• THE WORLD BANK BAN K I NSTITUTE Promoting knowledge and learning lor a beffer world 78749 HE 8689.4 .B753 2008 C:3 Broadcasting, vo~, ~~~~ accoun~~~~ 0 policy, regulation I Steve Buckley I Kreszentia Duer I Toby Mendel I Sean 6 Siochn.l with Monroe E. Price and Marc Raboy 78749 Broadcasting, Voice, and Accountability A Public Interest Approach to Policy, Law, and Regulation Steve Buckley • Kreszentia Duer Toby Mendel • Sean 6 Siochru with Monroe E. Price • Mark Raboy The World Bank Group Washington, DC Copyright © 2008 by The International Bank for Reconstruction and Development, The World Bank Group All rights reserved Published in the United States of America by The World Bank Group Manufactured in the United States of America @ Printed on acid-free paper 2011 2010 2009 2008 4 3 2 No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A CIP catalog record for this book is available from the British Library. ISBN-13: 978-0-8213-7295-1 (cloth: alk. paper) l Foreword The World Bank has long recognized the role that media play in development. It has done so through advocating the importance of an independent press; providing training for journalists; and offering technical and financial assistance to commercial media organizations through its private sector arm, the International Finance Corporation (IFC). At present, there is an intention to broaden the focus to include broadcast media. With this guide the World Bank Institute seeks to support the development of an independent and diverse broadcast- ing sector that can contribute to the public interest. Of paramount importance is the policy, legal, and regulatory framework that influences the shape, content, and social impacts of the broadcasting sector as a whole. This is the subject matter of the current guide. It includes not only protection of basic freedoms of ex- pression, but also issues such as the structure and functioning of reg- ulatory bodies, management of the radio-frequency spectrum, and licensing requirements that enable broadcasting diversity. Good practices from a wide range of countries are included. The enabling environment for broadcasting has significant consequences for gov- ernance and accountability: It can enable people in the developing world to become informed and empowered, or not. Radio broadcasting can be very accessible, even for illiterate and semiliterate people in remote locations. It can influence people's un- derstanding of their context, interests, and view of themselves. In the many places where listening to the radio is a group activity, its content easily provokes comments and discussion. Often issues that previously could not be discussed become permissible as people refer to what they have heard. The social impacts can be pervasive and profound. Broadcasting also provides platforms for publicly airing concerns, raising questions with experts on the air, and solving problems. Com- munity radio programs, for example, often involve the whole listen- ing audience in discussing matters important to them, in their local languages. This in turn strengthens people's ability and confidence in framing and analyzing issues, engaging in informed debate, and pressing local officials for actions. This process helps people to iv Foreword identify and grasp opportunities, address collective problems, and re- sist manipulation. It also strengthens people's resolve to make their government accountable and strengthens their outspokenness against abuses. From Ghana to Indonesia, groups have gone "on the air" and named officials who have stolen public funds or not delivered a long- promised road-and they have seen an active response. Such public condemnation makes officials change their calculus of their preroga- tives and their responsibilities. Broadcasting is a potent vehicle for scaling up and embedding civic engagement in the life of poor constituencies in developing countries-and in the expectations of government officials. Freedom of information and expression and a robust mix of broadcasting ownership and uses-commonly referred to as commer- cial, public service, and community broadcasting-are critically important to develop and sustain an informed, engaged society. With this book, we show that improving the enabling environment for the broadcasting sector is important development terrain, where country- specific analysis and assistance are long overdue. Rakesh N angia Acting Vice President, World Bank Institute, 2001-2007 Acknowledgments Broadcasting, Voice, and Accountability: A Public Interest Approach to Policy, Law, and Regulation has been under discussion and development since 2003. It is an outgrowth of the World Bank Institute's program supporting Civic Engagement, Empowerment, and Respect for Diver- sity (CEERD), including Voice and Media Development. Over time, it has also benefited from collaboration with experts in fields of gover- nance and accountability in developing countries, development communications, and telecommunications policy. Government offi- cials and nongovernmental stakeholders have used iterative drafts to support their analyses of broadcasting policy and regulation in anum- ber of developing countries and to inform their reform proposals. In the first instance, the project received financial support from the Office of the World Bank President, James D. Wolfensohn (1995-2005). Since then, it has received grants from the World Bank-Netherlands Partnership Program, the Canadian International Development Agency (CIDA), and the Beaverbrook Foundation. Kreszentia Duer, New Business Development Leader at the World Bank Institute and manager of the CEERD Program, initiated the guide project in an effort to promote the integration of media and broadcasting policy into the development field. From the outset the guide has been structured to present good practices from around the world in a coherent policy landscape that could significantly improve governance, communications access, and opportunities for disadvan- taged peoples. To this end, Duer formed and led the team; shaped the guide's relevance to development issues, policy, and practice; and guided the project to completion. At several stages she invited peer reviews to ensure that the guide would reflect a collective perspective of senior specialists in diverse parts of the World Bank and among a broad range of international experts. Steve Buckley, President of the World Association of Community Radio Broadcasters, and Toby Mendet Law Programme Director of Article 19, built on extensive work they and others have done in the field to research and write much of the substance of Parts II and III of this guide. Without their efforts, and Steve Buckley's commitment to vi Acknowledgments this project from the outset, the guide would not have been possible. Sean 6 Siochru, founder of and spokesperson for the Campaign for Communication Rights in the Information Society and a Director of NEXUS Research, heroically produced the final edited version of the text, with considerable new material in Part I. Craig Hammer (CEERD Program, The World Bank) authored the guide's bibliograph- ical annex and greatly facilitated the publication of this guide. The project's expert advisers, Professors Monroe E. Price (Director of the Center for Global Communication Studies [CGCS] at the Annenberg School for Communication, University of Pennsylvania) and Marc Raboy (Beaverbrook Chair in Ethics, Media and Communications at McGill University), came on board in April 2006. The Bank contracted CGCS to act as consultant in bringing the project to fruition. Susan Abbott, Senior Research Coordinator at CGCS, was indispensable in steering the consultancy process. The project also gained valuable assis·· tance from Sylvie Beauvais and Libby Morgan at the CGCS. The advice and consultation provided by the Annenberg School and McGill provided the World Bank Institute (WBI) and the guide's authors with creative in- put and critical reflection necessary to bring the guide to completion. This guide benefited greatly from four stages of internal and external peer reviews and roundtable discussions. These occurred, first at the early stages of conception; second, at a conference to review the full man- uscript at Cherkley Court in the United Kingdom, which was followed by submission of expert papers from participants; third, at the World Bank's formal peer review and decision meeting on the economic and sector work manuscript; and fourth, at the external peer review requested by the publisher. We would like to acknowledge those involved, as follows. Peer reviewers from within and outside the World Bank con- tributed thoughtful and helpful comments at the very early stages of the guide's conception. Our thanks go to Tim Carrington (Senior Communications Officer, Africa Region, The World Bank), Linn Hammergren (Senior Public Sector Management Specialist, Poverty Reduction and Economic Management, The World Bank), Gary Reid (Lead Public Sector Management Specialist, Poverty Reduction and Economic Management, The World Bank), Rick Stapenhurst (Senior Public Sector Management Specialist, Poverty Reduction and Economic Management Division, The World Bank Institute), William Ascher (Donald C. McKenna Professor of Government and Economics, Claremont McKenna College), Peter Erichs (Development Cooperation Acknowledgments vii Program Officer, Media and Culture Division, Swedish International Development Cooperation Agency), Damien Loreti (Professor of So- cial Sciences, the University of Buenos Aires), Tunde Oladunjoye Fagb- hunlu (Barrister and Executive Director, Center for Media Education and Networking, Nigeria), Gloria Sanchez (Consultant, France), Somkiat Tangkitvanich (Research Director, Thailand Development Research Institute), Giles Tanner (General Manager, Australian Broadcasting Authority), Sahr Kpundeh (Senior Public Sector Specialist, The World Bank Institute), Rick Messick (Senior Public Sector Reform Specialist, Public Sector Reform and Governance Department, The World Bank), and Guenter Heidenhof (Lead Public Sector Specialist, Africa Public Sector Reform and Capacity, The World Bank). Thanks also to Loty Salazar (Information Officer, Operations Solutions, The World Bank) and Isabelle Bleas (Senior Operations Officer, Sector and Thematic Programs, The World Bank Institute) for their support. A key moment in structuring and deepening the manuscript was the conference on Media, Voice and Development held at Cherkley Court in Surrey (UK) on July 12, 2006. Organized by McGill and Annenberg in partnership with the Beaverbrook Foundation, this conference brought together twenty international experts to discuss and provide feedback on a preliminary version of the guide. We thank the Beaverbrook Founda- tion for generously hosting the conference, as well as Dean Christopher Manfredi (McGill Faculty of Arts) and Camilla Leigh (McGill Development Office) for their support. In addition, we thank the following people for their contributions at the workshop: Mavic Cabrera-Balleza (Senior Pro- gram Associate, International Women's Tribune Centre); Peter de Costa (Consultant, London); Stuti Khemani (Economist, Development Re- search Group, World Bank); Elizabeth McCall (Civil Society and Access to Information Policy Adviser, Oslo Governance Centre, United Nations Development Programme); Lumko Mtimde (Chief Executive Officer, Media Diversity and Development Agency of South Africa); Jamal Ed- dine Naji (UNESCO Chair in Public and Community Communication, Institut, Superieur de !'information et dela Communication, Morocco); Paikiasothy Saravanamuttu (Executive Director, the Center for Policy Al- ternatives, Sri Lanka); Diana Senghor (Director, the Panos Institute of West Africa); James Deane (Head, Policy Development, BBC World Ser- vice Trust and former Managing Director of the Communication for So- cial Change Consortium); and Karin Wahl-Jorgensen (Senior Lecturer, Journalism Studies, Cardiff University). viii Acknowledgments Based on the feedback received at the Cherkley conference, CGCS commissioned a number of focused papers on a range of topics from academic specialists, policy experts, and nongovernmental organiza- tions active in the sphere of media and development. Their contribu- tions have informed the guide and improved it immeasurably. In addition, we would like to thank the following for their advice, input, and recommendations: Dieter Zinnbauer, Lumko Mtimde, Damian Loreti, Stefaan Verhulst, Elizabeth McCall, Pippa Norris, Birgitte Jallov, Alfonso Gumucio Dagron, Mavic Cabrera-Balleza, Sally Burch, Ammu Joseph, Kandji Katira, Jamal Eddine Naji, Tarlach McGonagle, Kate Coyer, Mark Whitehouse, Drusilla Meneker, Ivan Sigal, Diane Senghor and her team at Panos West Africa, Patrick Butler, Luis Botello and ICFJ, Karin Wilkins, Jan Servaes and Folker Hanusch, Arne Hintz and Stefa- nia Milan, Paul Falzone and Antonio Lambino, David Page and William Crawley, Sawsan Zaidah, Uwe Hasebrink, Nick Couldry, and Ruth Teer- Tomaselli (UNESCO Chair in Communication for Southern Africa, Cul- ture, Communication and Media Studies, University of KwaZulu-Natal). Gustavo Gomez (Legal Director, AMARC Latin America) also provides in- valuable insights on the community broadcasting section of the manu- script, which were reflected in subsequent drafts. With the benefit of their input, the authors revised the manuscript and prepared it for the World Bank's formal peer review in Washington, DC, on January 29, 2007. The peer review process was thorough and en- gaged and marked a watershed as the first time senior specialists from all key departments in the World Bank collaborated to shape how the Bank should approach media and broadcasting policy reform as a main- stream development issue. This enabled the publication to reflect a collective perspective. In addition to the book's authors and advisers, the following people attended the meeting and deserve special thanks for their thoughtful comments: Michele de Nevers, Chair (Director, Sector and Thematic Programs, The World Bank Institute), Stuti Khemani, Gareth Locksley (Senior Telecommunications Specialist, Pol- icy Division, IBRD Telecommunications and Information, The World Bank), Adesinaola Odugbemi and Paolo Mefalopulos (Senior Commu- nications Officers, Development Communication, the World Bank), Rick Messick, and Mark Nelson (Senior Operations Officer, Sector and Thematic Programs, The World Bank Institute). Michele de Nevers pro- vided excellent stewardship of this peer review process. The written com- ments of the forenamed reviewers, as well as those of Roumeen Islam Acknowledgments ix (Manager, Poverty Reduction and Economic Management, The World Bank Institute), Sahr Kpundeh, and Guenter Heidenhof, were of great assistance in shaping the final manuscript. Finally, the publisher commissioned an external peer review of the approved manuscript that resulted from the World Bank's inter- nal peer review. Our special thanks go to the two formal external peer reviewers of the final manuscript, Professor Ruth Teer-Tomaselli and James Deane. These two reviewers authorized the Press to reveal their identities after the reviews were completed in order to provide further feedback. Their helpful comments and critical reflections were invaluable. The guide's publication team would also like to thank Bruce Girard (Founder, Agenda Informativa Pulsar and former Researcher at the Delft University of Technology) for his reviews and contributions to the final manuscript. We would also like to note our appreciation to the University of Michigan Press, in particular, Phil Pochoda (Director, University of Michigan Press) and Alison Mackeen (Acquiring Editor, University of Michigan Press), for their collaboration and their interest in publishing this guide with the World Bank and including it in the series The New Media World. The publication of this book by The World Bank and the University of Michigan Press enables us to reach both the broad inter- national development community and expert-practitioners in the com- munications field, who will be important in helping to interpret and shape media policy as a significant development concern. Contents Introduction PART I Governance, Broadcasting, and Development 5 CHAPTER 1 Governance, Development, and Media 6 In the Public Interest 6 Media and Governance 9 Media beyond Governance 15 Key Features of Communication and Media 19 The Wider Environment 23 Normative Underpinnings and an Emerging International Consensus 26 CHAPTER 2 Broadcasting Sectors and Types 30 A Focus on Broadcasting 3 0 Basic Broadcasting Types 35 Opening the Range of Broadcasting Types 43 CHAPTER 3 Regional Broadcasting Characteristics and Trends 48 The Media Environment Regionally 48 Region by Region 51 Conclusion: An Emerging Paradigm 68 PART II The Enabling Environment for Media 75 Overview 76 CHAPTER 4 Guarantees of Freedom of Expression 78 Good Practice Checklist 78 Introduction 78 Guarantees of Freedom of Expression 80 Guarantees of Freedom of the Press/Media 82 Direct Applicability of International Law 84 xii Contents CHAPTER 5 Enabling Access to Information 87 Good Practice Checklist 87 Introduction 88 Constitutional Guarantees of Access to Information 91 Principle of Maximum Disclosure 92 Proactive or Routine Disclosure 94 Narrow Regime of Exceptions 96 Good Process Guarantees 99 Right to Independent Review of Refusals to Grant Access 101 Protection for Whistle-blowers 103 Promotional Measures 104 CHAPTER 6 Use and Misuse of Defamation Law 107 Good Practice Checklist 107 Introduction 108 Who May Sue 109 Criminal Defamation 111 Proof of Truth 113 No Special Protection for Public Officials 114 Opinions 116 Defense of Reasonable Publication 118 Redress 121 CHAPTER 7 Content Rules and Limits to Free Speech 123 Good Practice Checklist 123 Introduction 123 Constitutionally Authorized Limitations on the Right to Freedom of Expression 124 General Principles of Content Restrictions 126 National Security/Public Order 127 Hate Speech 129 Obscenity 131 Protection of the Administration of Justice 133 False News 136 Political Expression/Elections 138 CHAPTER 8 Regulation of Journalists 141 Good Practice Checklist 141 Introduction 141 Absence of Licensing and/or Registration Requirements 143 Contents xiii Self-Regulation 14 5 Protection of Sources 146 Right of Correction/Reply ISO PART III Promoting Plural and Independent Broadcasting 153 Overview 154 CHAPTER 9 Regulation and the Government Role 156 Good Practice Checklist 156 Introduction 15 7 Threats to Independence 158 An Independent Regulatory Body 160 Powers and Duties 162 Appointment of Members 164 Transparency and Consultation 166 Public Accountability 168 Funding Arrangements 169 CHAPTER 10 Regulating Broadcast Content and Distribution 171 Good Practice Checklist 171 Introduction 172 Positive Content Rules 173 Content Restrictions and Codes of Conduct 177 Sanctions 179 Spectrum Planning for Broadcast Services 182 Must-Carry Rules 185 Public Access Channels 186 CHAPTER 11 Public Service Broadcasting 189 Good Practice Checklist 189 Introduction 190 Status and Independence 193 Duties and Responsibilities 194 Governance 197 Membership of the Governing Board 199 Director General 201 Funding 203 xiv Contents CHAPTER 12 Community Nonprofit Broadcasting 206 Good Practice Checklist 206 Introduction 207 Recognition and Differentiation 209 Definition and Characteristics 212 Licensing Process 215 License Terms and Conditions 217 Funding and Sustainabi1ity 220 Public Funding 222 CHAPTER 13 Commercial Private Sector Broadcasting 227 Good Practice Checklist 227 Introduction 228 Regulation 23 0 Licensing Process 23 2 Rules on Concentration of Ownership 234 Rules on Foreign Ownership 23 5 Public Service Requirements 23 6 Public Grants, Subsidies, and Advertising 238 Epilogue: Information Needs and Development Options 240 The Research Agenda 240 Options for Development Assistance 244 Convergences: Fostering Accountability, Engaged Societies, and Collective Leadership 259 Key Policy Reforms 262 Bibliographical Annex 267 Index 381 About the Authors 401 In the foothills of the Himalayas, 100 kilometers north of the birthplace of the Buddha, is the Nepali village of Madanpokhara. It is a long walk from the nearest road. A dirt track winds up the hillside and into the village, passing homes and small outbuildings, temples and teahouses, workshops and stores. Beyond the village center a narrow path leads through the woods to the hilltop, where a white brick building sits close to a tall red mast. This is the home of Radio Madanpokhara. Inside is a simple radio studio, powered by solar batteries and a backup generator. A team of local producers, broadcasting in Nepali and other local languages, mobilize community participation in pro- gramming that is informative and educational as well as entertaining. Radio Madanpokhara broadcasts across a rural agricultural commu- nity in which few people have access to electricity or a telephone. Yet almost every household now has a radio receiver, and the radio, with its network of listener clubs and district correspondents, has become the principal means of local communication and discussion of local development. According to an independent listener survey/ Radio Madanpokhara, on the air since April 2000, contributes to improved agricultural techniques and a reduction in social discrimination, raises awareness of the rights of women, and improves access to news and in- formation. It is also a voice for peace, dialogue, and democracy in the face of conflict and political turmoil. Radio Madanpokhara is just one of thousands of broadcast services worldwide whose contribution to development is both measurable and significant and whose emergence has been a product of political reform 1 Guragain, Prospects for Promoting Equality, Development and Social Justice through FM Radio (Kathmandu: MS Nepal-Danish Association for International Co-operation, 2005). 2 Introduction and of democratic social change. This guide, Broadcasting, Voice, and Accountability: A Public Interest Approach to Policy, Law, and Regulation, was written to illuminate the issues and their impact on civic society such as this. The growth of media, giving a voice to excluded people in most countries and in all regions of the world, and the media's emerg- ing influence in the global struggle against poverty and social injustice, stimulated the production of this guide. A free, independent, and plu- ralistic media environment, offering the means and incentives for the widest participation, can have a profound influence on people's oppor- tunities to access information and services, to understand and be able to exercise their rights, to participate in decisions that affect their lives, and to hold to account those in positions of power and responsibility. This is reflected in a growing recognition, in the context of international devel- opment, of the central importance of effective and inclusive communi- cations systems. The broadcast media, radio and television, have a unique and particular role to play both in enhancing governance and account- ability and in giving voice to poor and marginalized communities. In addition to traditional means of expression, "voice" in this context means the capacity, opportunity, and resources of diverse segments of society to signal government as to their needs and their perception of the quality of governance, to have their views represented in main- stream media, and to develop their own media. Broadcast media, as we argue later, are especially relevant and accessible to remote com- munities, cultural and linguistic minorities, the very poor and illiter- ate people. Policies, laws, regulations, and other public actions that govern the broadcast media are central to their ability to play that role, and they form the main focus of this guide. The guide maps out a public interest approach to fostering free, independent, and pluralistic broadcast media. Its objective is to pro- vide guidance on how to design a policy, legal, and regulatory frame- work that can contribute to the achievement of public interest goals such as transparency of government and accountability to the people, enhanced quality of and participation in public debate, and increased opportunities for marginalized groups to develop and articulate their views. The guide draws from the experiences of a wide range of countries in all regions of the world and is illustrated extensively by country-level examples of policies, laws, and regulations. The guide is intended as a tool for media reform particularly in de- veloping and transitional democracies. At the same time, it should be Introduction 3 useful anywhere people aspire to a deeper democracy. Building democ- racy is a process, often long-term, and promoting free, pluralistic, and independent media should be a central part of it. It should not be left until after the legal system has been transformed or democratic attitudes are in place; rather, it should be part and parcel of efforts tore- form the social and institutional system and to build democracy in all of its aspects. As such, while the guide may not be immediately appli- cable in dictatorships or war zones? it can help inform strategies in countries-such as those in transition or recovering from conflict- where democratic foundations are being set in place. The guide adopts a normative approach-it is about good practice-but two further observations should be made concerning its application. The first is that the media and communications envi- ronment is dynamic, almost everywhere undergoing rapid change. The second is that vast disparities exist not only in the state of media development but also in the pace of change, and these disparities ex- ist both between countries and between different groups of people within countries. Thus the tools themselves do not and cannot offer a "one-size-fits-all" solution and must be regularly reviewed to respond to a changing environment. Part I offers an overview of the rationale for a public interest approach and its role in enhancing governance, development, and "voice." The focus on broadcasting is explained and justified on the basis of its reach and its enduring importance in people's lives. The different broadcasting sectors are described, along with their main trends and characteristics. Part I then turns to a regional review of broadcasting characteristics and trends and concludes by summariz- ing the evidence for an emerging paradigm in broadcasting policy and regulation. The good practice guidelines are set out in Parts II and III. These are not designed to be read end-to-end but to be consulted selectively for issues of interest. To facilitate this navigation, good practices are organized under clear headings that identify and describe features of the policy, legal, and regulatory environment that are critically important for media development in the public interest. While recog- nizing that reform necessarily involves social, political, and institu- tional processes of change that take time and require adaptation to 2 For further discussion on this point see Putzel and van der Zwan, Why Templates for Media Development Do Not Work in Crisis States (London: Crisis States Research Centre, LSE, 2005). 4 Introduction local circumstances and interests, these topics provide a framework that can help guide evaluations of the status quo and provide options for reforms. Part II examines the general enabling environment for media and communications, including standards of freedom of expression and access to information, the use and misuse of defamation law, and gen- eral content rules that apply to all media, including print media and journalists. Part III is dedicated specifically to broadcasting, including the role of regulatory bodies, broadcast content rules, the distinctive sectors commonly referred to as public service, community nonprofit, and commercial private sector broadcasting, as well as the regulation of broadcast spectrum and channels. After short introductions to Part II and to Part III, each chapter is prefaced by a good practice checklist. The elements of good practice are elaborated and explained in the narrative and supported by coun- try examples that illustrate their implementation. These chapters form the core of this guide and offer a tool kit for those involved in analysis, advocacy, and policy making for media and communica- tions reform. The final section of the guide presents a research agenda that is in- tended to address the lack of relevant and systematic data and infor- mation on broadcasting encountered during the process of researching and compiling this guide. It concludes by presenting some options and practical opportunities for development assistance to support a more coherent approach to reforming broadcasting in the public interest. PART I Governance, Broadcasting, and Development he primary purpose of this guide is to describe an enabling envi- T ronment for a public interest approach to media, and specifically broadcasting. Special attention is devoted to how media can enhance accountability in governance and contribute to development and voice, particularly for those who are disadvantaged in society. This chapter defines a public interest approach to media and de- scribes its relationship to governance, accountability, and develop- ment. It explores how such an approach can contribute to good governance, to development, and to wider social and cultural goals. It presents some of the key media characteristics underpinning the public interest approach, as well as a reflection on the wider environ- mental factors that are conducive to this, and a final comment on the normative underpinnings of the guide. In the Public Interest The concept of the public interest in the media stretches back at least to the origins of radio broadcasting in the early twentieth century, with various usages coming into and falling out of favor. An official report produced in Canada, a country still intensely concerned with the public interest in broadcasting policy, quotes several sources to un- derline the difficulty of defining the public idea of the public interest: rest in media is not • It changes over time In broadcasting, a wide array of defi- when viewed from nitions of the public interest have been . rent perspectives. used, ranging from this classic 1960 Oefining it is thus not statement from CBS executive Frank .'straightforward. Stanton: "A program in which a large 6 Governance, Development, and Media 7 part of the audience is interested is by that very fact ... in the public interest" (cited in Friendly, p. 291)/ to this rather more elaborate example from Australian regulator Gareth Grainger: "The public interest is that interest which govern- ments, parliaments and administrators in democratically governed nations at least must accept and reflect in laws, policies, decisions and actions in ensuring peace, order, sta- bility, security of person, property, environment and human rights for the overall welfare of the society and nation who, through constitution and election, allow the individual citi- zen to renew and reflect their agreement and consent to be governed and administered" (1999 Spry Memorial Lecture, p. 9). Grainger then goes on: "After eighty years of broad- casting, the original public interest issues which were seen to be implicit in the use of the broadcasting spectrum remain largely unchanged though our way of expressing them may require some restatement." (p. 43? Thus, ensuring that media can sustain a primary focus on serving the public interest is by no means straightforward; governments and broadcasters have been grappling with it for decades. For, excepting only the most totalitarian states, the space of the media-the techno- logical mediation of communication between people-is occupied by competing sets of interests, none of which unambiguously pursues the widest public In the context of c interest but each of which at times lays interests of differef1. claim to it. stakeholders, a pu interest approach airrt$i;~ In broad terms, governments and ensure that the welfare~;: political parties, private commercial the public as a wholel~.. · entities, and groups in civil society each kept to the fore in the ' relate to media in different ways, seeing formulation and opportunities and threats to their own implementation of legal objectives. Media institutions themselves, policy, and regulatory environment for the media. no matter how large or small, inevitably 1 Fred. W. Friendly, Due to Circumstances Beyond Our Control (New York: Random House, 1967), 291. 2 0ur Cultural Sovereignty. The Second Century of Canadian Broadcasting (Canada, House of Commons, Standing Committee on Canadian Heritage Report, 2003), 518, available at: http://friends.ca/News/Friends_News/archives/articles06110311.asp [source cited for Spry Memorial Lecture, available at: http://wwwjas.umontreal.ca]. 8 Broadcasting, Voice, and Accountability generate internal and external dynamics and interests of their own. Each of society's stakeholders has different general objectives and is endowed with different types and levels of resources. Left to their own devices, the media landscape can meet many public objectives but not, perhaps, the ones most critical to a society at a particular time. In addition to the general ongoing need for an informed public, special circumstances can arise surrounding conflict, economic development, moments of democratic crisis, and growth. Each of these provides justifications for policy and regulation in the wider public interest. The goal of regulation in the public interest and of a specifically public interest approach to media is to tread a path that mediates among these interests, encouraging and offering incentives and, where necessary, imposing obligations and constraints on each group, while evading capture by any specific interests. There is some irony in the fact that those necessarily charged with the primary role of pursuing a public interest approach to media-governments-are also among those with the strongest incentive to skew it toward their own ends. Even with the best of intentions, success in negotiating this balancing act is not at all certain. Given what is at stake for society, however, attempts to get it right merit very considerable effort. Feintuck attempts to gain an overview of a public interest approach and its associated values, 3 and to "define a theoretical and institutional framework both for a meaningful discourse regarding these values and for consideration of policies which are effective in asserting." He identifies a recurring theme among all sectors: The common thread underlying the public interest claims in relation to media regulation can best be described as feeding into the broader constitutional endeavour of effective citizen participation. Effective participation can be equated with in- formed participation, and this in turn requires a diverse range of views to be in circulation and accessible to as wide a range of the population as possible in order to allow for comparison and trian- gulation.4 (emphasis added) 3 Mike Feintuck and Mike Varney, Media Regulation, Public Interest and the Law, 2nd ed. (Edinburgh University Press, 2006), 6. 4 Mike Fein tuck, "Regulating the Media Revolution: In Search of the Public Interest" JILT (1997): 3. Governance, Development, and Media 9 The guide builds on this notion of effective citizenship as central to a public interest approach to media. We deploy the concept explicitly to mark the capacity of media to enhance social, economic, and polit- ical development through improving governance and accountability to the public; building an informed and engaged citizenry; enhancing the inclusion of marginalized groups; and fostering a culture and identity of tolerance, diversity, and creativity. The need to revisit and reevaluate the concept of the public inter- est in broadcasting to suit the present circumstances and needs is a theme of this guide. Drawing on our working definition presented earlier, we The public interest focus in on the potential of the media in approach to media two broad areas: First, we look at the deployed here focu~ contribution that media can make to good especially on its poteii~~ contribution to '· governance and accountability to the governance, to people, and its more indirect relationship development, and to to the development process. Second, culture and identity. beyond governance, we consider the tradi- tion and practice of the deployment of media directly toward devel- opment objectives, as well as the growing influence that media have in broader cultural evolution and change. The public interest cannot be treated as a static, unambiguous concept, even as the notion of the public evolves, as media themselves change sometimes with great speed, and the development needs and circumstances of society change. But these key facets of a public in- terest approach to media-its potential impact on governance, on de- velopment, and on culture-are enduring. Media and Governance Enhancing the prospects for good governance in a development con- text has become a key goal for governments, nongovernment actors, and international organizations in recent years. Although the use of the term governance may vary, there is general agreement that it ex- tends beyond the operations of governments to embrace a broad range of social institutions and necessarily includes consideration of citizens and citizenship. Before embarking on a quest to understand the relationship between media and these desiderata, it is worth pausing to consider the concept of "good governance" itself. 10 Broadcasting, Voice, and Accountability The World Bank defines governance as: ... the traditions and institutions by which authority in a country is exercised for the common good. This includes (i) the process by which those in authority are selected, mon- itored and replaced, (ii) the capacity of the government to ef- fectively manage its resources and implement sound policies, and (iii) the respect of citizens and the state for the institu- tions that govern economic and social interactions among them. 5 The United Nations Development Program (UNDP) emphasizes the articulation of people's interests: Governance is the system of values, policies and institutions by which a society manages its economic, political and social affairs through interactions within and among the state, civil society and private sector. It is the way a society organizes itself to make and implement decisions-achieving mutual understanding, agreement and action. It comprises the mech- anisms and processes for citizens and groups to articulate their interests, mediate their differences and exercise their legal 6 rights and obligations ... d governance is about outcomes and Good governance, according to UNDP, cesses that are is about processes as well as outcomes; processes that are participatory, transpar- >pJrticipatory, transparent, ent, accountable, and efficient, and that in- ·';:;:!lcoountable, and efficient and encompass all majorvalve the private sector and civil society as /groups in society. well as the state? Good governance is also important for development, and considerable empirical evidence now points in that direction. A study by Kaufmann 8 demonstrates not only a high degree of correlation between six governance indicators9 and widely used 5 World Bank, Govemance Matters 2007, at lzttp://info.worldbank.org/governance/wgi2007/. 6 UNDP Strategy Note on Governance for Human Development, 2004. 7 UNDP, Management & Governance Network (MAGNET) (UNDP, 1998). 8 0. Kaufmann, Governance Redux: The Empirical Challenge (Washington, DC: World Bank Institute, 2003). 9 These are: voice and external accountability, political stability and lack of violence, gov- ernment effectiveness, lack of regulatory burden, rule of law, and control of corruption. Governance, Development, and Media tt development indicators, such as per capita income, 10 but also that there is a positive causal effect of good governance on development outcomes. The study argues that poor public governance "has be- come a central binding constraint to growth and development today in many settings" and concludes: ... a country that significantly improves key governance di- mensions such as the rule of law, corruption, the regulatory regime, and voice and democratic accountability can expect in the long run a dramatic increase on its per capita incomes and in other social dimensions. 11 Data presented suggest that growth The evidence is dividends may be as high as 400 percent governance also for a single standard deviation improve- contributes signifi ment in governance, a highly significant development. result. 12 It thus comes as no surprise that the potential role of the media in improving governance and accountability has become an area of in- terest to the international development community. That media can in a general sense promote good governance is not a new idea. Amartya Sen, the Nobel Prize winning economist, has argued consistently and forcefully since the early 1980s that no sub- stantial famine has ever occurred in any independent country with a democratic form of government and a relatively free pressY In an ar- ticle published to mark World Press Freedom Day 2004, Sen draws on his famine research in India: The Bengal famine of 1943, which I witnessed as a child, was made viable not only by the lack of democracy in colonial India, but also by severe restrictions on the Indian press, which isolated even the Parliament in Britain from the misery in British India. The disaster received serious attention only after Ian Stephens, the courageous editor of the Statesman of 1 °Kaufmann, 12, table 2, available at: http://www.worldbank.org/wbi/governance/pdf/ govredux.pdf/. 11 Ibid.,25. 12 Ibid., 26. 13 See, for example, Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: Clarendon Press, 1981) and Amartya Sen, Development as Freedom (New York: Anchor Books, 2000). t2 Broadcasting, Voice, and Accountability Calcutta (then British owned) decided to break ranks by pub- lishing graphic accounts and stinging editorials on October 14 and 16, 1943. This was immediately followed by stirs in the governing circles in British India and by heated Parliamen- tary discussions in Westminster. This, in turn, was followed by the beginning-at long last-of public relief arrange- ments. The famine ended then, but by this time it had already killed millions. 14 Both UNDP and the World Bank include media among the institu- tions and mechanisms that can contribute to good governance, in the above definitions and elsewhere. Media can fulfill several critical tasks in the context of governance and reform, overlapping with and reinforcing other factors such as access to information and freedom of expression. Pippa Norris, when director of the UNDP's Democratic Governance Group, summed up three key roles for the media in con- tributing to democratization and good governance: as a watchdog over the powerful, promoting accountability, transparency and public scrutiny; as a civic forum for political debate, facilitating informed electoral choices and actions; and as an agenda-setter for policy mak- ers, strengthening government responsiveness for instance to social problems and to exclusion. 15 Media can achieve such an impact, in the right circumstance, through their direct and indirect influence on a number of key pa- rameters of governance: curbing corruption and improving account- ability and transparency, enhancing informed participation in the political processes, and facilitating and reinforcing more equitable and inclusive policies and actions. Though there has been little systematic evaluation, a wealth of in- dividual cases point to the role of the media in exposing corruption, recognized as a key constraint to development. In Peru, investigations critical of then-president Alberto Fujimori were first brought to light by the print media. Investigations exposed 14 Amartya Sen, "What's the Point of Press Freedom?" (Paris: World Association of News- papers, 2004). 15 Pippa Norris, A Virtuous Circle (Cambridge: Cambridge University Press, 2000). Cited in Pippa Norris, The Role of the Free Press in Promoting Democratisation, Good Governance and Human Development (paper delivered at UNESCO World Press Freedom Day conference in Colombo, Sri Lanka, May 1-2, 2006), 4. Governance, Development, and Media 13 a pattern of wrongdoing and corruption Examples abound involving death squads, the military, and media exposing links between drug barons and political and vote rigging .• elites. These were followed, spectacularly, in 2000, by the broadcast over cable televi- sion of videos secretly taped by Peru's head of security, showing votes being bought with bribes. Pujimori resigned immediately after the broadcast. 16 In Sierra Leone, the series Mr. Owl, reporting on local police corruption, was carried on private radio stations KISS-PM, in Bo, and SKY-PM, in PreetownY The coverage resulted in wage increases for the police and the establishment of a police community affairs department. The transparency of Ghana's 2000 election results was due in part to the efforts of the country's many private radio sta- tions. Staff monitored the polls, and their reports of irregularities, alongside those of citizens, were broadcast, making it difficult to rig voting and enhancing the credibility of the results. 18 In Bangladesh, since the restoration of democracy in 1991, the media have played a central role in exposing corruption in the financial and banking sys- tem, in building permissions granted by corrupt officials, in wide- spread arsenic contamination, and in numerous other areas. 19 The issue is also one of accountability. Media enhance the accountability of government and other powerful actors through uncovering and publicizing the chain of logic, decisions, and events that lead to ... improving specific outcomes, especially outcomes accountability by that run counter to the public interest. The decision making identification of those responsible and the and identifying involved ... processes involved inherently increases accountability, and the anticipation of such identification can contribute to more responsible decision making and a positive outcome for the public interest. 16 UNDP, Human Development Report 2002: Deepening Democracy in a Fragmented World, 76. 17 See Sierra Leone: Using radio to fight corruption, available at: http://www .developingradiopartners.org/caseStudiesjsierraLeone.html. 18 UNDP, Human Development Report 2002: Deepening Democracy in a Fragmented World, 76. 1 ~ahfuz Anam, "The Media and Development in Bangladesh," Ch. 15 in The Right to Tell: The Role of Mass Media in Economic Development (WBI Development Series, 2002). t4 Broadcasting, Voice, and Accountability Transparency, however, has pervasive consequences. As Nobel Laureate and for- enhance mer chief economist at the World Bank Joseph Stiglitz argues, "openness is an es- sential part of public governance." 20 Using Hirschman's argument on "exit" and "voice" 21 he makes the point that governments benefit when citizens exercise voice. Especially where people cannot signal dissatisfaction through exit (unlike in competitive goods markets, the government holds a monopoly in public services), it is through informed discussion and interaction on the policies being pursued-voice-that dissatisfaction can be articulated and effective governance exercised. Full transparency is critical to this. Furthermore, information asymmetries in government and between it and the pub- lic lead to inefficiencies and poor management decisions. Transparency, Stiglitz notes, depends on a number of factors, such as freedom of information legislation and public information institutions "designed to ferret out information for the benefit of the public ... The press is among the most important of these informational institutions." 22 Apart from their role in public accountability and transparency, the media can also play a critical part in the democratic processes at the heart of good governance. One of the outcomes of this is "agenda setting" in the form of strengthening government responsiveness, but it goes well beyond it. Media can provide the means by which people can speak out and participate in political debate, creating a crucial space in which pub- lic deliberation on matters of concern can take place. This provides op- portunities for people to articulate their concerns and ideas to one another and to government, a role that is particularly important for poor and marginalized groups. Media thus has the potential to foster a "civic forum" or, as described by philosopher and sociologist Jiirgen Haber- mas, a "public sphere": "a network for communicating information and points of view" 23 in which issues affecting the society and community can be explored openly and rigorously and "filtered and synthesized in such a way that they coalesce into ... public opinions." 24 20 Joseph Stiglitz, "Transparency in Government," Ch. 2 in The Right to Tell: The Role of Mass Media in Economic Development (WBI Development Series, 2002), 31. 21 A. 0. Hirschman, Exit, Voice and Loyalty: Responses Top Decline in Firms Organisations, and States (Cambridge, MA: Harvard University Press, 1970). 22 Stiglitz, 40. 23 Jiirgen Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996), 360. 24 Ibid. Governance, Development, and Media 15 Thus media have the potential not simply to influence govern- ment agendas, but to reinforce the overall capacity of society to con- stitute political discussion and debate, and to enhance the participation of people, including marginalized groups, in the process of governance. This impact may occur in small ways- the radio stations in Sierra Leone mentioned earlier carried a voter education series called Democracy Now that resulted in higher voter turnout in their listening areas than in other parts of the country. 25 But over time and in the right circumstances, the media can also help to build the practices and culture of democracy and good governance within society as a whole. Media beyond Governance Beyond governance, media are implicated in several dynamics that can combine and intersect to reinforce development and overall social well-being in different ways. Particularly relevant is the role of media in the long tradition of communication for development, and the grow- ing influence that media have in value formation, and cultural evolu- tion and change. Media have long been regarded by those in the field of commu- nication for development as tools that can be deployed to promote developmental change, but they were for the most part considered in- dependently of media policy and regulation processes. Thinking about how media can be used, and to what specific ends, has nevertheless shifted sig- Media are also nificantly over the years. In the early days, development, used to empower many in the field understood media marginalized mainly as a top-down tool for the dissem- through bottom·up ination of information. The challenge was participation. to convey development "messages" on di- verse subjects such as health awareness, disease prevention, agricul- tural practice, water management, or environmental responsibility. Recently, the emphasis has shifted to the empowering potential of media as a bottom-up means for promoting participation in society and political life, especially in marginalized communities. 25 See Sierra Leone: Using radio to fight corruption, available at: http://www .developingradiopartners.org/caseStudies/sierraLeone.html. 16 Broadcasting, Voice, and Accountability From this perspective citizens require not only access to informa- tion but also the ability to consult, respond, and engage with leaders and opinion makers-to have voice. Citizens need access to the means of communication and voice in order, also, to be able to speak with one another, to discuss their conditions and aspirations, and to develop the capacity for engagement and for action to improve access to services and rights under the law. The approach values local knowledge, it respects local cultures, and it puts people in control of the means and content of communication processes. 26 The groundbreaking study Voices of the Poor27 set out to listen to poor people's own voices on the experience of poverty. It took as its starting point a recognition that poor people's own views have rarely been part of the policy debate. The study noted that poor men and women are acutely aware of not having their voices heard, of their lack of information, and of their lack of contacts to access informa- tion. The study reports how poor people across the world discuss how this puts them at a disadvantage in dealings with public agen- cies, nongovernmental organizations (NGOs), employers, and traders. The results of the study have informed new thinking on empowerment and participatory approaches precisely by showing how inclusion, access to voice, and access to information can promote social cohesion and trust, enable informed citizen action, and improve the effectiveness of development. 28 Communication for social change is a process of public and pri- vate dialogue through which people determine who they are, what they need, and what they want in order to improve their lives. It has at its heart the assumption that affected people understand their realities better than any "experts" from outside their society and that they can become the drivers of their own change. 29 Evidence of the effectiveness of these approaches comes primarily from qualitative analysis, including ethnographic studies, 26 Alfonso Gumucio-Dagron, Roots and Relevance: Introduction to the CFSC Anthology, in Alfonso Gumucio-Dagron and T. Tufte, eds., Communication for Social Change Anthology: Historical and Contemporary Readings (New Jersey: Communication for Social Change Consortium, 2006). 27 Deepa Narayan, Robert Chambers, Meera Kaul Shah, and Patti Petesch, Voices of the Poor: Crying Out for Change (New York: World Bank/Oxford University Press, 2000). 28 Deepa Narayan, Empowerment and Poverty Reduction: A Sourcebook (Washington, DC: World Bank, 2000). 29 Ibid. Governance, Development, and Media 17 participatory evaluation, and other research methods that are con- ducive to more process-oriented than output-oriented approaches. A number of studies in the field have drawn particular attention to the role that local and community-based media can play in empowering and enabling the participation of people and communities facing ex- clusion and marginalization. The Rockefeller Foundation report Mak- ing Waves: Stories of Participatory Communication for Social Change 30 compiled 50 case studies and draws extensively on stories of commu- nity radio and television projects to provide a vivid account of people and communities appropriating media as means of empower- participatory ment, self-reliance, and mobilization for de- to media can velopment and social change. It provides a communities by strengthening wealth of evidence of the positive impact of demOCratiC nrr\f'C•OCO• community-based media on people's real especially for lives. The report concludes that the commu- groups, can nication for social change model has two crit- esteem, protect ical implications for participation in values, and facilitc::tte"CI"le development that are related to issues of integration of new elements. power and of identity: An issue of power. The democratization of communication cuts through the issue of power. Participatory approaches contribute to putting decision making into the hands of the people. It also consolidates the capability of communities to confront their own ideas about development with develop- ment planners and technical staff. Within the community itself, it favors the strengthening of an internal democratic process. An issue of identity. Especially in communities that have been marginalized, repressed, or simply neglected for decades, participatory communication contributes to ... cul- tural pride and self-esteem. It reinforces the social tissue through the strengthening of local and indigenous forms of organization. It protects tradition and cultural values, while facilitating the integration of new elements. 30 Alfonso Gumucio-Dagron, Making Waves: Stories of Participatory Communication for Social Change (New York: Rockefeller Foundation, 2001). 18 Broadcasting, Voice, and Accountability A second area of particular relevance is the increasingly important role that media play in the development and evolution of cultural forms, identity, and diversity. Beyond the idea of disseminating information, entertainment, or even education, media's deeper cul- tural role has been the subject of considerable interest and study. A high-level European Commission report concluded: The role of the media goes much further than simply provid- ing information about events and issues in our societies or allowing citizens and groups to present their arguments and points of view: communication media also play a forma- tive role in society. That is, they are largely responsible for forming (not just informing) the concepts, belief systems and even the languages-visual and symbolic as well as ver- bal-which citizens use to make sense of and interpret the world in which they live. Consequently, the role of commu- nication media extends to influencing who we think we are and where we believe we fit in (or not) in our world: in other words, the media also play a major role in forming our cultural identity. 31 The impact on the individual of extensive viewing of television may even exceed that of his or her immediate context. A leading interna- tional expert on the effects of television, George Gerbner, argued that heavy media consumers begin to articulate a view of the world di- rectly derived from that of the media, even if the media world to which they are ex- the individual, can influence posed is somewhat removed from the real- beliefs and the ities of their own daily lives. 32 identity of society, The influence of the media does not ·'""'"'T'""'r it will be, for remain only, or even primarily, at the level open, tolerant of the individual. Communications scholar creative. James Carey points to the "ritual" effect of 31 European Commission, Report from the High Level Group on Audiovisual Policy, chaired by Commissioner Marcelino Oreja (Brussels: European Commission, 1998) 4-5. 32 George Gerbner, "Living with Television: The Dynamics of the Culturation Process," in J. Bryant and D. Zillman, eds., Perspectives on Media Effects (Hillside, NJ: Lawrence Erlbaum, 1986), 17-40. Governance, Development, and Media 19 the media's ability to sustain beliefs and relationships among those it reaches. In his view: . . . communication is linked to such terms as sharing, participation, association, fellowship and the possession of a common faith ... A ritual view is not directed towards the ex- tension of messages in space, but the maintenance of society in time; not the act of imparting information but the repre- sentation of shared beliefs. 33 Such shared beliefs are central to the nature of culture in a given society, whether it is open and tolerant, and whether it encourages creativity and diversity. In developing countries, a role for media has sometimes been articulated as that of "nation building," creating a common sense of identity, and contributing to a consensus on the type of nation that is being strived after. A cultural frame emphasizes also the contribution of diversity and a commitment to pluralism 34 and to ensuring that all cultures are respected equally and are repre- sented in media. Such an approach is particularly relevant to media in countries with large communities of marginalized groups and indigenous peoples and where traditional structures and belief systems are undergoing rapid change and evolution. Key Features of Communication and Media A public interest approach to media policy focuses on strengthening media's contri- Reaping the public interest bution to good governance and account- media requires, a ability, to participatory communication for the presence of a development, and to cultural pluralism of key features of and social agency. These policy objectives media environment. can reinforce each other. Enhanced account- ability and governance can help engender an environment for more participatory media, and thus give voice to marginalized 33 James W. Carey," A Cultural Approach to Communication," in J. W. Carey, Communica- tion as Culture. Essays on Media and Society (Boston: Unwin Hyman, 1989), 18. 34 The Report of the World Commission on Culture and Development, Our Creative Diver- sity (UNESCO 1995) puts forward the notion of "cultural freedom" as the "right of a group of people to follow or adopt a way of life of their choice ... the condition for indi- vidual freedom to flourish," 25-26. 