The Government’s Broadcasting Authority Bill’s alleged attempts to constrain media freedom have drawn criticism from stakeholders, who have advocated for self-regulation, while some experts have mooted the possibility of adopting co-regulation to streamline certain areas of concern in the country’s electronic media sphere.
There have been attempts by successive governments over the years to ‘regulate’ the media, which the print media responded to by establishing a process of self-regulation through the Sri Lanka Press Institute and a Press Complaints Commission.
Announcing the Broadcasting Authority Bill, Mass Media Minister Dr. Bandula Gunawardana said that a broadcast authority law to regulate electronic media would be unveiled, with a draft prepared by a Cabinet subcommittee under Justice Minister Dr. Wijeyadasa Rajapakshe.
He claimed that broadcasting licences for certain radio and television channels had not hitherto been issued with “due process” and that the Government would therefore devise a methodology to issue licences in a more transparent manner.
Following a discussion held at the Parliament Complex on Wednesday (7) regarding the proposed bill, where views were obtained from representatives of electronic media organisations, Ministry of Mass Media Secretary Anusha Palpita told The Sunday Morning that the broadcasters had been given a period of two weeks to provide their comments, following the receipt of the Sinhala translation of the bill.
Storm of objections
Amidst this, the Broadcasting Authority Bill has been met with a storm of objections from stakeholders, with Opposition lawmakers advocating for self-regulation from electronic media broadcasters.
Speaking to The Sunday Morning, Chief Opposition Whip Lakshman Kiriella said: “We do not believe that the Government should intervene in media regulation. Instead, electronic media should have self-regulation. The Government is trying to bring in a bill to suppress media freedom, through annual licence renewal, etc., which is an instrument which would make people wary of criticising the Government.
“When we met electronic media broadcasters in Parliament yesterday (7), Opposition Leader Sajith Premadasa said that media stakeholders should present a procedure for self-regulation instead of the Government formulating such laws.”
Precedent
This move to establish a central authority to regulate electronic media has a precedent – in 1997, the then Government tabled a bill in Parliament to establish a new broadcasting authority, which would have extended and institutionalised direct political control of the broadcasting media.
In a landmark judgement, the Supreme Court ruled that the bill was unconstitutional and it was withdrawn. The court decided that the bill was unconstitutional because, if enacted, the authority would lack “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.”
In its decision to turn down the bill, the Supreme Court said: “The ultimate guarantor that the limited airwaves/frequencies shall be utilised for the benefit of the public is the state. This does not mean that the regulation and control of airwaves/frequencies should be placed in the hands of the government in office for the time being.
“The airwaves/frequencies, as we have seen, are universally regarded as public property. In this area, a government is a trustee for the public; its right and duty is to provide an independent statutory authority to safeguard the interests of the People in the exercise of their fundamental rights: No more, no less. Otherwise the freedoms of thought and speech, including the right to information, will be placed in jeopardy.”
The 2023 proposal confers the commission with powers to cancel licences issued to broadcasters.
Efficacy questionable
Speaking to The Sunday Morning, Sri Lanka Broadcasters’ Guild Secretary Laksiri Wickramage acknowledged that while electronic media should also have similar self-regulatory mechanisms to print media, the potential efficacy of the current bill in instituting regulations was questionable.
He noted that given the competitive landscape of electronic media, regulating domestic channels would prove to be detrimental to the field.
“Unlike print media, especially newspapers, electronic media has much competition from outside the country. For example, most of the income for television comes from entertainment, not news, and for entertainment, there is much competition from outside.”
Wickramage compared this to imposing restrictions on local products instead of on imports: “In circumstances where the audience is exposed to channels from across the world, it will be very unfair if there are regulations only for the channels originating from Sri Lanka. If specific content is banned only for domestic channels, people will start watching foreign channels, which means the money will also flow to foreign channels.”
He therefore pointed out that any restrictions on traditional media would simply hasten the exodus of the audience towards social media channels.
“Of course, there have to be certain ethical guidelines, but this is needed for social media as well. If broadcast media is restricted from covering certain topics while social media goes ahead with coverage, the audience will move to social media. As a result, social media will eventually have a bigger audience than traditional media – you will be effectively killing traditional media. Whichever regulation is imposed should be equal to all.”
Moreover, he noted that since existing laws of the country applied for the media as well, special laws for the media were not needed, since a regulatory body already existed in the form of the Telecommunications Regulatory Commission of Sri Lanka (TRCSL).
“Regulation should be on technical points, not on content. There are many restrictions for domestic channels which are not there for foreign channels operating in the country. Countries apply protectionism to protect domestic products, but here we are protecting foreign products by default.”
