No return to criminal libel laws
On Monday January 3, 2016, the Daily Graphic carried a banner headline on its front page that read: ‘Radio stations risk closure’. The headline was about an interview the newspaper had with Mr George
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Sarpong, the Executive Secretary of the National Media Commission (NMC) about the newly passed NMC Content Standards Regulation, LI222.
Moments after the law became common knowledge via the ubiquitous newspaper review on radio, all hell broke loose. The Ghana Independent Broadcasters Association (GIBA) was first off the mark.
GIBA threatened to go to court over the new law on many grounds, including the allegations that the NMC lacked the power to make the regulation.
Other individuals and representatives of organisations expressed their concerns in strong language; some even claimed that the NMC intended to return Ghana to the bad old days of censorship and criminal libel laws. If there was a silver lining to what has been an anxious week, it is found in the fact that so many people obviously care about our constitutional guarantees of law not what critics think are freedom of expression and the media freedom.
However, the new law is not what the critics say it is. On the contrary, this law is designed to ensure quality broadcasting across the country for the benefit of audiences and the development of our country. Generally speaking, it is intended to protect audiences and the nation from harm. Let me hasten to say that this law has nothing to do with any category of journalists.
The law states categorically that it applies to an “operator”, “agent of an operator”, “a producer of content”. This specifically excludes journalists but places the onus of compliance on the owners of networks. These regulations have nothing to do with what people write, say or show. They are not intended to control media content in the manner the critics allege.
Broadcasting regulation is global
It is important to establish one fact very clearly. Broadcasting is regulated in every country in the world. Broadcasting is regulated because the electromagnetic spectrum which carries broadcasting is a finite public resource which is allocated to companies on trust. The holders of the spectrum licence are accountable to the public. Furthermore, broadcasting is an intrusive medium and can affect people whether they choose to listen/watch or not. It is for this reason that regulators often need to protect consumers, especially children, from certain types of possible abuse.
As explained in a Policy Briefing on Broadcasting Regulation by Article 19, the well-known freedom of expression organisation, in most democratic countries, broadcast regulators undertake two key functions: Allocating broadcast frequencies through the award of licences and developing and applying codes of broadcasting conduct, which usually deal with a range of content and broadcast practice issues. (Emphasis mine).
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A phrase that appears to have stirred nightmares of censorship is the title of the law, “Content Standard Regulation”. Indeed, the term, “Content regulation” is a universal term used in broadcast licensing. Usually potential operators of broadcast services obtain a licence which has two parts. One part is generally known as “Technical Regulations” and a second part known as “Content Regulations”.
Therefore, the word “content” used in the law does not refer to the everyday editorial material transmitted on the airwaves. Thus, “Content Regulation” is a “term of art”, which has a specific meaning in broadcasting administration and regulation.
One vicious rumour making the rounds is that the law requires all broadcasting stations to submit their news content to the NMC for approval before they are broadcast. This is a patent FALSEHOOD. Even the impractical nature of this fantasy ought to alert people to the fact that it is not true. There are more than 300 radio stations in Ghana; how on earth could the NMC vet every news bulletin before it is published?
So what exactly is in the law? LI 2224 is a National Media Commission Law that is to establish and maintain standards in electronic communications networks and broadcasting services. The law is simply an instrument that will ensure that broadcasting in Ghana conforms to international best practices. It does three things. It requires the OPERATORS of networks and broadcasting services to apply to obtain the Authorisation to put content on the airwaves; it has a set of standards to which the broadcaster must conform and it prescribes penalties for breaches of the provisions of the law.
As explained above, content regulation in this sense does not mean permission to broadcast specific programmes. It is the name of the process as well as the authority granted to make and transmit programmes on the frequency. One of the provisions that appear to have caused consternation is the demand for PROGRAMME GUIDE as part of the application procedure. Again, the critics of the law say that this amounts to censorship. The programme guide must be submitted ONCE EVERY YEAR. Ordinarily, a programme guide MUST be made available by broadcasters to the public on a regular basis. Elsewhere, a programme guide is published daily in newspapers.
It is necessary for broadcasters to submit their programme guides to regulators for the latter to ensure that the programmes conform to the standards in terms of content, time of broadcast, etc. This is a worldwide practice that protects the public from possible abuse. At this time of threats from extremists of all kinds, it is doubly important for the regulator to assure the public that broadcast channels do not pose a threat to security, safety, morality and privacy.
The “standards” at the heart of this law are the same as those applied in every jurisdiction for the protection of audiences from harm. They include the protection of minors; the preservation of the right to privacy; the accurate and impartial reporting of news; that advertisements are not misleading, untruthful or designed to mislead the public; that political programmes are fair and provide an opportunity for responses to be made by representatives of other groups…. The regulations include details of these standards.
Sanctions under scrutiny
The sanctions have also come under scrutiny and fire; some have said that the inclusion of prison terms amounts to “criminalisation of speech”. This is simply not true. The following scenario may help to explain why the threat of jail is an important deterrent in the circumstances envisaged under the law. Suppose an operator decides not to register but begins to transmit harmful adverts which bring him or her money, a fine alone may not be sufficient to prevent that operator from going back and doing the same thing repeatedly. There is nothing to suggest that journalists, writers, or producers of content will be jailed for their work. The purpose of the sanctions is to ensure that operators of networks do not allow their facilities to be used for harmful purposes.
Some people have accused the NMC of exceeding its powers. Others, on the contrary, fear that the commission is a hidden hand of the government in some vague way. The constitution gives the NMC the power to enact laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons. This law has been in the offing for the past six or seven years. It has gone through all the phases of lawmaking and was actually signed by the Chairman of the NMC with the date of Gazette notification being October 28, 2015. It is not a government law.
Broadcasting must be regulated
This law is long overdue; is it feasible for everyone and anyone just to set up broadcasting equipment and start broadcasting? Is it desirable for everyone and anyone, having obtained the technical licence, to use the airwaves in any way they want without any regard for the public interest, including the welfare of the society?
People have taken the long absence of content regulation to mean that content must remain unregulated and some broadcasters have taken it as an advantage to inflict excessive abuse on their audiences. Ghanaians across the country and beyond have called on the NMC to rein in those errant broadcasters; in the colourful language often used, the commission has been asked to show some teeth.
The threat to the independence of the media comes not from this law but from the lack of professionalism, which as we have in Rwanda and Kenya, can throw a whole nation into crisis. The sight of death and destruction in which whole societies are grievously disrupted must be avoided. These are the situations that this law seeks to correct. No one should have any cause to fear that this law brings back censorship and criminal libel laws.
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This is his personal opinion of the writer who is the Chairman of the National Media Commission