20 Broadcasting, Voice, and Accountability communities. Greater voice in turn enables a more informed and active citizenry, thereby enriching the governance process. Cultural tolerance and pluralism are reinforced by a commitment to diversity of media content, and informed participation encourages more equi- table and inclusive policies. Yet a positive relationship between media, governance, and de- velopment is by no means inevitable. Beneficial impacts can be real- ized only with the presence, at least in significant part, of a distinct set of media characteristics set within a supportive enabling environ- ment, including, but not limited to, polices, laws, and regulations. Among the most important of these are, at a general level: freedom of expression and ready access to information and, relating more specif- ically to media, independence from vested interests; a wide diversity of media ownership and content; a broad reach within society; and a sustainable resource base. This guide expands upon this essentially simple theme. Respect for the right to freedom of expression in society is fun- damental to the capacity of media to deliver on governance and development, and a free press is a touch- feature: Respect stone of democracy and good governance. right to freedom of With good reason: constraints on investi- is a primary gating and reporting on matters of public interest can severely compromise almost every aspect of media performance and impede its ability to sustain and promote good governance. Freedom does not, however, imply absolute license. Every country imposes some limitations on what may be published or broadcast. It is nowhere considered legitimate to spread malicious lies attacking someone's reputation, and most countries ban incite- ment to hatred, for example, on the basis of race or ethnic origin. An appropriate balance between the various competing rights and inter- ests is vital to protecting media freedom, and unduly restrictive laws can seriously inhibit the ability of the media to service the public interest. Second, ready and timely access to in- key feature: Ready formation of public interest, from both access to public and private sources, is critical to of public the effective operation of media in rela- is essential. tion to its various roles in governance. Governance, Development, and Media 21 Accountability of those in power relies heavily on being able to source and retrieve information concerning decision-making processes; but efficiency of public decision making is enhanced when the basis of such decisions is open to public scrutiny and debate. Information flows through media can also improve resource allocation and are invaluable to the efficient operation of markets. 35 Third, there is often a mix of media and media types in society (and this is increasingly the case), with various media performing various functions. As a whole, media must be independent, able to pursue their activities free from undue influence of special interest groups. Media Third key feature: function best when this variety is in full independence is vlt blossom: public service, commercial, community, and others. Where media are wholly controlled by government or by powerful commercial interests, their overall capacity to contribute to a democratic political space is compromised. The absence of media independence has a predictable impact on the media's ability to deliver accountability: at a minimum, the watchdog role fails in relation to the controlling owner. When the controlling owner is the government, the implications will by defini- tion be serious. Too close a relationship to government will also pose serious problems in terms of the ability of the media to facilitate par- ticipation and to contribute to the empowerment of citizens. Partici- pation depends on the ability to ventilate criticism of government publicly through the media, and this will without doubt be impeded by government control. When media are controlled by an oligarchy of private players the result may well be similar. Although some own- ers do not interfere editorially, ownership always implies a degree of actual or potential control and can be an important obstacle to pluralism and diversity. A common way to tackle this is to intro- duce measures to limit concentration of ownership. Fourth key Fourth, media content must reflect, must reflect and even enhance and stimulate, the diversity the full diversity of society. of views in society. Media diversity 35 World Bank, World Development Report 2002: Building Institutions for Markets (2002), 189. 22 Broadcasting, Voice, and Accountability requires a wide range of content that serves the needs and interests of different audiences and purposes. Media content should address the interests not only of urban elites, but also of the urban and rural poor, minorities, and other marginalized groups. It should reflect the dif- ferent cultures, belief systems, and aspirations of minorities as well as majorities and do so in a nonpartisan manner. Similarly, promoting accountability is premised on the idea of a media sector that, as a whole, focuses on the full spectrum of issues of public concern, including coverage of a wide range of views and of actors, not just officials but also other powerful social actors. Fifth, effective media must achieve broad reach into society, being available and accessible to all economic, social, and cultural groups and over the widest territorial area. Fac- feature: All tors that differentially affect the reach of society must be various media can include high rates of il- able to access literacy, a multiplicity of languages and numerous indigenous peoples, remote- ness from urban areas, difficulty of terrain, poor transport and telecommunication networks, the cost of media equipment, includ- ing receiver sets, and the absence of electricity. Ensuring diverse me- dia are accessible to those on the margins, socially, culturally, economically, and geographically, can be a major challenge but is nevertheless essential if the entire population, or very close to it, is to be included and given voice. Finally, a sustainable resource base is a sustainable critical to effective media. An adequate and institutional and sustainable financial base is vital to is required. fulfilling many of the media's functions, such as the more resource intensive activities of investigative report- ing and current affairs. Some sources of funding carry inherent risks: the possibility of withholding public funding gives leverage to governments to influ- ence media; whereas advertisers may use their ability to switch to other outlets to gain more favorable coverage. Insufficient resources exacerbate dependence on funding sources, whether public or pri- vate, and increase the risk of partisan influence or of external or self- censorship. Media in developing countries, with limited access to investment and revenues, can find it especially difficult to balance the needs of economic viability, independence, and diversity. Governance, Development, and Media 23 Sustainability, however, goes beyond economic considerations to include social and institutional dimensions. 36 Social sustainability refers to relations between a broadcaster and the community or audi- ence it serves, including its credibility in the eyes of that community. The consequences of a loss of audience support on a commercial broadcaster can be directly measurable in terms of revenue. Public service and community broadcasters have specific obligations to the communities or audiences they serve, and their loss of social support, measured in audience share or public attitudes, can seriously impact on their sustainability, including their ability to justify access to pub- lic funding and other resources. Institutional sustainability refers to the structural relations that drive the operation of a broadcaster. Transparent and effective gover- nance of a public broadcaster, for example, is central to its credibility and its ongoing ability to operate. For community broadcasters, par- ticipation by and accountability to their community are important conditions of success. Similarly, commercial broadcasters also need efficient and effective management structures to achieve their business objectives. The Wider Environment These key features are enmeshed in The wider An'"'rt>nn broader processes of political and institu- also important to 0 tional development. Laws and related engendering policies can be the equivalent of wall- conducive to a paper-decorative but hardly a reliable interest approach indicator of what is actually happening be- media. neath the surface. In too many states me- dia policies are affirmed in an expansive moment but implementation does not live up to the stated aspirations. A key factor is a culture of respect for, and general adherence to, the rule of law. This requires an effective judiciary. Without an enforcing arm to maintain the protections of the law, attempts to im- plement a positive legal and regulatory environment could even prove to be futile. 36 Alfonso Gumicio-Dagron, The Lucky Cloverleaf: Four Facets of Communication for Develop- ment and Sustainable Social Change (commissioned for this study}, 15-17. 24 Broadcasting, Voice, and Accountability The rule of law embraces a number of principles, including the existence of a developed hierarchical framework of laws with the constitution at the pinnacle, broad respect for these laws and their application in a nondiscriminatory manner, a separation of executive functions and judicial functions, and respect for and action on judicial decisions. Many examples illustrate how the ab- ah"'"'''""' of the rule of sence of the rule of law can thwart the achievement of public interest goals in the media environment. A study in 2000 by the International Bar Association, for ex- ample, highlighted serious problems with judicial independence in Malaysia in political cases, in contrast to good respect for the rule of law in business cases. 37 As a result, laws on defamation and sedition, along with regulatory controls over the media, were abused to silence criticism of government and to prevent the exposure of corruption and other wrongdoing. In Zimbabwe, the supreme court has struck down laws restricting freedom of expression as unconstitutional on a number of occasions, breaking a government monopoly on providing telecommunications services, 38 striking down a prohibition on publishing false news/ 9 and ruling out the government broadcasting monopoly. 40 In some cases, for instance the ending of its broadcasting monopoly, the government has simply refused to implement those decisions. The absence of the rule of law thus greatly increases the risk of regulatory failure, irrespective of the quality of the regulatory regime, by potentially undermining its independence and thwarting 37 See Justice in Jeopardy: Malaysia in 2000 (London: Human Rights Institute, Inter- national Bar Association, 2000), available at: http://archive.ibanet.org/general/Find Documents.asp. 38 Retrofit (Pvt) Ltd v. Posts and Telecommunications Corporation and Anor, 4 LRC (1996): 513. 39 Chavunduka and Chota v. Minister of Home Affairs and Attorney-General, Judgment No. S.C. 36/2000 (May 22, 2000). 4 °Capital Radio (Pvt) Ltd v. Minister of Information, Posts and Telecommunications, 22 Judgment No. S.C. 99/2000 (September 2000). Governance, Development, and Media 25 its actions. Furthermore, a legal system that allows corruption, once exposed by the media, to continue with impunity greatly limits the extent to which such media can effect change. A number of other factors are also important to a healthy media, including associated institutional support. Robust and effective professional associations can significantly reinforce media efforts to remain independent and enable the emergence of effective self- regulatory institutions to complement government regulation with media codes and standards. Trade unions can strengthen the hand of journalists and other media workers in producing unbiased, high quality content and defend the practice of impartial journalism against sectional interests. Training organizations can build the capacity and professionalism of media workers. A formal press is hollow in the absence of creative talent, disposed toward exercising its skills, and the means to educate and train them to a high standard. The absence of material needs for a free press, including such basics as newsprint The capacity to or the availability of broadcast channels of material needs, newsprint, the . distribution, can have a serious effect on of distribution society as a whole. In the case of newspa- and outlets, and pers and magazines, creating a fair and advertising markets, open system of newsstands and other important. means of delivery is essential. Media mon- itoring and market research organizations can facilitate the growth of advertising. And government can create appropriate incentives through tax policies, incentives, and other means. Finally, the impact of good quality media policy and law depends ultimately on how well such laws and policies are implemented in practice, and this guide principally focuses on legal and policy frame- works rather than on the role of government, judiciary, civil society, and other actors in ensuring effective implementation. Such a focus on implementation, however, is critical and should be a major con- cern for users of this guide. All of these factors matter, and governments can take measures to establish or reinforce them. In Parts II and III reference is made to these at appropriate places. 26 Broadcasting, Voice, and Accountability Normative Underpinnings and an Emerging International Consensus that underlie This guide focuses on the relationship I.DPrOctCh Qf this guidebetween broadcasting and the public in- terest. It is specifically concerned with how policy frameworks can most effec- tively enable media to hold authorities to account in the public inter- est, provide fora for informed and inclusive public debate, and help underpin effective governance. In short, it is focused on the relation- ship between broadcasting and society. This guide takes an analytical approach to these issues, seeking to enable policy makers and other users to adapt the analyses and ex- amples highlighted here to their own specific contexts. However, as its title suggests, the authors adopt normative perspectives, and it might be useful to explicitly articulate the critical role of the underlying values. Much of the guidance provided is rooted in international law and acknowledged-and sometimes codi- fied-good practice, but some of it emerges from the authors' own experience and assessment, and that experi- ence itself is rooted in a set of specific values. First, the guide argues for and is located within a framework of democratic governance, where the role of the media is a critical part of the checks and balances that enable democratic systems to function in the interests of their people. This approach argues that democracy can be neither effective nor sustainable without a vibrant media ca- pable of acting in the public interest. Second, it is located within a frame- work of human rights, where the rights of the individual are fundamental not sim- ply because they are useful to society (e.g., in providing a check on government), but because they are inherently valuable and worth upholding. Third, it argues that the systems of government that regulate the role of the media within a society will and should be adapted to the contexts of such a society, Governance, Development, and Media 27 and that this guide is not designed to provide a universal set of policy prescriptions. Instead, it provides a set of examples, norms, and standards that make up a public interest approach to media policy and regulation and that can be applied and adapted in various contexts. Fourth, the authors acknowledge that The idea that much of the debate on the role of the media communication isa,o in governance is not principally technical, that does not stop but political, in nature. It is focused on who freedom of expre5$i in society can have their voices heard in emerged during the public and political debate, and who can ex- and early 1980s and ert communicative power in society. People resonates today. living in poverty face huge challenges in having their voices heard and the authors believe that building effective public interest media is a critical component in enabling democratic and peaceful development that advances the interests of people living in poverty. Many concerns regarding media raised in this guide are long standing, and the history of debate on them has not always been a happy one. Although this guide focuses on national level policy and regulatory frameworks, debate at a national level is influenced, both historically and currently, by debate at an international level. Issues of excessive government influence; of media acting for narrow com- mercial-rather than the public-interest; of concentration of media ownership; of lack of diversity and plurality of media; of lack of reach or content of media related to people living in poverty: all these and others highlighted in this guide have a long history of debate and argument, much of it highly polarized. Even relatively recent history has seen very different approaches to understanding the effects of media on development processes. As broadcast media went through a wave of internationalization during the 1960s and 1970s, various disputes and differences emerged, some- times from significantly different value perspectives. The issue of direct satellite broadcasting of signals across borders became a major issue in the late 1960s and early 1970s, and provoked cultural, commercial, and political concerns among many developing countries, though the con- sequence was the virtually open skies of today. The most heated debate occurred in the late 1970s and early 1980s and concerned what was called the New World Information and Communication Order (NWICO); 28 Broadcasting, Voice, and Accountability it resulted in a special commission being established by UNESCO to consider global problems relating to communicationY Many in the developing world, and elsewhere, believed that building a post-colonial world required a reconsideration of global dynamics and structures-even global governance of communica- tion-to ensure, among other matters, "more justice, more equity, more reciprocity in information exchange ... ". 42 Proponents of mar- ket solutions, including major commercial media interests and the U.S. government, virulently opposed many of the regulatory impli- cations of NWICO, arguing that they violated basic free speech inter- ests. Distorted by the politics of the cold war, genuine debate was reduced to rancorous argument, and the bitter aftertaste continues even today. So intense was the feeling, that the United States and the United Kingdom withdrew from UNESCO over the issues (and only recently have returned). One strand in this debate, in some respects an attempt to bridge the gap between the sides, focused on the idea of communication as a right. Initially raised in the early 1970s, the argument is that in the context of the massive growth in modes and technologies of commu- nication, a right to communicate should be established to deepen freedom of expression and lead to more intensive, respectful, and interactive dialogue between people and groups in society. More recently, the idea of a right to communicate-or, less formally, of com- munication rights-had some influence on media debates at the World Summit on the Information Society. 43 Several factors suggest that international debates over the role of media in development can become more constructive than they have in the past. The cold war is over and international power dynamics are more complex and multifaceted as a result. Democracy is more firmly rooted in many countries than it was in the 1980s, and the 41 International Commission for the Study of Communication Problems delivered its report Many Voices, One World, to, and was endorsed by, the 1980 UNESCO General Assembly. 42 Preface to the Many Voices, One World, President of the Commission, Sean MacBride (UNESCO, Paris, 1980), xviii. 43 Rainer Kuhlen, "Why Are Communication Rights So Controversial?" In Heinrich Boll Foundation, ed., Visions in process. World Summit on the Information Society Geneva 2003-Tunis 2005 (2004). Also in World Association for Christian Communication (WAC C) publi- cations 2004/3, available at: http://wacc.dev. visionwt.com/wacc/our_work/thinking/communication_ rights/why_are_communication_rights_so_controversial. Governance, Development, and Media 29 importance of media in development is more universally acknowl- edged than it has been in the past. Perhaps above all, nearly all actors (at least outside of government) argue that freedom of expression is a fundamental and nonnegotiable foundation stone for all debate in this area, and that much of the debate on public interest approaches to media must focus on enabling people living in poverty to realize and exercise their rights to freedom of expression, rights that are impossible to exercise without the creation of platforms through which they can communicate. 44 44 A meeting held at the Rockefeller Foundation's Bellagio Centre in 2003 brought together a group of media actors with highly diverse views and backgrounds to assess the degree of consensus on issues regarding media freedom and poverty. The resultant statement suggests agreement on many key issues. See Bellagio Statement on Media, Freedom and Poverty, available at: http://www.panos.org. uk/global/Rprojectdetails.asp? ProjectiD= 1033&ID= 1002&RProjectiD= 1058. Although much of the good practice discussed in Part II of this guide is relevant to all media, the overall focus of the guide is primarily on the traditional broadcast media (i.e., radio and television). In an era in which ever more attention, not least in the media, is devoted to new media, including the multiple forms generated by the Internet, and in which the print media continue to confound premature pre- dictions of their demise, this deserves an explanation. The rationale is both substantive and practical. Factors that influenced the decision to limit the scope of the guide in this way are outlined in this chapter and serve as an introduction to the subsequent sections in which the main types of broadcasting and their dynamics and interrelationships are described. A Focus on Broadcasting Broadcasting retains a position of enormous influence over social, cultural, and political life in nearly all parts of the world for a num- ber of reasons. Table 2.1 compares Internet and telephone access with television (including home satellite) and radio. Although it might reasonably be con- cluded that high income people can obtain much of their information and media over the Internet, this is certainly not the case in lower and television are and lower middle income groups. Here radio with the greatest and television (only a small proportion watch especially among home satellite) are the primary media outlets. people ... Given that communal viewing and listening 30 Broadcasting Sectors and Types 31 TABLE 2.1 Total per 100 Population of: Internet Subscribers; Telephony Subscribers; Television Sets; TV Home Satellite as a % of Total Televisions; and Radio Sets Phones Television % TYs with Radio Internet: (fixed+ Mobile): Sets: Latest Home Satellite: Sets: Latest 2004 2004 Figures Latest Figures Figures Low income 2 7 8 3 16 Lower middle income 8 44 32 12 37 Upper middle income 16 69 37 9 48 High income 53 131 74 22 74 Source: lTU World Telecommunication Development Report 2006, Table 1, 19. (Radio figures calculated by weighting the radios per 100 population by population.) are far more common in poor countries than in wealthy ones, the actual proportion of the population that consumes radio and television is likely to be considerably higher than the proportion that owns a set. Furthermore, radio and television coverage in 2002 (i.e., the population living in areas that can receive a signal) was 96 percent and 83 percent respectively. 1 Directly comparable figures for print media and Internet are unavailable. However, Table 2.2 suggests that, with a few exceptions, especially in countries in transition, newspaper circulation is well below the figures for radio. A recent comprehensive survey of television in twenty European countries, all but four being transition countries, terms of concluded the following: 2 ... despite the rapid expansion of the Internet, television has maintained its ... television massive appeal to viewers worldwide. rising, and is t Over the past ten years, television- most influential, watching has been on the rise, and in information in man~ 2003 the average viewing time in Eu- regions .... rope was more than three hours a day 1 ITU, World Telecommunication Development Report (Geneva, 2003). 2 The countries included were: Albania, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Hungary, Italy, Latvia, Lithuania, Poland, Republic of Macedonia, Romania, Serbia, Slovakia, Slovenia, Turkey, and United Kingdom. View- ing data was unavailable for the first two. 32 Broadcasting, Voice, and Accountability TABLE2.2 Newspaper circulation per 100 population (most recent figures) World Press Trends, WAN, 2004 Countries in Transition Latin America Bulgaria 47 Ecuador 14 Ukraine 27 Costa Rica II Slovenia 21 El Salvador 6 Estonia 20 Argentina 6 Czech Republic 19 Brazil 5 Latvia 18 Dominican Republic 4 Hungary 18 Colombia 4 Serbia-Montenegro 16 Uruguay Croatia 14 Asia Belarus 13 Malaysia 18 Poland 13 China 9 Slovakia 12 Pakistan 8 Macedonia 10 India 4 Romania 7 Sri Lanka 4 Bosnia & Herzegovina 3 Indonesia 3 Sub-Saharan Africa Mongolia 2 South Africa 4 North Africa Zambia I Egypt 4 Uganda 0.6 Tunisia 3 Tanzania 0.3 Morocco 2 Figures are rounded to nearest unit. ... the average viewing time for adults increased ... in CEE [Central and Eastern Europe] from 208 minutes in 2000 to 228 minutes in 2003. 3 Furthermore, "although in some coun- in Africa remains important of all tries overall trust in the media has declined especially in ruralin recent years, all country reports in this re- where most people search confirm that television is still the main source of information for the popula- tion ... " 4 and is "widely considered to be the most influential medium in forming public opinion."5 A study covering twenty countries in Africa found that, in contrast to transition countries: radio dominates the mass media spectrum ... Television is less widely available, especially in rural areas. Newspapers remain concentrated in urban centres with varying growth patterns across the countries. In the new media sectors, the 3 0pen Society Institute, Television across Europe: Regulation, Policy and Independence, vol. 1, (2005), 39. 4Jbid., 40. 5 Ibid., 21. Broadcasting Sectors and Types 33 adoption of mobile telephony has been the most spectacular, far exceeding uptake of the Internet. 6 The dominance of broadcasting is not surprising: Broadcasting- particularly radio broadcasting-is low cost, easy to use, and readily accessible. It is also the case that broadcasts do not privilege the literate. This ac- cessibility is a considerable asset, given that adult illiteracy is 38 percent in low-income countries, where 37 percent of the world's population live, and of course the incidence is much higher among the poorest in these countries? Further, broadcasting can most easily speak to marginalized cultural groups in their own languages. Radio is particularly accessible in f inancia1 terms. A ch eap ra d io receiver ... radio does not the literate, and is l today costs only two or three dollars and, cost, easy to use, for many of the world's poorest people, it readily accessible. a is the only source of news and information beyond word-of-mouth communication. It does not require electric- ity, or even batteries in the case of wind-up models. Significantly, in terms of its potential for widespread small-scale use, and the poten- tial for community participation, a radio station can be established for as little as US$1,000 and has very low running costs. Where broadcasting is not only informative but also participatory, it can help to build capacities that contribute to a healthy governance environ- ment, cultivating collaborative leadership capabilities, self-confidence, and collective engagement. The audience, including those who are otherwise marginalized and without voice, can contribute to setting the agenda, ex- press themselves, influence their community or society, and call for govern- ment action. A critical mass of such programming promotes an effective two-way flow of information between the government participative, it can: and the people that serves not only to promote promote the two-w better-designed policies and more-effective of information b implementation of projects but also to high- people and govern~ 1 light flawed development initiatives, wrong- and can be a building ',:;, doing, or government policies or programs block for deliberative '~!'~>,, democracy. that can harm the poor. 6 African Media Development Initiative (AMDI), Research Summary Report (BBC World Service Trust, 2006), 13. 7 World Bank, World Development Report 2007: Development and the Next Generation (2007), table 1. 34 Broadcasting, Voice, and Accountability Community-based and some public service broadcasters, in par- ticular, tend to be highly participatory and to encourage immediate feedback and discussion over the airwaves. They can enable commu- nities to develop and sustain the knowledge, aptitude, and critical- thinking skills for the broad-based citizen engagement that is fundamental for participatory development. As such, they are a building block for a culture of deliberative democracy. In short, the vigor and reach of the broadcasting sector are particu- larly important in the context of developing countries, where the bulk of the population may be illiterate or semiliterate, and where large numbers of people may be isolated from news, information, and pub- lic discourse. 8 Newspapers are often accessible only to the educated elite and available only in large towns and cities. The Internet, even when available, lacks the capacity and flexibility of broadcasting, especially radio, to accommodate cultural and linguistic diversity. 9 Overall, broadcasting retains a central role in social, cultural, and political life, especially in those sections of the world and among those communities that can benefit most from enhanced governance and development. However, a practical consideration also influences the scope of this guide. For a va- riety of reasons, including the use of radio spectrum, which is a scarce public resource, and the distinctive characteristics of broad- casting (what have been described as its pervasiveness, invasiveness, publicness and influence), 10 the nature and form of broadcast media regulation are dis- tinct and differ significantly from those of print media and the Internet. Although there is undoubtedly a need for a good practice guide to the enabling environment for other media, the unique impact and scope of broadcasting and its distinctive policy and regulatory characteristics and requirements merit a dedicated guide. 8 See, for example, World Bank World Development Report 2000/2001: Attacking Poverty (2000), 4. 9 See, for example, Carter Eltzroth and Charles Kenny, Broadcasting and Development: Options for the World Bank (World Bank Group, October 2003), 3-4. 10 Damien Tambini and Stefaan Verhulst, "The Transition to Digital and Content Regula- tion," in D. Tambini, ed., Communication Reform (London: Institute for Public Policy Research, 2000). Broadcasting Sectors and Types 35 Basic Broadcasting Types Broadcasting, both radio and television, can be defined across a range of overlapping models of ownership and control, from state-con- trolled to public service broadcasters, to private commercial owner- ship at global to local levels, to nonprofit and community ownership. Each is governed by different dynamics and embodies a different set of interests, but the configuration in any given country is the result generally of a unique, sometimes lengthy and complex, historical evolution. No two regimes are identical and the concept of an "ideal" model of broadcasting fails when confronted with the diversity of dif- ferent national contexts. No single size fits all. Even twenty-five years ago, national broadcasting systems could be classified according to the prevailing political systems in each of the countries concerned. Most European countries had a single monopoly broadcaster-although operating according to very different sets of principles in the West (public service) and in the East (state control). In Africa and most of Asia, too, national broad- casting was strictly government owned and Unlike even a few ago, there now exl operated. At the other extreme, the Ameri- wide variety of ,.c.;<, can free enterprise model of broadcasting broadcasting models f~ , was operational in most of the Americas terms of ownership snd'·:~;\. (with notable exceptions). The number of control. ' ·· · countries with "mixed" systems was small, and included the United Kingdom, Japan, Australia, Canada, and Fin- land. Where it existed, community broadcasting was a strictly local, mar- ginalized phenomenon with few links to the mainstream. Global television barely existed. 11 Since then the broadcasting world has changed utterly, as pro- fessor of ethics, media, and communication Marc Raboy has writ- ten, marked by three sets of parallel developments: 1. The explosion in channel capacity and disappearance of au- diovisual and telecommunication borders made possible by new technologies and digital convergence; 11 Marc Raboy, "The World Situation of Public Service Broadcasting: Overview and Analysis," Ch. 1, Public Service Broadcasting: Cultural and Educational Dimensions (UNESCO, 1997). 36 Broadcasting, Voice, and Accountability factors have . iSA.\/&m:'lt 2. The disintegration of the state-con- en down the regionally trolled broadcasting model with the ctive models of the collapse of the socialist bloc and the including the growth move toward democratization in vari- annel capacity, the ous parts of the world; and E!nrnination in effect of 'borders, and the decline of 3. The upsurge in market-based broad- · the state-controlled model casting and the introduction of mixed coupled with the growth of broadcasting systems in the countries the market model. with former public service monopolies. Far from being distinct from one another, these phenomena are in a com- plex interrelationship with respect to the emergence of new forms of broadcasting, locally, nationally, and internationally. The outcome is a far more variegated system of broadcasting, and one that is still in a dy- namic process of change driven by global forces of market development, technological change, and the forging of a globalized culture. Thus a ty- pology of national models of broadcasting today has to make room for a larger number of variants and combinations. Four basic types of broadcasting (some with subtypes) coexist in different variations and combinations in any given country; broad- casters directly controlled by government, public service broadcast- ---~....-___,.,~-------------, ers, commercial broadcasters, and community broadcasters. dcasting now exist, but The following brief overview describes various combinations in AilflY given country. the dynamics of each. Government Control of Broadcasting Direct monopoly government ownership and control of broadcasting continues to exist in a number of developing countries, such as Belarus, Zimbabwe, Turkmenistan, China, and Myanmar (Burma). However, it is now widely agreed that a state monopoly on broadcasting can seriously compromise the potential for broadcasters to serve as a reliable source of impartial information and diverse perspectives, and to play a positive role in governance and developmentY Even in a nonmonopoly 12 World Bank, World Development Report 2002: Building Institution for Markets (2002), 183-188. Broadcasting Sectors and Types 37 situation, direct state control is always open to potential government manipulation. The reliability of news and information on government- controlled broadcasters is often in doubt since they have a particular point of view and interest to protect. The lack of trust in government- controlled news and information can result in a cynical, rather than an engaged, public. Although the government's control Direct control of over content may purport to be a means of broadcasting is Wl!l91 'tt"o:;o : 1 0 ensuring it serves development priorities, it considered to be does not empower citizens or promote ef- the public interest, fective and equitable participation, or ac- toward the governn1tflt countability. As a result, benefits of view, lacking in 0 broad-based participation-such as im- participation, and inhibHillg 0 both development and proved policy design and implementation, democracy. This model is and greater ownership over development thus given no further initiatives-are unlikely to be realized. For consideration here. the same reasons, inequities or ineffective- ness in development will rarely be identified or resolved, particularly when these result from specific government biases, as opposed to over- sights. Even more seriously handicapped when they are subject to gov- ernment control is broadcasters' ability to promote democracy and good governance, to expose corruption, and to hold leaders to account. For these reasons, this guide is not aimed at those governments seeking to maintain ownership and control of broadcasting, and this particular model will not be considered further as this is a guide to good practice. There is, however, a growing impetus in many countries across several regions to transform hitherto government- controlled broadcasters into public service broadcasters (see the following). Public Service Broadcasting Public service broadcasters, at their best, Public service are independent of government and com- broadcasting must mercial interests and are dedicated solely to independent of serving the public interest. In most cases government and they remain in some form of public owner- commercial interests, ship but operate under a statute that explic- aiming solely to serve' :\be public interest. itly confirms their editorial independence 38 Broadcasting, Voice, and Accountability from the government of the day and establishes governance arrange- ments that are intended to assure it. In Western Europe, until the emer- gence of commercial broadcasting in the last third of the twentieth century, monopoly public broadcasting was the predominant broad- casting model. The principle of ensuring editorial independence and public service objectives is more or less embedded today in the broad- cast systems of many of the member states of the European Union, to- gether with Norway, Switzerland, Canada, Japan, South Korea, New Zealand, and Australia, and it has been increasingly used as the model for reform of state broadcasting in Africa, Asia, and Eastern Europe. In contrast to the approach in Europe, broadcasting in the United States and most of Latin America has been dominated by commercial broadcasters. Public service broadcasting did not emerge in the United States until the late 1960s, and then in a very different form from that in Europe. The 800 public radio stations and 350 public tel- evision stations in the United States are owned mostly by universities, nonprofit organizations, and local or state governments. The bulk of their funds are from listener and viewer donations and corporate sponsorships, but the sector also receives a substantial annual grant from Congress. 13 In Latin America, publicly owned broadcasters have historically been weak and underfunded, and some have undergone partial or full privatization rather than reform toward the public service broadcasting model. In countries where public service broadcasters are established and well re- ce governance and sourced, such as the United Kingdom, pment by achieving nal reach, providing Japan, Germany, the Netherlands, the ity programs and Nordic countries, and Australia, they often ~rnalism, articulating the attract large audiences and are a key :.;i ;:'diversity of views, and driver in maintaining program quality and promoting broad public promoting technical innovation across the debate. broadcasting sector. Where public broadcasters are inde- pendent and have a clear mandate, they can make a significant con- tribution to good governance and accountability, broadcasting diversity, and the ability of the broadcasting sector as a whole to play 13 In 2007 this will be $400 million, of which $263 million is for direct distribution to radio and TV stations and $105 million for syndicated program production. Broadcasting Sectors and Types 39 a positive role in society and development. Depending on the specific mandate of the broadcaster in question, they may do this by, among other things, ensuring full national reach for their broadcasts; pro- viding quality programs, including investigative journalism and in- formational and educational programming; articulating the views and interests of all sectors and groups in society; and promoting broad social debate about matters of public importance. One institutional approach, characterized by the British Broad- casting Corporation (BBC) in the United Kingdom and the Japan Broadcasting Corporation (NHK) in Japan, is to establish a large national public broadcaster, under unified editorial control. Other ap- proaches have been adopted, for example in France, where a number of distinct public broadcasting services are run by different public institutions and operate under different governance models. In Germany, the public broadcasting system operates on a regional basis, with some shared programming constituting a basic national service. In the Netherlands, different national program-making com- panies share the same broadcast infrastructure and are comple- mented by separate regional and local services. Commercial Private Sector Broadcasting Liberalization of the broadcasting environment, understood as open- ing up to greater private sector participation, has been the over- whelming trend in broadcasting policy worldwide despite the continuing reluctance of many governments to cede control of this key national resource. This has been driven by political change, com- mercial opportunity, and technological development. Recent liberal- ization efforts in many countries have focused initially on opening up the airwaves to allow for the licensing of commercial broadcasters, but they have not always considered other users and in particular the potential inter- est in and usage by nongovernmental and Commercial privat broadcasting is the community-based organizations. dominant trend, drF' In parallel to liberalization, and in part part by new techn driving it, technological developments, and its growth has if\; such as cable, satellite, and the Internet, countries enhanced ttm and the emergence of more efficient digital range and diversity of ···· content. production and distribution technologies, 40 Broadcasting, Voice, and Accountability are vastly increasing the number of channels that can be delivered to consumers. These developments have been marked by intense com- petition for position, as poorly performing publicly owned and older commercial broadcasters face the risk of extinction while new ser- vices capture mass audiences. Together, liberalization and technological developments have led to an explosion of commercial broadcasting in a growing number of coun- tries in Africa, Asia, and Eastern Europe. The ending of state broadcast- ing monopolies and the introduction of choice and competition have brought significant benefits for audiences both by increasing the range and diversity of programming and by enabling greater responsiveness to audience demand and interest. Commercial broadcasters can play an e commercial important role in promoting the public dcasters have uced quality news and interest through their program services. $porting, sometimes There are examples from diverse countries .. )'\'ifrandated by regulation. of commercial broadcasters, including at •· ~ottom-line pressure to local level, that have distinguished them- ~~o, >i9enerate profits can lead selves with news coverage and investiga- · to a focus on low-cost tive reporting that informs the public and programs, satisfying advertisers, and targeting sheds light on important inadequacies or wealthier viewers and malfeasance in government. Some com- subscribers. The potential mercial broadcasters see their public infor- to fulfill the public interest mation role as paramount, and contribute can thus be constrained. greatly to developing public awareness in a regional or global audience. In many countries, regulatory mechanisms mandate, in exchange for access to the publicly owned airwaves, minimum levels of news broadcasting, public service announcements, guaranteed access to political candi- dates under equal-time rules, and other public interest-oriented pro- gramming. At the same time, commercial broadcasters, by the very nature of their for-profit business, are often constrained in the degree to which they can contribute to wider public goals, including good gover- nance. Broadcasters face pressures to improve bottom-line results by reducing costs and maximizing audience. This generally promotes a focus on cheaply produced popular or imported entertainment for- mats and mass-marketed programs, and minimal investment in spe- cialist or more costly public interest program content. Market forces Broadcasting Sectors and Types 41 tend to prevent commercial broadcasters from rigorously serving the public interest through in-depth news, analysis, and information. There is a tendency to target primarily those with spending power in order to deliver consumers to advertisers or attract paying sub- scribers. The prevailing trend among private broadcasters is to view their news coverage as a commodity, with no greater priority than the rest of their programming, and this has in turn led to an unwilling- ness to allocate significant resources to produce in-depth news re- porting and analysis. These tendencies, which are a product of the market and regulatory environment in which commercial broadcast- ers operate, have constrained the potential role of commercial broad- casting in promoting equitable and sustainable development. Community Nonprofit Broadcasting Since the late 1940s, a new form of broadcasting has emerged that is to- day known as community broadcasting. Independent of the govern- ment, having social objectives, and not run for profit, community broadcasters have been established by civil society groups and organi- zations in all regions and most of the countries of the world. Community broadcasting has devel- oped in response to the needs of grassroots Community nonprofit·;; ''· broadcasting has a sJ)9eil:l' social movements and community-based development role to play ·.. organizations to find an accessible and af- for those facing povetij•. , fordable means to express their own issues, and exclusion, is highli'·.: . concerns, cultures, and languages, and to participative, and can Qtfer· create an alternative to the national broad- an avenue into influencing caster and the growth of commercial media. policy. It is this bottom-up rationale that sets community broadcasting apart from its local commercial counterpart. Its relationship to the community is different in terms of its mandate from the community, which requires ongoing renewal; in terms of its governance and the need for transparency and participation; and, also, in terms of eco- nomic sustainability. For while community broadcasters can on the one hand draw from the community for funding, they must on the other hand be more wary of pressures from commercial advertising and public funding. Furthermore, community broadcasting has an important transformative role through the empowering activities that occur in the very process of mobilizing participation. 42 Broadcasting, Voice, and Accountability Local and community-based media have become recognized as having a particular role to play for people and communities facing poverty, exclusion, and marginalization, and by giving voice to these communities can contribute to governance through wider and better- informed participation. 14 They can assist in providing access to infor- mation and can stimulate debate, including in local and vernacular languages. They can reinforce traditional forms of communication, such as storytelling, group discussion, and theater, and they can en- able grassroots participation in policy making and democracy. Using technologies that are appropriate and affordable, they can reach out to the most remote communities and to people from all walks of life. A recent major report, involving seventeen countries in Africa, found widespread support among media stakeholders for initiatives to support community media, pointing to: the role of community media in advancing development objectives; community media success in giving a voice to communities; and, the sector's ability to empower and skill communities who participate in supporting activities gener- ated by such media. 15 Community broadcasters often de- unity broadcasters velop their programs through community prove local gue,enhance consultations in focus groups and inter- cities, and be an views. Their programming includes phone- tive conduit for in and write-in question-and-answer i!lfbrmation in all programs, regular programs on particular .O:~irections. Radio is themes, roundtable discussions, commu- especially effective and sometimes viable even for nity reporting on events and issues, broad- · very poor communities. casts of local government meetings, and development-oriented information pro- grams. The stations perform an important public service for poor con- stituencies, eliciting their views and concerns, enabling them to raise issues and problems that might otherwise be taboo, and encouraging them to speak out, both among themselves and to local government. At its best, community broadcasting has improved the internal dialogue, problem solving, and self-organization of the people it 14 See, for example, Declaration of the Ninth United Nations Roundtable on Communications for Development (Rome: Food and Agriculture Organisation, 2004). 15 AMDI Research Summary Report (BBC World Service Trust, 2006), 94. Broadcasting Sectors and Types 43 serves, and given people the self-confidence to talk directly to local officials to get action. From a developmental perspective, community radio, in particular, has been a highly effective medium. Not only do the participatory programs on community radio profoundly improve poor and marginalized people's ability to articulate issues needing attention, but they also encourage hitherto isolated people to reach out for information and advice when they need it, for example, by getting experts (such as a nurse or an agricultural extension worker) in the area to volunteer their time, sometimes on a weekly basis, and to give advice on the air. When programs include sensitive topics, such as domestic violence, child abuse, or alcoholism, they open up a space for families and neighbors to discuss the programs and their views on the topic. Experience shows that this kind of discussion can have significant impacts on people's behavior, and on their ability to cooperate and deal with social problems that have, in some cases, been corroding their communities. Opening the Range of Broadcasting Types The consideration of four relatively distinct types of broadcasting, just described, is not intended to suggest that they each operate in a discreet domain, motivated by a unique set of values and principles and seeking different target groups, but rather is Distinct intended to highlight the different values, principles, and outcomes that can motivate the provision of broadcasting services. coexist in any There is considerable scope for delibera- country, and the tion among stakeholders, including policy mix is open to considerable influence;. makers, regulators, the media, and the wider public, regarding the balance and mix appropriate to different circum- stances, and the extent to which regulation can be designed so that the broadcasting system as a whole can achieve public in- terest goals. Part of the objective of policy, and of the regulator, is to deploy measures that steer the motivations and outcomes of each sector in a particular direction. 44 Broadcasting, Voice, and Accountability At the simplest level of analysis, the business model of each broadcasting type, its sources of sustainability and internal growth dynamic, is distinct. Each confronts pressures from various direc- tions, and a course must be navigated between sometimes conflicting demands: for instance, public service broadcasters must balance the need to produce high-quality independent content reflecting the full diversity of views against the need to avoid influence from the gov- ernments which are its main source of income. Commercial broad- casting must navigate a course between establishing a significant market share through quality programs and the drive to maximize profits through lowest-cost content and advertising-maximizing au- diences. And community broadcasters, the most economically pre- carious of the three, must strike a balance between their mandate to give voice to the community in a participatory and diverse manner and their constant struggle with the capacity to deliver. In the absence of a stable economic base, community broadcasters may have to steer a course between insularity and potentially compromising their in- dependence and legitimacy. But in reality these underlying forces are interwoven with more complex trends and interactions between the sectors, which are far more than mere nuances. Presented in isolation these dynamics court caricature, failing to reflect any given broadcasting system's flexibility and environmental specificity. Broadcast policy and regulation do not attempt to reduce broadcasting to its simplest constituent forms; but rather strive to create an appropriate mixture that best contributes to the public interest by influencing how, in their unique circumstances, these diverse sectors mesh in a particular national system. Policy mak- ers and regulators have developed a range of instruments to achieve this, and some good practices are outlined in Part III. At this point a word on the different l'ior,on,rlolnt regulator types of regulatory agencies is relevant, as a vital instrument in these can substantially affect the shape the right mix. and functioning of broadcasting. are subject to forms of failure, but This guide makes a case for an inde- pe of regulation and pendent regulator. This concept, which is of the regulator discussed in depth in Part III, can be are key factors in briefly defined as a regulator that can pur- ,,;~uccessfully implementing sue stated, accepted, legitimate goals in a :'·a public interest approach. manner that is free of undue political Broadcasting Sectors and Types 45 influence. This kind of regulation can be differentiated from direct government regulation, for instance through a Ministry of Informa- tion or Ministry of Communication. But this sharp distinction dis- guises other trends. Regulatory agencies can be subject to "capture," that is, excess influence from the industries that are subject to super- vision. Some agencies are "converged," having oversight across many forms of communication (including telecommunication) as the actual distribution processes and infrastructures become inter- meshed. Some regulatory agencies have what is termed external plu- ralism, and make a conscious effort to ensure many stakeholders are represented on their boards. Often the regulation (or self-regulation) of the public service broadcaster is distinct from that of the rest of broadcasting. Many of these differences are raised again later in this guide. The point here is that the nature of the regulator and its ca- pacity to fulfill legitimate objectives can be critical factors in deter- mining the specificity of any given configuration of broadcasting and its ability to fulfill the public interest. The diversity of circumstances, approaches, and institutions gives rise to variations of each of the broadcasting types, and some hybrids. For instance, the line between community broadcasting and pub- lic service broadcasting is thin in countries like the Netherlands, where local authorities hold both television and radio "community" licenses and provide funding, but local communities have a decisive influence on structures and content. In Sri Lanka, the few "commu- nity" radio stations are formally owned by the public broadcaster, SLBC, though the community maintains a high degree of local par- ticipation. In a number of countries local commercial radio and com- munity radio are barely distinguishable, particularly where they arise from, or become part of, a wider social movement for change where radio can and has played a key role. They can evolve later into either commercial or community forms. Furthermore, regulation of the community sector need not pre- clude market-based mechanisms and instruments, even ones that do not discriminate between the commercial and community sectors while recognizing the specificity of each. Some poor communities, for instance, neither can attract the advertising revenue needed to sustain a local commercial radio station nor do they have the level of capacity and organization needed to sustain the collective effort of building a community station. Policy measures to address "market 46 Broadcasting, Voice, and Accountability failure" can be devised to enhance the feasibility of either or both sectors to provide a service to such underserved communities. An in- centive package could offer a subsidy to a local broadcaster subject to license conditions to provide at least a modicum of news and devel- opment-related content. What emerges can be a local station run by an individual entrepreneur; or a community channel run by the more active local groups-or even a hybrid where a local commercial enterprise works closely with a board of community interests. Public service television also has variants, including a second "tier" that represents a distinct model. It has been described as "alternative public broadcasting" and operates successfully in a number of countries as a complement to traditional public service. 16 Like public service television such stations are established initially by government and exist independently of government as a nonprofit entity or corporation. But they are distinguished usually by a specific mandate to provide a finely focused service. Channel4 in the United Kingdom has a mandate to broadcast distinctive innovative and creative programs, and to enhance cultural diversity, but it operates in a commercial environment and commissions all its programs. 17 The French/German cultural channel Arte 18 delivers cultural output; and the Australian Special Broadcasting Service (SBS) provides exclu- sively multilingual and multicultural radio and television services in up to sixty languages. 19 In Mexico, the closest thing to a public service broadcaster is run by the National Polytechnical Institute. 20 A number of regional publicly funded broadcasters in Canada, Spain, and else- where fall into the same category. The interaction between the funding bases of commercial broadcasting sectors and public service broadcasting also influ- ences the shape of the broadcasting 16 Marc Raboy, "The World Situation of Public Service Broadcasting: Overview and Analysis," Ch. 1, Public Service Broadcasting: Cultural and Educational Dimensions (Paris: UNESCO, 1997), 19-56. 17 Channel 4 in the United Kingdom, available at: http://www.channel4.com/about4/ overview.html. 18 French/German cultural channel Arte, available at: www.arte.tv. 19 Australian Special Broadcasting Service, available at: http://www20.sbs.corn.au/ sbscorporate/index.php?id=. 20 National Polytechnical Institute of Mexico, available at: http://www.oncetv.ipn.mx/. Broadcasting Sectors and Types 47 system. Efforts to distance the financing of public service broadcast- ers from government control can pit them against commercial broad- casters. In small or poor countries a license fee or other funding mechanism is often insufficient to ensure the viability of public ser- vice broadcasting, and a regulated volume and form of advertising is permitted. A heavy reliance on advertising, however, puts public ser- vice broadcasters into direct competition with commercial broadcast- ers, while potentially subjecting them to similar pressures from advertisers. Thus there are many gradations and overlaps to be found outside the three-sector model, and these can be accentuated and shaped by policy and regulation so as to open a wider spectrum of possible com- binations in different circumstances. W hat do broadcasting systems look like in reality, in different regions? What are their main dynamics and trends? What follows is a review of broadcasting in the different regions. The aim is to assess the extent to which commonalities in broadcast- ing trends and dynamics can be distinguished, with a view to con- textualizing the legal, policy, and regulatory good practice outlined in Parts II and Ill. The conclusion focuses on an emerging paradigm in broadcasting shared by much of the world, though often more as aspiration than implementation. The Media Environment Regionally There is a paucity of comparative empiri- regional level, the environment for cal and analytical data on broadcasting at varies considerably. the global level, and indeed most research in the area bemoans the lack of such mate- rial. There is no consistent global review of broadcasting, and only very few statistical indicators-covering the availability of television sets and radios at national level and little else. In terms of the en- abling environment for media, however, there are a few sources. Table 3.1 offers a comparative view of general press freedom in the different regions, developed by Freedom House using a methodology that covers the legal, political, and economic environment for all media. A picture emerges of virtually ubiquitous restrictions on media freedom in the Middle East and North Africa (MENA), and over 50 percent of the population of Asia Pacific and Central and Eastern Europe (CEE) living in countries with restricted media freedom. 