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Media: statutory or self-regulation? [Part III]

Media: statutory or self-regulation? [Part III]
By Prof Fackson Banda
Wednesday August 20, 2008 [04:00]

Here is my last testimony on the subject of media regulation. In the last two instalments, I have attempted to define media regulation in terms of public regulation, co-regulation and self-regulation. I have also explained why I would prefer self-regulation to public (read statutory) regulation.

I have, in reviewing global literature on the subject, suggested that elements of co-regulation can be built into a self-regulatory media regime. As a result, it is possible to see self-regulation as a harmonisation, driven largely by media players, of genuine state public-interest concerns and the self-regulatory professional propensities of the media industry.

Today, I want to highlight the implications of statutory regulation for legislative and media processes and practices. I do this in order to further substantiate the need for self-regulation.

Let us start by pointing to a historical precedent. In 1997, the state opted for public, statutory regulation. Such decisions do not often arise in a vacuum; there is always a political motive. Let us recall the political context prevailing at that time. The ruling MMD had just emerged from a highly controversial 1996 general election. Although victorious, the victory was as though through fire. Prior to this victory, the MMD had successfully pushed through a clause in the 1996 Constitution (Amendment) Act – Article 34(3) – which centred on the requirement for presidential aspirants to have ‘both parents’ being ‘Zambians by birth or descent.’

This effectively discriminated against the then UNIP’s Kenneth Kaunda, the first president of Zambia with Malawian parentage. It also effectively barred from the election race UNIP vice-president, senior chief Inyambo Iluta Yeta, because there was another contentious clause – Article 129 – which provided that no person, while remaining a chief, would join or participate in partisan politics.

From the above short history, it is clear that the ruling MMD was in a constitutional-legislative mood. Needless to say, several media organisations were openly hostile to the MMD’s constitutional-legislative shenanigans. So there was a political sub-text behind the push by the MMD parliamentarians for a legislated media council to regulate the media.

We must also state what the 1997 media council proposal would have entailed. First, it would have required compulsory licensing and registration of journalists. Second, the council would have had powers to reprimand, suspend, or withdraw the journalists’ accreditation. Third, failure to comply could result in prison terms and fines.

Now, this type of statutory approach to media regulation does resemble that of a country whose human rights and governance record the ‘New Deal’ administration has been known to condemn. You guessed right: Zimbabwe.

In 2002, just over five years after the MMD’s botched attempt at a statutory media council, the ruling ZANU-PF, under the ministerial gaze of one Prof Jonathan Moyo, crafted the access to information and protection of privacy Act 2002. This law regulated access to information held by government departments, statutory bodies and government agencies. It also required the registration of journalists and media services with the Media and Information Commission. In fact, the closure of the Daily News, Zimbabwe’s private newspaper, was a result of its refusal to register with the Commission. Well, where is Zimbabwe now?

Back to my country: It is easy to see why the proposed legislated media council of Zambia was vehemently opposed by media organisations and other activists. Thankfully, the government of the day withdrew it before it exploded into a larger political and governance problem. And it is easy to see why efforts at legislating the current non-statutory Media Council of Zambia (MECOZ) are being condemned.

I am not, for a moment, suggesting that the self-regulatory approach to media operations has no problems. If you carefully read my last instalments, you will have noticed how I singled out the problems faced by self-regulatory systems globally. You will also have noticed that I conceded a role for the state, but only if it is subject to media and civil-societal negotiation and oversight.

Now, what would we have to contend with in a public, statutory media regulatory system? I have already hinted at some of the implications above, but let me unbundle them.

