA Act”. Later, in the section “Power of the Authority to issue licenses”, the PMRA Policy refers to the idea that the Authority “shall devise a Code of Conduct for regulating” again all three types of media. Then, under “Arbitration and Complaints Redressal Mechanism”, it states that the Federal Government will “establish Councils of Complaints” in various locations. These Councils will entertain complaints from the public and recommend any “appropriate action of censure, fine against” a media to the Authority, “for violation of any provision of this Act, the Code of Conduct for electronic and digital media and the Code of Ethics for print media.”
As a first point, clearly this system needs to be clarified. In particular, is there to be one code for all media or separate codes and who is responsible for applying them?
Second, in practice, it makes very little sense to have one code for all three media sectors. They are entirely different in their styles and modes of operation and, in almost every country, different professional standards apply to the different sectors. Care, therefore, is needed to be taken in applying codes to digital media. There are several reasons for this. It is very difficult to apply any such codes from within Pakistan, many social media already have their own codes and very different considerations apply to these forms of communication which, unlike legacy media, do not involve professional journalists. While there is a strong temptation to try to impose standards on these forms of communication, in light of the high volume of socially problematic content they carry, in fact it is very difficult indeed to find an appropriate way to regulate them which also respects freedom of expression.
Third, any code for the media should not be set out in the law or a schedule to it but should be developed in close consultation with media actors and other interested stakeholders. Codes need to be flexible over time and able to be amended as needed to reflect changes in social values and the situation of the media.
Fourth, from an institutional point of view, careful thought should be given to who entertains complaints. For the print media, at least, the body should envisage extensive involvement of the media sector, in a form of co-regulation rather than simply being appointed by the government. As noted above, all bodies with regulatory powers over the media need to be independent and this is particularly important for a complaints system which involves content issues.
The author is a senior journalist and editor.