48 Regional Broadcasting Characteristics and Trends 49 TABLE 3.1 Press Freedom 2006: Countries and Percentage of Population "Not Free," by Region Total Number of % Population for Which Region Countries Countries "Not Free" Media ls "Not Free" Americas 35 4 10 Sub-Saharan Africa 48 22 35 Asia Pacific 40 15 52 Central and Eastern Europe 27 10 56 Middle East and North Africa 19 16 96 Source: Freedom House, Map of Press Freedom, 2006. http://www.freedomhouse.org/. FIGURE 3.1 Freedom of Information Laws 2007 by Region Former CIS (7) .<·. .'. ··' ·_:·:>.<._.,:- ::<:.<: ::• .t Latin America (24) South Asia (7) \, .. ·:- <•.>. . ._.: .·.· 1: . ·, ·.·... ' •.. ·,.-.-.:-, .... :: ·.···'' I Southeast Asia (9) . ,.. <:.-•. ._·, ..:.'::::.·-·· ..-·:' .l . ·..· .I Sub-Saharan Africa (39) : .. ,' . I I ,' Middle East and N. Africa (18) 0% 20% 40% 60% 80% 10C II Fol Enacted II Pending effort to enact D No law/not operative Source: Privacy International. http:llwww.privacyinternational.orglissueslfoialfoia-laws.jpg Number of countries counted in parentheses. The MENA region also comes in at the In terms of the le bottom of Figure 3.1, on the enactment of political, and eco · freedom of information laws, as moni- environment for p tored by Privacy International. freedom, the ME More directly related to broadcasting, comes in as least followed at a distances!Qy a team of researchers undertook a study GEE and Asia Pacific. '·:;~:' in 2001 of the ownership of the top five SO Broadcasting, Voice, and Accountability TABLE 3.2 Television Ownership Distribution 1999 Ownership of Top 5 Division of Market Share of Top 5 Region Channels (regional average) Channels (regional average) State Private State Private Africa 78% 19% 85% 15% Americas 17% 78% II% 85% Asia Pacific 65% 34% 70% 30% Middle East and North Africa 93% 7% 94% 6% Central and Eastern Europe, Transition countries 80% 20% 73% 27% Western Europe 48% 52% 55% 45% Note: Where figures do not add up to 100%, an "other" category comprises the remainder. television channels in 97 countries around the world. 1 Table 3.2 summarizes the regional comparison in 1999. MENA countries were rated highest in 1999 in terms of state ownership and mar- ket share, followed by CEE and former So- viet countries, then Asia Pacific and Western Europe. The Americas exhibit a strong bias toward private ownership. While offering a useful snapshot of owner- ship, these figures do not differentiate between state control and pub- lic service television, in which major regional differences also exist. The figures are also somewhat dated. Despite the absence of consistent global data on the broadcasting sector, a partial comparative regional overview can be pieced to- gether from a variety of sources, including some recent multicountry comparative surveys in Europe, transition countries and Africa, sev- eral partial global databases and surveys, and a variety of reports. A number of regions or subregions are considered below, with a focus- data permitting-on the overall broadcasting environment, the broad- casting sectoral composition, the legal/regulatory environment and the reality of its implementation, and dynamics and trends. The emphasis is on developing countries and regions in which the 1 Simeon Djankov, Caralee McLiesh, Tatiana Nenova, and Andrei Shleifer, "Who Owns the Media?" (Harvard Institute of Economic Research Paper No. 1919; World Bank Policy Re- search Working Paper No. 2620, Apri119, 2001), extracted from table 2, available at SSRN: http://ssrn.com/abstract=267386. Regional Broadcasting Characteristics and Trends 5t broadcasting sector is undergoing change driven either by external factors or by a demonstrable government desire to reform. Region by Region Sub-Saharan Africa Sub-Saharan Africa is probably the least researched of regions/ but seventeen countries there were the subject of recent comparative re- search by the African Media Development Initiative (AMDI). 3 Sub- Saharan Africa is characterized by a young and growing population, with low literacy rates in many countries. In nine of the countries surveyed, over 60 Sub-Saharan Afri percent of the population is rural, often its large rural pop prefers radio, but f with poor transport and no electricity. is growing. Radio, the AMDI study found, is the dom- L - - - - - - - - ' " - ' - - inant medium in Africa: Radio dominates the mass media spectrum with state-controlled radio services still commanding the biggest regulatory audiences in most countries but regional adoption of (within country) commercial information legiislatf&t stations demonstrating the largest con- the transformation sistent increases in numbers, followed by controlled into public service broadcasters: community radio, where growth, although significant in certain countries, has been inconsistent. Television is less widely available, especially in rural areas, although it is seen as a growing force. 4 2 The AMDI Research Summary Report notes: " ... despite the wealth of valuable insights available from other published research, systematic and reliable data on the sector is un- derdeveloped or non-existent. There is a lack of robust research, on a continental scale, demonstrating what is and is not working in the attempts by many players to strengthen African media. The lack of reliable information has been a factor constraining private and public (donor) investment" (13). 3 The countries covered are: Angola, Botswana, Cameroon, Democratic Republic of Congo, Ethiopia, Ghana, Kenya, Mozambique, Nigeria, Senegal, Sierra Leone, Somalia, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. African Media Development Initiative, Summary and Seventeen National Reports (BBC World Service Trust, 2006), avail- able at: http://www.bbcworldservicetrust.org/amdi. 4 Ibid., 33. 52 Broadcasting, Voice, and Accountability Religious broadcasters, especially in radio, play a major role in several countries and account for the main growth in non-state broadcasting since 2000. Africa has seen a gradual movement in the media regulatory par- adigm over the past decade: It is now generally based on a democratic model of separa- tion of powers-the establishment of independent broadcast- ing regulatory bodies-while acknowledging the right of the broadcasting media in general to regulate themselves (media councils). This is accompanied by adopting freedom of infor- mation legislation and pursuing the goal of transforming state broadcasting into public-service broadcasting. 5 The shift is neither complete nor unprob- lematic and countries exhibit varying levels of commitment to the model's principles and to its implementation in practice. Eight of the seventeen countries have legislated for independent media regulators, but there is widespread skepticism regarding their in- dependence.6 A number of others have state-run regulatory bodies. Legislation aiming to secure the independence of publicly owned broadcasting was in place in six of the seventeen, with three more work- ing toward it. However, few of the public service broadcasters created are fully independent of government, and most are subject to interfer- ence and patronage. Community broadcasting is given basic recogni- tion in ten of the countries in the study, but often on a piecemeal basis and with little support offered. In terms of the overall environment for media, five of the seven- teen countries retain criminal defamation and libel laws, and even where repressive laws have been removed, state-sponsored mecha- nisms for sanctioning journalists were laws · . . found to persist in at least eight countries. All but three (South Africa, Tanzania, and Uganda) have no freedom of information legislation. Laws are pending in a further six-in the case of Ghana and Nigeria for over six years. Although the past decade has seen a welcome and significant in- crease in diversity of broadcasting content, serious shortcomings remain 5 Ibid., 15. 6 The report singles out South Africa and possibly Ghana as the most independent (56-57). Regional Broadcasting Characteristics and Trends 53 regarding its quality. The content of many and government controlled broadcasters coin- cides too closely to the government or ruling party perspective, and there is a tendency among most media to reflect the view of the urban educated elite: Community and private media are widely acknowledged to cater to populations and regions under-served by other outlets, and- particularly through radio-to provide ... and impartialitY:'·'· an important educational and informa- public broadcaste tion source for those areas marked by low literacy or low access to mainstream media? The principal challenge for state-owned media, the research concludes, is to serve all sectors of the population as impartial public service broad- casters, free from government interference. It calls for action to legislate for freedom of expression and access to information; develop a consistent pol- icy on the independent allocation of licenses; reinforce the protection of journalists; and Nevertheless pr strengthen independent regulatory frame- in the right directi<:t. works. The report also notes that those sur- radio, especially I veyed placed the community media sector, community radio, i~ recognized as havi"l: especially radio, amongst the highest priori- major development "·\ ties for new funding, precisely because of its potential. development role. The report concludes on a relatively optimistic note: In all of the countries surveyed, significant changes were re- ported in the media regulatory environment as a result of in- creasing levels of democratisation, more conducive political and economic environments, and increased national and inter- national media development activity. 8 With the collapse Soviet Union, the structures of form CEE and Former CIS members and CEE Former Soviet Union, Eastern bloc, and countries underwent. sudden and massive some Central European countries9 are change. q~ 7 Ibid., 88. 8 Ibid., 59. 9 Considered here are "transition countries" as defined by the European Economic Area, but no consideration is given to Afghanistan, Belarus, or Turkmenistan. See http://www .eeassoc.org/transition_countries_list.asp. 54 Broadcasting, Voice, and Accountability unique in having undergone a sudden, more or less simultaneous and radical break from existing media structures with the collapse of the Soviet Union. The process and outcomes are partly documented in two recent comparative studies: an Open Society Institute (OSI) study of television in twenty mainly transitional countries in Europe, 10 and a European Audiovisual Observatory (EAO) study of broadcasting in five Commonwealth of Independent States (CIS) countries.U Central and Eastern European countries and most CIS countries experienced an immediate and massive growth in commercial and private broad- casters. For a period, many pioneered investigative reporting and news, opening up wide areas of society and economy previously out of ,.,.,..---.,..---------. bounds to public scrutiny. In many coun- tries, the dismantling of state control and media was the opening up to commercial interests led by an influx of to a massive influx of Western capital into capital much of it suit solely of the television industry, that often relegated mercia! gain. In domestic players to the margins of the mar- nse many ket and is still a major factor today. 12 ~vernments tried to But in the largely unregulated context feir;vent broadcasters as and lacking local experience of a diverse . ,'· public service rather than commercial media: ~tate controlled. . .. freedom of the media soon came to mean first of all freedom to run the media as a private busi- ness. Private broadcasters pursuing above all commercial gains rapidly outperformed State broadcasters, which were mostly reluctant or unable to keep up.B 10 0pen Society Institute Television across Europe: Regulation, Policy and Independence, four volumes (Hungary, 2005), available at: http://www.eumap.org. 11 Andrei Richter and Dmitry Golovanov, Public Service Broadcasting Regulation in the Commonwealth of Independent States Special Report on the Legal Framework for Public Service Broadcasting in Azerbaijan, Georgia, Moldova, Russia and Ukraine (European Audiovisual Observatory, Strasbourg, France, November 2006). 12 0pen Society Institute, Television across Europe: Regulation, Policy and Independence (2005), summary, 33. Hereinafter cited as OSI, 2005. 13 Ibid. Regional Broadcasting Characteristics and Trends· 55 These developments provoked a variety of concerns among govern- ments of newly independent states. The exodus of audiences from state to commercial channels, the desire to strengthen post-Soviet na- tional identities among the populace, and the collapse of the tradi- tional system of financing and program production led to an effort to replace the bankrupt-in many senses-state-run television and ra- dio systems with a more appealing system of public service broad- casting14 (EAO, 2006, p. 1). Public service broadcasters, radio and television, were established in one CIS country after another from 1994 onward, and were accompanied by the closure of the state broadcasters in all but two countries (Azerbaijan and Kyrgyzstan). 15 All CEE countries covered in the OSI study now have public service broadcasters in place. 16 Some were strongly influenced in the choice by external factors, especially where there was a prospect of EU mem- bership. The Council of Europe and the Organization for Economic Cooperation on Security in Europe (OSCE) both brought significant pressure on governments seeking to become members. Thus the transition and post-transition countries considered here have for the most part now adopted a so-called "European frame- work" for broadcasting. This is a mixed system. It includes public ser- vice broadcasters of varying degrees of capacity and strength, operationally independent from the state but ultimately accountable to elected officials. Alongside them are commercial broadcasters subject to local laws and regulation. In a few countries there is also a more re- cent opening for community media consisting of "local media outlets run by NGOs, non-profit organisations or minority communities." 17 All sectors confront challenges. Public service broadcasters, for instance, saw a steep decline in viewing figures that has only recently 14 EAD, 2006, 1. 15 Public service television was established in Estonia in 1994; Latvia in 1995; Moldova in 1995; Lithuania in 1996; Armenia in 2000; Georgia in 2004; Azerbaijan in 2005, and Kyr- gyzstan in 2005. In Ukraine a public service broadcasting law was passed in 1997 but has not been enforced, and an attempt to pass a law in Russia failed. From time to time dis- cussions on the issue take place in Belarus, Kazakhstan, Tajikistan, and Uzbekistan. Only in Turkmenistan is there no such discussion. See EAO, 2006, p. 1. 16 See OSI, 2005, table 9 for details of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Poland, Romania, Serbia, Slovakia, and Slovenia. 17 0SI, 2005, 78. 56 Broadcasting, Voice, and Accountability been arrested or reversed in a few countries. 18 In the area of news, they have nevertheless achieved some success: [A] fact confirmed far and wide is that public service televi- sion remains the main source of news for the largest part of the population in most of the countries covered by this re- port. Only in a few countries, such as the Czech Republic, Slovakia and Hungary, do private channels attract more viewers for newscasts. 19 The transition to the new broadcasting an mixed model is environment was and remains problem- y.Keyissues atic and the overall broadcasting system de: ... a retention of of many CEE and CIS countries exhibits control and influence serious problems. As compared to West- ern Europe, the OSI study notes: [t]he essential difference now lies in the greater vulnerability of public service broadcasting within transition (and post- transition) countries to political and economic pressures alike. 20 The EAO report concludes regarding the process of the transforma- tion of state broadcasters into public service broadcasters in CIS countries: It is a common practice ... to change some "details" of the originally envisaged public service broadcasting laws in the course of the legislative process so that most of its provisions meant to secure the independence of public service broad- casting have no effect. Another "scholastic" way to counter- act public service broadcasting is to lay stress on declarative provisions, without providing their actual enforcement. 21 Legal flaws are compounded in some ~ompounded by an countries by the absence of effective ure funding base ... funding mechanisms. Some Eastern and 18 Public service television is now picking up in countries such as Poland, the Czech Republic, Slovakia, Serbia, and Hungary. See OSI, 2005, p. 54, and table 13. 19 0S1, 2005, 40. 20 0S1, 2005, 38. 21 EAO, 2006, 41. Regional Broadcasting Characteristics and Trends 57 Central European countries 22 have introduced a license fee that pro- vides over 50 percent of total funding of public service broadcasters. 23 However, many other former CIS countries, including the Baltics, have no license fee system24 and almost all are funded directly from state fi- nances, resulting in a potentially much higher level of state control over the nominally independent channels. There is little doubt that editorial inde- ... leading to pendence is compromised in many public compromises in service broadcasters. Some offer "politi- independence and cally slanted, inaccurate, partisan report- journalism. ing" and journalists in some countries experience "direct or indirect political interference and pressures in their work," 25 which can be especially prevalent during election campaigns. 26 Furthermore, despite pioneering Commercial televi news, political, and investigative report- has declined in th~; ing in the early days, commercial televi- of news, and self- · sion now is usually "not a reference for censorship is comm ~;, solid investigative journalism and quality news programmes." Pressures to attract large audiences and reduce costs have led to sensationalism in news and a focus on low-quality entertainment. Effective self-regulatory mechanisms are few in num- ber, and journalists are often poorly paid and suffer from poor labor regulations and fear for their jobs. "In such a precarious environment, and against the background of widespread political interference in programming and economic pressures, self-censorship thrives." 27 Among the key recommendations of the OSI report are ones em- phasizing the need to reinforce the independence and transparency of the regulator, to ensure the independence of public service media in practice and in law, and to develop means to make ownership in all media more transparent. 22 Including Croatia, Czech Republic, the Republic of Macedonia, Romania, Slovakia, and Slovenia. 23 0SI, 2005, 60, table 1. 24 EAO, 2006, 42. 25 0SI, 2005, 64-65. 26 The World Press Freedom Index reports a number of cases of bias in many of these countries in both public and private media. Available at: http://www.freedomhouse.org/ template.cfm?page=251&year=2006. 27 0SI, 2005, 71. 58 Broadcasting, Voice, and Accountability Latin America More than 90 percent of Latin Americans listen to radio every day, making it the most ubiquitous of media in the region. 28 Latin America also has the most unequal income distribution of any region, almost 45 percent of the population living below the poverty line. 29 In broad terms, Latin American countries, with the exception of Cuba, adopted the U.S. model of largely unrestrained private com- mercial broadcasting, though there are dif- sector interests are ferences. The larger countries also support in Latin America significant content production industries r;:u::rtn'"""" weak public and export around the region and further broadcasting. afield. Public service broadcasting in Latin America is limited. Almost every country, however, has state-run channels, most of which are poorly funded and subject to government manipulation or control. 30 A number of publicly owned channels offer cultural and educational programs; some channels are run by political parties (in opposition or government); a few by religious organizations; and there are a handful of nonprofit and foundation-based channels. No country, however, has formally independent, well-funded, public service broadcasting with a broad remit to include news and current affairs: among the closest are TVN in Chile and Once TV in Mexico. 31 The vast majority of broadcasting is commercial. Ownership of the sector is highly concentrated at the national level with significant cross- ownership across audiovisual and media sectors. The radio sector differs from television in one crucial respect: al- though community television does exist in a minor way, community radio broadcasting is diverse, numerically significant, and wide- spread. Pioneers go back over fifty years, long before the term commu- nity radio was coined. They include stations set up by tin miners in 28 Juan Pablo Cirdenas, "America Latina y las Fortalezas de Ia Radiodifusi6n," Diario elec- tr6nico "Radio Universidad de Chile" (March 22, 2005), available at: http://www.radio .uchile.cl/notas.aspx ?idNota=18169. 29 Dr. Jennifer McCoy, Carter Center, Las Vulnerabilidades de Ia Democracia, Democracia y Cumbre de las Americas, Panel sabre Ia Carta Democnitica Interamericana (Buenos Aires, Argentina, March 11, 2005). 30 Based on the BBC Country Profiles, available at: http://news.bbc.co.uk/1/hi/country_ profiles/default.stm. 31 See respectively http://www.tvn.cl/ and http://www.oncetv.ipn.mx/ Regional Broadcasting Characteristics and Trends 59 Bolivia in the 1940s and 1950s that contributed hugely to community organization and political empowerment, and the hundreds of edu- cational stations inspired by Radio Sutenza, which was founded in 1947 by a Catholic priest to bring practical education to rural and marginalized groups. Such is the influence of the sector that it has been argued that community radio and to some extent even commu- nity television, occupy the space of public service broadcasting. For irrespective of their actual legal status, as community or commercial media, they are driven by the same ethos and fulfill many of the same functions as public service broadcasters. 32 Although these channels emerged for the most part in a regulatory vacuum, or in direct oppo- sition to the law, they are now being recognized and regulated in a growing number of countries, among them Colombia, Bolivia, Peru, Venezuela, Mexico, and Argentina. Many older and more established community stations continue to operate with commercial or cultural licenses. Legal recognition can, however, be a mixed blessing. Some countries, sen- Community radio sitive not to encroach on commercial me- long history, and is. even to occupy the dia, impose restrictions on the community of public service, but sector that threaten viability. Chile, for in- yet to achieve full IEf stance, limits transmission power to just recognition and a pos~e one watt (enough to broadcast only a few regulatory environment:•.:.• hundred meters, in good conditions), and other countries prohibit advertising. Most countries in Latin America have formally independent broadcast regulators (about half of them combined with the telecoms regulator), though among the larger exceptions are Brazil, Peru, Mexico, and Colombia. The process of is- suing licenses in many countries, however, While formally lacks transparency, is sometimes corrupt, independent reg common, the pr and follows procedures that elsewhere are issuing licenses, considered bad practice. The issuing of areas, are problem£!,~. lengthy broadcast licenses, with options to renew, is commonplace. In Argentina in May 2005, for example, Pres- ident Kirchner renewed television broadcast licenses that grant the 32 See Rafael Roncagliolo, "Latin America: Community Radio and Television as Public Service Broadcasting," in Public Service Broadcasting (UNESCO, Paris, 1996), available at: www.cidh.oas.org/relatoria/docListCat .asp? catlD=2 4&liD=l. 60 Broadcasting, Voice, and Accountability holders a total of 35 years, in one case to 2025. In Uruguay the five cable licenses were granted in 1994-four to existing commercial tele- vision licensees-without any competition or call for tenders. Also, Uruguayan broadcast licenses often have no specific time limits or in practice renewal is automatic. But legally they are "precarious and revocable," subject to government decision. Many other countries fol- low similar practices. Politics is sometimes too central an issue in decisions regarding licensees. The Venezuelan government's decision in 2007 not to re- new the license of a private television channel, Radio Caracas Televi- sion (RCTV)-a 20-year license initially obtained in 1987 by presidential decree-was widely criticized and may have been polit- ically motivated. The station took an antigovernment stance, but it was not merely editorially critical: in 2002, it actively backed a failed coup against the elected president. The president was criticized both for political motivation in the failure to renew and for not following properly the system for assessing whether a channel should retain its license. Also relevant in this context is a government decision to fold the regulator back into the Ministry of Communication, resulting in the loss of its arm's-length status. The dispute illustrates the intense connections between politics, due process, and the award of valuable instruments for communication in society. Meanwhile, in neighbor- ing Colombia, the government in 2004 closed down the public Insti- tuto de Radio y Television (lnravisi6n), which produced programs and broadcast on three channels about educational, cultural, and so- cial issues, including documentaries criti- cal of the government. 33 on human rights There is now considerable activity and relating to media uential, relating to impetus in Latin America to reform the freedom of broadcasting sector, and the media sector , issuing of as a whole. With growing recognition of and concessions, community media, a three-sector broadcast concentration of environment is becoming the norm, with c;>wnership. the important caveat that the public sector 33 Diana Cariboni, "Easy to See the Speck in the Other's Eye" (1996), available at: http://other-news.info/index.php?p=1988#more-1988; Juan Forero, "Pulling the Plug on Anti-Chavez TV" (Washington Post Foreign Service, Thursday, January 18, 2007) A16; and the AMARC statement and other IFEX alerts at: http://www.ifex.org/en/ content/view!full/82665. Regional Broadcasting Characteristics and Trends 61 is largely state controlled. The possibility of public service broadcast- ing is the subject of debate in just a few countries, among them Uruguay, where the public broadcaster does have some indepen- dence, but none of these countries is close to developing the appropri- ate legislation and mechanisms. A key issue in such debates is how to devise funding mechanisms that can generate sufficient funding in societies with large poor populations and high skewed income dis- tribution. But the general move toward independent regulators is continuing with growing effort to reinforce their independence from political pressures and to reform the process of issuing licenses. Political issues are integral to media developments in Latin America in one way or another. Telesur is a regional television chan- nel established in 2005 by Venezuela, Argentina, Cuba, and Uruguay (later joined by Bolivia) to broadcast news and current affairs from a regional perspective, deliberately countering what it sees as biased coverage from northern-based satellite channels, such as CNN. It is accused by some of promoting government propaganda. In the chan- nel's defense, it is worth noting that its management board comprises government appointed media professionals, its advisory board is made up of prominent international intellectuals, and its remit draws heavily on public service principles. It does not seem, however, to be structured as an autonomous entity protected from government intervention. Also important in debates supporting the process of reform in Latin America is the focus on human rights issues and references to a right to communicate. The Special Rapporteur for Freedom of Ex- pression of the Inter-American Commission on Human Rights, an au- tonomous organ of the Organization of American States (OAS), is a significant regional actor here and has considerable moral authority and political influence. Successive annual reports 34 have forcefully raised issues such as links between media, freedom of expression and poverty (2002), democratic criteria for the concession of radio and tel- evision broadcast frequencies, and freedom of information (2003) and concentration of media ownership (2004). 34 For all OAS annual reports see: http://www.cidh.oas.org/relatoria/docListCat.asp? catiD=24&1ID=l; for Freedom of expression and poverty see: 2002 Ch IV at: http://www.cidh.oas.org/relatoria/showarticle.asp?artiD=309&1ID=l. 62 Broadcasting, Voice, and Accountability South and Southeast Asia Broadcasting in South and Southeast Asia is hugely diverse, driven by a variety of dynamics, and only a schematic outline is pos- sible here. If it is possible to generalize is hugely varied but at all, it is about the trend towards grouped in terms of commercialization. structure: While the debate over the "responsible" and the "free" press continues to rage, a common feature in Asian countries is commercialisation of the media. In the wake of economic lib- eralisation, media is undergoing a transition beyond politics, to information and consumerism. Media has also become a platform for advertising clients and a supporter of economic reconstruction, while creating demand for new consumer goods. 35 The major countries of South and Southeast Asia can be loosely grouped in terms of the structure of their broadcasting sectors. In Bhutan, Myanmar (Burma), Laos, and Vietnam the state main- tains direct control of national broadcasting, both radio and televi- sion, though the degree of control and censorship varies. Described as a "paradise for censors" 36 Burma relentlessly practices prior cen- sorship across all media. Broadcasting in Laos is under heavy-handed direct government control. Virtually no criticism of the government is permitted in Bhutan, though the press sector is opening up slowly. Vietnam's elaborate national and regional broadcasting system of around 100 radio and television services all remain under different forms of state control, though a dissident press manages to survive. Foreign broadcasting in these countries is available in border areas, and through and long-wave radio, satellite, or carefully of government monitored cable access. 35 Werner vom Busch, ed., The Asia Media Directory (Konrad-Adenauer Foundation Singa- pore, 2004), 8-9, available at: http://www.kas-asia.org/pub_bkg/Asia%20Media%20 Directory. pdf 36 Raporteurs sans Frontiers, Burma Annual Report 2006, available at: http://www.rsforg/ article. php3 ?id_article=17346. Regional Broadcasting Characteristics and Trends 63 China has opened its broadcasting sector significantly in recent years, though the Communist Party of China (CPC) and government continue to exercise stringent control and censorship. Broadcasting is dominated by state-run Chinese Central Television (CCTV), as the only national service, and offers numerous satellite and pay television channels. Over 2,000 provincial and municipal stations exist, run by local government, although most now rely on advertising and com- mercial income and focus heavily on commercial fare. They all also carry CCTV's main news program. Agreements are in place to allow major global corporations, such as AOL Time Warner and News Corp, to broadcast via cable, though programs are vetted by the regulator, and criticism of the CPC is not permitted. China National Radio is the only national channel but every province, autonomous region, and municipality has its own radio stations run by local government. Within the strict parameters set, there is fairly open discussion of so- cial concerns and policy options. Countries such as Bangladesh, Cam- bodia, and Pakistan operate a mixed state- ... to a mixed pu private system controlled and private broadcasting, with by the state, with i little in the way of independent regulation. and explicit state co In Bangladesh, the state runs terrestrial both and as yet no ,, 1:< , television and radio over the national ter- opening to communit~~~,s:,.. ,~ ritory, but four commercial television channels are licensed on satellite and cable, and there are a number of FM radio stations. For private broadcasters, however, "keeping their licences depends on their demonstrating a certain compliance with the government." 37 Vocal opposition comes only from newspapers. In Cambodia, the combination of state-controlled and commercial radio and television is further complicated by the fact that much of the pri- vate media is actually under political party control. Corruption and political bias of both state and private broadcasting limit the contri- bution of the broadcast media, and a heavy criminal code hangs over the press. Pakistan has issued over twenty satellite television licenses, 37 Raporteurs sans Frontiers, Bangladesh Annual Report 2006, available at: http://www .rsforg/article.php3 ?id_article= 17344. 64 Broadcasting, Voice, and Accountability though terrestrial television remains state controlled; and over 100 licenses have also been issued for private FM radio stations with many more promised. At the same time, and somewhat paradoxi- cally, the broadcasting and censorship laws are being tightened and intimidation is rife, though the print media remains far freer. None of these countries currently permit community broadcasting, though the issue is hotly debated in several and is likely to appear sooner or later. In India, Nepal, Sri Lanka, Thailand, and Indonesia community ra- dio is an emerging feature of a broadcasting environment that includes commercial, state, but also, in some cases, aspects of public service broadcasting. The commercial sector in India's media has expanded exponentially in recent years, first televi- a mixed public, sion and then radio. Although private com- e, and community mercia! radio is not permitted to broadcast in a variety of news, cable and satellite television news is rations, and a ment toward popular. The public broadcasting corpora- J~ependent regulation . . . tion, Prasar Bharati, established in 1997 as · ,~, an independent body with a public service mandate, oversees the very extensive national television service, Door- darshan, and All India Radio. But Prasar Bharati's links to government are numerous and its funding base compromises its independence. In 2006, a policy statement was approved to open up the licensing of com- munity radio, and the sector is expected to see rapid growth. In Nepal community radio came into being in the mid-1990s, pioneering the concept in South Asia, and it has established a major role in the broad- casting landscape. It is credited with having played a part in the recent return to democracy. Commercial radio and television also exist along- side the state broadcasters. Indonesia opened up to commercial broad- casting after the fall of the Soeharto regime in 1998. In 2002, a new broadcasting law 38 provided for the establishment of the Indonesian Broadcasting Commission (KPI-Komisi Penyiaran Indonesia) and for the recognition of community radio. There are about a dozen national commercial television services and hundreds of local commercial and community radio and television services. The ongoing civil war has created a fraught media environment in Sri Lanka. It has a mixed system of state and commercial broadcasting, 38 Law number 32/2002. Regional Broadcasting Characteristics and Trends 65 with numerous commercial radio and television channels. The Sri Lanka Broadcasting Corporation (SLBC) has a public service mandate in radio, though it comes under a ministry and has little editorial au- tonomy. SLBC operates a number of local stations with some commu- nity radio characteristics, but SLBC control ensures they rarely carry coverage critical of the government. Thailand's 1997 constitution enshrined a broadcasting system with an independent regulator and three basic forms, reserving 20 percent of broadcast frequencies for not- for-profit community broadcasting, the rest to be divided equally between public service and commercial sectors. Implementation has yet to live up to this, but many hundreds of private and community ra- dio stations sprang up. The independence of all broadcasting was whittled away under the leadership of Prime Minister Thaksin Shinawatra. The coup that removed him in 2006 introduced more ex- treme media controls and censorship, including the shutting down of hundreds of community radio stations. To varying degrees, what distinguishes these countries is the open- ing to community radio, some development of public service broad- casters alongside ongoing and widespread debate on the concept, and movement toward independent regulation. Among Southeast Asian countries, the Philippines stands out for its dominance by powerful commercial interests. Dozens of commercial television services are grouped mainly into five major networks, with ... to a highly virtually no direct state or public broad- commercialized s casting. The government-owned National with public service regulation in practic Broadcasting Network (NBN) has a public largely controlled bY:r:. service charter but receives no public government, but with'a: . funding and is widely criticized for being vibrant community and:~:::. partisan in favor of the government. But local radio sector. radio is still the most popular medium, and NBN exists alongside innumerable commercial stations, as well as a vibrant though underfunded community and nonprofit radio sector, including many religious stations. Middle Eastern and North African Countries Media in the MENA region might seem to be an entirely exceptional case, for the most part under direct control of the state. There are 66 Broadcasting, Voice, and Accountability widespread abuses of freedom of expres- dcasting in the MENA n, by contrast, sion in many countries, including Saudi les a narrower Arabia, Syria, Yemen, and Libya, and the ctrum. concept of freedom of information is alien to most. At one end of this narrow spectrum is one is a cluster of controlled and Saudi Arabia, a pioneer of pan-Arab satel- red broadcasting lite television but long one of the most s, under state tightly controlled media environments in rship or strict the Middle East, with no private radio or ulation at the national television and a government minister though with some chairing the national channels. Criticism openings in the press or .satellite ... of the government or royal family and the questioning of religious tenets are not gen- erally tolerated. Broadcasting in a number of other countries, such as Iran and Libya, is barely more liberal, and, in some respects, is less so. Algeria's broadcasting is all state controlled, though there is a lively and critical press. Bahrain's radio and TV stations are state run. The country's first private radio station-Sawt al-Ghad-was launched in 2005, but the authorities closed it in 2006, alleging irregularities. A number of others, including Jordan and Syria permit commercial ra- dio, though content is limited to music and license holders are often close to the state. Lebanon is one of the more liberalized the other is a group ntries opening to states whose broadcasters reflect a diversity ercial, and even of social and political interests. Jordan has munity, broadcasting; introduced licensing for commercial broad- the possibility of an casting and is the only country in the region pendent regulator. so far to have licensed community broad- owever, all broadcasters refrain from serious casting services. There are some gestures to- political debate analysis. ward pluralization in Kuwait and Egypt, --.........:-~-------------' both of which combine state-run broadcast- ing with commercial services in both television and radio. Morocco can be said to be considering the installation of a liberalized model and has established a relatively independent broadcast regulator. A number of others, including Syria, permit commercial radio, though license hold- ers are fairly close to the state. Almost all national commercial media in Middle Eastern and North African countries, through direct or self- censorship, refrain from serious political debate and analysis. Regional Broadcasting Characteristics and Trends 67 An IREX Media Sustainability Index Relatively pro,grE~ss~,,o covering eighteen MENA countries39 constitutional laws found that the combination at a constitu- undermined by weaa;1 tional level of relatively progressive laws implementation; thouoll~, but poor implementation by the govern- the absence of '<: 10 broadcasting critical of lhe ment and the courts was typical of the re- 0 government has not gion, and that editors and journalists constrained the exercise restraint even after the regulatory development of a media environment and the political climate industry. loosens. It also concludes that: These oil-rich countries and their neighbors have demon- strated the ability to develop a media industry without loos- ening press freedoms beyond points that threaten the governing monarchies and regimes of the region. 40 What appears almost entirely absent is a challenging national public service broad- Change may be horizon as public casting, or a confident commercial broad- in MENA countries casting critical of the government and to open out under th stimulating debate. Recent developments, stimulus of such inf~ri however, suggest that change is coming as regional satellite and these developments are led by televi- television. sion, not nationally but at the regional level. Satellite services have had a transformative influence across the region. What has been described as a new Arab public is leading to significant change in the political culture: Rather than imposing a single, overwhelming consensus, the new satellite television channels, along with newspapers, In- ternet sites, and many other sites of public communication, challenged Arabs to argue, to disagree, and to question the status quo . . . . [the new Arab public] has conclusively shattered the state's monopoly over the of information and the oppressive state censorship that was smothering public discourse well into the 1990s. The new public rejects 39 IREX (International Research & Exchanges Board), The Develapment of Sustainable IndqJen- dent Media in the Middle East and North Africa, Media Sustainability Index 2005 (IREX, 2006), Executive Summary, x, available at: http://www.irex.org/programs/MSI_MENA/index.asp. 40 Ibid. 68 Broadcasting, Voice, and Accountability the long, dismal traditions of enforced public consensus, insisting on the legitimacy of challenging official policies and proclamationsY The most influential of the new satellite channels, al-Jazeera, models itself on public service broadcasting in terms of its principles, ethos, and modus operandi, though it relies on the continuing support of the Emir of Qatar. Pan-Arab media, especially television, is likely to con- tinue to have a transformative role in the media landscape, including at national level, though at this stage the contours of the outcomes are unclear. The IREX study, referring to the satellite and Internet news dissemination, concludes that "this struggle over control of the infor- mation space ... will be a major factor determining how the countries of the region develop both politically and economically." 42 Conclusion: An Emerging Paradigm Chapter 1 identified a set of characteristics that can, potentially~ enable the media sector to contribute to good governance and devel- opment. These are: freedom of expression, ready and timely access to information both public and private, independence of the media, diverse media content reflecting a wide range of views especially of marginalized groups, broad media coverage and reach, and a sustainable media resource base. The analysis of broadcasting systems in each region conveys a sense of the degree to which these characteristics are present and might be encouraged and reinforced. It confirms that broadcast me- dia in developing countries and regions have by far the greatest reach, especially into rural and remote areas in which a large propor- tion of the poorer population often resides, and that these media com- prise the primary source of information and news for most people. The current status of many of the above features is far from ideal, although there are some encouraging trends. The last decade has seen a pronounced decline in the legitimacy of direct government control of broadcasting, especially in Africa and in transition countries of Central and Eastern Europe but also, and to 41 Marc Lynch, Voices of the New Arab Public: Iraq, al-Jazeera, and Middle East Politics Today (New York, Chichester: Columbia University Press, 2006), 2-3. 42 Ibid., 9. Regional Broadcasting Characteristics and Trends 69 a lesser extent, in Latin America, parts of The legitimacy of dlrl!!et Asia, the Middle East, and North Africa. In state control of ·· its place, there is a growing aspiration to broadcasting is in decline;. develop a mixed model that combines and an aspiration towat:Qs public service broadcasting with private a mixed model emerging:. commercial and community broadcasting, Although clearest in Africa · and CEE countries, other under the scrutiny of an independent reg- regions are moving ulator. This trend is most pronounced in forward in certain Africa and transition countries, but there dimensions. is evidence that, starting from a very dif- ferent point, key characteristics of the system are moving to the fore- ground in Latin America where the community sector is growing in size and the idea of public service is being revisited. Parts of Asia are also moving in this direction, though commercial dynamics dominate at present. In the Middle East and North Africa the main sign of move- ment comes from pan-regional television, which is consciously casting itself as public service in its ethos; and government control over broad- casting at the national level is coming under pressure and is the sub- ject of growing debate and tentative moves toward reform. Both legislation and implementation, however, leave a lot to be desired even in those regions that are most actively pursuing reform, and there is often Likely long-term o~mes doubt as to the level of underlying political must factor in a num&:erAf commitment. Nevertheless many govern- issues: ments have accepted, in principle, the le- gitimacy of such a media trajectory, and this offers an important opening for policy change. Movement toward this emerging media paradigm is sometimes halting, and often selective, as it encounters resistance among interests that would prefer to retain firm control of decisive media components. It is not inevitable that broadcasting should progress in a direction that maximizes its contribution to good governance and development. A prognosis must factor in a number of issues and trends. First, basic freedom of expression remains a serious concern in many developing countries across all regions, with governments exerting subtle and not-so- remain concernin subtle pressures and barriers of various freedom of expresSWJ'l kinds. This seriously hampers the emergence many countries. of a positive media environment insofar as it 70 Broadcasting, Voice, and Accountability compromises media independence and impedes reporting on corruption and maladministration, and the gathering of information. Second, and related to the first issue, are obstacles that prevent the media, and the population, in most countries from gaining access to in- formation in a timely manner-especially nd, freedom of government information but also informa- ation legislation, h becoming more tion from nongovernment sources that per- pread, is still the tains to issues of public concern. Freedom of ception, not the rule. information legislation and its effective im- plementation is still the exception, not the rule, though the trend is positive here, and many countries are engaged in the process of developing and implementing such legislation. Third, few countries have yet to establish an authoritative inde- pendent regulator. This cannot be stressed enough. Even where appro- priate policy and legal instruments are in place, the reality on the ground is often very different. The capacity • independent of nominally independent regulators to be ators, with the effective can be undermined by corruption, ority and resources to the broadcasting negligence, or bureaucratic inertia. Regula- or, are few and far tors can suffer "capture" by partisan inter- petween. ests, especially government. The risk of regulatory failure is heightened by a lack of capacity and experience of regulatory issues in many countries in which regulators may confront well-funded national and international media interests. And only a handful of governments have demonstrated con- clusive willingness to fully renounce their capacity to influence the broadcast media, and the ability to follow through on it. Fourth, the transformation of the landscape into the thriving clusters of public service, commercial and community broadcasting, with a viable economic base for each, is h, creating an not straightforward. omically viable three- Converting state-controlled broad- broadcasting system mtes many obstacles . . . 0 casting to public service broadcasting is 0 " ;eo no mere adaptation, and demands a fun- damental shift in government culture and perception of broadcast- ing. Few have succeeded in fully severing the link to government to establish an arms-length relationship. Devising a sustainable source of funding without compromising independence or the viability of the commercial broadcast sector has been achieved only rarely. Although improvements over state-controlled media are evident, Regional Broadcasting Characteristics and Trends 71 achieving the ideal of public service broadcasting has a considerable way to go. Commercial broadcasting has added into sustainable considerably to diversity in many coun- independent public tries from national to local levels, but it is services broadcasters . not reaching its full potential in terms of promoting good governance and development. In some transition countries, a "reckless commercialisation of content" 43 needs to be constructively addressed. Although there is growing recognition that a community broadcasting sector can ... in enabling priv sector broadcast! be especially valuable to enhancing partic- reaCh itS fUif nn1rOnifi.:O:I,'1n ipation in governance and in supporting development, further policy and regula- tory change is needed, the capacities of communities and civil society to build the 1 sector are not always present, and creating ... and in providingYtj environment for and :;;\:\~ a sustainable funding base is a challenge. building the capac! In addition to these four trends, all of community broad~ which directly influence broadcasting, the sector. sector will inevitably also continue to be impacted by wider global events. The terrorist attacks on New York and Washington in September 2001 and related events have had sig- nificant repercussions internationally on media freedom and the use of defamation, treason, and hate speech laws, and have sometimes added impetus to repressive policies pursued with other agendas. The World Association of Newspapers (WAN) claims that there is" a legitimate and growing concern that in too many instances tighten- ing of security and surveillance measures, whether old or newly introduced, are being used to stifle debate and the free flow of infor- mation about political decisions, or that they are being implemented with too little concern for the overriding necessity to protect indi- vidual liberties and, notably, freedom of the press." 44 The rise of 43 051, 2005, 72. 44 Cited are: new antiterrorism and official secrets laws, criminalization of speech judged to justify terrorism, criminal prosecution of journalists for disclosing classified information, surveillance of communications without judicial authorization, restrictions on access to government data, and stricter security classifications. "All these measures can severely erode the capacity of journalists to investigate and report accurately and critically, and thus the ability of the press to inform," according to WAN (2007), available at: http://www .wan-press.org/3may/2007/downloads.php? type=doc&file_name=3May0ogma. 72 Broadcasting, Voice, and Accountability China as a major world power and its unique state-led yet highly commercialized approach to media will also undoubtedly have a profound influence on debates concerning the appropriate media environment. Nevertheless this apparently widespread convergence toward a broadcast system that includes a mix of independent public service, private commercial, and not-for-profit community broadcasters has significant potential to promote good governance and to generate other public interest outcomes, including development benefits of broadcast media. At the same time, there are also specific obstacles that could stall the emergence of these benefits and stunt the poten- tial of the model in important ways. In any given country, such a system >::r.il~r.f'lloltrnn the right mix of, will necessarily vary in the weight and balance between, the ::::'~'o~'''"'" within a public composition of the constituent broadcast rest approach, will sectors, each sector producing its own and the design and hybrid as influenced by history, culture, iq;lplementation of both a local circumstances, level and nature of ~positive overall media economic and institutional development, environment and the right and so forth. The extent and form of the legal, policy, and regulatory measures. application of market and competitive principles within this overall public inter- est framework will vary. The balance of size and influence can shift between the sectors, and between underlying approaches, as policy makers and regulators experiment and implement new ideas. There is no single, fixed set of rules on how to maximize the potential of the system to contribute to the public interest, and broadcasting policy and regulation will undoubtedly remain a dynamic area of change and development. Yet many of the key challenges facing broadcasting reform can be addressed by devising the appropriate policy, legislative, and regula- tory framework. This can operate at two levels. 1. Certain aspects of the enabling environment affect all media and extend beyond media per se, encompassing freedom of expression, limits to free speech, defamation laws, and ac- cess to information. These features of the policy environ- ment can greatly enhance the prospects for media to Regional Broadcasting Characteristics and Trends 73 contribute to good governance and development, and go to the heart of open communication in the society and polity. 2. Other policy issues are specific to media and to broadcast- ing, in particular. These include creating an independent regulator capable of exerting its several functions effec- tively and creating the space within which the various me- dia sectors and subsectors can thrive. They also include expectations regarding the governance and accountabilities of diverse broadcasting subsectors. Parts II and III, respectively, address these challenges. Part II The Enabling Environment for Media Overview In the absence of a conducive wider environment, even the finest guide- lines on broadcast policies, laws, and regulations are of little use. Part Ill addresses the broadcasting sector directly, while Part II outlines some key elements of the enabling environment media in more detail. Without solid guarantees of the right to freedom of expression, media cannot say what they need to say. Without timely access to information, they lack the raw material essential for their job. The overzealous ap- plication of-indeed the mere existence of-criminal defamation laws can greatly restrain reporting and end in self-censorship. And while everyone accepts that laws to limit certain media content are justified, preventing the abuse of such laws demands very careful design and im- plementation. Finally, journalists and the conditions in which they oper- ate hold particular influence over the quality of the media landscape. All of these issues are covered in Part II: guarantees of freedom of expression, enabling access to information, the use and misuse of defamation laws, content rules and limits to free speech, and the role and regulation of journalists. Most of the territory covered relates to wider concerns for freedom of expression and general openness in so- ciety, and some is relevant to media in general, Internet, and print as well as broadcasting. Thus the broadcasting specific regulation and policy are left as the dedicated focus of Part Ill. The first three areas for discussion-freedom of expression, access to information, and defamation laws-are particularly important for the achievement of an atmosphere in which everyone, all sectors and people, can have a voice and openly contribute to public discussion. Each of them protects or advances the rights of individuals as well as of the media. In the discussion, these rights are addressed primarily in terms of their impact on the media and their role in society. Chapter 4 addresses the importance of effective guarantees for freedom of expression, normally at the constitutional level. Progres- sive guarantees for freedom of expression are a key general under- pinning of broadcasting in the public interest. Most countries do have some form of constitutional guarantee of freedom of expression, but they vary considerably in their scope, strength, and means of appli- cability, and Chapter 4 outlines the key features of a robust system to protect freedom of expression. Part II 77 Chapter 5 highlights the importance of access to information legislation, granting a right to individuals as well as to the media to access information held by public bodies. Access to information is central to the ability of broadcasters to hold governments to account and to expose corruption. By enabling informed opinions and deci- sions, it also contributes to people's empowerment and participation. In practice, the law must set out the manner in which this right may be exercised, key features of which include a broad presumption of ac- cess, good process guarantees, a narrow regime of exceptions, and the right to appeal a refusal to an independent oversight body. Appropriate content constraints, the subject of Chapter 6, are a central feature of public interest broadcasting. Unfortunately, many countries still have very restrictive rules in place regarding what may be published or broadcast. Defamation laws, in particular, are often the tool of choice for politicians, officials, and powerful private actors to discourage critical or simply unwelcome reporting. Although defamation laws are a particular concern in many coun- tries, a number of other restrictions on content-such as national se- curity laws, prohibition against publishing false news and hate speech, and rules governing reporting during elections-can also be abused to prevent critical reporting. These are covered in Chapter 7. Rules governing journalists, irrespective of the media sector for which they work, are also an important component of the wider envi- ronment for broadcasting. Government control over the profession im- pacts directly on the ability of broadcasters to report. Given their special role in informing all citizens, the right of journalists to protect the confidentiality of their sources of information is one of the few spe- cial rights recognized for the profession. These legal and regulatory is- sues are outlined in Chapter 8. Also covered here are certain systems that are widely used to deal with harmful content in the media. A right of correction andjor reply, in particular, provides quick and accessible redress for victims, while minimizing interference with media freedom. In its presentation of material in Parts II and Ill, the guide draws heavily on international standards relating to the right to freedom of expression, as established by various authoritative international bod- ies. The guide also makes considerable use of country examples to demonstrate how these standards have been implemented in prac- tice. This includes a description of various practical means by which regulatory approaches have been put into place, as well as legal and policy prescriptions and directions, and rulings by superior and con- stitutional courts regarding appropriate standards. Good Practice Checklist • Freedom of expression is a fundamental human right, widely recog- nized as essential for good development practice and guaranteed in international law and practically all national constitutions. Although freedom of the press is already implicit in this right, it is useful to have it explicitly included among constitutional guarantees. • Constitutions should ideally provide explicit guarantees for freedom of the media, in recognition of the crucial role of the media in giving practical effect to the free flow of information and ideas in society. • Incorporation into national legal systems of international guarantees of freedom of expression, which have been subject to extensive and positive elaboration by various authoritative international bodies, can help provide a strong minimum basis of protection for this right. Introduction Freedom of expression is a fundamental human right and, as such, should receive formal recognition as a basic value in every society. Guarantees of freedom of expression can be found in almost all mod- ern constitutions and receive strong support under international hu- man rights law and generally among the public. Although guarantees at the constitutional level are not in them- selves sufficient-without political will and more detailed laws and regulations they cannot always be relied on to lead to implementa- tion-they are a vital precondition. Strong guarantees of freedom of expression, when they are respected and implemented, can also have significant developmental consequences, by providing an underpin- ning for improvements in governance and for the adoption of legal and regulatory frameworks. 