Co-regulation
Meanwhile, LIRNEasia Founding Chair Prof. Rohan Samarajiva expressed doubts regarding the efficacy of self-regulation for electronic broadcast media.
“Self-regulation, most probably, will not work. There is a mechanism for print media in terms of a self-regulatory code, but there is a perception in Sri Lanka that it does not work,” he said, noting however that co-regulation presented one solution for this problem.
“With co-regulation, there is a mechanism for self-regulation, with the force of the State behind it. That is, the State dictates that you cannot leave the self-regulatory sphere and it can say that the code/criteria has to be developed collectively and consultatively, not limited to the broadcasters, but also giving voice to the general public, since the suppliers are not the only people who are relevant. Accordingly, both parties will develop a code together, and an independent regulator or some kind of independent body can vet this code.”
Once the code is available, one option is to have a body that can perform as an adjudicator which can take complaints and decide whether broadcasters have violated the code, with the State to come in and penalise if necessary. However, this has limits, he noted.
“The solution proposed when I chaired the Broadcasting Licensing Committee in 2018 was as follows: all broadcasters (cable, satellite, etc.) of different classes, would, with public consultations and with the approval and involvement of an independent broadcast regulatory authority, develop a code of practice, which would be incorporated into the licence required to operate the spectrum.”
Accordingly, if a member of the public were to have concerns about the code being violated, they can initiate a process to address this, and serious infractions will constitute a licence violation, leading to the relevant penalties associated with the licence conditions.
“I think this is a happy balance between having some form of effective regulation with teeth and not having the State involved. Here, it would be developed collectively through public consultations and not imposed by some political figure.”
Speaking to The Sunday Morning, Media Law Forum Director Operations Prabodha Rathnayaka said that while they believed the best option was self-regulation, co-regulation would be the more optimal solution.
“As per prior experience in Sri Lanka, self-regulation is not always successful. Therefore, we are mulling and analysing co-regulation at present, which would mean regulation undertaken with stakeholders in the broadcasting industry.
“One of the primary problems with the proposed bill is that it does not involve media industry stakeholders; instead, it has proposed State regulation. For instance, all five members of the proposed commission are appointed by the Government one way or the other, meaning there is no industry representation.
“In contrast, co-regulation would allow for the involvement of journalists, media organisations, heads of media agencies, etc. We believe this kind of process would be successful, given the precedent in other countries such as Malaysia, where co-regulation is active to a certain extent.”
Licence renewals
Addressing the matter of licence renewals, Wickramage moreover noted that it could prove problematic if licences were made conditional.
“If the licence becomes conditional for content, then any governing party can use it against the channel in their favour. At present, renewal is mechanical, but if it is renewed based on certain conditions and the conditions are based on content, it would become unfair.”
Prof. Samarajiva opined that a licence should be renewed every five to 10 years, stressing that the process should be transparent and insulated against political influence.
Both Prof. Samarajiva and Wickramage noted that since broadcasting systems required major investment, licence renewal processes should take the modern broadcast ecosystem into consideration.
“Beyond the licence, there is a massive investment to launch a television channel. If the licence is taken away, what happens to the investment?” Wickramage questioned.
Prof. Samarajiva noted that since companies made significant investments in studios, networks, etc., broadcasting licences required more than an annual renewal. “It’s very difficult for people to invest with short licences – you need a degree of certainty. Generally speaking, the renewal period should be of five to 10 years duration, which can be decided by an independent regulator.”
He noted that the one-year licence proposed by the Government was impractical, since this did not allow any time for licence condition violation procedures to be undertaken.
Accordingly, it becomes evident that in addition to accommodating advances in technology, it is also important to consider moving towards an independent broadcasting authority whose interests will remain solely with the citizens instead of with the government.
Digital migration
Sri Lanka Broadcasters’ Guild Secretary Laksiri Wickramage noted that when it came to bandwidth management, Sri Lanka was lagging behind.
“Sri Lanka is far behind when it comes to digital conversion. Once the country goes digital, enough frequencies will be available. Until then, channels can’t go digital without the country going digital – it needs to be a Government policy decision.”
In addition to investment from media organisations, householders have to make an investment as well, for instance, by changing television sets, etc. he noted.
“For instance, India did this gradually, giving a deadline for when the country would go digital. Prior to going digital, households have to buy the relevant equipment and television channels have to be ready with digital transmitting facilities. For a while, digital and analog will function in parallel and the analog system will be taken off at some point,” he explained.
“Sri Lanka has been trying to go digital for the last 15-20 years. However, each time a new minister comes in, the process moves to the backburner.”