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<FONT color=#00b0f0>Thanks Toby and Barrack for kickstarting the debate today. My responses in blue. </FONT><BR>
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> Date: Mon, 24 Jan 2011 22:14:58 -0400<BR>> Subject: Re: [kictanet] Media council Draft bill 2010 (Day Two discussions)<BR>> From: toby@law-democracy.org<BR>> To: kictanet@lists.kictanet.or.ke<BR>> CC: ggithaiga@hotmail.com<BR>> <BR>> <BR>> Hi all,<BR>> <BR>> A few comments on todays questions.<BR>> <BR>> On the first two questions, we should also look at the definition of<BR>> media, which includes electronic media engaged in publication for<BR>> circulation to the public, except for book publishing.<BR>> <BR>> Taken together, it seems to me that the definitions clearly include<BR>> Internet forms of new media, such as bloggers.<BR>> <BR>> There are ways to define traditional-type media that also disseminate over<BR>> the Internet. For example, the Council of Europe (the human rights body<BR>> for Europe) relies on the notion of an editorial process, which thereby<BR>> excludes bloggers.<BR><FONT color=#00b0f0>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. </FONT><BR>> Otherwise, I am not sure why we want to distinguish between media content<BR>> and media enterprises.<BR>> <BR><FONT color=#00b0f0>Are you suggesting that we leave the two as they are?</FONT><BR>
<FONT color=#00b0f0></FONT> <BR>
> On the questions about journalists, under international law, it is<BR>> well-established that it is not legitimate to impose conditions on who may<BR>> be a journalist. Neither the definition of a journalist in the Bill nor<BR>> the reference to the Council setting criteria for the employment of<BR>> journalists meet this standard. Furthermore, the matter of registering<BR>> journalists is very dubious from the perspective of freedom of expression.<BR>> It is not just that there are practical problems with this (eg how to<BR>> capture ad hoc commentators), but the whole idea is offensive to freedom<BR>> of expression, in part because there is no justifiable reason for doing<BR>> it.<BR><FONT color=#00b0f0>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 </FONT><FONT color=#00b0f0>will be taken on board as we suggest edits to the Bill. </FONT><BR><BR>
> Section 37 is also relevant here, calling for the accreditation of foreign<BR>
> journalists. The import of this is not clear. But if it means that foreign<BR>> journalists may not report from Kenya on an ad hoc basis without being<BR>> accredited by the Council (as opposed to foreign journalists who are based<BR>> in Kenya on a longer-term basis), then it is very problematical from the<BR>> perspective of freedom of expression.<BR>> <BR>> As I mentioned yesterday, it may be legitimate to establish a statutory<BR>> media council (by the way, I don't understand Rosemary's question on this<BR>> - this is clearly a statutory body, ie established by law, and not a<BR>> self-regulatory approach, ie established by the media themselves). <BR>
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<FONT color=#00b0f0>Rosemary was reffering to a statutory council but independent of government control. Rosemary, if you are reading this, please shed more light. </FONT><BR>
But I<BR>> do not think it would be legitimate for such a body to impose sanctions<BR>> directly on individual journalists, as opposed to media enterprises. In<BR>> the end, it is the (collective) decision to publish in the media, which<BR>> involves not only the originating journalist but an editorial process,<BR>> which is responsible for any harm caused by that publication. So it is the<BR>> media enterprise, and not the journalist, who should respond to any<BR>> complaints. Of course there may be cases where the behaviour of individual<BR>> journalists may cause harm, eg by invading privacy, but these can be<BR>> remedied either by civil action against the journalist or again through<BR>> complaints to the media house.<BR>
<FONT color=#00b0f0>Agreed, infact, I do hope you will make a comment on this when we discuss section 39 on penalty next week.</FONT><BR>.> <BR>> In practice both statutory and self-regulatory systems in democracies<BR>> around the world normally address media houses, and not individual<BR>> journalists as such. This is the case, for example, with the Press<BR>> Complaints Commission in the UK and the Press Council in Indonesia, just<BR>> to give two examples.<BR>
<FONT color=#1f497d><FONT color=#00b0f0>Your international perspectives and the examples of UK and Indonesia are useful as </FONT></FONT><FONT color=#00b0f0>we try to build consensus on this media bill. </FONT><BR>
<BR><FONT color=#1f497d>> <BR></FONT>> Finally, I am concerned with the focus in section 4, functions of the<BR>> Council, on setting professional/ethical standards. No less than three of<BR>> the functions focus on this (4(c), (e) and (i)), in addition to the idea<BR>> of resolving complaints. Is this really necessary?<BR>> <BR><FONT color=#00b0f0>This is what we are also trying to establish. Infact, are they too narrow, sufficient or even unnecessary?</FONT><BR>
> Toby<BR>> <BR>> <FONT color=#00b0f0>Rgds</FONT><BR>
<FONT color=#00b0f0>Grace</FONT><BR>> ___________________________________<BR>> Toby Mendel<BR>> <BR>> Centre for Law and Democracy<BR>> toby@law-democracy.org<BR>> Tel: +1 902 431-3688<BR>> Fax: +1 902 431-3689<BR>> www.law-democracy.org<BR>> <BR><BR> </body>
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