78 Guarantees of Freedom of Expression 79 The review and improvement of the terms of constitutional guar- antees of freedom of expression can be part of a wider process of con- stitutional reform, common at times of transition to democracy or other significant change to open the governance system to public ac- countability. From a developmental perspective, such periods of change can provide a critical window of opportunity to strengthen commitments to the right to freedom of expression. The existence and the terms of constitutional guarantees carry both juridical and social significance. At one level, constitutional provisions are formal legal guarantees setting out the scope of the right and the standards, in respect of this right, to which other laws and official prac- tice must conform. As such, these guarantees are an underpinning for all of the public interest regulatory approaches described in this guide. Their character as formal legal guarantees also means that con- stitutional protections can be used to provide practical protection for freedom of expression. In many countries, these guarantees are di- rectly enforceable through the courts, providing a concrete means of redress against laws and official practices that unduly limit freedom of expression. Even where they are not directly applicable, constitu- tional guarantees can be relied upon to promote an interpretation of other laws that is consistent with freedom of expression. At another level, constitutional guarantees are peak standard- setting documents, providing a reference point for acceptable govern- ment behavior. They are important social documents that create public expectations about what constitutes appropriate official action. They can help give people the confidence to critique government ac- tions or inaction publicly, influence others, and demand improve- ments in governance and service delivery, without fear of retribution. Even if implementation is legally flawed, failure to conform to the standards is seen as unacceptable. This can help build momentum for change, both by providing clear direction as to an appropriate solu- tion or direction, and by giving authority to challenge occasions when the state or its agents are in breach of the provision. Most constitutional guarantees of freedom of expression are very brief-normally just a few lines-and it is through judicial inter- pretation and, in some cases, more detailed legislation, that the precise contours of this rather complex right are more fully elabo- rated. Constitutional guarantees, if strong, can play a number of key 80 Broadcasting, Voice, and Accountability BOX 1. South Africa: Constitutional Guarantees In apartheid South Africa, the 1983 constitution contained neither a Bill of Rights nor guarantees for freedom of expression. Broadcasting was oper- ated through the South African Broadcasting Corporation (SABC) as a state monopoly and as a mouthpiece of government. During the transi- tional government of 1993, an interim constitution was adopted which, for the first time, provided an explicit guarantee of the right to freedom of expression. The 1993 constitution signaled the liberalization of broad- casting and stated explicitly that "all media financed by or under the con- trol of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion." In accordance with the in- terim constitution, the transitional government adopted the Independent Broadcasting Act of 1993, establishing an independent regulatory body to oversee broadcasting, including community and private commercial services. The present day constitutional guarantees of freedom of expres- sion in South Africa are contained in the postapartheid constitution of 1996, which was the culmination of two years of intensive consultation said to be "the largest public participation programme ever carried out in South Africa." 1 1. Constitution of the Republic of South Africa 1996. standard-setting roles in relation to freedom of expression. Among others, they can include: • Affirmation of the right to freedom of expression • Affirmation of the freedom of the press/media • Provision for the applicability of international law This chapter examines the scope and nature of these guarantees, their relevance to good development practice, and the mechanisms for their implementation. It provides country examples that offer com- parative illustrations of the guarantees and it includes references to the relevant international law and standards. Guarantees of Freedom of Expression Freedom of expression is a fundamental human right. It is guaran- teed in international law and practically all national constitutions. It is widely recognized today as being an essential foundation for good development practice. Guarantees of Freedom of Expression 81 BOX 2. Thailand, Mali, Columbia: Constitutional Guarantees Section 39 of the Constitution of Thailand, states, in part: "A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicize, and make expression by other means." Article 4 of the Constitution of Mali, adopted after the 1991 revolution, states: "Every person has the right to freedom of thought, conscience, religion, opinion, expression and creation in respect to the law." Article 20(1) of the Consti- tution of Columbia states: "Everyone is guaranteed the right to express and disseminate their thoughts and opinions, freedom to inform and re- ceive truthful and impartial information, and freedom to establish mass communication media." The right to freedom of expression is explicitly guaranteed in various international declarations and treaties and in most national constitu- tions. In some countries where there is no explicit guarantee, courts have found an implicit right to freedom of expression. Australia, for example, does not have a bill of rights, although it does have a writ- ten constitution. The High Court has held that there is an implied con- stitutional freedom of political communication, based on the guarantee of elected government. This protection is, however, given its basis, limited to "political discussion," including "discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office." 1 National guarantees of freedom of expression vary considerably. Constitutional guarantees that are too narrowly defined, in terms either of the types of expression or the modalities of communication covered, fail to provide a sufficient underpinning for realizing developmental, participatory, and accountability needs. Qualities that enhance the guar- antee, taking into account judicial interpretation, include the following: • it applies to everyone, not just citizens or residents; • it applies to seeking and receiving, as well as imparting, information and ideas; • it is understood broadly to protect all content, not only that which is deemed socially useful; false, offensive and even harmful speech should be covered; and • it is understood broadly to protect all forms of communication. 1 See Lange v. Australian Broadcasting Corporation, 71 ALJR 818 (1997). 84 Broadcasting, Voice, and Accountability The Thai constitution,4 too, includes detailed provisions specifi- cally aimed at protection of freedom of the press/ media. Article 39 in- cludes the following provisions: (3) The closure of a pressing house or a radio or television station in deprivation of the liberty under this section shall not be made. (4) The censorship by a competent official of news or articles before their publication in a newspaper, printed matter or radio or television broadcasting shall not be made except during the time when the country is in a state of war or armed conflict; provided that it must be made by virtue of the law enacted under the provisions of paragraph two. The constitution also includes detailed provisions regarding broad- cast regulation, in Article 40, as follows: (1) Transmission frequencies for radio or television broadcast- ing and radio telecommunication are national communica- tion resources for public interest. (2) There shall be an independent regulatory body having the duty to distribute the frequencies under paragraph one and supervise radio or television broadcasting and telecommu- nication businesses as provided by law. (3) In carrying out the act under paragraph two, regard shall be had to utmost public benefit at national and local levels in education, culture, State security, and other public interests including fair and free competition. Unfortunately, implementation of these provisions has been prob- lematic; for example, no independent regulatory body has yet been appointed for broadcasting. Direct Applicability of International Law International law provides for strong guarantees of freedom of ex- pression and these have been subject to extensive and positive elab- oration by various authoritative international bodies. If the national legal system directly incorporates these guarantees, that can help provide a strong minimum basis of protection for this right. 4 Available at: http://www.servat.unibe.ch/icl/thOOOOO_.html. Guarantees of Freedom of Expression 85 BOX 4. France, United Kingdom: Direct Applicability of Inter- national Human Rights Agreements Article 55 of the French Constitution provides: "Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its applica- tion by the other party." Article 75(22) of the Argentinean constitution provides that Congress shall have the power: To approve or reject treaties entered with other nations and with international organizations, and concordats with the Holy See. Treaties and concordats have higher standing than laws. The same article goes on to provide that a long list of human rights treaties and declarations have the constitutional status, and complement the rights guaranteed in the constitution, although they shall not be un- derstood as repealing any constitutionally guaranteed rights. In 1998, the United Kingdom adopted the Human Rights Act, which effectively incorporated the human rights guarantees of the European Convention for the Protection of Human Rights and Fundamental Free- doms into national law. This law gives courts the power to rule out sec- ondary legislation and official practice but not to "strike down" primary legislation. Instead, courts are required to interpret legislation, as far as this is possible, in accordance with human rights guarantees and, where this is not possible, they can enter a declaration of incompatibility, which then empowers a minister to take such action as may be necessary to remove the incompatibility. In many civil law systems, international law is directly applicable as part of the national legal system, and usually has superior status to ordinary legislation so that, in case of conflict, international law prevails. In common law systems, however, it is rare for the constitu- tion to provide for the general incorporation of international law. In- ternational law may specifically be incorporated by statute, but such statutes cannot generally override other legislation. Even where international law has not been incorporated, the de- cisions of international courts-such as the European Court of Hu- man Rights and the Inter-American Court of Human Rights-are binding on states. States are, therefore, formally obliged to give effect to these judgments. The benefits of direct applicability of international law are fairly obvious. It helps to ensure that the state respects its international 86 Broadcasting, Voice, and Accountability legal obligations, and thereby lends force to those obligations. More importantly, however, it ensures the formal applicability of a pro- gressive body of standards that has been established through inde- pendent mechanisms and by individuals with internationally recognized expertise in the field. It is important to note, however, that very few national courts apply these standards on a regular basis. Good Practice Checklist • Constitutional guarantees of the right to information, either specifi- cally or as part of a general right to seek, receive, and impart infor- mation, are important both as legal guarantees and to signal the importance of access as a human right. • The starting point for good practice in access to information laws is the principle of maximum disclosure, which establishes a presump- tion that all information, defined broadly, held by any public body, again defined broadly, is subject to disclosure. • An important part of an access to information regime is an obligation for public bodies to publish certain key categories of information, even in the absence of a request, known as proactive or routine disclosure. • Certain public and private interests may override the right to access information, and good practice access to information laws provide for comprehensive but narrowly and clearly drafted exceptions to the right of access. • International standards establish that a refusal to disclose information is justified only when a public body can show that disclosure would cause harm to one of the legitimate interests listed and that this harm is greater than the public benefit of disclosing the information. • To facilitate access to information in practice, an access to information law should set out clearly the manner in which requests will be processed, it should respect minimum due process guarantees, and it should ensure the fair, timely, and inexpensive processing of requests. • Where a request for information has been refused, the requester should have the right to appeal this refusal to an independent body for adjudication. • In most countries, one may ultimately appeal to the courts, but in practice, it is very important that an administrative system of appeals be provided which operates rapidly and at low cost. (continued) 87 88 Broadcasting, Voice, and Accountability Good Practice Checklist (continued) • Individuals who, in good faith, release information on wrongdoing, known as whistle-blowers, should be protected from legal, adminis- trative, or employment-related sanctions for so doing. • Promotional measures can help to overcome the culture of secrecy that exists in many countries and to ensure that the public is properly informed about the new access to information law. Introduction The idea that public bodies hold information not for themselves but on behalf of the public is now widely recognized as a fundamental underpinning of democracy and good governance. Numerous recent statements by international human rights bodies assert the impor- tance of the right to know and it has also been recognized as a human right in many national constitutions around the world, particularly those adopted in the last ten to fifteen years. To give practical effect to this right, a growing number of countries-over seventy as of April 2006-have already adopted access to information legislation, with many other countries taking steps in that direction. Access to information held by public bodies has also been widely promoted as an essential underpinning of equitable and sustainable development. Puddephatt lists five key reasons why access to infor- mation is important: 1. it is necessary for informed political debate; 2. secrecy leads to a culture of rumor and conspiracy; 3. secrecy leads to corruption; 4. it is a key tool in combating ignorance, for example in the area of health, which undermines development; and 5. it is crucial to holding governments accountable. 1 Numerous commentators have noted the role of openness in com- bating corruption and particularly in providing civil society and the media with a key tool to investigate and expose corrupt practices. As Pope has noted: "Secrecy still strikes at the concerns of civil society 1 A. Puddephatt, Preface in R. Calland and A. Tilley, The Right to Know, the Right to Live: Access to Information and Socio-Economic Justice (Cape Town: ODAC, 2002), xi-xii. Enabling Access to Information 89 everywhere, and most significantly it perpetuates an environment in which corruption can flourish unhindered." 2 There are numerous examples of access to official information being effectively used to combat corruption, some of which have been outlined in Chapter 3. The crucial importance of access to information as an underpinning of democratic participation is also widely acknowledged. Stiglitz, whose work on the economic implications of asymmetries of informa- tion won him a Nobel Prize, has stated: "Essentially, meaningful partic- ipation in democratic processes requires informed participants. Secrecy reduces the information available to the citizenry, hobbling people's ability to participate meaningfully." 3 This applies at all levels of partic- ipation, whether it be electing a government, sitting on a local school board, or providing feedback to a proposed development project. Information is equally central to holding government account- able. Unless citizens are properly informed about what government is doing, how it is spending public funds, and its own assessment of its successes and failures, they cannot ensure that it is acting for the general public good, or in accordance with its public promises. 4 Once again, this is relevant at all levels of governance, from the national to the provincial to the local. Constitutional guarantees of the right to information, either specifically or as part of a general right to seek, receive, and impart information, are important both as legal guarantees and to signal the importance of access as a human right. But detailed access to infor- mation legislation is also needed: • to spell out the practical means by which this right may be exercised (i.e., how requests are to be processed, within what time lines, etc.); • to elaborate clearly the scope of exceptions to the right of access; and • to establish the right to appeal any refusals to disclose information to an independent body. 2 J. Pope," Access to Information: Whose Right and Whose Information?" in Transparency International, Global Corruption Report 2003: Special Focus: Access to Information (London: Profile Books, 2003), 21. 3 J. Stiglitz, "Transparency in Government" in the World Bank, The Right To Tell: The Role of the Mass Media in Economic Development (Washington, DC: World Bank, 2002), 30. 4 T. Mendel, Freedom of Information: A Comparative Legal Survey (New Delhi: UNESCO, 2003), iv. 90 Broadcasting, Voice, and Accountability In many countries, specific provisions on access to information in dif- ferent contexts apply. For example, consumer protection laws and legislation on the environment often include rules providing for access to information or the disclosure of certain specific types of information, including on commercial entities such as corporations. These are im- portant complements to more generic access to information legislation. The four main features of a good access to information law, reflecting the need for such legislation as just noted, are: 1. a presumption that all information held by public bodies shall be subject to public disclosure; 2. a procedure clarifying the manner in which individuals may place requests for information and how officials should respond; 3. the elaboration of clear grounds for refusing a request for information (the regime of exceptions); and 4. the right to appeal any refusal to disclose information to an independent body. Other important issues to consider in an access to information law include: • an obligation to publish information proactively, even in the absence of a request; • protection for whistle-blowers, individuals who release information on wrongdoing; • systems for the proper maintenance of the records held by public bodies; and • measures to promote effective implementation of the legislation. This last issue is central to the success of an access to information regime. Indeed, it has often been noted that getting an access law adopted, even a very good law, is only the first, and often the easiest, step in terms of putting into place an effective access to information regime. Numerous international statements provide guidance as to good practices in this area. These include official documents, such as the Recommendation 2002(2) of the Committee of Ministers of the Council of Europe on Access to Official Documents 5 and the African 5 Adopted February 21, 2002. Enabling Access to Information 91 BOX 5. Sweden: The First to Grant Access Sweden was the first country in the world to adopt a law granting citizens the right to access information held by public bodies, having adopted its Freedom of the Press Act in 1776. 1 The act, part of the Swedish constitu- tion, guarantees the right of access through Chapter 2 "On the Public Nature of Official Documents." Despite the act's title, the right is available to everyone, not just the press. Article 1 of Chapter 2 of the act states that "every Swedish subject shall have free access to official documents." In practice, however, anyone can claim this right, and Sweden has devel- oped a reputation, for example, for being a good country to access European Union documents. The right to access, and to correct, personal data is provided for by the Personal Data Act, 1998. 1. Available at: http://www.oefre.unibe.ch/law/icl/sw03000_.html. Commission on Human and Peoples' Rights' Declaration of Principles on Freedom of Expression in Africa, 6 as well as NGO statements, such as Article 19's The Public's Right to Know: Principles on Freedom of Infor- mation Legislation. 7 Constitutional Guarantees of Access to Information Although some argue it is implicit in the guarantee offreedom of ex- pression, explicit constitutional protection regarding the right to access information makes this absolutely clear. In some countries, courts have held that a right to access information is implicit in more general guarantees of freedom of expression. 8 In other cases, however, courts have declined to find a right of access in more general guarantees. 9 As a result, explicit recognition of this right is important. Although rare in older constitutions, many recent ones 6 Adopted at the 32nd Session, October, 17-23,2002. \London: ARTICLE 19, 1999), available at: http://www.article19.org/docimages/512.htm. Rpor example, as early as 1969, the Supreme Court of Japan established in two high-profile cases the principle that shiru kenri (the "right to know") is protected by the guarantee of freedom of expression in Article 21 of the constitution. See Lawrence Repeta, Local Government Disclosure Systems in Japan (National Bureau of Asian Research, paper no.16, October 1999), 3. 9 See, for example, Houchins v. KQED, Inc., 438 US 1 (1978) (United States Supreme Court). 92 Broadcasting, Voice, and Accountability explicitly provide for it. For example, Article 61(1) of the 1997 Polish constitution provides: A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons dis- charging public functions. Such right shall also include re- ceipt of information on the activities of self-governing economic or professional organs and other persons or orga- nizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury. Some constitutions also provide for the adoption of legislation implementing the right to information, in some cases even setting time limits on the adoption of such legislation. For example, the South African constitution contains not only the right of access to in- formation but a requirement that national legislation be enacted to give effect to this right. Section 23 of Schedule 6 of the South African constitution provides that implementing legislation on the right of access to information be adopted within three years of the constitu- tion coming into effect, which was indeed done. Section 7 of Article III of the Philippine constitution provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transac- tions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Principle of Maximum Disclosure The starting point for good practice access to information laws is the principle of maximum disclosure, which establishes a presump- tion that all information, defined broadly, held by any public body, again defined broadly, is subject to disclosure. The central idea behind access to information legislation is to provide the general public with access to information held by government institutions. This is reflected in the principle of maximum disclosure, which implies that the law covers all information and all public bodies. Enabling Access to Information 93 Good practice access to information laws define the scope of information covered very broadly to include all records held by the public body, regardless of the form in which the information is stored-printed document, tape, electronic recording, and so on-its source-whether it was produced by the public body or some other body-and the date of production. Legislation should cover all branches and levels of government, including local government, elected bodies, bodies that operate under a statutory mandate, nationalized industries and public corporations, nondepartmental public bodies or quangos (quasi nongovernmental organizations), and even private bodies that carry out public func- tions (such as maintaining roads or operating rail lines). However, in some cases private bodies can also become subject to access laws. In South Africa, for instance, the African law provides for a right to access to information held by both public and private bodies. A public body is defined as a department of state or administration in the national, provincial, or municipal spheres, and any other institution ex- ercising a power in terms of the constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation. Private bodies are defined as bodies that engage in com- mercial activities; they are required to provide access to information where this is required for the exercise or protection of any right. A slightly different approach is taken in the United Kingdom, where the main means for designating public bodies is through a list of bodies covered-set out in Schedule 1 of the act, which runs to some eighteen pages-rather than a generic definition. The list includes all government departments, the various legislative bodies, 10 the armed forces, and numerous other bodies listed individually by name. Pub- licly owned corporations are also classified as public bodies. The act does not, however, cover the secret services (intelligence operations) or, with a few small exceptions, the court system. The act also grants the secretary of state the power to designate further public bodies. The 1997 Official Information Act of Thailand defines informa- tion to include any material that communicates anything, regardless of the form that material takes. Official information, in turn, is de- fined simply as information in the possession of a public body, 10 The act does not cover Scotland, which has its own law, the Freedom of Information (Scotland) Act of 2002. 94 Broadcasting, Voice, and Accountability whether relating to the operation of the state or to a private individ- ual. The latter is very important given that exposure of corruption will often be through information relating to a private individual. Proactive or Routine Disclosure An important part of an access to information regime is an obligation for public bodies to publish certain key categories of information, even in the absence of a request, known as proactive or routine disclosure. Supplementing direct requests for information, the proactive dissem- ination of key information by public bodies is a central component of most modern access to information regimes. Routine disclosure serves a number of goals relating to democratic participation and sus- tainable development. For example, information relating to partici- patory mechanisms, such as school councils or public discussions around a development project or strategy, needs to be widely dis- seminated if it is to be effective and accessible to all segments of the population. More generally, the success of moves toward e-government hinges on proactive information disclosure. For these goals to be served, the information must be disseminated in a man- ner that ensures it is accessible to the intended beneficiaries and is in a form in which they can understand and can make use of it. The growth of new information technologies has also made it easier to publish more and more information electronically. In principle, any information that may be of public interest, and which is clearly not subject to an exception, should be provided elec- tronically and, in practice, many public bodies are in fact moving in this direction. Good practice laws vary in the specific information they require public bodies to publish, but certain categories of infor- mation are normally included. These are derived directly from the broader goals of development, participation, and accountability, for the realization of which access to information is so important. The following categories are subject to routine disclosure in most access laws: • operational information about how the public body functions, including costs, objectives, audited accounts, standards, achievements, and so on, particularly where the body provides direct services to the public; Enabling Access to Information 95 BOX 6. Innovative Approaches to Routine Disclosure Article 14(2) of the Bulgarian Access to Public Information Act, 2000, con- tains a public interest rule governing proactive disclosure. It requires public bodies to disseminate information that may prevent a threat to life, health, security, or property, or that could be of public interest, even if it is otherwise confidential, where the public interest in receiving it out- weighs the risk of harm to the confidential interest. This public interest override in relation to the duty to publish is an interesting innovation not found in most other laws. The Thai Official Information Act of 1997 specifies two means of rou- tine disclosure; some information must be published in the Government Gazette, while other information must be made available for inspection at the organization's premises. The UK Freedom of Information Act includes a unique system for levering up over time the amount of information subject to routine dis- closure. Rather than providing for a list of information that each public body must publish, every public body is required to develop and imple- ment a publication scheme. This must set out the classes of information that the public body will publish, the manner in which it will publish them, and whether or not it intends to charge for any particular publica- tion. Importantly, the scheme must be approved by the Information Com- missioner, who may put a time limit on his or her approval, or withdraw the approval at any time. This system promotes the progressive improve- ment of publication schemes, so that they may encompass more and more information over time. A very practical measure in Mexico's 2002 Federal Transparency and Access to Public Government Information Law requires all public bodies to establish accessible computer terminals on their premises, and to pro- vide assistance to the public in using them. • information on any requests, complaints, or other direct actions that members of the public may take in relation to the public body; • guidance on processes by which members of the public may provide input into major policy or legislative proposals; • the types of information that the body holds and the form in which this information is held; and • the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision. 96 Broadcasting, Voice, and Accountability Narrow Regime of Exceptions It is recognized that certain public and private interests override the right to access information, and all access to information laws provide for exceptions to the right of access. The exceptions should be comprehensive, and drafted narrowly and clearly. International standards establish that a refusal to disclose information is justified only where a public body can show that disclosure would cause harm to one of the legitimate interests listed and that this harm is greater than the public benefit of disclosing the information. The regime of exceptions is a key part of any access to information law. On the one hand, the law must protect a number of legitimate, both public and private, secrecy interests. On the other hand, if the regime of exceptions is too broad, it will significantly undermine the right to information. It is recognized that some degree of confidentiality around internal decision making and advice is legitimate; civil servants might be in- hibited from providing free and frank advice if this were automatically subject to open public scrutiny. At the same time, many laws cast this exception in unduly broad terms. For example, the Swedish Freedom of the Press Act, which is also an access to information law, provides, at Article 7 of Chapter 2, that a document has been drawn up by a pub- lic authority only if the matter to which it relates has been "finally set- tled by the authority," "finally checked and approved," or "finalized in some other manner." Critics argue that this represents an unnecessar- ily complicated and broad way of protecting the free and frank provi- sion of advice. In many cases, the access to information law overrides secrecy laws in case of conflict. This is true, for example, in India, South Africa, and Pakistan, but not in Mexico or the United Kingdom. Yet no matter how carefully drafted, exceptions cannot accom- modate every situation where information should, on public interest grounds, be disclosed. As a result, many laws provide that, even if disclosure of information would cause harm to a legitimate interest, the information should still be disclosed if the benefits of disclosure outweigh the harm-a provision known as the public interest over- ride. For example, certain information may be private in nature but at the same time expose high-level corruption within government. These interests should be weighed against each other when deter- mining whether or not the public interest override applies. Enabling Access to Information 97 BOX 7. The Council of Europe Standards on Exceptions Recommendation 2002(2) of the Committee of Ministers of the Council of Europe on Access to Official Documents sets out very clearly the stan- dards to be applied to exceptions in Principle IV: 1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting: 1. national security, defence, and international relations; ii. public safety; iii. the prevention, investigation, and prosecution of criminal ac- tivities; iv. privacy and other legitimate private interests; v. commercial and other economic interests, be they private or public; vi. the equality of parties concerning court proceedings; vii. nature; viii. inspection, control and supervision by public authorities; ix. the economic, monetary and exchange rate policies of the state; x. the confidentiality of deliberations within or between public authorities during the internal preparation of a matter. 2. Access to a document may be refused if the disclosure of the infor- mation contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure. 3. Member states should consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply. Three principles governing exceptions are evident from this recom- mendation. In particular, exceptions should only apply where: • the information relates to a legitimate interest listed in the law; • disclosure threatens to cause harm to that interest; and • the harm to the legitimate interest is greater than the public interest in having the information. Furthermore, the recommendation stipulates that overall time limits should be established, beyond which exceptions, or certain exceptions, no longer apply. This is particularly important for certain types of excep- tions, particularly those protecting public interests, and which the au- thorities have a systematic tendency to interpret broadly, such as national security. 1 1. See Toby Mendel, "National Security vs. Openness: An Overview and Status Re- port on the Johannesburg Principles" in National Security and Open Government: Striking the Right Balance (New York: Campbell Public Affairs Institute, Maxwell School of 2003), p. 1. 98 Broadcasting, Voice, and Accountability All of the exceptions in the South African law, for example, are sub- ject to a public interest override. This applies whenever the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law or an imminent and serious risk to public safety or the environment, and where the public interest in dis- closure "clearly outweighs" the harm. The Thai law requires public officials to consider the public interest when assessing exceptions. The UK law includes a good, and broad, public interest override, providing that nondisclosure is justified only where, "in all the BOX 8. India: Exceptions in the Right to Information Act The Indian Right to Information Act of 2005 provides for the following exceptions to the right of access: i. information, disclosure of which would prejudicially affect the sov- ereignty and integrity of India, the security, strategic, scientific, or economic interests of the state or relations with foreign state, or would incite to an offence; ii. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; iii. information, the disclosure of which would cause a breach of privi- lege of Parliament or a state legislature; iv. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers; v. information received in confidence from a foreign government; and vi. information, including commercial confidences, trade secrets or intellectual property, the disclosure of which would harm the com- petitive position of a third party, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Most of these exceptions include a harm test, and all are subject to a general public interest override. There is an overall20-year time limit on most exceptions. Importantly, the Right to Information Act specifically overrides secrecy laws to the extent of any inconsistency, explicitly referring in this context to the infamous Official Secrets Act of 1923, passed during the period of British rule, and stating: The provisions of this Act shall have effect notwithstanding anything incon- sistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Enabling Access to Information 99 circumstances of the case, the public interest in maintaining the ex- emption outweighs the public interest in disclosing the information." Good Process Guarantees To facilitate practical access to information, an access to informa- tion law should set out clearly the manner in which requests will be processed. This should respect minimum due process guarantees and ensure the fair, timely, and inexpensive processing of requests. Good process guarantees help ensure the proper application of the law, whereas poor procedural mechanisms can result in delay and confusion, undermining the right of access. In good practice access to information laws, requests can be made in a number of different formats, including orally and by email. The Bulgarian Access to Public Information Act, for example, provides that requests may be made in either oral or written form. Requests must be registered by the public body in question, ensuring a paper trail for even oral requests. To ensure that all citizens can make information disclosure re- quests, measures to promote equitable access outside of the capital region, such as providing for ministries with a presence throughout the country to serve as general points for receipt of information BOX 9. Sweden: Facilitating Access by Listing Holdings The Swedish access to information system includes a particularly useful feature, set out in Chapter 15 of the Secrecy Act, 1981, requiring all public authorities to produce a register of all documents held. 1 In general these registers are open for public inspection and an effort is now under way to ensure that they are available electronically. This system enormously facilitates access, by letting requesters know in advance what information the public body holds. 1. There are four exceptions to this rule: 1. documents that are obviously of little importance, such as press cuttings; 2. documents that are not secret and that are kept in a manner which makes it easy to ascertain whether they have been received or drawn up by a public authority; 3. documents found in large numbers that have been exempted; and 4. electronic records kept in a central registry. 100 Broadcasting, Voice, and Accountability requests, should be considered. Public bodies should also be required to provide assistance to those who are having difficultly formulating their requests. Special assistance may be needed for illiterate or dis- abled requesters. This is stipulated, for example, in the South African law. An official receipt should be provided as evidence of a request having been made, among other things, to serve as the basis for an appeal if the request is not responded to in time or at all. Public bodies should be required to respond to requests as soon as possible, and a maximum time limit for responding to requests should be established. The Bulgarian act, for example, provides that requesters must be notified in writing of a decision regarding their re- quest as quickly as possible but in any case within fourteen days. Where the request is for a large number of documents and more time is needed to respond, an extension of up to ten days may be made, provided that the requester be notified of this. Where requests have been refused, in full or in part, the requester should be provided with the reasons why his or her request was re·· fused, including the specific exception relied upon, as well as infor- mation about the right to appeal the refusal. This is necessary for requesters to frame an effective appeal against any refusal to provide access. BOX 10. United States: Varied Fee Scales The 1966 U.S. Freedom of Information Act sets out detailed rules on the fees that may be charged for requests for information, which must con- form to central guidelines providing a uniform schedule of fees for all public bodies. The law provides for three different fee systems. Requests for commercial use may be billed "reasonable standard charges for docu- ment search, duplication, and review." Requests by educational or scien- tific institutions may be billed only "reasonable standard charges for document duplication," and all other requests may be charged for search and duplication. For the latter two categories of requester, no fees may be charged for the first 2 hours of search or for the first 100 pages of docu- ments, or where the cost of collecting the fee would exceed the value of the fee. Furthermore, where disclosure is in the public interest because it is "likely to contribute significantly to public understanding of the oper- ations or activities of the government," information must be provided without charge or at a lower charge than would otherwise be the case. This is, in effect, a waiver for the media, as well as for NGOs who can show a public interest use. Enabling Access to Information t0 t BOX 11. Japan: Progressive Process Provision The Japanese Law Concerning Access to Information Held by Adminis- trative Organs, 1999, includes a number of progressive provisions on process. A request should describe the record sought in sufficient detail to enable it to be found, but where this is not the case, the administrative or- gan notifies the requester and gives him or her a suitable amount of time to remedy the problem, while also "endeavoring" to provide assistance. A decision to disclose must normally be made within 30 days and the requester must be notified of this decision in writing. This period may be extended for another 30 days, "when there are justifiable grounds such as difficulties arising from the conduct of business," provided that the requester must be notified of any such extension in writing, along with the reasons. Requesters may ask to inspect the record and to be provided with copies or other forms of access, and this should be respected unless it would pose a risk of harm to the record. Fees may be charged for both processing the request and for provid- ing the information, provided that these do not exceed the actual cost. The fee structure must take into account the desirability of keeping fees to as "affordable an amount as possible," and the head of the administrative organ may reduce or waive the fee in cases of economic hardship or for other special reasons. Fees may be charged for lodging a request and/ or for being given access to the information but, if these are excessive, they will under- mine the right of access. A common provision in national laws is that fees should not, in any circumstances, exceed the actual costs of pro- viding access. If fee schedules are set centrally, this will avoid a patch- work of fee systems across the public service, with some ministries and public bodies providing access at lower rates and some at higher ones. Right to Independent Review of Refusals to Grant Access Where a request for information has been refused, the requester should have the right to appeal this refusal to an independent body for adjudication. An administrative system of appeals that operates rapidly and at low cost should be provided for. Requesters should have the right to appeal to an independent body against any refusal by a public body to grant access. If public bodies themselves make the final decision as to whether or not the information 102 Broadcasting, Voice, and Accountability requested is exempt from disclosure, the right of access, or at least the power to determine the scope of the exceptions, is effectively at the dis- cretion of officials. In most countries, the courts act as the final arbiters of such disputes, and this is important as a means of providing fully rea- soned and authoritative answers to the many complex questions an ac- cess to information regime can be expected to generate. At the same time, court challenges are expensive and time consuming; few requesters are prepared to devote so much time and money simply to get the desired information. Administrative appeals, on the other hand, can be rapid and low cost, making them far more accessible, and hence effective. To realize these benefits, many access to information laws pro- vide for appeals to an independent administrative body. As in the case of the courts, it is clearly important that such an administrative body be independent of government. Otherwise, it cannot be expected to provide effective oversight of the system and, in particu- lar, to overrule refusals by officials to disclose information. BOX 12. Pakistan and Mexico: Rules on Refusal Pakistan's Freedom of Information Ordinance, 2002, provides for two lev- els of appeals, one internal and one to an administrative body. Requesters have 30 days after being refused information to appeal this refusal to the head of the public body concerned and, upon failing to get the informa- tion from him or her "within the prescribed time," from there to the Mohtasib (ombudsman) or, in cases involving the Revenue Division, to the federal tax ombudsman. These officials may either direct the public body to release the information or reject the complaint. Although the law does not specify this, requesters presumably also have a right to appeal from there to the courts. Under the Mexican Act, appeals from any refusal to provide infor- mation go first to the Federal Institute of Access to Information, estab- lished under the act, and from there to the courts. The institute is an independent body. The five commissioners are nominated by the execu- tive branch, but nominations may be vetoed by a majority vote of either the Senate or the Permanent Commission. Individuals may not be appointed as commissioners unless they are citizens, have not been convicted of a crime of fraud, are at least 35 years old, do not have strong political connections, and have "performed outstandingly in the profes- sional activities." Commissioners hold office for 6 years, but may be removed for serious or repeated violations of the constitution or the act, where their actions or failure to act undermine the work of the institute, or if they have been convicted of a crime subject to imprisonment. Enabling Access to Information 103 Protection for Whistle-blowers Individuals who, in good faith, release information on wrongdoing, known as whistle-blowers, should be protected from legal, adminis- trative, or employment-related sanctions for so doing. Whistle-blowers act as an important information safety valve, mak- ing sure that key information on wrongdoing reaches the public. They are a key supplement to the other information disclosures sys- tems insofar as they bring to light information that would otherwise remain hidden, and they can play a particularly important role in re- lation to the exposure of corruption, promote greater public account- ability, expose corporate crimes, and bring environmental harms to light. To encourage this practice, it is important to protect whistle- blowers from sanction, as long as they acted in good faith. This pro- tection may be triggered, for example, by the exposure of the commission of a criminal offense, a failure to comply with a legal ob- ligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It should also extend to those who release information disclosing a serious threat to health, safety, or the environment, whether linked to individual wrongdoing or not. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. Few countries include general protection for whistle-blowers within their access to information laws, but rather in separate laws specifically devoted to this. In South Africa, the Protected Disclosures Act of 2000 provides protection to those who, in good faith, disclose information on wrong- doing. The access law also protects individuals who, in good faith, dis- close information pursuant to a request. Similarly, in the United Kingdom, the Public Interest Disclosure Act of 1998, rather than the Freedom of Information Act, provides protection for whistle-blowers. The access law, however, protects those who provide information in response to a request from any liability in defamation. An interesting proposal in this area was tabled in the Philippines, although it has not been passed into law. In 2004, Senator Mar Roxas filed a bill in the Senate that would have not only protected whistle- blowers but would actually have provided rewards to anyone who uncovered and divulged corrupt practices or acts of graft in 104 Broadcasting, Voice, and Accountability government. The amount of the award would have depended on a combination of the nature of the offense exposed, the sum of money recovered, and the salary of the official in question. Promotional Measures A number of promotional measures are needed to overcome the cul- ture of secrecy that exists in many countries and to ensure that the public is properly informed about the new access to information law. Deeply entrenched cultures of secrecy, founded on the idea that pub- lic bodies, or even individual officials, rather than the public as a whole, own the information they hold or have created, can seriously undermine even the most progressive access legislation. Promotional measures, both among the public bodies and the public, can help to address this. The appropriate measures will depend on the context, but they may include: • requiring public bodies, or one central body, to publish and widely disseminate a public guide to using the access to information law; • placing positive obligations on information officers to take the lead in ensuring that the public body in question meets its obligations under the law; • making provision for adequate training of public officials; and • requiring public bodies to report annually on their activities to implement the access to information law, including by providing an overview of requests made and how they were resolved. Many access to information laws provide for criminal sanctions for those who wilfully obstruct access, for instance in India, Mexico, the United Kingdom, and South Africa. Enabling Access to Information 105 Guides and public provision of other types of information to facil- itate public access are an important promotional measure. Requiring public bodies to report on their access to information activities can be central to enabling civic engagement with those bodies around infor- mation disclosure issues, as well as to facilitating the monitoring of openness trends, bottlenecks, and so on. It may be noted that changing cultures, including those internal to government, is never an easy or short-term task and that changing cultures of secrecy has proven to be one of the most significant implementation challenges for access to information advocates. BOX 13. United States: Producing a Guide and Reporting Requirements In the United States, the head of each public body is required to prepare and make publicly available a guide for requesting records, including an index of all major information systems, a description of the main infor- mation locator systems, and a handbook for obtaining various types of public information from the body. Public bodies are required to submit annual reports to the attorney general on their activities under the act, and these annual reports must be made publicly available, including via electronic means. The reports must, in particular, cover: • the number of refusals to disclose information, along with the rea- sons given; • the number of appeals, their outcome, and the grounds for each ap- peal that does not result in disclosure of information; • a list of all statutes relied upon to withhold information, whether the court has upheld the refusal to disclose, and the scope of information withheld; • the number of requests pending and the average number of days they have been pending; • the number of requests both received and processed, along with the average number of days to process requests of different types; • the total amount of fees charged; and • the number of full-time staff working on access to information. t 08 Broadcasting, Voice, and Accountability Introduction The need to protect reputations means that some limits are always imposed on the right to freedom of expression. The term defamation is used here to refer to all such laws, recognizing that they go by a number of different names in different countries, including libel, slander, insult, desacato, and so on. Freedom of expression plays a central role in exposing corrup- tion, in holding governments to account, and in underpinning dem- ocratic participation. To do so, individuals, and particularly journalists, must be able to publish what they know without fear of prosecution. A scientific study in the United Kingdom, based on research of actual defamation cases brought to court, Libel and the Media: The Chilling Effect, concluded that the defamation law in that country "significantly restricts what the public is able to read and hear." 1 Fur- thermore, it noted the "deeper, and subtler way in which libel inhibits media publication," which functions in a "preventive manner: pre- venting the creation of certain material," 2 often referred to as the "chilling effect." This problem is certainly not restricted to the United Kingdom. In many countries, defamation is the restriction on content that exerts the most serious chilling effect on freedom of expression, undermin- ing the ability of the media and others to report in the public interest. In countries in transition to democracy, the erstwhile direct forms of control by the authorities over the media-such as licensing publica- tions, prior censorship, and ministerial control over broadcast licens- ing-have often been done away with. In this context, authorities often look to defamation law to prevent criticism of their actions. Croatia presents a typical example of this. In that country, there was an explosion of cases in the mid- to late-1990s, with a huge number against just one critical independent newspaper, Feral Tribune? In a similar vein, unduly harsh defamation laws also undermine civic participation and development, since these also often involve 1 E. Barendt, L. Lustgarten, K. Norrie, and H. Stephenson (Oxford: Oxford University Press, 1997), 193. 2 Ibid., p. 194. 3 See International Press Institute, 1999 World Press Freedom Review, Croatia. Excerpts available at: http://archiv.medienhilfe.ch/Reports/ipi1999/IPI-CRO.htm. Use and Misuse of Defamation Law 109 BOX 15. Indonesia: Misuse of Criminal Defamation The case of Bambang Harymurti, editor of Tempo, a leading Indonesian news magazine, is illustrative. Bambang was charged with criminal defamation for an article published in Tempo alleging corruption on the part of a local businessman in relation to a market fire. Despite the obvi- ous public interest nature of the article, and the lack of bad faith, Bambang was originally convicted and sentenced to a year's imprisonment. Although he was finally acquitted by the Indonesian Supreme Court, the case exerted a serious chilling effect on the media. It also provides a good illustration of how the powerful, whether they be businessmen or politi- cal figures, can abuse defamation laws to prevent criticism. unwanted criticism. Criticism by locals of a development project, for example, may have political implications and hence attract defama- tion suits, undermining participatory processes and the two-way flow of information. The central challenge of defamation law is to provide an appro- priate balance between the right to freedom of expression and every- one's interest in maintaining their reputation. But certain kinds of statements, in particular, statements about matters of public concern, including those relating to public figures, should benefit from greater protection. The importance, in a democracy, of open discussion about such matters justifies a different balancing approach in these cases. Who May Sue Public bodies-including all bodies that form part of the legislative, executive, or judicial branches of government or that otherwise perform public Junctions-should not be able to bring defamation actions. In a democracy, open criticism of government and public authorities is of vital importance. These bodies play a central role in develop- ment and must be held to account, even if doing so sometimes involves robust, and even unjustified, criticism. As the Supreme Court of Nepal noted, in a case involving criticism of the government: So long as citizens are not involved in violent activities, do not jeopardize the peace and order situation, or create anarchism or intend to do so and if the objective of such 110 Broadcasting, Voice, and Accountability BOX 16. United Kingdom: Rationale for Restricting the Right of Elected Bodies to Sue In the UK case of Derbyshire County Council v. Times Newspapers Ltd., the House of Lords ruled that the common law does not allow a local authority to maintain an action for damages for libel. As an elected body, it "should be open to uninhibited public criticism. The threat of a civil action for defama- tion must inevitably have an inhibiting effect on freedom of speech." 