[kictanet] Media council Draft bill 2010 (Day Two discussions)

[toby at law-democracy.org]

Hi all,

A few comments on todays questions.

On the first two questions, we should also look at the definition of
media, which includes electronic media engaged in publication for
circulation to the public, except for book publishing.

Taken together, it seems to me that the definitions clearly include
Internet forms of new media, such as bloggers.

There are ways to define traditional-type media that also disseminate over
the Internet. For example, the Council of Europe (the human rights body
for Europe) relies on the notion of an editorial process, which thereby
excludes bloggers.

Otherwise, I am not sure why we want to distinguish between media content
and media enterprises.

On the questions about journalists, under international law, it is
well-established that it is not legitimate to impose conditions on who may
be a journalist. Neither the definition of a journalist in the Bill nor
the reference to the Council setting criteria for the employment of
journalists meet this standard. Furthermore, the matter of registering
journalists is very dubious from the perspective of freedom of expression.
It is not just that there are practical problems with this (eg how to
capture ad hoc commentators), but the whole idea is offensive to freedom
of expression, in part because there is no justifiable reason for doing
it.

Section 37 is also relevant here, calling for the accreditation of foreign
journalists. The import of this is not clear. But if it means that foreign
journalists may not report from Kenya on an ad hoc basis without being
accredited by the Council (as opposed to foreign journalists who are based
in Kenya on a longer-term basis), then it is very problematical from the
perspective of freedom of expression.

As I mentioned yesterday, it may be legitimate to establish a statutory
media council (by the way, I don't understand Rosemary's question on this
- this is clearly a statutory body, ie established by law, and not a
self-regulatory approach, ie established by the media themselves). But I
do not think it would be legitimate for such a body to impose sanctions
directly on individual journalists, as opposed to media enterprises. In
the end, it is the (collective) decision to publish in the media, which
involves not only the originating journalist but an editorial process,
which is responsible for any harm caused by that publication. So it is the
media enterprise, and not the journalist, who should respond to any
complaints. Of course there may be cases where the behaviour of individual
journalists may cause harm, eg by invading privacy, but these can be
remedied either by civil action against the journalist or again through
complaints to the media house.

In practice both statutory and self-regulatory systems in democracies
around the world normally address media houses, and not individual
journalists as such. This is the case, for example, with the Press
Complaints Commission in the UK and the Press Council in Indonesia, just
to give two examples.

Finally, I am concerned with the focus in section 4, functions of the
Council, on setting professional/ethical standards. No less than three of
the functions focus on this (4(c), (e) and (i)), in addition to the idea
of resolving complaints. Is this really necessary?

Toby


___________________________________
Toby Mendel

Centre for Law and Democracy
toby at law-democracy.org
Tel:  +1 902 431-3688
Fax: +1 902 431-3689
www.law-democracy.org