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

[toby at law-democracy.org]

Quick response to let others also weigh in.

Re. media content and media enterprises, I am not sure where in the law
you would distinguish. As I made clear below, I see media enterprises
(rather than journalists) being responsible for the media content their
outlets carry.

Re. extortion you refer to below should be dealt with, well, as extortion
(ie a criminal offence). Not through registering journalists. But I do see
the special nature of this problem.

Re. the Media Council, I do see the provisions on this as fairly robust in
terms of protecting its independence. But I guess we will discuss more
later.

Re. the functions, I think it would be enough for the body to promote high
professional standards and to regulate disputes (4(a) and (c)), and get
rid of (e) and (i). And I would prefer it if (b) on professional standards
referred to media outlets (or at least also referred to them).

OK, enough from me for today (it's 5pm here in Manila)!

Toby

>
>
> Thanks Toby and Barrack for kickstarting the debate today.  My responses
> in blue.
>
>
>> Date: Mon, 24 Jan 2011 22:14:58 -0400
>> Subject: Re: [kictanet] Media council Draft bill 2010 (Day Two
>> discussions)
>> From: toby at law-democracy.org
>> To: kictanet at lists.kictanet.or.ke
>> CC: ggithaiga at hotmail.com
>>
>>
>> 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.
> I think it is will be important to look at the Council of Europe's
> definition of traditional-type media that also disseminate over the
> Internet to distinguish between them and bloggers.
>> Otherwise, I am not sure why we want to distinguish between media
>> content
>> and media enterprises.
>>
> Are you suggesting that we leave the two as they are?
>
>> 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.
> The concern on registering journalists has been debated in this country.
> As you may have noticed, Barrack echoed views of many people. We have had
> an infiltration of people who pose as journalists and have at times been
> accused of exhorting money from some news sources. The current MCK is
> already accrediting local journalists. I do hope that we will get a
> comment from the MCK on this process. However, your views on supporting a
> practice that may be offensive to freedom of expression have been noted.
> Again, all your concerns will be taken on board as we suggest edits to the
> Bill.
>
>> 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).
>
> Rosemary was reffering to a statutory council but independent of
> government control. Rosemary, if you are reading this, please shed more
> light.
> 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.
> Agreed, infact, I do hope you will make a comment on this when we discuss
> section 39 on penalty next week.
> .>
>> 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.
> Your international perspectives and the examples of UK and Indonesia are
> useful as we try to build consensus on this media bill.
>
>>
>> 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?
>>
> This is what we are also trying to establish. Infact, are they too narrow,
> sufficient or even unnecessary?
>> Toby
>>
>> Rgds
> Grace
>> ___________________________________
>> 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
>>
>


___________________________________
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