1 The House of Lords put forward a threefold rationale for restricting the ability of elected bodies to sue. First, criticism of government is vital to the success of a democracy, and defamation suits inhibit free debate about vital matters of public concern. Second, defamation laws are designed to protect reputations. Elected bodies should not be entitled to sue in defama- tion because any reputation they might have would belong to the public as a whole, which on balance benefits from uninhibited criticism. Further- more, elected bodies regularly change membership, so "it is difficult to say the local authority as such has any reputation of its own." Finally, the gov- ernment has ample ability to defend itself from harsh criticism by other means, for example by responding directly to any allegations. Allowing public bodies to sue is an inappropriate use of taxpayers' money, one which may well be open to abuse by governments intolerant of criticism. 1. [1993]1 AllER 1011, p. 1017. criticism is to effect changes in the work and policy of the government to improve the condition of the general public he or she has the freedom to speak out against the government. 4 Courts in a number of countries have specifically ruled against the possibility of defamation suits by public bodies. The Indian Supreme Court, for example, in Rajagopal v. State of Tamil Nadu, held that "the Government, local authority and other organs and institutions exer- cising governmental power" cannot bring a defamation suit. 5 This has been extended by some courts to elected bodies and state-owned corporations. State-owned corporations, for example, have failed to win standing in South Africa and Zimbabwe. 6 4 Dr. K. I. Singh v. His Majesty's Government of Nepal (HMG/N) (1965) Nepal Kanun Patra (NKP) (Nepal Law Journal) (NKP, 2022 B.S.: Decision No. 279, pg. 58). A similar position has been taken in the United States. See City of Chicago v. Tribune Co., 307 Ill595 (1923). 5 6 Supreme Court Cases 632 (1994), 650. 6 See Die Spoorbond and Anor. v. South African Railways, AD 999 (1946) and Posts and Telecom- munications Co. v. Modus Publications (Private) Ltd., No. SC 199/97 (Supreme Court of Zimbabwe, November 25, 1997). Use and Misuse of Defamation Law 111 The international trend is to extend the scope of this prohibition to an ever-wider range of public bodies, and even to include political parties? Criminal Defamation There is a growing trend to repeal criminal defamation laws and to replace them, where necessary, with civil defamation laws. The threat of potentially much harsher sanctions, especially impris- onment, in those countries that treat defamation as a criminal offense exerts a profound chilling effect on freedom of expression and reinforces many of the problems outlined previously. Furthermore, the experience of the growing number of countries where defamation is exclusively a civil matter (see the following box), either by law or as a matter of practice, demonstrates the adequacy of noncriminal sanctions in redressing harm to reputation. The experience BOX 17. Countries That Have Abolished or Limited Criminal Defamation A number of countries have completely abolished criminal defamation laws recently. These include Bosnia-Herzegovina (2002), Central African Repub- lic (2004), Georgia (2004), Ghana (2001), Sri Lanka (2002), Togo (2004), and the Ukraine (2001). Albania is also about to decriminalize defamation. Some countries-such as France and Bulgaria-have done away with the possibility of imprisonment for defamation. Countries such as Argentina, Chile, Costa Rica, Honduras, Paraguay, and Peru have done away with their notorious desacato laws, which provided special criminal law protection for public officials. The Cambodian government has re- cently pledged to do the same. In a growing number of other jurisdic- tions, civil defamation laws are the preferred means of redress, even though criminal defamation laws are still on the books. This is the case, for example, in many European countries. In other countries, criminal defamation laws have fallen into virtual desuetude. There has been no successful attempt to bring a criminal prosecution for defamation in the United Kingdom for many years. In the United States, criminal defama- tion laws have been repealed or ruled unconstitutional in most states, and there has been no successful prosecution for many years. 7 See the United Kingdom case, Goldsmith and Anor. v. Bhoyrul and Others, 4 All ER 268 (1997). t t2 Broadcasting, Voice, and Accountability of these countries, which have not witnessed any increase in defama- tion cases or in the seriousness of defamation complaints, refutes the ar- gument that criminal sanctions are necessary to punish defamatory statements. These national developments have been accompanied by a growing body of authoritative international commentary to the effect that criminal defamation laws cannot be justified as a restriction on freedom of expression. The three special international mandates for promoting freedom of expression-the UN Special Rapporteur, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression-called on states to repeal their criminal defamation laws in their joint declarations of November 1999, November 2000, and December 2002. The 2002 statement read: Criminal defamation is not a justifiable restriction on free- dom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. 8 The Inter-American Commission on Human Rights, in its report on the compatibility of desacato laws with the American Convention on Human Rights, suggested that all matters relating to the protection of reputation should be dealt with as a matter of civil law: The Commission considers that the State's obligation to protect the rights of others is served by providing statutory protection against intentional infringement on honor and reputation through civil actions and by implementing laws that guarantee the right of reply. 9 In two recent cases involving criminal defamation laws, the Inter- American Court of Human Rights has found a violation of the right to freedom of expression. These decisions make it clear that its use will be very hard to justify, particularly in the context of statements relating to matters of public interest. 10 8 Joint Declaration of December 10, 2002. 9 1994 Annual Report of the Inter-American Commission on Human Rights, Chapter V, Conclusion. 10 See Herrera-Ulloa vs. Costa Rica, July 2, Series C, No. 107 (2004) and Ricardo Canese vs. Paraguay, Series C, No. 111 (August 31, 2004) (both Inter-American Court of Human Rights). Use and Misuse of Defamation Law 113 Proof of Truth In many countries, proof of the truth of any statements alleged to be defamatory completely absolves the defendant of liability. In some counties, the person bringing the defamation action bears the burden of proving that the statement is false, at least in relation to statements on matters of public interest. No one should be subject to liability in defamation law for dissemi- nating a true statement. This is reflected, for example, in Principle XII of the Declaration of Principles on Freedom of Expression in Africa, which states, in part: 1. States should ensure that their laws relating to defamation conform to the following standards: • no one shall be found liable for true statements ... 11 The right to publish truths also derives from basic principles of free- dom of expression, as well as the obvious principle that one cannot de- fend a reputation one does not deserve. In other words, if someone writes the truth about another person, which harms the latter's reputation, in fact that person had been enjoying a reputation he or she did not deserve in the first place. Protecting true statements under defamation law does not necessarily rule out the possibility of other sorts of legal action for true statements, such as protection of privacy. At the very minimum, defendants should always be given a full opportunity to prove that their statements were true. In Castells v. Spain, 12 for example, the European Court of Human Rights ruled that the failure of the Spanish courts to allow Castells to prove the truth of his statements in a defamation case was a violation of his right to free- dom of expression, which could not be justified in a democratic society. Requiring statements not only to be true but also to be in the pub- lic interest, as in the case with some defamation laws, places an un- acceptable burden on journalists and others wishing to publish. It also runs counter to the basic thrust of the right to freedom of ex- pression, which requires restrictions to be in the public interest, not 11 Adopted by the African Commission on Human and Peoples' Rights at its 32nd Session, October 17-23, 2002. 12 Castells v. Spain, 236 Eur. Ct. H.R. (ser.A) (1992), available at http://www.world lii.or&f?u/cases/ECHR/1992/48.html. t t4 Broadcasting, Voice, and Accountability BOX 18. United States: The Onus on the Plaintiff to Prove the Case In the leading U.S. case, New York Times Co. v. Sullivan} the U.S. Supreme Court held that, in relation to statements about public officials, the onus was on the plaintiff to prove that the statements were false. Furthermore. the plaintiff also had to prove that the statements had been published in malice, or with reckless disregard for the truth to succeed in the action. Subsequent cases have extended the scope of this rule, for example to can- didates for public office 2 and public figures who do not hold official or government positions. 3 1. 376 us 254, 279 (1964). 2. Monitor Patriot Co. v. Roy (1971) 401 US 265. 3. Curtis Publishing Co. v. Butts (1967) 388 US 130. the exercise of the right. This was pointed out by the House of Lords in the UK case Gleaves v. Deakin. At issue in this case was a criminal defamation rule that required not only proof of the truth of the state- ments, but also proof that publication was for the public benefit. As Lord Diplock stated: "This is to turn article 10 of the [European Con- vention on Human Rights, guaranteeing freedom of expression] on its head ... article 10 requires that freedom of expression shall be un- trammelled [unless interference] is necessary for the protection of the public interest." 13 No Special Protection for Public Officials Defamation laws should not provide any special protection for pub- lic officials, whatever their rank or status. In some countries, it is extremely difficult for public officials to win defamation cases based on statements about their public functions. It is now well established in international law that public officials should be required to tolerate more, rather than less, criticism than ordinary citizens. In its very first defamation case, the European Court of Human Rights stated: The limits of acceptable criticism are ... wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself 13 Gleaves v. Deakin [1980] A.C. 477 (House of Lords). Use and Misuse of Defamation Law 1 15 open to close scrutiny of his every word and deed by both journalists and the public at large, and must consequently display a greater degree of tolerance. 14 This has become a fundamental tenet of the court's case law. Similarly, the Inter-American Commission of Human Rights has stated: The use of desacato laws to protect the honor of public func- tionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction inverts the funda- mental principle in a democratic system that holds the Gov- ernment subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. 15 There are three key reasons for this. First, and most important, the role that such officials play in a democracy means that there is a heightened need for open public debate regarding their actions and views. They must be accountable to the public, and this includes re- sponding openly to criticism rather than attempting to suppress it. Such accountability is perhaps most obviously manifested when they tolerate criticism of their own decisions, irrespective of how intem- perate such criticism may be. This tolerance is not only central to democracy but also to facilitating participation in development work since criticism of official action is inherent in open engagement around development issues. Second, officials have, by virtue of their positions, voluntarily ac- cepted that they should be subjected to greater public scrutiny. Third, officials normally have adequate means at their disposal to refute any false or misleading allegations, making defamation cases unneces- sary, although this does not apply to all officials (e.g., judicial officers may be precluded by professional obligations from responding to criticism of their public functions). The precise standard that should apply to defamation of public officials is less clear. However, in striking a balance between 14 Lingens v. Austria, Application No. 9815/82, 8 EHRR 407 (July 8, 1986). 15 Report on the Compatibility of "Oesacato" Laws With the American Convention on Human Rights, 1994 Annual Report of the Inter-American Commission on Human Rights, Chapter V [em- phasis added]. 124 Broadcasting, Voice, and Accountability BOX 24. International Standards: The Three-Part Test Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) allows for restrictions on freedom of expression in the following terms: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to cer- tain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. A similar formulation is found in the European and American regional human rights treaties. These have been interpreted as requiring restric- tions to meet the strict three-part test elaborated subsequently. International jurisprudence makes it clear that this test presents a high standard that any interference in freedom of expression must overcome. First, the interference must be provided for by law. This requirement will be fulfilled only where the law is accessible and formulated with suf- ficient precision for the citizens to be able to regulate their conduct accordingly. Second, the interference must pursue a legitimate aim. The list of aims in Article 19(3) of the ICCPR is exclusive in the sense that no other aims are considered legitimate as grounds for restricting freedom of expression. Third, the restriction must be necessary to secure one of those aims. The word necessary means that there must be a "pressing social need" for the restriction. The reasons given by the state to justify the restriction must be "relevant and sufficient" and the restriction must be proportionate to the aim pursued. the more common content restrictions are outlined. Under interna- tional law, all of these are recognized as legitimate grounds for re- stricting freedom of expression. At the same time, all may, if not clearly and narrowly drawn, be abused to limit the free flow of infor- mation and ideas in the public interest. Constitutionally Authorized Limitations on the Right to Freedom of Expression Restrictions to freedom of expression must be subject to certain lim- its if the guarantee offreedom of expression is to be effective. Under international law, restrictions must meet a stringent three-part test Content Rules and Limits to Free Speech 125 that requires them to be explicitly provided by law, to pursue a legitimate aim, and to be no more restrictive than necessary to protect that aim. The question of the scope of restrictions on freedom of expression is central to the question of how effectively this key right is guaranteed: If unduly broad restrictions are permitted, the right will be under- mined. At a minimum, the constitution should provide a clear frame- work for restrictions that ensures an appropriate balance between freedom of expression and other public and private interests. A clear framework for exceptions will facilitate media regulation in the pub- lic interest by helping to draw the line between what constitutes legit- imate public interest regulation and what is excessive interference with media freedom. Ideally, the constitution should set clear limits on when and how ordinary legislative restrictions on freedom of expression will be le- gitimate. For example, Article 39(2) of the constitution of Thailand provides for restrictions on freedom of expression as follows: The restriction on liberty under paragraph one shall not be imposed except by virtue of the provisions of the law specif- ically enacted for the purpose of maintaining the security of the state, safeguarding the rights, liberties, dignity, reputa- tion, family or privacy rights of other persons, maintaining public order or good morals or preventing the deterioration of the mind or health of the public. South Africa too covers the issue: The constitution states in chapter 2, section 36: (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limita- tion is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including- (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. t 26 Broadcasting, Voice, and Accountability In practice, the constitutional court has interpreted this so as to permit only very limited restrictions on the right to freedom of expression General Principles of Content Restrictions Some general principles regarding content restrictions may be de- rived from international and good practice national jurisprudence. First, prior restraints or prior censorship, whereby material is reviewed by a controlling body before it is disseminated, while not absolutely forbidden under international law, are regarded with a great deal of suspicion, due to their highly intrusive nature and the obvious opportunity for abuse that they represent. The Inter-American Convention on Human Rights, for example, prohibits all prior cen- sorship except where this is aimed at protecting children. 1 In practice, systems of prior restraint are applied increasingly rarely in democra- cies, and never to the media. Second, as noted previously in relation to defamation, it is widely recognized that political speech, due to its importance as an underpin- ning of democracy, deserves special protection. International courts have made it clear that they are not prepared to allow states much lat- itude in terms of the interpretation and application of restrictions on political speech. The European Court of Human Rights, for example, allows states a "margin of appreciation" in the interpretation of rights. This margin, however, is very narrow in relation to political speech. 2 Third, restrictions that are overly broad in the sense that they cap- ture not only the offending expression but also legitimate speech will fail to pass muster under the necessity part of the test for restrictions. States have an obligation, when pursuing legitimate aims, to give due regard to the right to freedom of expression by tailoring restrictions as narrowly as possible. Fourth, it is a fundamental principle of criminal law, based on the presumption of innocence, that mere commission of a criminal act is not enough for conviction; instead, the act must be accompanied by a mental element of will so that there is mental, as well as physical, 1 Article 13(4). 2 See, for example, Refah Partisi and others v. Turkey, Application Nos. 41340/98,41342/98, 41343/98, and 41344/98 (February 13, 2003), para. 81. Content Rules and Limits to Free Speech 12 7 guilt. Any crimes of expression should respect this fundamental criminal rule. Fifth, as noted previously in relation to defamation, excessive sanctions, even where some sanction is warranted, represent an independent breach of the right to freedom of expression, given the chilling effect they exert. In particular, individuals will steer well clear of the actual zone of prohibited speech to avoid unduly harsh sanctions, so that the effect is analogous to an overbroad restriction. National Security/Public Order Restrictions may be imposed on freedom of expression to protect national security/public order, but these should be carefully and narrowly drawn so that they only prohibit expression that poses a serious risk of imminent and substantial harm to a legitimate national security/public order interest. As with all restrictions on freedom of expression, restrictions in the name of national security /public order are permitted under interna- tional law only if they can be shown to be necessary to protect a legitimate interest. Although security and public order are social in- terests of the highest order, without which all rights are at risk, they are at the same time almost impossible to define precisely and are hence inherently susceptible to abuse. Public oversight is crucial to ensuring sensible policy-making and decision making, specifically in relation to national security. International jurisprudence has established a number of prin- ciples relating to national security /public order. First, courts have consistently ruled out unduly broad restrictions on freedom of expression in the name of national security or public order. It is not legitimate, for example, to ban opposition party activities on grounds of public order simply because a state of emergency is in force, even if that state of emergency is itself legitimate. Vague appeals to some purported social interest will not suffice to justify national security restrictions on freedom of expression. In Mukong v. Cameroon, for ex- ample, the author, who was critical of the president and the govern- ment, was arrested twice under the provisions of an ordinance that criminalized statements "intoxicat[ing] national or international pub- lic opinion." The UN Human Rights Committee found a breach of the 128 Broadcasting, Voice, and Accountability BOX 25. Abuse of National Security/Public Order Rules The abuse of national security and public order laws by the powerful to silence minorities, those espousing unpopular political causes, or just crit- ical voices is a very serious problem around the world. In Malaysia, for example, arrests under the Sedition Act of 1948 are commonly used for political purposes. The popular online newspaper, Malaysiakini, famous for its independent reporting, was raided by the Malaysian police on January 20, 2003, and nineteen computers, including four servers, were seized for allegedly being in breach of the Sedition Act. Its crime was to publish a letter that satirized nationalist policies in favor of ethnic Malays, through a comparison with the United States, on the basis that this could cause racial disharmony. Similarly, Article 7(1) of the South Korean National Security Act of 1980 provided, in part, that any person who, with the knowledge that he might endanger the existence or security of the state, praised, encour- aged, propagandized, or sided with the activities of an anti-state organi- zation committed an offense punishable by imprisonment of up to seven years. In finding these provisions unconstitutional, the constitutional court noted: [I]f criticism of the government and its leader happens to parallel what North Korea claims, it may fall within the crime of praising and encouraging North Korea. Also, if an individual is aware that criticism of the South Korean gov- ernment's policy can be used by North Korea for its propaganda, he or she can be punished for benefiting the enemy. right to freedom of expression, noting that even in "difficult political circumstances," a law like this could not be justified and was a threat to "multi-party democracy, democratic tenets and human rights." 3 Second, the onus rests on the state imposing the restriction to jus- tify it as legitimate. This is true of all restrictions on freedom of ex- pression but is perhaps particularly relevant in relation to national security I public order restrictions, given their almost inherently broad nature. Courts have required states to show that a restriction is necessary to avoid a particular threat to a specific legitimate national security /public order interest, rather than simply to allege that a legitimate interest is at risk. 4 3 Communication No. 44/1979, views adopted March 27, 1981, para. 9.7. 4 See Laptsevich v. Belarus, Communication No. 780/1997 (UN Human Rights Committee) (March 20, 2000), para. 8. Content Rules and Limits to Free Speech 129 Third, information that is already in the public domain may not be restricted on alleged grounds of national security /public order. The reason for this is fairly obvious: if the information is already available, further distribution of it may cause embarrassment but cannot endanger national security I public order. This is particularly relevant in the Internet era, where information published anywhere is easily accessible to people everywhere. In the Spycatcher case before the European Court of Human Rights, at issue were injunctions against reprinted passages from the unauthorized memoirs of a former mem- ber of the British security service, which had already been published in the United States. The court held that to continue to restrict publi- cation, once the materials were effectively available to UK audiences, was illegitimate. 5 Finally, and most importantly, courts have upheld restrictions on freedom of expression to protect national security /public order interests only where there is a close nexus between the particular expression and the risk of harm to those interests. The idea is to mit- igate the inherently vague and general nature of the concepts of national security and public order. Requiring a close nexus between the expression and the risk is a means of concretizing the matter and avoiding vague appeals to some unspecified national security interest. Hate Speech International law requires states to prohibit advocacy of hatred that constitutes incitement to discrimination, hostility or violence (ICCPR, Article 20[2]). However, true statements or statements which, while offensive, do not constitute incitement are not covered. The right of a person to express him- or herself may conflict with the rights to equality and nondiscrimination. As a result, international law recognizes that expression that constitutes incitement to discrimination, hostility, or violence through advocacy of national, racial, or religious hatred should be prohibited. At the same time, the role of freedom of ex- pression in safeguarding the exercise of other rights, including the right to equality and nondiscrimination, has been recognized. 5 The Observer and Guardian v. UK and the Sunday Times v. UK (No. 2), Application No. 13585/88 (November 26, 1991). t 30 Broadcasting, Voice, and Accountability As with all restrictions on content, overly broad or vague hate speech laws may be abused. They have, in particular, been used to target, rather than defend, minorities; to deny them voice; and to un- dermine their ability to participate in the political process. A clear ex- ample of this is the case of Inca! v. Turkey, where the applicant was convicted in Turkey of hate speech for protesting, in strong terms, against official measures he believed were aimed at oppressing the BOX 26. National Standards on Incitement A French case involved a claim that some pornographic cartoons depict- ing Jesus Christ, the pope, and priests in various compromising situations constituted hate speech and/ or incitement to violence against Catholics. The Cour de Cassation rejected the appeal in part on the ground that the cartoons, although insulting, contained no incitement to hatred or vio- lence against any ethnic or religious group. 1 In the leading Canadian case, R. v. Keegstra} the supreme court up- held a criminal provision that "prohibited the wilful promotion of hatred, other than in private conversation, towards any section of the public dis- tinguished by colour, race, religion or ethnic origin." The court stressed a number of factors in upholding this rule. First, the term wilful posed a substantial barrier to conviction, requiring proof that the "accused sub- jectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result. ... " Further: "The hate- monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group." Second, the term hatred was an extreme term: Hatred is predicated on destruction, and hatred against identifiable groups and therefore thrives on insensitivity, bigotry and destruction of both the tar- get group and of the values of our society. Hatred in this sense is a most ex- treme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be de- spised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation. Finally, the impugned provision included a number of defenses, in- cluding that the statements were true, that they were a good faith attempt to express an opinion on a religious subject, that the statements were rel- evant to a matter of public interest and the accused reasonably believed them to be true, and that, in good faith, the accused intended to point out, for purposes of removal, matters tending to produce feelings of hatred. 1. Arret no. 242 du 8 mars 2001, Cour de Cassation-Deuxieme chambre civil. 2. [1990]3 S.C.R. 697. Content Rules and Limits to Free Speech 131 Kurds. The European Court of Human Rights recognized that the impugned statements appealed to Kurds, urging them to band to- gether to defend their rights. But it held that there was nothing in the text that incited to "violence, hostility or hatred between citizens." 6 Courts have also refused to tell journalists how to do their job, respecting their right to decide how best to communicate information and ideas to the public, including when they are reporting on racism and intolerance. This may include reporting the racist statements of others, for example, to illustrate that such views exist within society. This was at issue in the Jersild case, where a journalist was convicted in Denmark for a television program that included statements by racist extremists. The European Court of Human Rights held that the applicant had acted with a view to exposing the problem of racism and to generating public debate and, as such, should not be held liable. 7 Obscenity Restrictions on obscene materials should apply only to material that either depicts a criminal act or that poses a serious and direct risk of harm, for example, to children. Although infrequently the subject of political abuse, laws restricting the portrayal of sexual material do have relevance to cultural issues and equality concerns. Sexual minorities, for example, have been tar- geted by obscenity laws, undermining their ability to participate as equals in society. Historically, courts in many countries have defined obscenity by reference to community standards, but the clear trend in this area is toward more permissive rules, which take into account globalization and the revolution in access to information, including sexually ex- plicit material, occasioned by the Internet. At the same time, interna- tional courts tend to award a margin of appreciation to individual states to address obscenity concerns rather than attempting to lay down clear, universally binding norms in this area. In MUller and 6 Application No. 22678/93 (June 9, 1998), para. 50. 7 Application No. 15890/89 (September 1994). 132 Broadcasting, Voice, and Accountability BOX 27. National Courts' Definitions of Obscenity The Canadian Supreme Court, in R. v. Butler, noted that in assessing whether something was obscene, it "is the standards of the community as a whole which must be considered and not the standards of a small seg- ment of that community." Only material that unduly exploits sexual ma- terial may be deemed to be obscene. Furthermore: "Even material which by itself offends community standards will not be considered 'undue,' if it is required for the serious treatment of a theme." 1 An analogous approach, taken by the South Korean Constitutional Court, is to distinguish between obscene material and less extreme forms of sexually explicit material. The court has distinguished between obscene material and material that is simply indecent: Obscenity is a sexually blatant and undisguised expression that distorts hu- man dignity or humanity. It only appeals to prurient interests and, if taken as a whole, does not possess any literary, artistic, scientific, or political value. Obscenity not only undermines the healthy societal morality on sex, but its harmful impact is also difficult to eliminate through the open competition of ideas. Accordingly, obscene expression, if strictly interpreted as suggested here, is not within the area of constitutionally protected speech or press. 2 1. R. v. Butler, [1992]1 SCR 452, pp. 477,485. 2. 10-1 KCCR 327, 95 Hun-Ka 16, The First Ten Years of the Korean Constitutional Court. others v. Switzerland, a case involving sanctions under an obscenity law, the European Court stated: State authorities are in principle in a better position than the international judge to give an opinion on the exact content of [moral requirements]. 8 Courts have, while accepting that the definition of obscenity should be judged by community standards, also placed some limits on the implications of this. Many countries impose restrictions on the display and sale of pornography, with a view to protecting children. Self-regulatory ap- proaches and systems for informing readers/viewers in advance of the potentially offensive nature of the material are also commonly employed. For example, many countries require films and videos to provide a rating to indicate to audiences what sort of material, including sexual material, they contain. Such a system may either be 8 May 24, 1988, Application no. 10737/84, para. 35. Content Rules and Limits to Free Speech 13 3 BOX 28. India: Obscene Material The Indian Supreme Court adverted to community standards in Samaresh Bose v. Amal Mitra, which assessed the legitimacy of a law prohibiting the distribution of "obscene" material defined as that which is "lascivious or appeals to the prurient interest or its effect ... is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it." 1 The court held: "[T]he concept of obscenity is moulded to a very great extent by the social outlook of the people who are gener- ally expected to read the book. It is beyond dispute that the concept of ob- scenity usually differs from country to country. ... "2 However, the court also placed some parameters of the notion of community standards: "Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us deter- mines what the morally healthy cannot view or read." In the Bose case, the Indian Supreme Court held that the book before it was not obscene, in part because, "[i]f we place ourselves in the posi- tion of readers, who are likely to read this book ... we do not think that any reader on reading this book would become depraved, debased and en- couraged to lasciviousness" (emphasis added). In the absence of a strong likelihood that exposure to the allegedly obscene material would actually result in the harms that the law was designed to prevent, the court could not conclude that the material before it was obscene. 1. Samaresh Bose & Another v. Amal Mitra & Another [1986] AIR 967. 2. K.A. Abbas v. Union of India, [1971] AIR (SC) 481. self-regulatory or overseen by an independent administrative body. The idea is that this allows viewers to decide for themselves whether or not they wish to view the material. The rules governing broadcasters may also address sexual content, for example, by limiting programming con- taining such content to times when the youth do not generally watch TV. Protection of the Administration of Justice Restrictions on freedom of expression to protect the impartiality and fairness of the system of justice should be carefully drawn so as not to protect judges against legitimate criticism or prevent open public discussion about the administration of justice. International law recognizes two legitimate goals pursuant to which restrictions on freedom of expression may be justified by reference to the administration of justice, namely protecting the impartiality and t 34 Broadcasting, Voice, and Accountability the authority of the judicial system. The first relates to the need for fairness within the judicial system and would be undermined by such things as intimidation of witnesses, biasing of judges and jurors, pro- tection of litigants and other participants, and the like. The second relates to acceptance by society of the courts as the final arbiters of disputes. If this is not accepted, individuals may seek to resolve dis- putes in other, potentially illegal, ways. These are undoubtedly important goals, worthy of some protec- tion. At the same time, historically, judges have been unduly solici- tous of them and too ready to condemn legitimate criticism of judges and courts, leading the UK Privy Council to declare: Justice is not a cloistered virtue: she must be allowed to suf- fer the scrutiny and the respectful even though outspoken comments of ordinary men. 9 BOX 29. Abuse of the Rules In August 1999, Kenyan editor Tony Gachoka was jailed for six months for claiming in his publication, the Post on Sunday, that the chief justice and other senior judges had accepted a huge bribe in exchange for inter- fering in the course of justice to favor a local tycoon. Gachoka was, fur- thermore, tried directly and at the first instance by the court of appeal, the highest court in Kenya, which had the effect of denying him any oppor- tunity to appeal against his conviction, contrary to international human rights guarantees. It also had the effect of ensuring that his case was heard by the very judges Gachoka had accused of corruption. A study by the International Bar Association (IBA), for example, found that while the Malaysian courts operated impartially in commer- cial cases, they were subject to significant interference in more political cases, including cases involving freedom of expression. 1 Legal limitations on criticizing the judiciary in Malaysia are notorious, a point noted clearly in the IBA report. 2 1. See Justice in Jeopardy: Malaysia in 2000 (London: Human Rights Institute, Inter- national Bar Association, 2000), available at: http://archive.ibanet.org/general/ FindDocuments.asp. 2. See, for example, Murray Hiebert v. Chandra Sri Ram, [1999]4 MLJ 321, in which Hiebert, a reporter for the Far Eastern Economic Review, was jailed for six weeks for suggesting that a case brought by the wife of an appeals court judge moved through the system unusually quickly. 9 Ambard v. Attorney-General for Trinidad and Tobago, AC 322 (1936), 335. Content Rules and Limits to Free Speech 13 5 Furthermore, public oversight of the judiciary, a public institution, is particularly important to democracy. It can serve to root out corrup- tion and incompetence. Equally importantly, it can serve to protect the independence and impartiality of the judiciary, a fundamental underpinning of both the rule of law and protection of all human rights, including freedom of expression. BOX 30. South Africa: Prohibitions on Criticizing Judges In S v. Mamabolo, 1 the Constitutional Court of South Africa considered both the standards and the procedure applicable to prohibitions on criti- cizing judges. Given the constitutional importance of both the indepen- dence of the judiciary and freedom of expression, the court declined to hold that the offense was unconstitutional per se. However, the traditional standard, based on a tendency to bring the judiciary into contempt, was no longer appropriate. The court noted that it was of the greatest impor- tance that the public be able to "discuss, endorse, criticise, applaud or cas- tigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public pur- pose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important aspira- tional attributes prescribed for the judiciary by the Constitution." 2 The "tendency to harm" test should be replaced by one based on the effect of the statement judged objectively: The threshold for a conviction on a charge of scandalising the court is now even higher than before the super-imposition of constitutional values on com- mon law principles; and prosecutions are likely to be instituted only in clear cases of impeachment of judicial integrity..... Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice 3 With regard to procedure, the court considered that where the case in question had already been decided, "there is no pressing need for firm or swift measures to preserve the integrity of the judicial process." The court held that "it is inherently inappropriate for a court of law, the constitu- tionally designated primary protector of personal rights and freedoms," to employ a summary procedure save where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable. 4 1. 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC). 2. Ibid., paras. 29-30. 3. Ibid., para. 45. 4. Ibid., para. 57. 136 Broadcasting, Voice, and Accountability Restrictions designed to serve the first goal just noted, the impartiality of the judiciary, fall into two main categories. First, gen- eral limits may be imposed on reporting on proceedings that are sub judice, or ongoing before the courts. Courts have held that this should only be done where the material in question poses a serious risk of actual prejudice to an ongoing case. In assessing that risk, judges are presumed not to be susceptible to being swayed by media reporting, given their professional training. 10 The second goal noted previously, maintaining the authority of the judiciary, is increasingly contentious. Some countries still impose restrictions on criticism of judges and courts, on the basis that these are considered necessary to maintain the authority of the judiciary. In many countries, however, the possibility of conviction on this basis has either been formally repealed or defined so narrowly that it has fallen into disuse. In these countries, such restrictions are not consid- ered necessary; the judiciary as an institution have proven them- selves to be above unjustified criticism and do not need legal restrictions of this sort to maintain their status. False News Blanket bans on the publication of false material, simply because it is inaccurate, are illegitimate. It is well established that guarantees of freedom of expression protect incorrect, as well as correct, statements. In many circumstances, the truth is a contested matter, and prohibitions on publishing false news may be abused in an attempt to suppress unwanted allega- tions, whether or not they are true. For example, in January 1999, the Standard newspaper in Zimbabwe published an article about a coup attempt within the Zimbabwe National Army, citing "highly- placed sources within the military" as sources. The author and editor were detained by the military and later charged with disseminating false newsY 10 See Vine Products Ltd. v. MacKenzie & Co. Ltd., 3 AllER 58 (1965), 62. 11 The Supreme Court of Zimbabwe later.struck down the false news provision under which they were charged. See Chavunduka & Chota v. Minister of Home Affairs & Attorney General, Judgment No. S.C. 36/2000, Civil Application No. 156/99 (May 22, 2000). Content Rules and Limits to Free Speech t 37 BOX 31. Protection for Inaccurate Statements Principle 7 of the Inter-American Declaration of Principles on Freedom of Expression explicitly recognizes that false statements are prima facie cov- ered by the guarantee of freedom of expression: Prior conditioning of expressions, such as truthfulness, timeliness, or impar- tiality, is incompatible with the right to freedom of expression recognized in international instruments.' The Peruvian Constitutional Tribunal has held that the right to freedom of expression covers inaccurate statements. A bank brought a case alleg- ing that a radio station, by disseminating false statements, had caused fi- nancial panic in the population. The court refused to intervene, saying that this would breach the radio's rights. The plaintiff retained his right to seek a rectification of the information or to bring a civil case, for ex- ample in defamation. 2 In a 2004 decision, the Ugandan Supreme Court struck down the criminal offense of publishing false news. In doing so, it noted: [T]he right to freedom of expression extends to holding, receiving and im- parting all forms of opinions, ideas and information. It is not confined to cat- egories, such as correct opinions, sound ideas or truthful information ... [A] person's expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erro- neous, controversial or unpleasant ... Indeed, the protection is most relevant and required where a person's views are opposed or objected to by society or any part thereof, as "false" or "wrong."·' 1. Adopted by the Inter-American Commission on Human Rights at its 108th Regular Session, October 19, 2000. 2. San Martin's Rural Bank of Savings and Credit v. Radio Imagen, Exp. No. 905-2001- AA/TC San Martin. 3. Onyango-Obbo and Mwenda v. AG, Constitutional Appeal No. 2, 2002, February 11, 2004 (not yet published). Inaccurate statements, by themselves, are unlikely to cause any tangible harm to society. Harms that may result from false state- ments, such as defamation or a risk of public disorder, may be ad- dressed through restrictions specifically tailored to address these harms. There is, therefore, no need for a general prohibition on in- correct statements. On the other hand, banning false statements per se exerts a significant chilling effect on freedom of expression. t 38 Broadcasting, Voice, and Accountability BOX 32. Chilling Effect In 1992, the Canadian Supreme Court, in R. v. Zundel, 1 struck down a false news provision. In its decision, it expounded at some length on the chill- ing effect of false news provisions as contrary to the constitutional guar- antee of freedom of expression: The danger is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught. Thus worthy minority groups or individuals may be inhibited from saying what they desire to say for fear that they might be prosecuted. Should an activist be prevented from saying "the rainforest of British Columbia is being destroyed" because she fears criminal prosecution for spreading "false news" in the event that scientists conclude and a jury accepts that the statement is false ... ? The Judicial Committee of the Privy Council 2 has similarly noted the chilling effect of a rule that penalizes any statement that is inaccurate: [I]t was submitted that it was unobjectionable to penalise false statements made without taking due care to verify their accuracy. ... [I]t would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based. 3 1. [1992]2 SCR 731. 2. This is the final court of appeal for a number of common law countries and is comprised of judges from the House of Lords. 3. Hector v. Attorney-General of Antigua and Barbuda, [1990]2 AC 312 (PC), p. 318. Political Expression/Elections Political expression is at the heart of the guarantee offreedom of ex- pression and should receive particular protection. This is especially true during elections, and effective measures should be taken to en- sure that the electorate is informed about both how to vote and the various issues at stake in the election. Open debate about political matters, understood broadly as matters of public concern, is essential in a democracy and the guarantee of freedom of expression provides particular protection to political expression. Such speech lies at the heart of the media's role as the watchdog of government and as a facilitator of public participation Content Rules and Limits to Free Speech 139 and democratic development. In many countries, statements made in legislative bodies benefit from absolute immunity from sanction. High levels of protection may also be afforded to statements made in the context of an election campaign. It may be necessary to put in place particular rules relating to freedom of expression during elections. It is of the greatest impor- tance that the electorate understands the right to vote, as well as the modalities by which this right may be exercised. The public media should be under a strict obligation to be balanced and impartial dur- ing elections; it is clearly inappropriate for a publicly funded body to BOX 33. Obligations of Balance The Italian Constitutional Court recently upheld regulations requiring all broadcasters to give equal time to all political parties during the election period. 1 Equal access during election periods was a prominent general in- terest. This obligation was analogous to requirements to carry news and children's programming and could not be considered a form of expropri- ation; rather, it was a legitimate part of the licensing concession. Particu- larly in the prevailing situation in Italy, which the court held was characterized by significant concentration of media ownership, free com- petition of views could not ensure equal access of all perspectives and the public's right to a diversity of information. In a 1999 case/ the High Court of Malawi found that preferential coverage provided to the president during the election period by the na- tional public service broadcaster violated the right of every person to equality and the right of every electoral competitor to equal access to public media. The court noted that free and equal access to public media is one of the prerequisites for the holding of free and fair elections. As the court noted: If campaign messages are broadcast live at a presidential function, then equal treatment means that campaign rallies of other political parties or at least campaign rallies of other presidential candidates be broadcast live. That would give other political parties or other presidential candidates an oppor- tunity to reply to some of the matters raised. This is what equitable treatment of political parties and elections candidates would entail. 1. Decision of the constitutional court no. 155 of April 24-May 7, 2002. 2. Kafumba and others v. The Electoral Commission and Malawi Broadcasting Corpora- tion, Miscellaneous Cause Number 35 of 1999. 140 Broadcasting, Voice, and Accountability do otherwise. In many countries, all broadcasters are required to be impartial and to provide equal access to all parties. It is also important that competing parties and candidates have an adequate opportunity to put their views to the public, including, as appropriate, direct access slots on public media. Any such slots should be allocated on an equitable basis to all parties. Where politi- cal advertising is allowed, all media should be required to provide it to all parties on a nondiscriminatory basis to preserve a level playing field during the elections. Good Practice Checklist • No conditions should be placed on who may practice journalism, and individual journalists should not be subject to either licensing or registration requirements. • Journalists should be free to establish professional associations of their own choosing. • Journalists have a right to protect their confidential sources of infor- mation, without which the flow of information to them, and hence to the public, would be undermined. A right of correction/reply can provide an effective and appropriate response to media errors and other wrongs. However, they represent a limitation on freedom of expression and so should be clearly defined in a manner that limits the potential for abuse. A right of correction/reply relates to a publisher, not to a journalist. Introduction Few if any established democracies impose licensing or registration requirements on individual journalists, or mandatory systems for promoting professional standards or entertaining complaints from the public, and transitional democracies are quickly moving in this direction as well. Promoting professionalism is achieved, instead, by protecting the freedom of journalists to establish professional asso- ciations of their own choice, which employ a range of self-regulatory means for promoting high standards, including training, ethical au- diting, and setting ethical standards. As regards the latter, it is gen- erally recognized that it is both more appropriate and more effective for complaints to be directed at media outlets than at individual 141 t 42 Broadcasting, Voice, and Accountability journalists since it is, after all, the publication or broadcast of the ma- terial by a media outlet that is responsible for any harm caused. Statutory registration systems for individual journalists almost al- ways compromise independence, unduly limit access to the profession, and undermine rather than promote professionalism. Often, these sys- tems are justified on the basis that journalism is a profession and, like other professions, needs to be regulated. Unlike other professions, such as law and medicine, however, the practice that defines journalism, namely engaging in expressive activity, is protected as a fundamental human right. Everyone has a fundamental right to express themselves, including through the media, that is, to do what journalists do. All professions make a contribution to development, and regula- tory systems can often enhance their impact by promoting minimum professional standards. Journalism differs from other professions, nevertheless, insofar as journalists' ability to contribute to develop- ment depends, in key ways, not just on their professionalism but also on their independence. But, as has been made clear previously, there are important incentives for governments to abuse any regulatory systems governing journalists precisely to undermine that indepen- dence, and those incentives play a far less important role in other professions. As a result, content regulation, far from promoting pro- fessionalism, is more likely to threaten it. As a general rule, journalists do not enjoy special rights, over and above the rights that freedom of expression guarantees to everyone. One area where laws and courts have recognized such special rights is in the protection of confidential sources of information. This special recognition is based on the role journalists play in acting as "middle- men" between sources and the general public, conveying information of public interest disclosed by the former while protecting their iden- tity, which is a precondition for the information being provided in the first place. This chapter begins by considering democracies' approach to li- censing and registration of journalists, as well as the issue of accredi- tation. It then looks at self-regulatory systems and the role of independent professional and self-regulatory bodies in promoting higher standards of journalism. Certain specific regulatory ap- proaches for individual journalists-namely, the right to protect con- fidential sources of information-are highlighted. Finally, it considers a right of reply and a right of correction as they apply to publishers. Regulation of Journalists 143 Absence of Licensing and/ or Registration Requirements No conditions should be placed on who may practice journalism, and individual journalists should not be subject to either licensing or registration requirements. It is extremely doubtful whether a licensing system could ever be an effective means of promoting professional journalism. The possible conditions that may be placed on who may practice journalism- requiring an individual to be of a certain age, to have a certain type of training or to be a citizen, common licensing requirements in those countries which maintain such systems-simply do not provide any assurance against poor journalism. Furthermore, it is not journalists but media outlets that ultimately print or broadcast information and so, as noted previously, complaints are more properly directed at those outlets than at individual journalists. Accreditation of journalists, whereby they are given privileged ac- cess to certain places and events with limited public capacity, raises rather different issues than licensing or registration, although in some cases, governments have tried to dress up licensing regimes by present- ing them as accreditation schemes. 1 Accreditation, in its legitimate guise, is designed to provide special access for journalists to restricted capacity places and events on the basis that they will, in turn, provide wider access for the public at large, through publication or broadcast in the media. At the same time, accreditation schemes, like any regulatory system, can be abused. Once again, the three special mandates on freedom of ex- pression provide guidance on this stating, in their 2003 Joint Declaration: • Accreditation schemes for journalists are appropriate only where necessary to provide them with privileged access to certain places and/ or events; such schemes should be overseen by an independent body and accreditation decisions should be taken pursuant to a fair and transparent process, based on clear and nondiscriminatory criteria published in advance. • Accreditation should never be subject to withdrawal based only on the content of an individual journalist's work. 1 See, for example, the Zimbabwean Access to Information and Protection of Privacy Act of 2002. 144 Broadcasting, Voice, and Accountability BOX 34. The Legitimacy of Licensing International standards in this area are quite clear. A joint declaration by the three special mandates for protecting freedom of expression-the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression-makes it clear that registration of journalists is not legitimate, noting also the particular problem of registration sys- tems that allow for discretion to refuse (i.e., licensing systems). In an advisory opinion, the Inter-American Court of Human Rights held that imposing a license requirement on journalists, along with conditions for membership, was a breach of the right to freedom of expression, stating: The argument that licensing is a way to guarantee society objective and truth- ful information by means of codes of professional responsibility and ethics is based on considerations of general welfare. But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is 1 the full exercise of the right of expression that benefits this general welfare. In practice, very few if any democratic countries impose licensing or even registration requirements on journalists. In a decision of August 1997, the high court of Zambia struck down an attempt to establish a statutory body to regulate and license journalists? The court stressed that statutory licensing of journalists, as proposed in the legislation, would breach the rights to freedom of expression and association: I do not in my view consider the decision to constitute the Media Council of Zambia to be in furtherance of ... freedom of expression, and press free- dom in particular.... The decision to create the Media Council of Zambia is no doubt going to have an impact ... on freedom of expression in that failure of one to affiliate himself to the Media Council of Zambia, or in the event of breach of any moral code determined by the Council would entail losing his status as a journalist, and with the denial of the opportunity to express and communicate his ideas through the media. In the light of the above it cannot be seriously argued that the creation of the Media Associa- tion or any other regulatory body by the Government would be in further- ance of the ideal embodied in the Constitution, vis-a-vis freedom of expression and association. The decision is particularly noteworthy for its extremely wide applica- tion. In effect, the court ruled that any statutory attempt to license jour- nalists would breach the right to freedom of expression, regardless of the form that attempt took. 1. Compulsory Membership in an Association Prescribed by Law for the Practice of Jour- nalism, Advisory Opinion OC-5/85 of November 13, 1985, Series A. No.5, para. 77. 2. Kasoma v. Attorney General, August 22, 1997, 95/HP /29/59. Regulation of journalists 145 BOX 35. The United Kingdom Accreditation System In the United Kingdom, the UK Press Card Authorityl operates a scheme for issuing press I media cards to professional media workers. The scheme was facilitated by the London Metropolitan Police in 1992, with the co- operation of all major industry bodies, with the aims of ending the pro- liferation of press cards and of promoting agreement on a universally recognized press card. The authority is made up of sixteen "gatekeepers," all of which are national trade unions and professional associations representing journal- ists and other media personnel covering the print and broadcast media. The gatekeepers issue cards to their members and are responsible for en- suring that the conditions are adhered to. The card is formally recognized by all police forces in the United Kingdom and de facto by other public bodies. 