First, in order to licence or register a journalist, we would have to define what ‘journalism’ is. Related to that, we would have to define who is a ‘journalist’. Well, it is not clear what journalism really is – there are many perspectives, but all of them are fluid. The issue is compounded when we introduce new media technology into the equation. This raises issues about journalism as a series of communicative practices, which may include on-line communication practices. Nowadays, it is not unusual for academic and scholarly researchers to speak about ‘journalisms’ (in the plural) as opposed to just ‘journalism’ (in the singular). With such fluid definitions of journalism, it becomes difficult to define some people ‘in’ and other people ‘out’ of the communicative practice of journalism. It is for this reason that we now entertain notions of ‘citizen journalism’. If all citizens can be journalists, then who isn’t a journalist?

It is evident, from what I have said, that contemporary democratic notions of journalism are tending towards inclusion and pluralism, and not exclusion and singularity. Rather than allowing statutory policing of this journalistic discursiveness, it is democratic to let the industry draw up its own rules about who can practise journalism and on what terms.
To this end, let me cite a legal authority on the matter. In 1985, the Inter-American Court of Human Rights found that licensing, by restricting access to the journalistic profession, was harmful to, rather than supportive of, public order.

Responding to the argument that a licensing regime is simply the ‘normal’ way to regulate certain professions, the court distinguished between journalism and, for example, the practice of law or medicine. In contrast to lawyers and physicians, the activities of journalists – the seeking, receiving and imparting of information and ideas – are specifically protected as a human right, namely the right to freedom of expression.
The court also dismissed the argument that licensing schemes are necessary to ensure the public’s right to be informed, by screening out poor journalists. The Court felt such a system would ultimately prove counterproductive.

I deliberately left the best argument for last. Do you know why the Zambian State hastily withdrew their proposed media council legislation? They knew that, if challenged, it would not stand in a court of law. As a matter of fact, in August 1997, in the case involving Kasoma v. Attorney General, 22 August 1997, 95/HP/29/59, the High Court of Zambia invalidated the attempt to establish the statutory media council, stating that any effort to license journalists would breach the right to freedom of expression, regardless of the form that effort took.

It is abundantly clear that, under international law, licensing and even registration of media workers is prohibited. As a matter of fact, licensing schemes for journalists are virtually unheard of in established democracies, a point I have already made in my last two instalments.

Second, in attempting to define journalism and journalists, the whole idea of professional socialisation through training and education would have to be reviewed. There would be need for more stringent entry requirements into journalism programmes. There would also be need to define the levels of competency that one is expected to have attained in order to practise journalism. What level of ethical responsibility and compliance is expected from a journalism certificate-holder, degree-holder, masters-holder and PhD-holder? Who would determine these, anyway?

What about the horde of ‘citizen journalists’ waiting to make a contribution towards journalistic discourse? What about public discourse itself? Wouldn’t such a regimented, legislative approach to media regulation amount to regulating public discourse itself? It is for this reason that Miklós Haraszti, the Organisation for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, argues that self-regulation is more effective for preserving editorial freedom; helping to minimise State interference; promoting media quality; ensuring evidence of media accountability; and helping readers access the media. Media regulation is about media accountability to the public, not necessarily to the State.

As Haraszti further observes, such definitional strictures of journalistic discourse could lead to unintended consequences. Such consequences may include: (i) criminalisation of defamation, libel, and insult, instead of handling these offences in civil courts; (ii) punishment of ‘breach of secrecy’ by civilians, including journalists, instead of limiting this crime to those who have an official duty to protect the secrets; and (iii) special protection of high officials from verbal abuse.

Thirdly, then, what guarantees are there that a legislated media regulatory regime will produce the desired results? Should there be failure, won’t it be only fair to blame it on the statutory regulatory regime itself? For it appears that we want to blame the self-regulatory system for all the ethical mistakes that journalists, as normal human beings, make, and will no doubt continue to make.

In a self-regulatory system, the spotlight is on the media themselves, and that should be the constant regulatory refrain. I would rather err on the side of self-regulation than on that of statutory regulation. That, my friends, is my final testament on this matter.

Labels: MECOZ, MEDIA, REGULATION

posted by MrK @ 5:30 PM