1. See http://www.presscard.uk.com/. Self-Regulation Self-regulatory systems are the most effective means of promoting professional standards, and, where such systems are in place, there is no need for statutory systems to be imposed. Where statutory sys- tems for promoting professional standards are imposed, they should apply to print media outlets rather than individual journalists and be overseen by independent bodies. Journalists should be free to establish professional associations of their own choosing. Systems for promoting professional standards in the media are an important way not only of protecting against harmful or inaccurate media reporting but also for enhancing the overall quality of media output. As such, they can contribute to building trust in the media and to facilitating its ability to promote participatory and equitable development. At the same time, when such systems allow officials to play an oversight role, they can seriously undermine media inde- pendence and hence its ability to act as watch-dog of government. Journalists' right to establish professional bodies derives from both the right to freedom of association and the right to freedom of expression. Such bodies can play an important role in defending freedom of the media generally in society, as well as protecting their individual members. t 48 Broadcasting, Voice, and Accountability BOX 36. International Standards on the Protection of Source Confidentiality The European Court of Human Rights clearly established the right of journalists to protect the confidentiality of their sources of information: Protection of journalistic sources is one of the basic conditions for press free- dom as is reflected in the laws and professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be ad- versely affected. Having regard to the importance of the protection of jour- nalistic sources for press freedom in a democratic society and the potential chilling effect an order of source disclosure has on the exercise of that free- dom, such a measure cannot be compatible with Article 10 unless it is justi- fied by an overriding requirement in the public interest. 1 In part due to that case, the Committee of Ministers adopted Recommen- dation R(2000)7 on the right of journalists not to disclose their sources of information. 2 The recommendation elaborates in some detail on the nature of this right. Similarly, Principle 15 of the Declaration of Principles on Freedom of Expression in Africa states: Media practitioners shall not be required to reveal confidential sources of in- formation or to disclose other material held for journalistic purposes except in accordance with the following principles: • the identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence; • the information or similar information leading to the same result cannot be obtained elsewhere; • the public interest in disclosure outweighs the harm to freedom of expression; and • disclosure has been ordered by a court, after a full hearing 3 The International Criminal Tribunal for Yugoslavia also recognized a special right for war correspondents not to have to testify against their informants, based on the same principles outlined in the European Court case.4 1. Goodwin v. United Kingdom, March 27, 1996,Application No. 17488/90, para. 39. 2. Adopted March 8, 2000. 3. Adopted by the African Commission on Human and Peoples' Rights at its 32nd Session, October 17-23,2002. 4. Prosecutor v. Rados/av Brdjanin & Momir Talic ('Randal Case"), International Criminal Tribunal for the Former Yugoslavia, (Appeals Chamber), JL/P.I.S/715-e (December 11, 2002). Regulation of journalists 149 BOX 37. Germany: Journalists' Right to Confidentiality of Sources Regulation of the press in Germany is a matter in the first instance for the Lander (states). The press laws of most Lander include a provision grant- ing journalists a right to refuse to divulge the identity of their confiden- tial sources. Article 24(1) of North Rhine Westphalia's Press Law is typical. 1 It provides: Editors, journalists, publishers, printers and others involved in the produc- tion or publication of periodical literature in a professional capacity can re- fuse to give evidence as to the person of the author, sender or confidant of an item published in the editorial section of the paper or communication in- tended wholly or partly for such publication or about its contents. This provides an absolute privilege, admitting of no exceptions. Sub- paragraphs (2), (3), and (4) render evidence that discloses a confidential source inadmissible in court if obtained via confiscation of materials or a search of premises unless, [the party to whom the evidence belongs] is urgently suspected of being the perpetrator of or participant in a criminal offence. Federal law also provides strong support for the protection of confidential sources, especially in civil cases. Section 383 of the Civil Procedure Code provides that when facts are confided to persons because of their profes- sion, including journalism, these persons are entitled to refuse to give testi- mony on these facts unless their source consents to disclosure. Section 53 of the Criminal Procedure Code authorizes journalists to refuse to testify con- cerning the content or source of information given in confidence. 1. North Rhine Westphalia Press Law, 24 May 1966, in Pamphlet on the Press Law of Germany, issued by the Ministry oflnformation (1989), p. 14. See also,Article 19, Press Law and Practice (London: Article 19, 1993), pp. 92-93. ruled that the Senate of the National Assembly had exceeded its authority in summoning a journalist to disclose the confidential sources of an article he had written. In concluding that the summons had interfered with the journalist's right to freedom of expression as guaranteed by the constitution, the Court stated: It is a matter of common knowledge that those who express their opinions or impart ideas and information through the medium of a newspaper or any other medium for the dissem- ination of information enjoy by customary law and conven- tion a degree of confidentiality. How else is a disseminator of t 50 Broadcasting, Voice, and Accountability information to operate if those who supply him with such information are not assured of protection from identification and/ or disclosure? 5 Similarly, the Supreme Court of Bermuda upheld the right of jour- nalists to protect confidential sources of information in a case involv- ing a journalist as a witness. 6 Both international law and national practice thus recognize the importance of protection of source confidentiality as an aspect of free- dom of expression. It may legitimately be overridden but only in lim- ited circumstances. In particular, mandatory source disclosure should be permitted only by court order and to serve an overriding interest, such as the right of an accused person to defend him- or her- self. Where similar information may be obtained by other means, mandatory source disclosure cannot be justified as necessary. Fur- thermore, an order for source disclosure can only be justified where the public interest in obtaining the information clearly outweighs the harm to freedom of expression. Right of Correction/Reply A right of correction/reply can provide an effective and appropriate response to media errors and other wrongs. However, it represents a limitation on freedom of expression and so should be clearly de- fined in a manner that limits the potential for abuse. Both a right of correction and a right of reply are designed to promote redress for media inaccuracies and other wrongs without the need to resort to lengthy and costly court cases. As such, they can promote more professional standards in the media while intruding relatively little on media freedom. Greater professionalism, as noted previously, is likely to promote greater trust in the media and hence facilitate its abil- ity to contribute to development goals and democratic participation. It should be noted, however, that such a right of reply refers to the media organization as the publisher, and not to the individual jour- nalist involved. 5 Tony Momoh v. Senate of the National Assembly, [1981]1 NCLR 105. 6 The Bermuda Fire & Marine Insurance Company Limited (in liquidation) v. F&M Limited and Others, Civil Jurisdiction 1995 No.7 (Supreme Court of Bermuda). Regulation of Journalists 1S 1 Although they are often referred to in combination, the right of correction and the right of reply are very different remedies. A right of correction implies a right to complain of inaccuracies in the media and to have such complaints, where upheld, lead to the correction of the inaccuracies. In most cases, a quick right of correction represents an effective and appropriate means to redress any factual errors in the media. It poses little threat to independence-since it applies only in very clear and limited circumstances and the content of the correction is controlled by the media outlet-and yet it provides a quick and low-cost means to resolve inaccuracies. A right of reply, on the other hand, effectively grants a right of ac- cess to the media to make one's own statement. As a result, it is more contentious and open to possible abuse? While a right of reply may be less onerous for the media than lengthy and expensive court pro- ceedings, advocates of media freedom generally suggest that it should be voluntary rather than prescribed by law. In some countries, the right of reply may be claimed in a wide range of circumstances that do not involve any harm to the claimant. This is open to abuse and may result in the media being reluctant to engage in criticism, for fear of this leading to claims of a right of reply, and hence unable effectively to perform its watchdog role. International standards and national law and practice (Box 38) suggest the following conditions for any right of reply: 1. A reply should be required to be provided only in response to statements that are false or misleading and that breach an important interest of the claimant; a reply should not be per- mitted to be used to comment on opinions that the reader or viewer simply does not like. 2. A reply should receive similar prominence to the original article or broadcast. 7 The United States Supreme Court, for example, struck down a mandatory right of reply for the print media on the grounds that it is an unconstitutional interference with the First Amendment right to free speech. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The U.S. Supreme Court has, however, upheld a right of reply for the broadcast media. See Red Lion Broadcasting Co. v. Federal Communications Commission, 395 US 367 (1969). No legal right of reply for print media outlets exists in countries such as Canada and the United Kingdom. t 52 Broadcasting, Voice, and Accountability BOX 38. International and Comparative Standards on the Right of Reply A right of reply is a favored form of redress in many parts of the world. Article 14(1) of the American Convention on Human Rights, for example, ac- tually requires state parties to introduce either a right of reply or a right of correction. 1 A resolution of the Committee of Ministers of the Council of Europe similarly supports the institution of a right of reply, setting out detailed rules for its exercise, including that it may be overridden by a countervailing public interest. 2 The Argentinean Supreme Court has held that a number of require- ments must be met before the right may become operative: 1) there must be a "substantial serious offense"; 2) the offense must arise from a statement unsupported by reasonable argument; 3) in the case of "ideological interests," the person who replies assumes a "collective representation"; only one person, the first to reply, will have the right to reply in the name of all those who may have been offended by the same statement; 4) the rectification or reply must be published in the same medium of communication, in the same place and with the same prominence as the offending statement; and 5) the space given to the reply must be adequate to its goal. 3 In a later case, the same court held that the right could not be used to respond to the expression of ideas, only facts. 4 1. See also Enforceability of the Right to Reply or Correction, Advisory Opinion OC-7 /85, Series A, No.7 (August 29, 1986). 2. See Resolution (74) 26 on the right of reply-position of the individual in rela- tion to the press, adopted July 2, 1974. 3. Ekmekdjian v. Sofovich, Fal!os 315:1492 (July 7, 1992). 4. Petrie v. Pagina 12, Fallos 315:1492, CSJN, Supreme Court of Justice of the Nation, (April16, 1998). 3. A reply should be proportionate in length to the original article or broadcast. 4. A reply should be restricted to addressing the incorrect or mis- leading facts in the original text and not be taken as an oppor- tunity to introduce new issues or comment on correct facts. 5. The media should not be required to carry a reply that is abusive or illegal. Part III Promoting Plural and Independent Broadcasting Overview Broadcasting, as we noted in Part I, can play a significant role in the delivery of public service goals, not only by informing, educating, and entertaining, but also by providing a platform for the views of all people, facilitating participation in governance, holding leaders and officials to account, and contributing to sustainable, equitable, and participatory development. Governments cannot achieve these objectives alone. But they can introduce specific policies tailored to create a framework for broadcast- ing that, taken as a whole, will have the capacity to produce a diverse range of high-quality services. These services should be accessible to all, serve the goals of equitable and sustainable development, and pro- mote access to information, accountability, and participation. There is no doubt that broadcasting can be a powerful force for good governance, but it may also serve as an instrument of social con- trol, a vehicle for the pursuit of political or sectarian interests, or even a means of fomenting conflict and war. The interwoven tensions gen- erated by competing desires to enhance accountability, retain broad- casting as an instrument of state policy, exploit the media for sectional interests, satisfy the demands of civil society and social movements for media reform, and realize the economic opportunities offered by broadcasting underlie the different trends in broadcast policy and prac- tice throughout the world. Part I argued that a media landscape that promotes accountabil- ity, participation, and development requires a diversity of content but also a diversity of ownership and forms of ownership, including com- mercial, noncommercial, public, and community ownership at both the national and local levels. Specific policy interventions, largely through the regulatory system, are needed to promote a multifaceted broad- casting sector that recognizes the different interests at stake and the respective merits and values of different types of broadcasting, each with its own distinct social, economic, and political logic. Development of a multilayered broadcasting sector is feasible, evidenced by its historical emergence in most regions of the world, with significantly different emphases depending on the context. Its Part III 155 emergence also reflects widely held aspirations among governments and people that this is an approach worth striving for, even if many are failing to implement it effectively. In the following chapters, we set out the essential elements of good practice that constitute a broad policy, legal, and regulatory framework for broadcasting in the public interest, as discussed in Part I. We draw from internationally recognized legal guarantees on freedom of expression and access to information, along with con- crete examples from different countries of how these have been put into effect. Chapter 9 discusses good practices in the structure, mandate, staffing, and procedures of broadcast regulatory agencies and identi- fies core principles, including independence, authority and compe- tence. It also acknowledges that the risk of regulatory failure, including capture by vested interests, is ever present and needs to be offset by a vigilant, robust, and authoritative institutional structure. Chapter 10 looks specifically at the regulation of broadcast con- tent. When and where is it justified for policy and regulation to attempt to influence broadcast content, either directly, through regulation of the general nature of content, or indirectly, through interventions re- lating to the technical means to broadcast? This question, and some answers to it, are explored in some depth. Chapters 11 through 13 focus respectively on the three main broadcasting sectors: public service, community, and commercial broadcasting. In each case, we explore the relevant institutional, li- censing, and regulatory structures, the checks and balances needed to ensure the promotion of public interest goals, and the possible and appropriate funding structures. Good Practice Checklist • The regulation of broadcasting should be the responsibility of an in- dependent regulatory body established on a statutory basis with powers and duties set out explicitly in law. • The independence of the broadcast regulatory body should be ade- quately and explicitly protected from interference, particularly of a political or economic nature. • Any independent body that exercises regulatory powers in broad- casting should have a principal duty to further the public interest and should have particular regard for the right to freedom of opin- ion and expression and the desirability of fostering a plurality and diversity of services. • The appointment process for members of an independent broadcast regulator should be fair, open, transparent, and set out in law. It should be designed to ensure relevant expertise or experience and a diversity of interests and opinions representative of society as a whole. • The appointments process should not be dominated by any particu- lar political party or commercial interest and the members appointed should be required to serve in an individual capacity and to exercise their functions in the public interest at all times. • In exercising its powers, the independent broadcast regulator should be required by law to operate openly and transparently and to facil- itate public participation in their affairs, including through public consultation on their policies and procedures. • All decisions of the independent broadcast regulator should be accompanied by written reasons. • The independent broadcast regulator should be subject to judicial oversight and should be formally accountable to the public through a multiparty body such as the parliament or a parliamentary com- mittee in which all major parties are represented. • The independent broadcast regulator should be required by law to publish an annual report. • The independent broadcast regulator should be ensured a reliable and recurrent income provided for in law and sufficient to carry out its activities effectively and without interference. Regulation and the Government Role 157 Introduction In the hands of governments, or under the influence of powerful eco- nomic interests, the regulation of broadcasting can in effect become a gatekeeping exercise and an obstacle to enhanced media pluralism and diversity. The selective distribution of broadcast concessions with the intention of rewarding certain groups over others can stifle democratic debate and the plurality of opinion. Similarly, regulatory sanctions can discourage the exercise of freedom of expression and limit the independence of the media. The trend in most regions is thus toward a system whereby broadcasting regulation is placed in the hands of an independent regulator constituted in such a way as to re- flect a diversity of interests, with clearly defined powers and duties and transparent and accountable operating procedures. An independent broadcast regulator provides a means to promote and develop a balanced broadcasting sector in which a plurality of broadcasters, commercial, public service, nonprofit, or community in their various incarnations, can exist alongside one another. It may have a duty, among other things, to encourage multiple forms of ownership; to promote local and public service content; to meet the needs of par- ticular groups, including cultural and linguistic minorities; to consider equality of opportunity; and to ensure that broadcasting respects gen- erally accepted community standards, for example, those established for the protection of children. ~~,-=----~---------~~------------------------------ BOX 39. France: From Monopoly to Diversity In France, until1982, the state retained a monopoly control over broadcast- ing. In 1986 the Law on Freedom of Communication (No. 86-1087) was adopted providing for the creation of a new regulatory body, the Conseil Su- perieur de l'Audiovisuel (CSA). The CSA came into existence on February 13, 1989, tasked with the dual role of guaranteeing and promoting broad- casting freedom in France. Article 3.1 states that the CSA is an independent authority that "guarantees the exercise of the freedom of audiovisual com- munication with regard to radio and television by any means of electronic communication under conditions defined by the present law." 1 Alongside the publicly owned broadcasters, the CSAestablished the current regulatory framework for the licensing of commercial and community broadcasting. 1. Law on Freedom of Communication No 86-1087 of 1986 (modified). Available at: www.csa.fr. 1 58 Broadcasting, Voice, and Accountability The functions of broadcast regulation may be the responsibility of a stand-alone body, they may be located within the responsibilities of different bodies, or they may constitute just one part of the functions of a communications regulator with wider responsibilities. Vesting the various functions of broadcast regulation-spectrum planning, broadcast licensing, content standards, and complaints handling-in more than one regulatory body can lead to duplication of effort and cost and may also be confusing for the public. On the other hand, it may be desirable, when adapting good practice to particular country circumstances, to have some division of regulatory responsi- bilities between different bodies. This may be considered preferable to an excessively powerful regulatory body that is not sufficiently inde- pendent of the government or of other particular interests. In most countries broadcast regulation has historically been dis- tinct from the regulation of telecommunications and the radio spec- trum. In recent years the trend has been to replace distinct regulatory regimes for broadcasting, telecommunications, and radio frequencies with a single communications regulator as, for example, ICASA in South Africa and Ofcom in the United Kingdom. The single regulator idea, however, is by no means new. The U.S. Federal Communica- tions Commission was set up on these lines in 1934. While a single regulator responsible for both telecommunications and broadcasting can be expected to produce greater policy coher- ence in communications regulation, the vesting of a wide range of regulatory powers in a single regulator makes it all the more impor- tant for the regulator to be capable of clearly distinguishing the speci- ficities of each of its areas of responsibility and meeting the highest standards of good practice in each. Threats to Independence As stressed earlier, the independence of a regulator can be threatened from several directions. The risk of "capture" of the regulator by partisan interests is high and ongoing. 1 "Capture" occurs when the positions and actions of a 1 There is a very considerable literature by "capture theorists," much, though not all of it, emanating from the United States. Only a very limited literature, however, is available on the specificities of regulatory capture of the broadcast sector in developing countries. Regulation and the Government Role 1 59 government regulatory agency are overly influenced by the vested interests of the industry it regulates to the detriment of the public inter- est it is intended to serve. A higher risk of capture can be built into flawed founding legal and institutional structures of a regulator or can emerge gradually over an extended period of time, and wealthy coun- tries with long experience of independent regulation are not exempt. 2 Regulators take decisions that have far-reaching economic impli- cations for private media entities, granting or withdrawing licenses, imposing and policing more or less onerous conditions that, although aimed at protecting the public interest, can greatly influence the growth potential, income, and profitability of media enterprises. This influence inevitably entails a risk of corruption among regulatory staff and decision-making processes 3 and thus also underlines the importance of safeguards such as transparency and "whistle-blower" mechanisms. Powerful lobbying of the regulator by media interests can also result in regulatory decisions and outcomes that favor pri- vate media interests, especially where the regulator has limited re- search, analytical, and public relations capacity. When directed at governments, such media industry lobbying can also diminish the in- dependence of the regulatory body vis-a-vis the regulated, whether at the time of its establishment or through amending legislation. Furthermore, media interests are particularly well placed to influ- ence public opinion and, hence, the actions of publicly elected officials and members of government. And a "revolving door" between the regu- lator and the regulated, where key staff shuttle between one and the other with scant protection against conflicts of interests, can be a problem for regulators everywhere. Sustained and varied contact, formal and infor- mal, between regulators and commercial broadcasters, as well as the con- siderable economic power of media, may be among the causes of what has been described as a "soft" approach toward regulating commercial 2 For a view of the issue in U.S. broadcasting see: Anthony E. Varona, "Changing Channels and Bridging Divides: The Failure and Redemption of American Broadcast Television Regulation," Minnesota Journal of Law, Science & Technology, Vol. 6, No.1, 2004-2005, avail- able at SSRN: http:/ /ssrn.com/abstract~921132. 3 The Polish regulator became enmeshed in a corruption scandal in 2003, in which cross- ownership was the issue. Open Society Institute EU Monitoring and Advocacy Program, Television Across Europe: Regulation, Policy and Independence (051: New York/Budapest, 2005), 52, available at: http://www.eumap.org. 160 Broadcasting, Voice, and Accountability broadcasters in Western Europe. This approach is characterized by laxity in the enforcement of license conditions and a reluctance to use the pow- ers available, among other things. 4 Legislating to avoid such capture is neither simple nor direct, and aspects of the enabling environment in Part II are relevant here, in particular, robust access to information legislation. Adequate fund- ing, training, and capacity-building can be important alongside the legal measures outlined in the following section. Excessive government influence over the regulator, however, is very often a larger problem. The policy and statutory measures presented here, including formal guarantees of independence and transparency, appropriate appointment procedures, and adequate enforcement mechanisms, can go a long way toward addressing this, as can the implementation of an effective enabling environment out- lined in Part II. Yet many regulators succumb, willingly or not, to government pressures, many of which are informal and concealed from public view. Less tangible challenges facing regulatory inde- pendence may be related to attitudes and cultures. In some environ- ments, acquiescence to and practical implementation of an authority established by legislation and subject to law, but independent of gov- ernment influence, can take some time to evolve among members of government and regulators alike. In the following, it should be borne in mind that good practice in one area, such as exemplary legislating for independence, may be un- dermined by weaknesses in others, such as inadequate funding or a culture of inertia or corruption. An Independent Regulatory Body The regulation of broadcasting should be the responsibility of an independent regulatory body established on a statutory basis with powers and duties set out explicitly in law. The independence and institutional autonomy of the regulatory body should be adequately and explicitly protected from interference, particularly interference of a political or economic nature. 4 0pen Society Institute EU Monitoring and Advocacy Program, Television Across Europe: Regulation, Policy and Independence (OSI: New York/Budapest, 2005), 53, 1031. Regulation and the Government Role 161 The independence of the regulatory body is central to its effective- ness. Though insufficient in itself, it should be guaranteed in the legislation under which it is established. This legislation should set out clearly the powers and duties that have been assigned to the regulatory body and that it is entitled to exercise independently of government or any other entity or person. Any change to these pow- ers and duties should be permissible only through amendment by the parliament of the relevant legislation. The legislation should also guarantee the independence of the regulator by identifying clear and explicit rules for appointment of its members and the terms under which they serve, and by requiring for- mal accountability to the public and funding arrangements that en- sure its operational and administrative autonomy from government or politicians. The regulator must also maintain impartiality with respect to those whom it regulates, and in particular avoid undue in- fluence by the major broadcast licensees and private media owners. In some countries the independence of the broadcast regulator is constitutionally prescribed. For example, the South African constitution states, in Section 192: "National legislation must establish an indepen- dent authority to regulate broadcasting in the public interest, and to en- sure fairness and a diversity of views broadly representing South African society." Section 192 expressly obliges Parliament to establish an independent authority to regulate broadcasting. To this end, Parliament has enacted the Independent Communications Authority of South Africa 2000 Act (ICASA Act). ICASA took over the function of two pre- vious regulators, the South African Telecommunications Regulatory Authority (SATRA) and the Independent Broadcasting Authority (IBA). The preamble to the ICASAAct acknowledges "that the establishment of an independent body to regulate broadcasting and telecommunications is required." The act describes ICASA in the following clear terms: 5 (3) The Authority is independent and subject only to the Constitution and the law, and must be impartial and must perform its functions without fear, favour or prejudice. (4) The Authority must function without any political or com- mercial interference. 5 The Independent Communications Authority of South Africa Act No. 13 of 2000, available at: www.icasa.org.za. 162 Broadcasting, Voice, and Accountability BOX 40. Benin: Constitutional Support for an Independent Regulatory Body The creation of a regulatory body, the Haute Authorite de l'Audiovisuel et de Ia Communication (HAAC), on August 21, 1992 (Law No. 92-021), was a rec- ommendation of the Conference Nationale Souveraine (February 19 to 28, 1990), imposed by civil society organizations on the then-military regime to review the governance of the country. The conference laid the foundations of a system based on the rule of law and the respect of fundamental human rights. The conference appointed an interim prime minister charged with the preparation of a referendum on a new constitution. The new constitu- tion adopted by referendum in December 1990 sought to protect the media from government interference and make it a watchdog of government. It recommended that the regulatory body be rooted in the constitution in or- der to give it legitimacy comparable to that of the Executive. It established that "the Haute Autorite de l'Audiovisuel et de Ia Communication is an institu- tion independent of all political powers, organization or lobby of any sort." Powers and Duties Any independent body that exercises regulatory powers in broad- casting should have a principal duty to further the public interest in relation to broadcasting and should have particular concern for the right to freedom of opinion and expression and the desirability offostering a plurality and diversity of services. The legislation under which the regulatory body is established should describe its principal duties in clear terms together with the specific functions that it is required to carry out. It should be framed in such a way that the regulator is able to operate in a manner that is fair, open, transparent, and consistent with its principal duties. Although broadcasting's ability to contribute to development is increased within a regulatory framework that gives precedence to the goal of furthering the public interest, other additional and more spe- cific duties of the regulator should also be set out. These may include, for example: • the availability throughout the territory of a wide range of broadcasting services of a high quality and appealing to a variety of tastes and interest; • the maintenance of a plurality of providers of different broadcasting services; Regulation and the Government Role t 63 • protection of the public from offensive and harmful program material; • protection from unfair treatment or unwarranted intrusions of privacy. The powers in relation to broadcasting that are assigned to an in- dependent regulatory body should also be set out clearly and should, inter alia, include the powers: • to grant and to suspend or revoke broadcast licenses; • to assign those frequencies that are designated for broadcast use; • to set standards and rules within clearly defined areas of responsibility; and • to hear and to adjudicate on complaints relating to broadcast content. The Broadcasting Commission of Ireland (BCI)-previously the Irish Radio and Television Commission but renamed under the Broadcasting Act of 2001-is responsible for the licensing, regulation, and oversight of all private and independent broadcasting, including community broadcasting. In addition to licensing, it develops codes BOX 41. Mali: Dual Regulatory Bodies Two regulatory bodies, the Conseil Superieur de la Communication (CSC), which was set up in December 1992, and the Comite National de l'Egal Ac- ces aux Medias d'Etat (CNEAME), set up in January 1993, are in charge of the implementation of Article 7 of the 1992 constitution, which states that freedom of expression is guaranteed under the law. The CNEAME is con- cerned only with the access of political parties to state media and its ac- tivities are developed mainly during electoral campaigns. All other regulatory oversight of the broadcast media and print media rest with the CSC. The powers and duties of the CSC are set out in the CSC Act of 1992 (No. 92-038). The CSC decides on the allocation and withdrawal of fre- quencies to radio and television broadcasting stations and ensures that stations abide by their service commitments. It has powers to suspend or withdraw broadcast authorizations in the event of noncompliance. The CSC undertakes research into the media and communications sector and also has powers to prevent undue dominance or control of the market for print and broadcast communications. t 64 Broadcasting, Voice, and Accountability and rules with respect to programming and advertising standards; it monitors services to ensure compliance; it provides support for train- ing and development initiatives; and it undertakes or commissions research to assist the development of broadcast policy. In the Republic of Korea, all of the regulatory functions relating to the broadcast media have been consolidated within the Korean Broad- casting Commission (KBC) established as an independent body under the terms of the Broadcasting Law of 2000. The KBC took over the ad- ministrative functions, previously reserved by government, for licens- ing and authorization of terrestrial, cable, and satellite broadcasters and relay cable operators. It is also responsible, among other matters, for regulation of broadcast content, nomination of board members of the main public broadcasting institutions, broadcast policy-making, and management of the Broadcasting Development Fund. Appointment of Members The appointments process for members of a regulatory body with re- sponsibility for broadcasting should be fair, open, transparent, and set out in law. It should be designed to ensure that members have relevant expertise or experience and carry a diversity of interests and opinions representative of society as a whole. The appointments process should not be dominated by any particular political party or commercial interest, and the members appointed should be required to serve in an individual capacity and to exercise their functions in the public interest at all times. Members of the regulatory body should be appointed for a fixed term and should be protected from dismissal during this term unless they cease to meet explicit conditions of eligibility for office or fail to discharge their responsibilities as set out in law. There should be clear rules of eligibility for membership of the regulatory body to avoid incompatibility with the responsibilities of office. No one should be appointed who: • is an employee in the civil service or other branch of government; • is an officeholder or employee of a political party; • is an elected or appointed member of the government; • is an elected or appointed member of the legislature; • is an employee, or has financial interests, in broadcasting or communications; or Regulation and the Government Role t 65 • has been convicted, after due process in accordance with internationally accepted legal principles, of a violent crime or a crime of dishonesty, unless five years has passed since the sentence was discharged. In carrying out their duties and responsibilities, members of the regulatory body should be required to act according to the principles of public office and not to accept any instructions, terms, conditions, gifts, or payment from any party other than those that are explicitly provided for in law for the effective discharge of their responsibilities. The size and composition of the board vary significantly from country to country. In the Netherlands, the independent Media Au- thority (Commissariaat voor de Media) has only three commissioners, although their independence is guaranteed by the Media Act of 1987. The commissioners are appointed by Royal Decree on the Recom- mendation of the Minister for Education, Culture, and Science. In contrast, in France, the CSA has a board of nine members. Three members are appointed by the president, three by the National As- sembly, and the remainder appointed by the chairman of the Senate. They are confirmed by presidential decree, and the chairman of the CSA is appointed by the president. A third of the members of the CSA are renewed every two years. The term of office for all members is six years, which can neither be revoked nor renewed. In Benin, the president of the Haute Authorite de l'Audiovisuel et de la Communication (HAAC) is appointed, after consultation with the president of the Parliament, by decree in the Council of Ministers. The other members of the HAAC board consist of three appointees of the head of state and three appointees of the Cabinet of the Parliament. BOX 42. Canada: Procedures for Appointment of Members The Canadian Radio-television and Telecommunications Commission (CRTC) is responsible for overseeing broadcasting licensing in Canada. It consists of not more than thirteen full-time members and not more than six part-time members, appointed by the prime minister. In practice, although not in law, this is a broad public process involving public consultations. Members are appointed for five years and may be reappointed. There are strict conflict-of-interest rules for members, which exclude anyone who has interests in telecommunications or broadcasting from membership. The law does not set out prohibitions on politically active individuals from becoming members, but this is respected in practice. 168 Broadcasting, Voice, and Accountability regulation ICASA is obliged under the Broadcasting Act of 1993 to engage in public consultation with respect to any inquiry it conducts; with respect to frequency planning; and with respect to license appli- cations, license renewals, and amendments to licenses. Public Accountability Any public body that exercises regulatory powers in broadcasting should be subject to judicial oversight and should be formally ac- countable to the public through a multiparty body, such as the par- liament or a parliamentary committee, in which all major parties are represented. The regulatory body should be required by law to publish an annual report. Decisions taken by a regulatory body responsible for broadcasting should be subject to judicial oversight and any individual or organi- zation affected by such a decision should have the right to seek judi- cial review of that decision through the appropriate court. Formal accountability should focus on review of the past activi- ties and performance of the regulatory body and should not have the purpose of seeking to influence individual decisions. The annual report of the regulatory body should include a detailed account of their licensing and regulatory activities together with audited finan- cial accounts. It should be published in a manner that ensures it to be easily accessible to the public. BOX 44. South Africa: The Regulator's Annual Report The Independent Communications Authority of South Africa (ICASA) Act 2000 requires, under Section 16, that ICASA prepare an annual report, within three months of the financial year, to include "information re- garding licences granted, renewed, amended, transferred, suspended or revoked and such other information as the Minister may in writing re- quire."1 The minister is required to table the report in Parliament within fixed time limits. ICASA is also required to produce annual financial statements and the auditor-general's report on those statements. All deci- sions of ICAS A are subject to judicial review. 1. The Independent Communications Authority of South Africa Act No. 13 of 2000, available at: www.icasa.org.za. Regulation and the Government Role 169 Funding Arrangements Regulatory bodies responsible for broadcasting should be ensured a reliable and recurrent income provided for in law and sufficient to carry out their activities effectively and without interference. The legal framework for funding regulators should be transparent and include protections against arbitrary interference. Funding to, or the withdrawal of funding from, a regulatory body should never be used as a means to influence decision making. A variety of mecha- nisms can be used to fund regulatory bodies, including direct fund- ing by government from taxation or funding through charges applied to licensees. In Benin, for example, the budget of the Haute Authorite de l'Audiovisuel et de la Communication (HAAC) is provided for by the National Assembly upon request of the president of HAAC and ad- ministered through the Ministry of Finance. Although direct funding is a common model it can be used to un- dermine the independence of the regulator. It is therefore desirable to have an independent funding mechanism provided this can guaran- tee adequate resources for the regulatory function. The revenues of the UK communications regulator, Ofcom, for example, are derived from payments received in respect of license BOX 45. Lithuania: Financing the Regulator The Radio and Television Commission of Lithuania (LRTK), established under the Mass Media Law of 1996, is financed from the funds of the com- mercial broadcasters. All broadcasters earning income from commercial broadcasting activities-with the exception of the public broadcaster, LRT-must pay the commission on a monthly basis: 0.8 percent of their incomes received from advertising, subscription fees, and other commer- cial activities related to broadcasting and/ or retransmission. If broad- casters fail to pay for three months after a deadline specified in writing by the commission, such amounts are to be recovered in court. The LRTK is responsible for establishing its own budget within the funds thus made available. 1 1. Open Society Institute EU Monitoring and Advocacy Program, Television Across Europe: Regulation, Policy and Independence (OSI: New York/Budapest, 2005), 1031. 1 70 Broadcasting, Voice, and Accountability fees from and penalties applied to license holders. The Office of Com- munications Act 2002 states, in Schedule 1, Paragraph 8(1): 7 "It shall be the duty of Ofcom ... so to conduct their affairs as to secure that their revenues become at the earliest possible date, and continue at all times after that to be, at least sufficient to enable them to meet their obligations and to carry out their functions." 7 0ffice of Communications Act 2002, available at: http://www.hmso.gov.uk/acts/ acts2002/20020011.htm. Good Practice Checklist • General positive content obligations, requiring them to carry certain material or types of material, may be placed on commercial and community broadcasters for the purpose of promoting broadcast diversity and the range of material available to the public, though more onerous obligations may be placed on public service broadcasters. • Positive content obligations should not have the effect of stifling cre- ativity or threatening viability. • Special content rules may apply during elections. • Broadcasting laws should not impose content restrictions of a civil or criminal nature on broadcasters, over and above those that apply to all forms of expression. • Codes of conduct rules should be developed in close consultation with broadcasters and should be applied either on a self-regulatory basis or by an independent regulatory body. • A range of sanctions should be available for breach of rules on broadcast content so that any sanctions that are applied may be proportionate to the harm done. • Spectrum planning for broadcast services should ensure a fair and equitable distribution between public service, commercial, and community broadcasters. • "Must-carry" rules are a useful regulatory mechanism to guarantee ac- cess to cable and satellite networks for public interest uses, including public service and community broadcasters. Broadcast law should ensure that broadcast regulators have powers to make "must-carry" rulings and a duty to do so where such rulings are in the public interest. • Public access channels are channels on cable or satellite networks that have been set aside for noncommercial public use such as educa- tional, community, or public service programming. Broadcast law should ensure the regulator is able to insist on the inclusion of public access channels as a condition of licensing a cable or satellite operator. 171 t 72 Broadcasting, Voice, and Accountability Introduction The characteristics of the general enabling legal and institutional environment outlined in Part II constitute essential prerequisites to broadcasting that can promote good governance and development. The specific regulatory role appropriate to broadcasting, including its overall goals and structures, is outlined above. But an immediate question confronting any form of broadcast regulation is whether and where it is justified to attempt to influence broadcast content, either directly through rules on the broad nature of content or indirectly through interventions relating to the technical means to broadcast, specifically radio spectrum and cable. Beyond question is the fact that such justification must conform fully to the general legal environment relating to freedom of expression. But allowing for this, what is the case for specific measures to influence content? In a regulatory environment that provides for independent media, free of government control, it is, in the first instance, the responsibility of broadcasters themselves to decide, on a day-to-day basis, what content they should or should not carry. There should be no prior censorship. Are there circumstances that justify measures to directly influ- ence content? More specifically, can the state regulate to promote in broadcasting those characteristics that can enhance governance and participation, for instance by increasing the likelihood of a wide di- versity of content across broadcasting? Is regulation of commercial broadcasting a feasible way of augmenting public participation? Regulation of the means of broadcast transmission, radio spec- trum and cable, poses another set of questions. If restrictions on the means to broadcast should be kept to a minimum, and maximum op- portunities offered to those wishing to broadcast, what circumstances justify regulatory interventions in the conditions of access to them? Can and should the regulation of these scarce resources be used to broadly influence content in this direction? There are clear dangers in the overregulation of content. Apart from the obvious risk of state censorship by another name, content rules should not be so onerous as to restrict creativity or impose ex- cessive costs on a broadcaster. Nor should they be more stringent than those applying to other media, though they can take account of and be adapted to the particular nature of broadcasting. Many countries have developed systems to directly and indirectly influence broadcast Regulating Broadcast Content and Distribution t 73 content, with the goal of enhancing the quality and diversity of con- tent, while fully respecting freedom of expression. Some aspects of broadcasting standards are by their nature con- textually dependent. The level of obscenity, sex, or violence consid- ered acceptable on television not only depends on the particular circumstances of each broadcast but is subject to changing social values over time and different cultural interpretations and contexts. The goal of broadcasting standards systems is to clarify and articulate the generally pertaining social standards and acceptable behavior, in order to set program standards for broadcasters. Though sanctions may be a necessary part of such a system, more serious sanctions should be applied only relatively rarely, for instance to address the problem of a persistently offending broadcaster. Good practice exam- ples of these systems are characterized by a code of conduct, developed by or in close consultation with broadcasters and other interested stake- holders; an independent body with oversight, monitoring, and sanction powers and the opportunity for public complaints; and a graduated system of sanctions for breach of the rules. Positive content rules, for instance where a license to broadcast is accompanied by obligations to show certain general types of content, have the purpose of promoting diversity by extending the range of material available and improving its quality. Public service broad- casters in particular are subject to these rules, but they may be brought to bear on all forms of broadcasting. In the case of allocating radio spectrum to broadcasting, the fun- damental justification for regulation in the first place is usually that ra- dio spectrum is a scarce resource that requires overall management. To that extent it comprises part of the technical enabling environment. But at a nontechnical level, rules regarding the allocation of spectrum to particular types of broadcasters can be motivated by a desire to en- hance the diversity of content, and especially to improve the balance of different forms of ownership and participation. A similar case can be made for certain measures that r~gulate the cable broadcast system. Positive Content Rules General positive content obligations, requiring them to carry cer- tain material or types of material, may be placed on commercial and community broadcasters but only where the purpose and effect of 174 Broadcasting, Voice, and Accountability the rules is to promote broadcast diversity by enhancing the range of material available to the public. More onerous obligations may be placed on public service broadcasters, given their primary obliga- tion to promote the public interest through a diversity of voices and perspectives in broadcasting. Positive content obligations should not have the effect of stifling creativity or threatening viability. Special content rules may apply during elections. Positive content regulation can be particularly useful in encouraging the productions of programs with educational value; ensuring high quality news and current affairs coverage; promoting local and na- tional culture, including minority cultures; providing programming for children; encouraging investment in local content production; and covering other matters of development concern such as health, welfare, and economic development. Positive content regulation should not specify in detail what is to be broadcast. Such an approach would put the independence of the broadcaster at risk and place the regulator in a position of making ed- itorial decisions. Positive content rules should instead be set out in the form of general obligations concerning the type of programming to be carried. Different types of broadcasters may be subject to different positive content obligations. They should be proportionate to the broad- caster's coverage, the scarcity of the transmission resources available, and their ability to meet the obligations without danger to their via- bility. For example, a local broadcaster could not be expected to invest in costly program production, such as drama, but might be required to carry a certain proportion of locally produced content or local news. For commercial or community broadcasters content obligations will normally be set out in the license terms and conditions. Public service broadcasters can be expected to have a higher obligation with respect to public interest content than commercial and community broadcasters, and their content requirements will generally be set out as the law establishes them. Public service broadcasters have a particular obligation to pro- mote broadcast diversity, and it is legitimate, even necessary, to pro- vide for this in their mandates. This may involve requiring them generally to carry programming considered to be of national impor- tance, such as children's programming, educational programming, Regulating Broadcast Content and Distribution 175 programming of interest to different sectors of society, comprehen- sive news programming, and so on. At the same time, as with private broadcasters, specific obligations to carry messages by officials are susceptible to abuse and should be avoided. Special considerations may apply during elections, where it is of the greatest importance that the electorate be exposed to the views of the competing candidates and parties, so as to be able to make an in- formed voting choice. It is common for broadcasters, particularly public broadcasters, but often private broadcasters as well, to be re- quired to carry election material, often in the form of direct access slots by parties and candidates. In Italy, a case decided in 2002 challenged the requirement for broadcasters to provide equal access to all political parties, arguing that it infringed the freedom of expression of broadcasters and constituted discrimination against them in relation to newspapers, which did not have this obligation. The constitutional court rejected these arguments, noting the key importance of broadcasting in forming the public's po- litical views. The court also noted the special situation in Italy, which is characterized by concentration of ownership of private broadcasting in the hands of politically active individuals, existing alongside public broadcasting. It also noted the limited nature of the restrictions, which applied only during elections and only to certain types of broadcasts. 1 Some countries include specific provision to promote indigenous program production or to ensure broadcasting in the national lan- guage. For example, in Indonesia the broadcasting law includes de- tailed language rules. In general, broadcasting must be in standard Indonesian, although there are exceptions for other local and foreign languages. Foreign language programs must be either subtitled or dubbed into Indonesian, although the latter is restricted to 30 percent of all foreign programs. In the Yatama case the Inter-American Court of Human Rights set an important precedent in ruling that a decision of the court con- cerning the political rights of indigenous communities on the Atlantic coast of Nicaragua must be disseminated through community radio and in the local indigenous languages of Miskito, Sumo, and Rama. 2 1 Decision of the Italian Constitutional Court, no. 155 (Apr. 24-May 7, 2002). 2 Yatama v. Nicaragua, Inter-American Court of Human Rights (June 23, 2003), available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_l27_esp.pdf 176 Broadcasting, Voice, and Accountability Rules on national and linguistic content should not be such that they restrict the rights of minorities. Latvian law, for example, pro- vided that no more that 25 percent of broadcast time on any particular broadcaster could be in a foreign language, thereby effectively denying the large Russian minority a broadcaster of their own. In a 2003 deci- sion, the constitutional court struck down the law as an unreasonable restriction on freedom of expression. In doing so, the court noted the law did not in fact increase the use of the Latvian language but, to the contrary, many Russian speakers simply listened to the widely available Russian channels, meaning that they lost any exposure to Latvian? Positive content obligations must not have the effect of under- mining broadcast development or threaten the viability of the ser- vice, for example, by being unrealistic or excessively onerous. They must also be sufficiently general in nature as to remain politically neutral, and they must unambiguously define the type of material covered. BOX 46. United Kingdom: Public Service Objectives among Different Broadcasters In the United Kingdom, the rules for public service broadcasters (BBC, Channel4, and the Welsh language channel, S4C) are much more detailed and onerous than for commercial broadcasting, but the main national commercial terrestrial broadcaster (lTV) is also required by law and li- censing agreement to meet a number of public service objectives, includ- ing the carriage of news and information, children's and educational programming, and international affairs. Lesser requirements apply to the commercial Channel 5. Local commercial broadcasters are obliged to carry an agreed proportion of local programming while community broadcasters are obliged to demonstrate "social gain" through their pro- gramming output and other activities. The broadcast regulator, Ofcom, has the power to set rules relating to party political broadcasts (during elections but also less frequently on an ongoing basis) for all broadcast- ers. All broadcasters are required to maintain "due impartiality" on mat- ters of public policy or political or industrial controversy. 3 Restriction on broadcasting in foreign languages, decisions of the Latvian Constitutional Court, no. 2003-02-0106 (2003) and no. 2003-02-0106 (2003). Regulating Broadcast Content and Distribution 177 Content Restrictions and Codes of Conduct Broadcasting laws should not impose content restrictions of a civil or criminal nature on broadcasters, over and above, or duplicating, those that apply to all forms of expression. Codes of conduct for broadcast content should be developed in close consultation with broadcasters and should be applied either on a self-regulatory basis or by an independent regulatory body. To meet the "provided by law" part of the three-part test for restric- tions on freedom of expression, any content restrictions should be based on a clear, detailed, and preestablished code of conduct. Such codes should be developed in close consultation with broadcasters in order to be firmly based in broadcasting reality and should also pro- vide for input from the public, including viewers' and listeners' as- sociations. Codes of conduct can be effective in setting clear professional standards and in preventing more intrusive forms of regulation. Different codes may be developed for radio and televi- sion, given the important differences between them. In adopting codes of conduct, a range of considerations should be taken into ac- count, including the likelihood and seriousness of harm and the im- portance of maintaining independent editorial control over program content. Codes of conduct for broadcast content may relate to a number of different content objectives, such as ensuring protection of children and youth; impartiality in news and current affairs; responsible reli- gious programming; obscenity, hate speech, or other offensive mate- rial; invasion of privacy; and fairness in political advertising. Specific rules may apply to the content of commercial advertising and spon- sorship in order to avoid undue exploitation of listeners, not to be misleading, to avoid promoting harmful products such as tobacco, and to avoid unfair discrimination between advertisers. Codes of conduct may be applied through self-regulatory mech- anisms such as a body established by the broadcasters themselves, through an independent regulatory body, or through some combina- tion of both mechanisms (co-regulation). In some countries broad- cast content codes have been developed by the broadcasters associations or journalists organizations and adopted directly by the regulatory body. 1 78 Broadcasting, Voice, and Accountability In Mali, for example, the Conseil Superieur de Ia Communication (CSC) does not have its own broadcast content code but enforces the Code of Conduct of the Observatory for Press Ethics, which is a self- regulatory body jointly sponsored by the Malian journalists union (Union Nationale des Journalists du Mali) and the Malian broadcasters association (Union des Radios et Televisions Libres du Mali). As with all forms of media regulation, any system relating to the regulation of broadcast content should be overseen by a body that is protected against political or commercial interference in its work. It should not operate on the basis of prior censorship but should rather act on complaints through a transparent complaints procedure that provides prompt, independent, and fair arbitration or adjudication of the complaint. In Indonesia, broadcast content regulation is the responsibility of the Indonesian Broadcasting Commission (KPI), an independent body established under the Broadcasting Act of 2002. 4 KPI is tasked with developing a broadcasting code dealing with a wide range of topics, including respect for religion and privacy, appropriate taste and decency, limits on sexual and violent material, protection for youth and women, program classification based on age groups, broadcasting in foreign languages, timing and neutrality of news pro- grams, live broadcasts, and advertising. The code is kept under con- stant review to ensure compatibility with legal developments and changing social norms. Australia has put in place an interesting system of co-regulation, 5 with two parallel mechanisms, one involving codes of practice, over- seen by so-called peak bodies representing different broadcasting sectors (six sectors are specified in the law, including commercial and community broadcasters), and one involving standards, overseen by the Australian Broadcasting Authority (ABA), a statutory body. Codes are registered by the ABA if they meet certain standards, no- tably requirements of public consultation and of providing adequate safeguards to the community. Where the codes are not deemed to be providing appropriate safeguards, such as, for example, when there is a widespread breach of certain types of rules, the ABA must adopt a standard to remedy this problem. 4 KPI has both a national body and regional bodies. We focus here on the national one. 5 Set out in Part 9 of the Broadcasting Services Act of 1942. Regulating Broadcast Content and Distribution 179 BOX 47. Mozambique: Community Radio Self-Regulation Code In Mozambique the growing community radio sector managed to respond in a mature manner to political tensions over the responsibilities of the me- dia in political reporting in the run up to the 2003 municipal elections and the 2004 presidential and national elections. The absence of legal regulation on the role and responsibilities of community radio during elections became a subject of heated debate in parliament as politicians saw that community radio had come to constitute a powerful voice for the people, covering all the major cities and more than one third of the rural areas. In response, the Coordination Group (the forerunner of the community radio sector body FORCOM) initiated a series of national consultations with all community radio actors, which resulted in agreement on" the ten rules"-a code for self- regulation of the use of community radio during election periods. These rules were launched nationally, with involvement of the Director of the Government Press Office (GABINFO), and provincially by the radios them- selves. Most radio stations followed the rules laid down, except the state- owned radio stations, which responded to decrees from their national leadership to include additional coverage of the ruling Frelimo party. 1 1. "Participation by Community Radios in Civic Education and Electoral Coverage- The experience of the Community Radios in Mozambique's 2003 Local Elections. Specific Cases of: Dondo, Chimoio, and Cuamba," UNESCO/UNDP (2003) refer- enced in Jallov, "Voice, Media, and Empowerment," commissioned paper (2006) . The amount of advertising that broadcasters can carry may be subject to overalllirnits, or specific restrictions, for example, in rela- tion to alcoholic beverages or tobacco. Care should be taken, how- ever, not to impose such stringent limits on advertising as to undermine the viability of the broadcasting sector as a whole. In setting rules relating to advertising, consideration may be given to the different financial structures of different types of broad- casters. It is, for example, not appropriate for public service broad- casters to take advantage of their public funding to offer advertising at below-market rates and so it may be appropriate to subject them to fair competition rules in relation to any advertising they carry. Sanctions A range of sanctions should be available for breach of rules on broadcast content so that any sanctions that are applied may be proportionate to the harm done. t 80 Broadcasting, Voice, and Accountability Regulators should have a range of sanctions available to them that can be applied proportionately and flexibly enough to take account of specific circumstances. Warnings, fines of varying magnitudes, and li- cense suspensions, for example, provide the regulator with penalties proportionate to the infraction and also the scope to increase the sanc- tion when lesser penalties have not induced compliance. A "gap" in the intensity of sanctions available can undermine the regulator's abil- ity to respond effectively. If the regulator is obliged to choose a sanc- tion that is too feeble, this can increase the risk of further infractions and of damaging public confidence. If the regulator's alternative is too severe, it can have a chilling effect on broadcasters' freedom of expression, may undermine the flow of information to the public, and/ or may be found upon review to be unconstitutional. Sanctions should be imposed only after an investigation in which the regulator has concluded that a broadcaster has repeatedly, delib- erately, or seriously breached the terms of its license. In most cases, sanctions for breach of a rule relating to content should be applied in a graduated fashion. Normally, the sanction for an initial breach will be a warning stating the nature of the breach and the need to notre- peat it. Other low to midrange sanctions might include requiring an on-air correction or statement of the regulator's findings, or other un- dertakings, such as refraining from again broadcasting the program. In assessing the type of sanction to impose, regulatory bodies should bear in mind that the purpose of regulation is not primarily to "police" broadcasters but rather to protect the public interest by en- suring that the sector operates smoothly and by promoting the range and quality of broadcasting services that are available to the public. In Indonesia any member of the public may complain of a breach of the broadcasting code, and KPI is required to assess the legitimacy of such complaints. The affected broadcaster must be notified in writ- ing and given an adequate opportunity to be heard in the matter. In a case in which the code has been breached, KPI may require a broad- caster to publish a correction and a statement prepared by KPI. 6 Broadcasters are also required to provide a correction, within 24 hours where possible, when an inaccuracy in their programming has been brought to their attention. 6 The law also provides for license revocation for breach of the code, if ordered by the courts. Regulating Broadcast Content and Distribution 1 81 In Benin, the Haute Authorite de l' Audiovisuel et de Ia Communica- tion (HAAC) has a range of sanctions available under Article 47 of its law of establishment (No. 92-021, August 1992). In the case that pub- licized warnings have not been acted upon, the HAAC can pro- nounce against the offending broadcaster one of the following sanctions, depending on the gravity of the offense: (a) the suspension of broadcast authorization or of part of a program for a maximum of one month (b) the reduction of the duration of the authorization for a max- imum of one year (c) the withdrawal of the authorization Given the relatively more intrusive nature of sanctions such as fines, or suspension or revocation of a license, conditions should be placed on their application for breach of a rule relating to content. To be justifiable as necessary, fines should be imposed only after other measures have failed to redress the problem. Suspension or revocation of a license represents the most serious sanctions possible, with extremely grave consequences for the broad- caster. As a result, these sanctions should be imposed only where the broadcaster has repeatedly been found to have committed serious abuses and other sanctions have proved inadequate to redress the problem. Such a case arose in Canada in 2004, when the Canadian Radio- television and Telecommunications Commission refused to renew the license of a radio station in Quebec City that was persistently broadcasting abusive content denigrating specific social groups. The regulatory decision has been upheld by the federal court of appeal. 7 In all cases the broadcaster in question should have a right to make written representation on the complaint and may also be in- vited to make oral representation in cases where a fine or more seri- ous sanction is being considered. As with all regulatory decisions the broadcaster should have a right of judicial review in the courts, which may consider questions such as compliance with the standards of natural justice or human rights norms. 7 See http://www.crtc.gc.ca/eng/NEWS/RELEASES/2004/r040713.htm. t 82 Broadcasting, Voice, and Accountability BOX 48. Australia: Sanctions for Breaching Codes In Australia there is no sanction for breach of a code of conduct. However, persistent breach may lead to a condition being imposed on a licensee. Pursuant to section 139 of the Broadcasting Services Act of 1942, it is an offense to breach a program standard. Breach will lead to different levels of fines for different types of broadcasters. The ABA may direct a licensee to stop committing a breach (Section 141). Where a licensee fails tore- spond to a notice to stop a breach, the ABA can suspend the license for up to three months or may cancel it altogether (Section 143). Spectrum Planning for Broadcast Services Spectrum planning for broadcast services should ensure a fair and equitable distribution between public service, commercial, and community broadcasters. International frequency planning designates a number of spectrum blocks for sound broadcasting and television. However the allocation of these blocks between public service, commercial, and community broadcasters is the responsibility of national administrations and may be assigned by them to the broadcast regulatory body. One of the goals of radio spectrum management in broadcasting should be to ensure an appropriate balance between commercial, community, and public service broadcasters. The goal is to enhance diversity by en- suring that each of the different forms of ownership and control has reasonable access to the spectrum, according to what they can use- fully contribute to broadcasting. In practice this usually means ensuring that sufficient spectrum is available free or at affordable cost for public service and commu- nity broadcasting. There should be open public consultation on the use of frequencies and their allocation between different uses, in- cluding public service, commercial, and community broadcasters. International practice shows that the allocation of a minimum of 10-15 percent of the FM band to community broadcasting (2-3 MHz out of the 20 MHz contained in the FM band that runs from 88 to 108 MHz) should be adequate, while 20 percent is optimal. Countries as diverse as Thailand, France, and the United States allocate around 20 percent of the FM band to nonprofit local and community broadcasting. Regulating Broadcast Content and Distribution 183 BOX 49. Thailand: Frequencies as Resources for the Public Interest Article 40 of the 1997 Thai Constitution states: Transmission frequencies for radio or television broadcasting and radio telecommunication are national communication resources for public interest. The Allocation of Telecommunication and Broadcasting Frequencies Act, passed in March 2000, lays down specific rules by which the public inter- est in broadcasting may be safeguarded. It assigns 40 percent of the avail- able broadcast frequencies to the state sector, 40 percent to the commercial sector, and reserves 20 percent for not-for-profit community broadcast- ing. This model won over alternative suggestions made in the drafting process of having one community radio station per province or of allo- cating 2 percent of airtime to community broadcasting. The radio sector in France offers five different categories of licensees: community radios, eligible for public funding; local commercial radios; local or regional radios affiliated into a national network; national radios; and a special category for three radio sta- tions that existed prior to 1982 and that transmit abroad. The priority attached to community radio can be observed by the percentage this sector makes up of all radio stations, which is over 50 percent, or 545 of 1,070 licensees as of January 1, 2005, utilizing nearly 25 percent, or 874 of 3,538, frequencies. Efficient use of the spectrum requires a comprehensive na- tional plan for national and regional services, whereas local ser- vices may be accommodated more flexibly according to demand, population distribution, and spectrum availability. With the ad- vent of new modes of digital distribution some early assumptions in spectrum planning have come under scrutiny. In particular it is increasingly recognized that there can be efficient spectrum use without requiring each individual service to be part of a national planning and licensing framework. Building on the experience of WiFi and other license-exempt, shared-spectrum technologies on an "open spectrum" model may become appropriate for low- power local broadcasting services where a part of the radio spec- trum is set aside specifically for these services within agreed technical parameters. In the medium to long term, digital broadcasting of television and radio will bring other challenges. The move to digital not only allows t 84 Broadcasting, Voice, and Accountability many more channels to be broadcast over the same spectrum-which can, where the paucity of channels is a constraint, facilitate greater con- tent diversity-but it also allows for additional functionality such as electronic program guides. Such additions to functionality create new concerns for regulators, such as how to ensure that due prominence is given to all types of broadcasters and programs rather than preferen- tial treatment to certain services. From the regulatory perspective satellite and cable broadcasting have had a relatively seamless transition to digital, enabling them to offer additional channels and greater functionality. Terrestrial broadcasting is also under strong pressure to digitalize, in part be- cause the spectrum it currently occupies is suited for other high- demand usage such as mobile telephony and wireless broadband. Yet the move to digital has been complicated by the fact that inter- national spectrum planning has decided that it is not feasible to identify a large new area of spectrum for digital television services to commence while continuing to retain the spectrum required for analog television. Instead, digital services will commence within existing bands and eventually replace the analog services after a "switch-off" date. 8 Further complicating matters is the fact that several competing digital standards already exist in both radio and television and are being promoted by different groups of developed countries, each try- ing to recruit developing countries to their standard. In the long term, public interest issues for regulators will include the question of which standards to select, including how they affect the need for and price of new televisions or radio sets, how to ensure universal coverage, and how best to migrate from analog to digital. All these future issues will affect content in the broadest sense of allocating, or otherwise distributing, sufficient channels to the differ- ent broadcasting sectors and ensuring content is accessible and af- fordable. Yet in most developing and transitional countries questions arising from digitization are for the future: at the moment the prior- ity remains ensuring that the current structures can be appropriately reformed, revised, and refined. 8 ITU (1993) International Telecommunications Union Radio Recommendations-Digital Terrestrial Television Broadcasting in the VHF /UHF Bands (BT.798.1), approved July 1994. Regulating Broadcast Content and Distribution 185 Must-Carry Rules "Must-carry" rules are a useful regulatory mechanism to guaran- tee access to cable and satellite networks for public interest uses, including public service and community broadcasters. Broadcast law should ensure that broadcast regulators have powers to make "must-carry" rulings and a duty to do so where such rulings are in the public interest. Private cable network and satellite operators are often disinclined, usu- ally for commercial reasons, to provide access to public service and community broadcasting. "Must-carry" rules can be applied where a cable network or a satellite operator has, or is likely to have, a dominant market position in providing access to viewers. They should be used in cases where, without guaranteed carriage, public service and commu- nity broadcasters face the likelihood of being excluded from access to cable or satellite distribution. Alongside the inclusion of must-carry rules for certain program services, cable network and satellite operators should be prohibited from unfairly discriminating on grounds of con- tent between different program services, for example on grounds of religion. In Spain, for example, cable operators are required under Article 11 of the Cable Telecommunications Act 19959 and Article 26 of the Royal Decree 2066/1996 to carry the following channels: • the television programs transmitted by the two channels of the public service broadcasting company, Radio Television Espana (RTVE) • the television programs transmitted by the three channels of private broadcasting companies • the television programs transmitted by the channels of public service broadcasting companies of the autonomous regions • television programs transmitted by local television channels, if they so request 9 Cable Telecommunications Act (Act 42/1995 of December 22, 1995). 186 Broadcasting, Voice, and Accountability BOX 50. Germany: Must-Carry Obligations on Cable Networks The Inter-State Agreement on Broadcasting Services (RStV) 1 concluded between the sixteen German Lander set out the principles of must-carry arrangements on cable networks. Different rules apply on analog and dig- ital cable distribution networks. 2 For analog cable networks, the application of must-carry rules and the order of priority are determined by the regional broadcasting regula- tions, although the rules are similar from one region to another. In North Rhine-Westphalia, for example, there is a requirement to carry public broadcasters throughout the region and to carry local broadcasting ser- vices within the dissemination area of the local broadcaster. If the cable capacity is not sufficient to carry all other channels receivable the Media Agency of North Rhine-Westphalia determines the priority according to criteria that include plurality of programs, of special interests, and of opinion, the extent to which events in the political, economic, social, and cultural domain are presented, and contribution to the cultural and lin- guistic diversity of the entire program offer. For digital cable networks there is a common set of rules established within the framework of the Inter-State Agreement on Broadcasting Ser- vices. There is a general rule that broadcasts available in analog form should be allocated digital channel capacity. In addition, the operator of a digitized cable network must ensure: • transmission capacity is reserved for the dissemination of broadcast- ers established under public law, including their program packages or "bouquets"; and • transmission capacity is available for regional and local television stations and for "open channels" licensed in the particular Lander. 1. Rundfunkanderungsstaatsvertrag, consolidated text Jan. 1, 2001, available at: http://www.artikelS.de/gesetze/rstv.html. 2. The information on Germany and Spain in this section is based on Inventory of EU Must Carry Regulations: A Report to the European Commission, Information Society Directorate, 2001, available at: http://europa.eu.int/ISPO/infosoc/telecompolicy/en/ OVUM-mustcarry.pdf Public Access Channels Public access channels are channels on cable or satellite networks that have been set aside for noncommercial public use such as educational, community, or public service programming. Broadcast law should en- sure the regulator is able to insist on the inclusion of public access channels as a condition of licensing a cable or satellite operator. BOX 51. United States: Public Access Channels and Cable Operators Although no federal law requires public access channels to be carried on local cable networks, such channels may be required by agreements be- tween cable operators and local franchising organizations (normally local authorities). In return for their use of local public rights of way (streets, highways, parks, etc.), cable operators agree to provide channel capacity, services, facilities, and equipment for public access, educational, and governmental (PEG) channels. The compensation rights given to the local franchising authority can assist in providing access to the media for the local population. Public access channels have built and maintained an extensive presence in the United States as a result of the enabling legal framework of the Communications Act of 1934 and an extensive body of case law. The legal framework is set out in Section 611 of the Communications Act of 1934 (as amended by 1984, 1992, and 1996 acts) entitled "Cable channels for public, educational or governmental use." Section 611 states that "a franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, ed- ucational or governmental use." Franchising authorities may require the cable network operators to provide services, facilities, or equipment for the use of PEG channels. In accordance with the local franchise agreement the cable operator or the franchising authority may adopt rules govern- ing the use of PEG channels; however, the Federal Communications Com- mission (FCC) specifies that these must not be content based. They may include rules for allocating time between competing applicants "on a rea- sonable basis other than the content of the program." They may also re- quire minimum production standards and that users undergo training. PEG channels are editorially independent of the cable network oper- ator with very limited exceptions. Federal law provides, in Section 611(e) that: "A cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency or nudity." However, the Supreme Court has determined that these powers are unconstitutional. 1 The Federal Communications Commission subsequently issued guidance in which the exception is further limited: "A cable operator may refuse to transmit any public access program or portion of a public access program that the operator reasonably believes contains obscenity." 2 There have also been a number of court decisions that are supportive of limiting local government interference in public access channels;3 how- ever, the legislative and regulatory framework for public access channels remains weak in this respect. 1. FCC guidance on PEG channels, available at: http://wwwjcc.gov/mb!facts/ pegfacts.html. 2. Code of Federal Regulations (1997) 47 C.P.R. Section 76.702 Public Access. 3. Norwood, James, Public Policy Update: Court Decisions and Legal Rulings, Spiegal and McDiarmad (2002), http:/www.spiege/mcd.com/publications/default.asp. t 88 Broadcasting, Voice, and Accountability Cable and satellite operators receive valuable public resource conces- sions that can be usefully linked to an obligation to provide public ac- cess channels. Cable operators require a right to lay extensive communications cabling under public rights of way while satellite operators require international radio spectrum allocation for trans- mission of their signal and access to orbital satellite paths or fixed geostationary satellite positions. Orbital paths constitute an addi- tional finite resource that merits public compensation. Obligating a cable or satellite operator to provide a proportion of available capacity for public access channels is an effective means of achieving public interest objectives in broadcasting, whether or not there is a must-carry requirement to include particular channels. The first public access television channels in Germany (Ojfener Kanale) started in 1984 and there are now more than 80 such channels. They are provided for within the powers of regional broadcasting regulation rather than at federal state level. Offener Kanale are oper- ated on a not-for-profit open access basis in which the program pro- ducer is legally and editorially responsible for the program that is aired. They are considered to be a contribution to freedom of expres- sion and media pluralism. Offene Kana! Berlin, 10 for example, provides fully staffed technical facilities. The staff are employed directly by the regional regulatory body, Medienanstalt Berlin-Brandenburg (MABB)Y Advertising is not allowed, and program producers are obliged to ensure that their pro- grams conform with legal minimum standards. Airtime is offered to program producers on a first-come first-served basis. In those Lander where the regulatory body provides one or more open channels, a part of the license fee paid by viewers and listeners is reserved for meeting costs of provision. 10 0ffene Kana! Berlin website: http://www.okb.de. 11 Medienanstalt Berlin-Brandeburg website: http://www.mabb.de/. Good Practice Checklist • Public service broadcasters should be prescribed in law as bodies that are editorially independent of government, serve the public interest, and are protected against political and commercial interference. • The duty of a national public service broadcaster should be to serve the public interest in broadcasting throughout the territory and for the whole of the population of the country in which it is established. • The public service broadcaster should provide a wide range of inno- vative and high quality programs designed to educate, inform, and entertain the general public while taking account of ethnic, cultural, religious, and regional diversity. • The public service broadcaster should be governed by an independent governing board with powers and duties set out in law. These should in- clude monitoring and ensuring compliance with public service duties and responsibilities, ensuring highest standards of probity and value for money, and providing formal accountability to the general public. • The appointments process for the governing board should be fair, open, transparent, and set out in law. It should be designed to ensure the members have relevant expertise or experience and carry a di- versity of interests and opinions representative of society as a whole. • The appointments process should not be dominated by any particu- lar political party or commercial interest, and the members appointed should be required to serve in an individual capacity and to exercise their functions in the public interest at all times. • Day-to-day management of the public service broadcaster should be the responsibility of a chief executive officer appointed by the govern- ing board for a fixed term, whose tenure may be renewed. The chief executive officer, along with his or her editorial staff, should have re- sponsibility for setting editorial policy and making editorial decisions. • The public service broadcaster should be predominantly funded from public funding through a funding mechanism designed to pro- tect its independence. It may raise additional revenues from direct subsidies, commercial activities, and donations. 189 t 90 Broadcasting, Voice, and Accountability Introduction The relative merits of public service broadcasting institutions are widely and vigorously debated. But it is generally accepted that public service broadcasting has a particular role to play in meeting public interest objectives and contributing to media pluralism, and that where broadcasting services are in public ownership they should be editorially independent of the state and the government of the day, managed in the public interest, and accountable to the public they serve. These principles form the basis for the recom- mendations of good practice in public service broadcasting set out in this section. The BBC is perhaps the most famous of public service broadcasters. When granted editorial independence in 1926, the BBC's guiding principles were nonprofit status, universality of service, unified control, and the maintenance of high program standards. 1 The edi- torial independence of the BBC is safeguarded by its Royal Charter and specifically guaranteed by a written agreement with the gov- ernment. Its economic base is secured through payment by viewers of a license fee. This has allowed it to produce a great variety of high-quality programming designed to serve the public interest. Although appointments to the board of directors remain under government control, the BBC operates largely free of day-to-day government interference. Yet in times of war and other serious con- flict, the BBC has come under pressure to side with the government. In 2005 the director general of the BBC resigned, under pressure from the government, following an official inquiry into the death of weapons expert, Dr. David Kelly, a key source for BBC reports on government policy making in the period leading up to the war on Iraq. Thus, maintaining editorial independence in practice remains a challenge even in those countries where it is accepted in principle and in law. As we have seen in Part I, in many countries editorial inde- pendence is too often only apparent, with no real independence from government and other interests. 1 Peter M. Lewis and J. Booth, The Invisible Medium: Public, Commercial and Community Radio (London: Macmillan, 1989). Public Service Broadcasting 191 Funding is a key factor that influences independence and the ability of public broadcasters to play a positive social role. Many pub- lic broadcasters face serious funding constraints. Audience fees, levied on television or radio receiver ownership, represent a stable, in- dependent, and often relatively rich source of funding. Where this option is not feasible, as in many developing countries, devising other effective funding mechanisms is a central challenge for the sector. The growth of private commercial broadcasting can also pose a deep challenge to the future of public service broadcasting. In countries with traditions of public service broadcasting, opening up to commercial competition has led to declining audiences which, in turn, has led to pressure to reduce public subsidies; to "dumbing down" of programming, including the provision of more populist and less costly productions; and, in some cases, to partial or full privatization. Private broadcast owners have also at- tacked state aid to public service broadcasters, for example in the form of compulsory license fees levied on domestic receivers, as "unfair competition." In the face of these challenges, public service broadcasters and some governments have mounted a vigorous defense of public service values, notably achieving significant legal support in the Amsterdam Protocol to the Treaty on European Union, in the "audio-visual exemption" to the General Agreement on Trade in Services, and in the UNESCO Convention on Diversity of Cultural and Artistic Expres- sions. In some countries, such as Canada and the United Kingdom, citizens' campaigns have emerged to defend public service broad- casters. These developments are indicative of the continuing rele- vance of the public service broadcasting model in an environment of media pluralism. Public service broadcasting has become a favored component in an evolving multisector broadcasting system in most transition coun- tries and a growing number of developing countries. Even so, it con- tends with major challenges: to achieve genuine independence and gain a secure financial base, all the while struggling to compete with commercial broadcasting. There is no standard definition of public service broadcasting, and models vary from country to country; however, there are some widely accepted characteristics. The 2000 report of the World Radio and Televi- sion Council, Public Broadcasting: Why? How? describes the principles of t 92 Broadcasting, Voice, and Accountability independent public service broadcasting as being universality, diversity, independence, and distinctiveness, and explains them as follows: • It is accessible to every citizen, not merely in technological terms, but also in terms of the intelligibility of the programming. • It demonstrates diversity in the genres of programs offered, the audiences targeted, and the subjects discussed. • It is independent of commercial pressures and political influence. This includes editorial independence, protections for freedom of expression, adequate, predictable, and independent mechanisms of financing, and the independence of governing bodies and the selection process for their boards and chief executives. • It not only produces types of programs and subject matter other services ignore and targets audiences others neglect but, without excluding any genre, it aims to innovate, create new genres, and set the pace in the audiovisual world. 2 Other characteristics ascribed to public service broadcasting include a concern for national identity and culture, the impartiality as well as the independence of programs, and its role in quality "standard setting." 3 Among the most important issues in determining the quality, di- versity, independence, and distinctiveness of public service broad- casting are: the legal framework in which the broadcaster operates, including the powers and duties set down in law; the governance arrangements, including the process for appointment of the govern- ing board and the senior management staff; and the funding arrangements. In the sections that follow, this chapter examines these and related issues and the approaches to implementation that are best designed to assure an effective and high-quality public ser- vice broadcasting. 2 World Radio and Television Council, Public Broadcasting: Why? How? (2000), quoted in Monroe E. Price and Marc Raboy, eds., Public Service Broadcasting in Transition (The Hague: Kluwer Law International, 2003), 2-4. 3 UNDP, Supporting Public Service Broadcasting: Learning from Bosnia and Herzegovina's expe- rience (Bureau for Development Policy, 2004), available at: http://www.undp.org/governance/ docs/A2I_Pub~PublicServiceBroadcasting.pdf Public Service Broadcasting 193 Status and Independence Public service broadcasters should be prescribed in law as bodies that are editorially independent of government, serve the public interest, and are protected against political and commercial interference. The status of public service broadcasters is normally defined by leg- islation setting out its duties, responsibilities, lines of accountability, and guarantees of editorial independence from government and pro- tection from political or commercial interference. These are defining characteristics of public service broadcasting. The governing legisla- tion provides the first means of assurance that the broadcaster will operate in the public interest with public service objectives and ac- countability to the public. The framework for public service broadcasting balances the prin- ciples of independence and accountability. Accountability of the pub- lic service broadcaster should be to the public, through Parliament. If there is an independent regulator with responsibility over all of broadcasting, then accountability may be through the regulator. In France, for example, the Conseil Superieur de l'Audiovisuel (CSA) evaluates how the public networks have fulfilled their obliga- tions under their terms of reference. In Canada, the Canadian Radio- television and Telecommunications Commission (CRTC) issues licenses to the Canadian Broadcasting Corporation (CBC) and com- ments on how the CBC should carry out its responsibilities. The CBC has also created the post of Ombudsperson-a person to whom citi- zens direct their concerns and submit criticisms of CBC, for review and potential action and public dissemination of how the concerns were addressed. In Georgia the creation of a public broadcasting company was a recommendation of the Council of Europe whose experts assisted Georgian legislators in drawing up the Law on Broadcasting. 4 Under the terms of the law, passed in December 2004, the state-owned State TV and Radio Broadcasting of Georgia was transformed into "Georgian Public Broadcasting," an independent public corporation that oper- ates two television channels and two radio stations. Georgian Public 4 lnternews, "Broadcast Field in Georgia," commissioned report (2006). 194 Broadcasting, Voice, and Accountability Broadcasting is governed by a board of trustees consisting of nine members who are appointed by Parliament for a period of six years and who in turn appoint the director general. The broadcaster is funded from the state budget. Duties and Responsibilities The duty of a national public service broadcaster should be to serve the public interest in broadcasting throughout the terri- tory and for the whole of the population of the country in which it is established. In particular, the public service broadcaster should provide a wide range of innovative and high quality pro- grams designed to educate, inform, and entertain the general public, taking account of ethnic, cultural, religious, and re- gional diversity. The mandate of the public service broadcaster should be set out in law and may include a range of duties and responsibilities designed to serve the public interest, such as: • provide comprehensive, balanced, and impartial news and current affairs programs, including national and international affairs of general public interest; • provide programming of wide appeal as well as specialized programming; • contribute to national identity while also reflecting cultural and regional diversity; • give a voice to minority groups, including minority languages; • provide a reasonable proportion of educational programs; • provide a reasonable proportion of programs for children; and • promote program-making by in-country producers, including regional production. Context strongly influences what particular programming is most ap- propriate to each public service broadcaster's mission. However, some general approaches to programming are commonly taken to be the duty of most public service broadcasters: to maintain balance and Public Service Broadcasting 195 impartiality; to include general interest programming as well as news and current affairs; to promote the arts and culture; to have significant "in-house" production capacity to allow it to provide programs of di- versity, uniqueness, and quality; and to reflect the ideas, opinions, and values of the society and nation that it serves. The Chilean public television, TVN (Television Nacional de Chile), is widely considered to be a leading example of public service broad- casting in Latin America. Although it commenced in 1969 as a state broadcaster TVN was transformed in 1992, following the country's return to democracy, into an autonomous public channel obliged to be pluralistic and representative and to operate on a self-financed ba- sis. It aims: • to promote national culture, identity, and values in all their diversity; • to be plural and objective in the representation of the cultural, social, economic, religious, and political realities of the country; • to be independent of the diverse powers that act in society; • to connect to Chileans throughout its territory and Chileans who live abroad; and • to represent all Chileans in their social, cultural, and religious diversity. Finland is a good example of how legislation governing public service broadcasting can address the needs and interests of persons belong- ing to minorities. 5 Section 7 of the Act on Yleisradio Oy (Finnish Broad- casting Company), as amended in 2005, 6 describes the duties of the public service broadcaster in the following terms: The company shall be responsible for the provision of com- prehensive television and radio programming with the re- lated additional and extra services for all citizens under equal conditions. These and other content services related to public 5 Case study provided by Tarlach McGonagle, commissioned paper (2006). 6 Act on the Amendment of the Act on Yleisradio Oy, Act No. 635/2005 of August 19,2005, available at: http://wwwfinlex.fi/en/laki/kaannokset/1993/en19931380.pdf 196 Broadcasting, Voice, and Accountability service may be provided in all telecommunications networks. The public service programming shall in particular: 1. support democracy and everyone's opportunity to partici- pate by providing a wide variety of information, opinions, and debates as well as opportunities to interact; 2. produce, create, and develop Finnish culture, art, and in- spiring entertainment; 3. take educational and equality aspects into consideration in the programs, provide an opportunity to learn and study, give focus on programming for children, and offer devo- tional programs; 4. treat in its broadcasting Finnish-speaking and Swedish- speaking citizens on equal grounds and produce services in the Sami, Romany, and sign languages, as well as, where applicable, in the languages of other language groups in the country; 5. support tolerance and multiculturalism and provide pro- gramming for minority and special groups; 6. promote cultural interaction and provide programming di- rected abroad; and 7. broadcast official announcements, for which further provi- sions shall be issued by decree, and make provision for tele- vision and radio broadcasting in exceptional circumstances. In concrete terms, these amendments aim to promote democratic val- ues and practices, as well as participatory and interactive opportuni- ties, and thus support tolerance, multiculturalism, and programming for minorities and special groups. Taken together, they are very im- portant for fostering intergroup understanding and societal cohesion. Cultural and educational goals are also likely to benefit minorities, and the various language provisions will certainly do so. In Mali, the focus was developing quality programs, promoting pluralism, and culture, and extending coverage? After the 1991 revo- lution, a contract of service was established between the government and the Office de radiodiffusion et de television du Mali (ORTM) defining the public service obligations of the ORTM. A 1996 Decree (no. 96-284 taken on October 23) commits ORTM to devoting at least 80 percent 7 Alimany Bathily, unpublished report commissioned for the World Bank (2005). Public Service Broadcasting 197 of its radio programming and 60 percent of its television program- ming to public service content. It also commits ORTM to progres- sively extending radio coverage of 65 percent of the country in 2003 to 100 percent in 2015 and to extend television coverage from 35 per- cent to 75 percent in the same period. The governing board of the ORTM specifies its mandate as follows: 1. Develop radio and television programs in line with the ob- jectives of the economic, social, and cultural development objectives of the country. 2. Promote the use of national languages; promote science, technology, and the protection of the environment. 3. Develop entertaining programs based on quality shows. 4. Promote pluralist, civic, and useful information. · 5. Produce magazines and live reporting, debates, and investi- gations. Specific social and development objectives of ORTM include: to com- bat poverty; to increase the literacy rate; to contribute to health awareness and the development of health services; to strengthen for- mal education, including adult education; and the de-marginaliza- tion of geographically isolated communities. The ORTM network is comprised of one national television service, two FM stations broad- casting from the capital city Bamako, ten regional FM stations based in the regional capitals, and about thirty "rural stations." Governance The public service broadcaster should be governed by an indepen- dent governing board with powers and duties set out in law and which include monitoring and ensuring compliance with public service duties and responsibilities, ensuring highest standards of probity and value for money, and providing formal accountability to the general public. Governance arrangements must balance two principles: indepen- dence and accountability. This can be achieved through various arrangements. The usual one involves an independent governing board, whose members are appointed in a fair and transparent man- ner, with the involvement of civil society. In turn, the chief executive 198 Broadcasting, Voice, and Accountability is responsible only to the board, rather than the government, and the board is responsible for approving the budget and all general poli- cies, and appointing the most senior executive officers. In this way, the board and its chairperson serve as a buffer between management and government. The powers of the governing board in exercising its duties should include: • the power to appoint and remove all senior staff; • the power to set the overall strategy and to propose the budget; • the power to determine internal policies; and • the power to undertake internal audit. In exercising its powers, the governing board should not interfere with day-to-day management or with the editorial independence of the chief executive and his or her staff. The governing board should be responsible for preparing an annual report and should be formally accountable to the public through a multiparty body such as the par- liament or a parliamentary committee in which all major parties are represented. The Australian Broadcasting Corporation (ABC), for example, is governed by a board of directors established under the ABC Act. Its duties include: a. to ensure that the functions of the corporation are per- formed efficiently and with the maximum benefit to the people of Australia; b. to maintain the independence and integrity of the corpora- tion; and c. to ensure that the gathering and presentation by the corpo- ration of news and information is accurate and impartial ac- cording to the recognized standards of objective journalism. The board is also obliged to ensure that the ABC complies with relevant legislation. The federal government of Australia has ulti- mate legislative control over the ABC and has control over the an- nual public grants on which the ABC depends. The ABC is not subject to direction by the government except in relation to the broadcasting of matters of national interest or as provided for in other legislation. But particulars of each such broadcast must be Public Service Broadcasting 199 contained in the ABC annual report. It must also include codes of practice, details of any gift, device, or bequest accepted during the year, any advice received from the advisory council, a summary of the activities of the community affairs officers, and any actions taken in response to complaints. A different arrangement exists in South Africa. The South African Broadcasting Corporation (SABC) is governed by a board of direc- tors, established under the Broadcasting Act of 1999, which is the ac- countable authority for SABC and controls their affairs. It appoints an executive committee consisting of the chief executive and eleven other members to administer the affairs of the corporation. The exec- utive committee is accountable to the board. The Independent Communications Authority of South Africa (ICASA) is a broadcast regulatory body, which itself has constitu- tionally guaranteed independence, and significant regulatory powers with regard to the SABC. The Broadcasting Act of 1999 gives ICASA overall responsibility for ensuring that it complies with the terms of its charter. The act requires all broadcasting SABC services to be li- censees of ICASA. In addition, all broadcasters, including SABC, must comply with the ICASA Code of Conduct, set out in the Inde- pendent Broadcasting Authority Act of 1993. Formal accountability of the SABC is to Parliament through the minister. The SABC board furnishes the minister with an annual re- port on its work, together with a balance sheet and a complete state- ment of revenue and expenditure for that financial year. Financial accounts must be audited and accompanied by the auditor's report. The minister tables the report in Parliament, within seven days after receiving it. Membership of the Governing Board The appointment process for the governing board should be fair, open, transparent, and set out in law. It should be designed to en- sure the members have relevant expertise or experience and carry a diversity of interests and opinions representative of society as a whole. It should not be dominated by any particular political party or commercial interest, and the members appointed should serve in an individual capacity and exercise their functions in the public interest at all times. 200 Broadcasting, Voice, and Accountability The appointment process of the government board cannot guarantee that a governing board will be free from partisan influence and undue pressures and suitably diverse in nature. But it can help to avoid some of the pitfalls. Governing board members should be appointed for a fixed term and protected from dismissal during this term unless they cease to meet explicit conditions of eligibility for office or fail to discharge their responsibilities as set out in law. Rules of eligibility for membership of the board of governors should be clear and explicit, to avoid incom- patibility with the responsibilities of office. The diversity of the board should take account of the desirability of reflecting different regional and cui tural backgrounds and achieving a fair balance of women and men. Certain groups should be precluded from membership: • employees in the civil service or other branch of government; • officeholders or employees of a political party; • elected or appointed members of the government; • elected or appointed members of the legislature; • employees of, or those with financial interests in, broadcasting or communications; and • those convicted, after due process in accordance with internationally accepted legal principles, of a violent crime or a crime of dishonesty unless a period (e.g., five years) has passed since the sentence was discharged. The presence of appropriate expertise on the governing board is use- ful, with knowledge of broadcasting, public service, management, and other relevant matters. A few examples illustrate some variations: • The Australian Broadcasting Corporation (ABC) is governed by a board of directors who are appointed and hold office un- der the terms of the Australian Broadcasting Act of 1983. The board consists of a managing director who is appointed by the board for a 5-year term and between six and eight other direc- tors who are appointed by the governor general. In appointing the directors, account is taken of their experience relating to the provision of broadcasting services, experience in commu- nications or management, expertise in financial or technical Public Service Broadcasting 201 matters, and cultural or other interests relevant to the over- sight of a public service broadcasting organization. • NHK (Japan Broadcasting Corporation), Japan's sole public broadcaster, is governed by a board of governors consisting of twelve people who are appointed by the Prime Minister and approved by both Houses of the Diet on behalf of the Japanese public. They are selected to bring a broad range of experience and expertise. The board of governors is the decision-making body for every important matter of management policy and operation, including the annual budget, operational plan, and basic programming policy. • Lithuanian Radio and Television (LRT) is governed by the Lithua- nian Radio and Television Council (LRTT), consisting of twelve members representing diverse backgrounds. The law on LRT, adopted in 1996, requires that four of the members be appointed by the president of the Republic, four by Parliament, including two members from candidates recommended by opposition parties, and the remaining four by civil society organizations, namely the Lithuanian Science Council, the Lithuanian Board of Education, the Lithuanian Association of Art Creators, and the Lithuanian Congregation of Bishops. All must be "prominent individuals in the social, scientific and cultural spheres." LRTT members cannot be members of Parliament, the government, or of the LRTK, the broadcast regulatory body. They are appointed for a period of six years and may serve a maximum of two terms. Initial appoint- ments to the LRTT in 1996 were staggered so that not all members are replaced at the same time and the appointments do not coincide with the electoral cycle. The council has strongly resisted attempts by politicians to interfere in its activities. Director General Day-to-day management of the public service broadcaster is the re- sponsibility of a chief executive officer appointed by the governing board for a fixed term, whose tenure may be renewed. He or she, along with editorial staff, has responsibility for setting editorial policy and making editorial decisions. 202 Broadcasting, Voice, and Accountability The chief executive is responsible for management within the frame- work of the overall duties and responsibilities of the public service broadcaster, the strategy approved by the board of governors, the budget, and the internal policies currently in force. In the perfor- mance of his or her duties, the chief executive may seek or accept in- structions only from the governing board, except as provided by law, and has final responsibility in relation to all editorial decisions. Variations often depend on the local circumstances. For example: • A director general of the BBC is appointed by the BBC Board of Governors, and in turn appoints nine other executive direc- tors, who make up the BBC Executive Board responsible for operational management and editorial decisions. • In the German regional public service broadcasting system, grouped together in the ARD (Association of Public Service Broadcasters in Germany), a director general is appointed by its regional broadcasting council to each public service broad- caster. The normal term of office of the director general is four years and the contract may be renewed. • The president and chief executive officer of the Korean Broadcasting Service is appointed by the president of Korea but on the recommendation of the board of governors. The executive vice president is appointed by the president/CEO with the consent of the board of governors, while the man- aging directors are appointed by the president/CEO. The term of the president/CEO and of other members of the ex- ecutive body is 3 years. The officeholders are eligible for reappointment. • The affairs of the Australian Broadcasting Corporation (ABC) are managed by the managing director, who must act in accor- dance with any policies determined, and any directions given to him or her by the ABC Board. The managing director is ap- pointed by the board for a period of five years and is eligible for reappointment for a further five years. The ABC Act in- cludes a requirement that the remuneration of the managing director be determined by the Remuneration Tribunal and that he or she not take part in a meeting of the board at which the appointment or terms and conditions of employment of the managing director are discussed. Public Service Broadcasting 203 Funding The public service broadcaster should be predominantly funded from public funding through a funding mechanism designed to pro- tect its independence. It may raise additional revenues from direct subsidies, commercial activities, and donations. The mechanisms by which public service broadcasting is funded are of critical importance both to its independence and to the quality of its output, but they are often among the most difficult ones to get right. The financing system must be insulated from political pressures, per- mit some form of accountability, and be sufficiently predictable to al- low for the multiyear investments that the public service broadcaster needs to make to deliver on its mandate. A variety of financial models are used to provide the principal public funding mechanism. These include a household levy (a license fee), direct government funding, a levy on commercial broadcasting, and advertising. The amount of public funding for the sector varies significantly even between countries with strong public broadcasters. One study looked at financing of the sector in eighteen developed countries and found that on average public broadcasters received US$80 equivalent per year per resident, but the figure ranged from a high of $154 in Switzerland to a low of $5 in the United States. Among others included in the study were Germany ($134), UK ($124), Finland ($111), Ireland ($67), Australia ($44), Spain ($36), and Canada ($33). 8 However, developing countries in particular, confronted with a tax base overstretched across many priorities, a low household in- come for most of the population (though often a wealthy middle class), and limited media advertising markets, will probably have to look beyond the obvious to determine potential sources of income. Any model chosen strives to both guarantee independence and ensure an adequate financial base for the fulfillment of its duties and responsibilities. There are pros and cons to the current options. Direct government funding entails a risk of government interference. 8 Analysis of Government Support for Public Broadcasting and Other Culture in Canada, prepared for the Canadian Broadcasting Corporation by the Nordicity Group (2006), available at: http://www.cbc.radio-canada.ca/submissions/crtc/2006/BNPH_2006-5_CBC_RC_ Public_Broadcaster_Comparison.pdf 204 Broadcasting, Voice, and Accountability Overdependence on advertising subjects the public broadcaster to some of the same pressures as commercial broadcasters, which can undermine its scope to develop diverse informational programming and in-depth news coverage. The household levy is usually based on a license fee for owner- ship of a television or radio receiver. Other means of collecting re- ceipts from households include a levy linked to electricity supply. The fee may operate as a flat rate per household or may be progres- sive and linked to the ability to pay. The advantage of this form of parafiscal arrangement is that the revenues can be collected and dis- tributed to the broadcaster by an independent collection and distri- bution body in a manner that further assures the operational independence of the broadcaster. On the other hand it can be costly and difficult to collect a household levy and it may be politically un- popular to introduce one for the first time. NHK (Japan Broadcasting Corporation), Japan's sole public broad- caster, is financed by the receiving fee paid by each household that owns a television set. Germany's regional public broadcasters, grouped together in the ARD (Association of Public Service Broadcast- ers in Germany), are similarly funded almost entirely by the license fee. In Ireland, the main public broadcaster, RTE, receives license fee rev- enues, but this is supplemented by advertising sales, sponsorship, charges for the facilities and transmission network, program sales, merchandising, and related revenue. The Chilean public service broad- caster, TVN, is funded almost entirely through advertising. Estonia developed a model for financing public service television by means of fees collected from private broadcasters. Launched in 1998 it was widely praised for allowing the public service broadcaster to shift its focus away from commercial and toward cultural pro- grams while also diverting advertising funding toward private sta- tions. (The failure of a private television station to pay its annual contribution on time led to its withdrawal in 1999-suggesting a weakness in regulation.) 8 Depending on the proportion of revenue raised through a guaran- teed public funding mechanism, the public service broadcaster may be subject to certain restrictions on its power to raise funds from other sources, in particular from commercial sources. Such restrictions may be designed to protect the character of the service as a public service or to ensure fair competition with commercial broadcasting services. 8 0SI 2005,59. Public Service Broadcasting 205 For example, the British Broadcasting Corporation (BBC) is funded almost entirely through the collection of television receiver set license fees. The BBC is precluded from selling advertising or sponsorship in its broadcasts, but it has an expanding portfolio of commercial business activities mainly based on the commercial ex- ploitation of BBC programs, other assets, and skill base. The BBC World Service is separately funded. In France, too, advertising revenues are strictly controlled with an overall limit set by Parliament. French public service broadcasting, consisting of six national programming companies and a publicly funded satellite channel, gets about 70 percent of its income from the annual license fee on television owners. The remainder is derived mainly from sale of advertising and program sponsorship. The li- cense fee is set annually by Parliament as is the distribution of the fee between the national programming companies and other institutions with functions related to broadcasting. The proportion of the annual expenditure met by the license fee varies between program compa- nies from around 50 percent for France2, to nearly 100 percent for Ra- dio France Internationale and the European satellite channel, La Sept-ARTE. The most popular channels derive a larger proportion of their revenue from advertising. But the television license fee is not a guaranteed solution. In Ghana, for example, the license fee has remained at a static level for many years due to the reluctance of politicians to vote for an increase. The effects of inflation have served to reduce the value of the license fee collected to a very low level that barely exceeds the costs of col- lection and is insufficient to fund Ghana Broadcasting Corporation (GBC), the public broadcaster. This has led to a growing dependence on commercial revenue sources and reduction in investment in qual- ity program making. Some countries, to prevent this, have instituted automatic fee adjustments based on the cost-of-living index. Good Practice Checklist • Community broadcasting should be recognized in law as a distinct type of broadcasting to be supported and encouraged through spe- cific and explicit licensing arrangements that guarantee fair and equi- table access to radio spectrum for civil-society and community-based organizations. • Community broadcasting can be defined as independent broadcast- ing that is provided by and for the members of a community in a particular geographical location or that belongs to a particular com- munity of interest. Its primary purpose is to deliver social benefit and not to operate for private commercial profit. It should be owned by and accountable to the community that it seeks to serve and it should provide for participation by the community at all levels. • Licensing processes for community broadcasting should be fair, open, transparent, and set out in law and should be under the responsibility of an independent licensing body. Criteria for application and selection should be established openly and in consultation with civil society. • License terms and conditions for community broadcasting should be consistent with the objectives of broadcast regulation and be designed to ensure that the community broadcasting service characteristics are protected and maintained for the duration of the license period. • Community broadcasting services should have access to a diversity of funding sources according to local circumstances. There should be no restrictions on funding sources other than those deemed necessary to maintain the character of the service and to avoid unfair competition. • Community broadcasting may be supported by public funding, including direct public subsidies. Where there is a regular and guaranteed system of public funding this should be fair, open, and transparent in its administration and under the responsibility of an independent public body. 206 Community Nonprofit Broadcasting 207 Introduction Community broadcasting refers to broadcast media that are inde- pendent and civil-society-based and that operate for social objectives rather than for private financial profit. They are run by community- based organizations, local nongovernmental organizations, workers organizations, educational institutions, religious or cultural organi- zations, or associations comprised of one or more of these forms of civil society organization. Community broadcasting was initially developed, often without state authorization, by social movements and community-based or- ganizations seeking to express their own issues, concerns, cultures, and languages, and to create an alternative both to public broadcast- ers, who were often under government control, and to private com- mercial media. There is no single definition of community broadcasting, and there are almost as many models as there are sta- tions. Each community broadcasting initiative is a hybrid, a unique communication process shaped by its environment and the distinct culture, history, and reality of the community it serves. Indeed the term community broadcasting is applied to a wide range of noncom- mercial initiatives, including rural, cooperative, participatory, free, citizens', alternative, popular, and educational broadcasting. Com- munity radio stations are located in isolated rural villages but also in the heart of the largest cities, and the communities they represent and serve may be geographically defined as the residents of a given town, or they may be defined by shared cultural, linguistic, or other inter- ests. Depending on the nature of the community, the broadcast signal may reach only a kilometer, cover a whole country, or be carried on the Internet to community members on the other side of the world. Community broadcasting, and particularly radio, can provide com- munities with access to information and voice, facilitating community- level debate, information sharing, and input into decision-making. Community broadcasting is also a process that engages the community in capacity building and empowering activities. If public broadcasting is a window through which viewers and listeners can understand their country and the world, then community broadcasting is a mirror that reflects a community's own know ledge and experience back at it and in- vites the community to know itself, to engage in dialogue, to find solu- tions to its problems, and to develop agendas for action. 208 Broadcasting, Voice, and Accountability As we have seen in Part I, community broadcasting is gaining recognition as an essential component of a pluralist media landscape, particularly for its role in giving access to voice and information, and promoting participation among communities and groups facing so- cial and economic exclusion. In 2003, for example, the Ninth United Nations Roundtable on Communications for Development referred to community media in the following terms: Governments should implement a legal and supportive framework favoring the right to free expression and the emergence of free and pluralistic information systems, in- cluding the recognition of the specific and crucial role of com- munity media in providing access to communication for isolated and marginalized groups. 1 A growing number of countries do make explicit provision for com- munity broadcasting in their broadcast law and/or in published decisions of the regulatory body responsible for broadcasting. Typi- cally this framework describes the characteristics of community broadcasting and sets out the arrangements for licensing and fund- ing. Legal and regulatory provision for community radio is more widespread than for community television. In some countries the framework for community broadcasting includes both radio and tel- evision, whereas in others there are separate arrangements for each. A number of studies have compared and evaluated the policy, le- gal, and regulatory frameworks that are most conducive to enabling community broadcasting to flourish. 2 From this diverse and wide- spread experience some characteristics of good practice in law and regulation can be identified. In the sections that follow, the elements of good practices in regulation of community broadcasting are dis- cussed in more detail. 1 Ninth United Nations Roundtable on Communications for Development (Rome, September 2004). 2 E. Price-Davies and J. Tacchi, Community Radio in a Global Context: A Comparative Analysis in Six Countries (Sheffield: Community Media Association, 2001) Sanchez, G. C., Legisla- tion on Community Radio Broadcasting: A Comparative Study of the Legislation of 13 Countries (Paris: UNESCO 2001) AMARC-LAC, Best practices on community broad- casting regulatory frameworks-a comparative study regulatory and legal frameworks and national policies in 14 countries, unpublished draft report (Montevideo, Uruguay: AMARC-LAC 2006). Community Nonprofit Broadcasting 209 Recognition and Differentiation Community broadcasting should be recognized in law as a distinct type of broadcasting to be supported and encouraged through spe- cific and explicit licensing arrangements that guarantee fair and equitable access to radio spectrum and to economic resources. Clear and explicit legal and policy recognition of community broadcast- ing as a distinct sector is desirable since policies relevant to community broadcasting differ from those relevant to other sectors, such as those re- lating to its economic base, its forms of accountability and participation, and its relationship to the community. The fair distribution of radio spec- trum, a valuable and scarce resource, requires special mechanisms to reach beyond commercial and public service allocations and to guaran- tee access for civil society and community-based organizations. BOX 52. Mali: Building a Diverse Radio Landscape As in most West African countries, broadcasting in Mali has traditionally been a state monopoly with the ORTM (Office de Radiodiffusion au Television de Mali) broadcasting from the capital to the entire country. Following the introduction of multiparty democracy in 1991, Mali formally allowed private radio and television stations and adopted one of the most democratic broadcast laws in Africa. Within a few years dozens of private radio stations, both commercial and community, were estab- lished, most of them local stations. Fifteen years ago the state monopoly broadcaster (ORTM-Office de radiodiffusion et de television du Mali) broadcast programming primarily produced in Bamako, and primarily in French, via repeater transmitters across the country. Now Mali has one of the strongest and most diverse radio systems in Africa, with as many as 300 radio stations broadcasting local programming throughout the country in more than a dozen local languages. One reason for the growth of the sector is the lack of bureaucratic and financial hurdles to obtaining a license. There are no license fees to estab- lish a radio station in Mali and the only requirements are that you be Malian and that you fill out a simple form. The form is sent to the Conseil Superieur de la Communication (CSC), which checks frequency availability and technical integrity of the proposal by informing the Comite de Regula- tion de Telecommunication. If the proposal is technically sound and the re- quested frequency is available, the radio station is allowed to use it. Each year, a frequency allowance of about US$20 is paid by each radio station. 2 t2 Broadcasting, Voice, and Accountability Definition and Characteristics Community broadcasting can be defined as independent broadcast- ing that is provided by and for the members of a community in a particular geographical location or belonging to a particular com- munity of interest. Its primary purpose is to deliver social benefit and not to operate for private commercial profit. It should be owned by and accountable to the community that it seeks to serve and it should provide for participation by the community in the making of programs and in management. There should be no a priori or un- reasonable limitations on the extent of coverage, transmission power, or the nature of the community to be served. Community broadcasters are independent media operated for social purposes by not-for-profit organizations. They should not face any content restrictions beyond those that legitimately apply to all broad- cast media. They have a responsibility to respond to the issues, expec- tations, and proposals of their community, in all their diversity, and are committed to enabling and promoting participation at all levels. The right to establish community broadcasting services should be available for community-based organizations and other civil society groups in rural and urban areas and for geographical and interest-based communities. They should not face a priori or arbitrary limitations on transmission power or coverage area, nor should they be reserved ex- clusively for particular social groups or communities, rural or urban. Characteristics that should be included in any legal or regulatory definition of community broadcasting-and derived from countries where specific licensing arrangements for community broadcasting are in place-include requirements that they: • remain independent of the government and of commercial organizations; • serve specific communities, either geographical or communities of interest; • have ownership and management representative of that community; • operate for purposes of social benefit rather than private financial profit; and • enable participation by the community in program-making and management. Community Nonprofit Broadcasting 2 13 These characteristics form the basis for a legal or regulatory definition. The regulatory framework, including the terms and conditions of licensing, should require that these characteristics are respected, while allowing flexibility for the broadcaster to adapt its service to best meet the needs and conditions of the community it is intended to serve. The independence of the service means that it should not be di- rectly or indirectly controlled by any body of central or local govern- ment or face undue influence by such bodies through ownership or funding. It should also be independent of commercial interests, and no commercial broadcaster or other commercial entity should be able to own or otherwise exercise effective control over the service. The community orientation of the service means that it provides programming intended to serve one or more communities and that it promotes and supports participation by members of the community in its operation and management. This should include measures to ensure that the provider of the service is accountable to the community it serves. The characteristic of operating for purposes of social benefit means that any profit from operations is used wholly and exclusively for securing the future provision of the service or for the delivery of social gain to the members of the public or community that it is in- tended to serve. Social benefit means the achievement of objectives that contribute to the social and economic well-being of the commu- nity served. These may include: • the provision of access to broadcast facilities by the community; • the encouragement of dialogue, opinion, and expression; • the improvement of access to information and knowledge; • the provision of education or training for members of the community; • the promotion of inclusion of and access by disadvantaged groups; • the promotion of cultural and linguistic diversity; • the promotion of equality between men and women; • the promotion of the rights of children and young people; • the promotion of civic participation and volunteerism; • the promotion of employment and work experience; and • the promotion of sustainable social and economic development. 2 14 Broadcasting, Voice, and Accountability In practice there are significant variations in the definitions of community broadcasting, but most definitions include some or all of these characteristics. The Canadian Radio-television and Telecom- munications Commission (CRTC) regulates broadcasting in Canada and defines community radio in Public Notice CRTC 2000-13 as follows: A community radio station is owned and controlled by a not- for-profit organization, the structure of which provides for membership, management, operation and programming pri- marily by members of the community at large. Programming should reflect the diversity of the market that the station is licensed to serve. 8 The African Charter on Broadcasting, adopted in 2002 by media prac- titioners and freedom of expression advocates from all over Africa, has become a widely referenced statement of good practice. It includes the following definition: Community broadcasting is broadcasting which is for, by and about the community, whose ownership and management is representative of the community, which pursues a social de- velopment agenda, and which is non-profit. 9 Policy guidelines adopted by the Indian government in 2006 state the following: An organisation desirous of operating a Community Radio Station (CRS) must be able to satisfy and adhere to the fol- lowing principles: a. It should be explicitly constituted as a "non-profit" organi- sation and should have a proven record of at least three years of service to the local community. b. The CRS to be operated by it should be designed to serve a specific well-defined local community. c. It should have an ownership and management structure that is reflective of the community that the CRS seeks to serve. 8 Public Notice CRTC 2000-13. 9 The African Charter on Broadcasting was adopted in Windhoek, Namibia, in May 2001. Community Nonprofit Broadcasting 2 15 d. Programmes for broadcast should be relevant to the educa- tional, developmental, social and cultural needs of the community. e. It must be a Legal Entity, i.e., it should be registered (under the registration of Societies Act or any other such act rele- vant to the purpose). 10 The requirement to be an NGO with three years of community service is intended to gauge an applicant's level of community involvement and support. But it is a burden to innovative projects and excludes applications from associations formed specifically to operate a com- munity radio, regardless of the experience the members of the new association might have. A better way of achieving this is found in Colombia and Venezuela, which require that the applicant demon- strate that it has the support of established organizations in the com- munity rather than the history of the legal entity making the application. However, in other respects this statement of principles is consistent with a good practice definition. In South Africa, the Broadcasting Act number 4 of 1999 states that community broadcasting license holders for radio and television: must democratically elect a board from members of the community; must re- flect their cultural, religious, language, and demographic needs; must provide a unique and diverse service, including a focus on grassroots community issues such as developmental, health care, and environ- mental affairs; and must promote a common sense of purpose. All sur- plus funds must also be reinvested for the benefit of the community.U Licensing Process Licensing processes for community broadcasting should be fair, open, transparent, and set out in law and should be the responsibility of an independent licensing body. Criteria for application and selection should be established openly and in consultation with civil society. Licensing is necessary to ensure fair and equitable access to a limited resource, the radio spectrum. Licensing of community broadcasting should normally be separate from licensing of commercial broadcasting 10 Government oflndia, Ministry oflnformation and Broadcasting (2006) Policy guidelines for setting up Community Radio stations in India (updated December 4, 2006). 11 Broadcasting Act number 4 of 1999, Section 32. 2t6 Broadcasting, Voice, and Accountability services, and sufficient broadcast spectrum ring-fenced for community services. Allocation of spectrum and licenses to community broad- casting should be a straightforward and transparent process, respon- sive to demand from community-based organizations that meet the characteristics set out in the definition. There should be no unneces- sary obstacles to communities seeking a license, and the process should be independent of political interference. Licensing should consider issues of community participation, ownership, and opera- tion and its social purpose. The process of applying for a license should be set out clearly in law. This may take the form of a call for applications for a particular locality, or applicants may be able to define for themselves the local- ities they propose to cover. The information to be provided by appli- cants should be specified by the licensing body and may include: • legal status and membership of the applicant; • proposed coverage and intended audience; • content of the program service to be provided; • involvement of and accountability to the community; • proposals to ensure the delivery of social gain; and • financial plans and sources of finance. The application requirements, selection criteria, and mode of assess- ment should be established prior to the invitation to apply for licens- ing and should be developed in a manner that includes open and public consultation involving civil society groups. Decisions on license applications should be taken within a rea- sonable timeframe and allow for public comments to be submitted, and a refusal should be accompanied by written reasons and made subject to judicial review. The characteristics of the frequency assign- ment should be specified and adequate to the proposed coverage. Aside from long-term community broadcasting licenses it can be useful to offer short-term or experimental licenses that provide an op- portunity to new community broadcasters to gain experience and demonstrate their ability to operate a full-time service. In Benin, the Haute Autorite de l'Audiovisuel et de la Communication (HAAC) is an independent regulatory body responsible for the licensing of private radio and television services. The HAAC distin- guishes between commercial radio and noncommercial radio, and it Community Nonprofit Broadcasting 2t7 publishes a Cahiers des Charges setting out the procedure and criteria for licensing of noncommercial radio services. In addition to the not- for-profit status, the HAAC identifies community radio by its range; its focus on a specific community; its use of specific languages; and its focus on local information and mobilization, cultural development, and further education. The licensing process for community radio starts with the HAAC publishing the list of available frequencies based on its frequency map and issuing a published call for applica- tions from all sectors, public, private, and commercial. Applications are processed and frequencies allocated based on the proposed pro- gram content and the viability of the service. In Ireland, community radio licenses are awarded under a two- stage procedure. First the Broadcasting Commission of Ireland (BCI) invites expressions of interest. Subsequently it invites applications by public notice for a contract to provide a service in a specific area for which a frequency has been assigned by the Commission for Communications Regulation, a statutory body responsible for regu- lation of telecommunications, radio-communications, and broadcast transmission. The licensing process for community radio is the same as that for private commercial broadcasters though different selection criteria and licensing terms apply. For instance, in considering expressions of interest, the BCI examines the level of participation by the com- munity in the station and the program service envisaged. If it de- cides to proceed with a public invitation for applications, the area to be covered and the community nature of the service will be specified and a "Guide to Submissions" published. Criteria include: the char- acter of the applicant; its expertise and financial resource; the qual- ity of program proposals, including provisions for Irish language and culture; and the desirability of having a diversity of services and ownership. License Terms and Conditions License terms and conditions for community broadcasting should be consistent with the objectives of broadcast regulation and designed to ensure that the community broadcasting service char- acteristics are protected and maintained for the duration of the license period. 218 Broadcasting, Voice, and Accountability Licenses may contain certain terms and conditions, either of a general nature, for example set out in the law or in regulations, or specific to an individual broadcaster. They can include: • specification of the technical characteristics of the service; • specification of the duration of the license; • a requirement to comply with general broadcast law and regulations; • a requirement to provide the service proposed in the license application; and • a provision for sanctions in the case of noncompliance. Normally, the transfer of the license to another person or group would not be permitted without the permission of the regulator, which should be given only where it can be shown that the new owner would continue to operate it as a community broadcasting service. In Australia, for example, community broadcasting services are subject to general license conditions, which apply to all broadcasting services and to more specific license conditions that are relevant to com- munity broadcasting. These conditions are set out in the Broadcasting Services Act of 1992 and include the following specific requirements: a. the licensee will remain a suitable licensee; b. the licensee will continue to represent the community inter- est that it represented at the time when the license was allo- cated or was last renewed; c. the licensee will encourage members of the community that it serves to participate in: i. the operations of the licensee in providing the service; and ii. the selection and provision of programs under the license; d. the licensee will provide the service for community pur- poses; and e. the licensee will not operate the service for profit or as part of a profit-making enterpriseY Specifications for the technical characteristics of the service should not impose unreasonable constraints on transmission power, aerial height, or other distribution parameters that would restrict the 12 Broadcasting Services Act of 1992. Community Nonprofit Broadcasting 2t9 viability of the service in achieving its purpose. They should be based on technical assumptions equivalent to those for other broadcasters. In South Africa, the community broadcasting license specifies the licensee, the station name, the frequency and related technical parameters, the location and coverage area, the commencement date, and the expiry date. In addition the license requires compli- ance with a number of general license conditions for community sound broadcasting. The general license conditions include requirements: • to have due regard to the character, control, management, objectives, intentions, undertakings, and representations made by the licensee in its application; • to establish and maintain formal structures that provide for community participation in the control, management, operational, and programming aspects of the service; • not to change the name or the ownership and control of the licensee or the control of the broadcasting service without written consent of the regulatory authority; • to ensure the licensee is and remains under the control of a nonprofit and nonpolitical entity; • to apply profits and any other income to the promotion of its broadcasting activities or in the service of the community; and • to establish a procedure for handling complaints and to broadcast information on how to make a complaint. Procedures for obtaining broadcast licenses can be lengthy and ex- pensive, involving expensive technical studies and specialized legal expertise. Rural and lower-power licenses in particular can be allo- cated with simplified administrative procedures and effective yet less-expensive technical licenses, such as type-approved equipment. Countries as diverse as Canada and Peru have recognized this and simplified application procedures for rural and low-power broadcast initiatives. Even in urban areas where spectrum management is more complex, technical and legal requirements are often unnecessarily de- manding and expensive and serve as an effective barrier to would-be community broadcasters. 220 Broadcasting, Voice, and Accountability Funding and Sustainability Community broadcasting services should have fair and equitable access to a diversity of funding sources according to local circum- stances. There should be no restrictions on funding sources other than what is necessary to maintain the character of the service and to avoid unfair competition. Ideally, community broadcasting should draw on a number of sources of funding and support, to reinforce its independence from vested interests and its capacity to serve exclusively the community. The regulatory framework should encourage this. License fees should be waived or nominal so as not to exclude communities with few resources. There should be no unreasonable restrictions on sources of revenue such as advertising. Community broadcasters should be encouraged to develop economic support from within their own community, including sponsorships and announce- ments, but assistance may also be provided through independently administered public funding. Support programs should also recognize that social, institutional, and technical sustainability are as important to the functioning and survival of community broadcasters as economic arrangements and capacity building is often required over a period of time. Financial models for community broadcasting vary from one country to another and according to local circumstances. In South Africa, for example, there are no funding restrictions im- posed by the regulatory framework, and advertising and sponsor- ship are carried. Some international donors make a substantial commitment to the sector. Community radio stations are also able to apply for support from the Media Diversity and Development Agency (see the next section). In the Netherlands, community radio stations are encouraged to seek funding from a wide range of sources, including advertising, spon- sorship, membership fees, and donations. Advertising is limited to a maximum of fifteen percent of airtime on any given day and is also lim- ited to a maximum of twelve minutes in any one hour. Some stations de- pend almost completely on advertising but most rely also on other sources of funding. More than one hundred municipalities provide public financial support. Community Nonprofit Broadcasting 22 1 An important measure of financial sustainability for a commu- nity broadcaster is the ability to secure contributions from its own community by, for example, generating fees from announcements by local organizations and businesses, developing sponsorships from community groups for special programs they request, or charging other organizations for airtime. External donors usually end financial support within a few years and should not be considered a principal source of long-term assistance. In Canada, generalist community radio stations face no limits on revenue from advertising and sponsorship. Campus community ra- dios and some native radio stations are limited to a maximum of four minutes of advertising in any one hour. Public funding for community radio in Canada is not extensive. Advertising is an important source for many of the larger urban stations, though some stations choose not to carry any. Most of the community radio stations draw signifi- cantly on direct support from listeners through on-air fund-raising drives and membership schemes. Where there is a significant element of public funding, some limitations on funding from commercial sources, including the sale of advertising time, may be justified when it competes with com- mercial broadcasters. Such restrictions may also aim to guarantee the character of the service. Any such restrictions should be no more than is necessary to ensure fair competition, to avoid unfair subsidy, and/ or to maintain the character of the service. Further- more, they should be limited to sources of finance that form a sig- nificant proportion of commercial broadcasters' revenue and should not undermine the viability of operating the community broadcasting service. Funding arrangements is one of several sets of issues that affects the viability and sustainability of community broadcasters. The social base, authenticity, and responsiveness of the broadcaster to its audience are crucial factors that are strengthened by interactive programming and by accountable and participatory management structures. Most community broadcasters depend heavily on volun- teers to assist in program making, fund-raising, and other activities and rely on the active involvement of local groups and organizations to provide expertise and input on matters of local and community concern. 222 Broadcasting, Voice, and Accountability Public Funding Community broadcasting may be supported by public funding, including direct public subsidies. Where there is a regular and guaranteed system of public funding this should be administered through an independent public body established for this purpose. If it is to succeed, community broadcasting, like any other sector, must have sufficient income, and in some circumstances public funding is necessary and justified. A special fund set up for this purpose is the preferred method for channeling public funding. This may be financed through direct taxation or through other mechanisms, such as a levy on cable concessions, a percentage of commercial broadcast revenue, or a proportion of a general license fee for public service broadcasting. In the Netherlands, for example, the national government transfers funds to municipalities to support community broadcasting. Prior to 2000, municipalities had the option to levy an additional surcharge of 0.90 euro (US$1.20) on the license fee paid by all households with a ra- dio or television receiver. About 100 municipalities opted to participate, generating 1.4 million euros per year for the community broadcasting sector. In 2000 the license fee was replaced by a system in which public broadcasting is paid out of the general budget. After strong pressure from OLON, the national community broadcast association, the gov- ernment agreed to support the sector with approximately 7.7 million euros (US$10.5 million or US$1.50 per household) per year paid directly to the municipalities. Nevertheless the arrangement is not without flaws. According to OLON's director, Pieter de Wit, The problem is that municipalities are not obliged to use this money for local community media. In fact, only 30 percent of the 300 local media get the entire fee, 56 percent get less than the total, and 14 percent get nothing. Also some municipali- ties put restrictions on spending and act contrary to the Dutch legislation on public broadcasting, which forbids gov- ernment influence in programming. 13 New legislation expected to be passed in 2008 will overcome this problem by transferring the subsidy directly to the country's 300 local community broadcasters. 13 Email from Pieter de Wit, April 26, 2007. Community Nonprofit Broadcasting 223 Public funding for community broadcasting should be operated independently of government and of the broadcast regulator through an independent public body. In Australia, for example, the Community Broadcasting Foundation Ltd. (CBF) was established in 1984 as an independent, nonprofit funding body. 14 1ts primary aim is to act as a funding agency for the development of community broad- casting (radio and television) in Australia, and it receives an annual grant from the Department of Communications, Information Tech- nology and the Arts. The CBF assesses applications for funding and distributes grants for development, programming, and infrastruc- ture support for: aboriginal community broadcasting, ethnic com- munity broadcasting, Radio for the Print Handicapped (RPH), general community broadcasting, the Australian Ethnic Radio Train- ing Project (AERTP), and sector coordination and policy develop- ment. Government funding allocated to the CBF for the year 2006/2007 was A$7.88 (Australian) (US$6.5 million). Of this amount, 50 percent went to core support grants made directly to stations, 20 percent went to defray transmission costs, and the rest was in the form of targeted grants to support ethnic broadcasting and initia- tives of the Community Broadcasting Organization. According to the Community Broadcasting Foundation, federal government funding of community radio in 2003-2004 amounted to 6 percent of total revenue with other levels of government contributing an additional 6 percent. This 12 percent "government support remains a vital cat- alyst to sector development. It supports the production of spe- cialised program content ... to meet community needs in the most cost-effective manner." 15 The major source of finance for Community Radio in France is the Fond de soutien a !'expression radiophonique (Support Fund for Radio Expression), created in 1982. It draws from a levy on advertising placed on mainstream broadcast media. The fund provides support for start-up costs, equipment upgrades, and core functioning, with the major part going toward core functioning costs. In 2004 the fund provided total grants of 21 million euros (US$27 million). 14 Community Broadcasting Foundation website: www.cbfcom.au. 1 SSector Funding Trends, Community Broadcasting Foundation Ltd., available at: http://www.cbf.com.au/Content/templates/sector.asp?articleid=66&zoneid=13. 224 Broadcasting, Voice, and Accountability BOX 54. France: Support Fund for Local Noncommercial Radio The Fond de soutien a/'expression radiophonique (Radio Expression Support Fund-FSER) is one of the most interesting aspects of French broadcast policy. The fund, which is made up of a special tax levied on radio and tel- evision advertising expenditures and paid by advertisers, is used to sup- port the activities of local noncommercial radio. First established in 1982, the fund provides qualified stations with between US$5,000 and $150,000 annually. The actual amount received depends on a number of criteria, in- cluding the previous year's budget, the amount of funds secured from other sources (stations that can demonstrate local financial support re- ceive more from the FSER), programming quality, and the purpose of the funds (new radio stations can get more to help defray the cost of their in- stallations). In return for accessing the funds, the stations must agree to limit advertising revenue to not more than 20 percent of their total annual turnover. They must also broadcast at least four hours daily of local pro- gramming between 06:00 and 22:00. In 2004 the fund distributed approximately 21 million euros: • fourteen new radio stations received an average of 15,228 euros to help pay for their installations, for a total of 213,200 euros; • five hundred and eighty-four (584) stations received an average of 40,496 euros to subsidize their operational costs, for a total of 23.65 million euros; and • seventy-six stations received an average of 5,722 euros to subsidize equipment purchases, for a total of 434,870 euros. South Africa adopted a unique approach by creating the Media Development and Diversity Agency (MDDA) in 2002 by an act of Parliament, to enable "historically disadvantaged communities and persons not adequately served by the media" to gain media access. Its beneficiaries include both community media and small commercial media. The MDDA has the following objectives: • Encourage ownership and control of, and access to, media by historically disadvantaged communities, historically diminished indigenous language and cultural groups; • Encourage the channeling of resources to community and small commercial media; • Encourage human resource development and capacity building in the media industry, especially amongst historically disadvantaged groups; and • Encourage research regarding media development and diversity. Community Nonprofit Broadcasting 225 MDDA is a partnership between the South African government and major print and broadcasting companies. Its funding comes from gov- ernment, the media industry, and donors. The 2005 Electronic Com- munications Act has opened a new source of funding for MDDA, by stipulating that broadcasters' contributions to MDDA would be de- ducted from the obligatory contributions of telecommunications and broadcasting companies to the Universal Service and Access Agency. 16 At the time of this publication, MDDA is confirming a contribution of 1 percent of broadcasters' license fees, to be allocated to MOD A. This is being negotiated with broadcasting companies prior to promulga- tion of a formal regulation. In South Africa, there is great potential for the regulator, the Independent Communication Authority of South Africa (ICASA), MDDA, and the National Community Radio Forum (NCRF) to harmonize their responsibilities and reinforce each other, in developing the community broadcasting sector. For example, as NCRF, the National Community Radio Association, develops its systems for strengthening community radio stations through provincial hubs, it may become possible for MDDA to wholesale its support through NCRF, and for NCRF to handle the retail strengthening of individual stations. One of MDDA's potentially great strengths is its mandate to lace together relationships with partner agencies and organizations, to mobilize and align support for diversified media services. Venezuela, Bolivia, and Colombia make funds available to sup- port training and equipment purposes and/ or provide indirect fund- ing, particularly in the form of fee and tax waivers, and reductions are common in many countriesY Bolivia's community radio stations pay 10 percent of the amount charged to commercial stations for spectrum use and in Mali stations are charged only $20 per year. 16 Since 1993, South Africa's Universal Service Agency (USA) funded the expansion of South Africa's telecommunications infrastructure through a mandatory levy of 0.2 percent on licensees' annual turnover. The Electronic Communications Act of 2005, section 89, provides that "the contributions to the Universal Service and Access Fund (the new name for the USA) must not exceed 1 percent of the licensee's annual turnover or such other percentage of the licensee's annual turnover as may be determined by the Minister after consultation with the affected parties, by notice in the Gazette." It also states, "Broadcast- ing service licensees contributing to the Media Development and Diversity Agency (MDDA) must have their annual MDDA contribution set off against their prescribed an- nual contribution to the Universal Service and Access Fund." MDOA Strategic Focus and Plan 2007-2010, March 2007. 17 Best Practices in Regulation of Community Broadcasting, Programa de Legislacionesy Derecho a Ia Comunicaci6n de AMARC-LAC (2007). 226 Broadcasting, Voice, and Accountability As in other areas, the application process and decisions for public funding should be fair, open, and transparent and based on clear public interest criteria. A substantial part of the fund could provide regular and guaranteed core financial support according to an agreed and transparent formula, for instance based on the amount of funds raised from other sources or the size of potential audience or some other objective measure. Funding may also be available for start-up and development costs and to support the provision of joint services to the sector through country-level associations of community broad- casters. Community broadcasters should also be able to apply for direct public grants and contracts from other sources. Public funding arrangements should not be allowed to compromise the indepen- dence of the community broadcaster. Good Practice Checklist • Regulation of private commercial broadcasting should be designed to meet the public interest in a range and diversity of services and to en- sure fair competition between private broadcasters. Commercial broad- casters normally require a license to operate a radio or television service. • Licensing processes for commercial broadcasting should be fair and transparent, and should be overseen by an independent body. License conditions should serve the overall goals of broadcast regu- lation and should not be arbitrary or oppressive. • Rules preventing undue concentration of ownership in the broadcast sector, or between that sector and the print media sector, are legiti- mate as long as their actual purpose and practical effect is to promote diversity in the provision of broadcast services. • Restrictions may be imposed on the extent of foreign ownership and control over broadcasters, as long as these restrictions take into ac- count the need for the broadcasting sector as a whole to develop and for broadcasting services to be economically viable. A total ban on foreign investment in the broadcasting sector is not legitimate. • Private commercial broadcasters may be subject to public service re- quirements in exchange for access to a limited public resource, namely the airwaves. Such requirements should be designed to fur- ther public interest objectives and should not be disproportionate in scope such that they threaten the viability of the service. • Public advertising budgets spent on commercial broadcasting should be allocated on a strictly nondiscriminatory and commercial basis. • Public grants and subsidies may be offered to commercial broad- casters in order to promote a range and diversity of services and to encourage programming of public interest. They should be allocated according to set criteria and according to a fair and transparent process overseen by an independent body. 227 228 Broadcasting, Voice, and Accountability Introduction In the United States, from the earliest days of radio broadcasting in the 1920s, competition and commercialism have been the rule. The U.S. model of largely private commercial broadcasting became the norm across much of Latin America. In more recent years, commer- cial broadcasting has become a key component of broadcasting throughout the world, and the dominant one in much of it. Private commercial broadcasting has grown rapidly in those parts of the world where public broadcasting was once a monopoly, such as Europe, Africa, and parts of Asia and the Pacific. As outlined in Part I, it exerts a major impact on the media landscape, sometimes occupying a dominant role within the broadcasting sector as a whole. Within Europe, public broadcasting monopolies began to give way in the 1950s and 1960s, but it was not until the 1970s that commercial broadcasting really began to take root. The decision of the Italian Constitutional Court in 1976 to end the state broadcasting monopoly1 opened the Italian airwaves to private broadcasting, from which emerged Silvio Berlusconi's Fininvest empire. Austria was the last western European state to liberalize its radio airwaves, following a landmark case brought by private and community broadcasters in 1993 in which the European Court of Human Rights found the state broadcasting monopoly to be in breach of the right to free- dom of expression, as guaranteed by Article 10 of the European Conven- tion of Human Rights. 2 In Eastern Europe, private broadcasting emerged rapidly after the end of the cold war. Belarus is now the last remaining European country to maintain a state broadcasting monopoly. In the 1980s, there were only a handful of private broadcasters on the African continent, whereas today there are thousands of private commercial radios, and almost every African country allows some degree of private sector broadcasting. In Asia and the Pacific, private broadcasting is less widespread. Several East and Southeast Asian countries have promoted private sector broadcasting, including Japan, the Philippines, and Indonesia. China, however, maintains a state broadcasting monopoly, and India only recently began to open its airwaves to private terrestrial radio stations and has been cautious in licensing new services. 1 Decision 202/76 of the Italian Constitutional Court, July 28, 1976. 2 Informationsverein Lentia and others v. Austria, May 25, 1993, Application Nos. 13914/88, 15041/89, 15717/89, 15779/89, 17207/90 (European Court of Human Rights). Commercial Private Sector Broadcasting 229 Private commercial broadcasting has also gained strength from new forms of broadcast distribution, particularly cable and satellite and, more recently, the Internet. Satellite broadcasters have circum- vented state control by using internationally assigned frequencies and uplinks in countries friendly to satellite operators. Star TV, for example, was established in 1991 and now broadcasts more than fifty channels to over fifty Asian countries, including India and China. The growth of private commercial broadcasting has attracted sig- nificant entrepreneurial energy, as well as significant funding, to the sector. It has generally, as a result, increased media pluralism and choice and provided greater opportunities for different voices to be heard. Commercial broadcasting, and the competition it involves, has contributed to the growth of entertainment and talk programs avail- able to the general public. Although commercial broadcasters can play a role in promoting the public interest, by their very nature, this role must be somewhat limited. Having, legally, a primary obligation to their shareholders, they face pressures to maximize profit that can affect program con- tent, as well as demands by advertisers, whose commercial interests may be at odds with public interest programming. In the absence of public interest regulation, more costly programs, such as those in- volving international reporting, investigative journalism, education, and high quality drama, as well as programs serving smaller popula- tions, tend to lose out to cheaper programming with mass appeal. News reporting and analysis may also become influenced by the same profit-making imperatives as entertainment, with accurate and factual reporting being replaced by favorable editorial coverage of commercial sponsors and their products. Furthermore, whenever the regulatory framework does not pro- vide adequate safeguards, there has been a tendency toward in- creased concentration of ownership that, over time, can lead to a reduction in diversity, access, and quality in broadcasting and allow dominance by a small number of commercial broadcast owners. Poor regulatory frameworks can also result in private commercial broad- casting licenses being allocated under systems of political patronage, a practice evident in many countries. According to a background study for the World Development Report 2002, 85 percent of private commercial radio and televisions broadcasters are owned by families rather than a wide range of 230 Broadcasting, Voice, and Accountability shareholders. 3 A combination of media concentration and a narrow shareholder base can lead to disproportionate political influence by certain media owners. This kind of ownership arrangement runs con- trary to the public interest in media pluralism and diversity. In Guatemala, for example, four out of the six terrestrial television channels are owned by one businessman, a Mexican citizen living in Miami, without whose support few politicians could hope to be presi- dent. In El Salvador, the results of the 2004 presidential elections were widely attributed to the influence of the commercial media. 4 The new president is himself the owner of a chain of commercial radio stations. Because of the important role the media can play in forming and influencing public opinion, it is widely accepted that rules to prevent concentration of the media, over and above general competition rules, can form a legitimate part of public interest regulation. In many coun- tries, regulatory mechanisms for commercial broadcasting also man- date, in exchange for access to the publicly owned airwaves, minimum time requirements for news broadcasts, public service announcements, guaranteed access to political candidates under equal-time rules, and commitments to a proportion of public interest programming. A few overriding principles apply to commercial broadcasting and are evident in the trends described in Part I, including the use of the licensing system to promote broadcast diversity and to prevent undue concentration of ownership in the broadcast sector. These principles are normally set out in law, but implementation is left to individual decision making by the regulator. As a result, and in a fashion analogous to content regulation, commercial broadcast regu- lation should be closely tailored to meeting local needs and interests. Regulation Regulation of private commercial broadcasting should be designed to meet the public interest in a range and diversity of services and to ensure fair competition between private broadcasters. Commer- cial broadcasters normally require a license to operate a radio or tel- evision service. 3 Djankov, McLiesh, and others, 2001, World Development Report 2002, background paper. 4 Proceso No. 1091, March 24, 2004. Translated from Spanish. Commercial Private Sector Broadcasting 23 1 As with all regulation of the media, licensing should be overseen by a body that is independent of political or commercial control. There should be no blanket prohibitions on who may hold or participate in ownership of a broadcasting license based on either form or nature, except in relation to political parties, where a ban may be legitimate. The licensing body should have the power to make licensing deci- sions on a case-by-case basis while ensuring that there is no unfair discrimination against one applicant or another. On this last point, the Inter-American Commission on Human Rights in its Principles on Freedom of Expression states explicitly, among other matters, that "the concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals." 5 In the licensing of commercial broadcasting services the main ob- jectives should be: • to ensure a range and diversity of services at local and national level; • to ensure, as far as possible, the provision of services that meet the needs and interests of listeners and viewers and that are of a high quality; and • to ensure fair and effective competition in the provision of services. Although the regulatory body should not discriminate unfairly for or against any applicant, a concession to operate a radio or television service may specify that the service should either be of a local or of a national character. Specific provision may also be included to en- courage services to be established that serve minority groups lacking in financial or technological resources. In Poland, for example, a broadcaster qualifying as a "social broadcaster" (according to crite- ria set out in the Broadcasting Act) is exempt from "fees payable for awarding or altering the licence" on the strength of the social role it fulfills. 6 5 Inter-American Commission of Human Rights (2000) Declaration of Principles on Free- dom of Expression, quoted in Loreti (2006) "Broadcast Law and Regulation in Latin America," commissioned paper. 6 McGonagle (2006) "Minorities and the Media," commissioned paper. 232 Broadcasting, Voice, and Accountability The distribution of licenses for television channels and radio fre- quencies solely through auction to the highest bidder is unlikely to produce a range and diversity of services that meet the needs of all sections of society. In considering such arrangements in Guatemala (and also in Paraguay), the Special Rapporteur on Freedom of Ex- pression of the Organization of American States has stated: Bidding procedures that do not go beyond economic consid- erations, or that do not give a chance to all social sectors, are incompatible with participatory democracy and the right of freedom of expression and information enshrined in the American Convention on Human Rights? Licensing Process Licensing processes for commercial broadcasting should be fair, open, and transparent and should be overseen by an independent regulatory body. License conditions should serve the overall goals of broadcast regulation and should not be arbitrary or oppressive. The process for obtaining a broadcasting license should be set out clearly and precisely in law; it should be fair, open, and transparent, include clear time limits within which decisions must be made, and allow for effective public input and an opportunity for the applicant to be heard. It may involve either a call for tenders or ad hoc receipt by the licensing body of applications, depending on the situation, but where there is competition for limited frequencies, a tender process should be utilized. License applications should be assessed according to clear crite- ria set out in advance in legal form (laws or regulations). The criteria should, as far as possible, be objective in nature, and should include promoting a wide range of viewpoints fairly reflecting the diversity of the population and preventing undue concentration of ownership, as well as an assessment of the financial and technical capacity of the applicant. Any refusal to issue a license should be accompanied by written reasons and should be subject to judicial review. 7 0ffice of the Special Rapporteur on Freedom of Expression (2001) Guatemala Country Report, quoted in Loreti (2006). Commercial Private Sector Broadcasting 233 A reasonable administrative fee for processing license applica- tions may be charged. Furthermore, licensees may be charged a license fee, but this should not be excessive and should reflect the de- velopment of the sector, the competition for licenses, and general con- siderations of commercial viability. Fees for different types of licenses should be set out in advance, according to a schedule. When licensees also need a broadcasting frequency, they should not have to go through a separate decision-making process to obtain this frequency; successful applicants should be guaranteed a fre- quency appropriate to their broadcasting license. In South Africa, for example, license applications are initiated by a call for applications from the regulator, the Independent Communi- cation Authority of South Africa (ICASA) by notice in the Gazette, set- ting out the relevant parameters for that license and the application fee. Applicants may also apply from time to time, even in the absence of a call, and these applications will also be published in the Gazette. Anyone may make representations in respect of license applications. In assessing license applications, ICASA takes into account the de- mand for the proposed service within the relevant area, the need for the service, the technical capacity of the applicant, the financial means of the applicant, and the ownership and control structure of the ap- plicant. A successful applicant is guaranteed a frequency appropriate to his or her license. There is a strong presumption of license renewal, and ICASA may refuse to renew the license only if the licensee has ma- terially failed to comply with the license conditions or the provisions of the broadcasting law and ICASA is satisfied that the licensee would not comply if his or her license were renewed. In issuing a license, the Canadian Radio-television and Telecom- munications Commission (CRTC) takes a number of criteria into ac- count, including ownership, financial and technical capacity, and programming requirements. A key aspect of the latter is to ensure that new licenses contribute to diversity, and in so doing, the CRTC may require applicants to provide a market survey, showing that there is a demand for the new service and how it would increase diversity in the market. In all of its decision making, the CRTC is required to promote a long list of broadcasting principles, including that the system be effectively owned and controlled by Canadians; operate primarily in English and French; serve the needs of all Cana- dians; encourage the development of Canadian expression; and serve 234 Broadcasting, Voice, and Accountability to safeguard, enrich, and strengthen the cultural, political, social, and economic fabric of Canada. Once the CRTC receives an application it may issue a call for competing applications. The application is con- sidered at a public hearing and is published in the Gazette at least 60 days prior to the hearing. Anyone may provide written comments on the application and the CRTC may invite those who have done so to attend the hearing. The CRTC then reaches a decision to either ap- prove or deny the application or to approve it in part. Rules on Concentration of Ownership Rules preventing undue concentration of ownership in the broad- cast sector, or between that sector and the print media sector, are legitimate as long as their actual purpose and practical effect is to promote diversity in the provision of broadcast services. Excessive concentration of ownership in broadcasting can have many of the same effects as a monopoly. It can lead to excessive and parti- san political influence and constrain diversity of content. General rules on concentration of ownership, designed to enhance competi- tion and so provide a lower cost and better services, are for reasons outlined in Part I insufficient for the broadcasting sector. They pro- vide only minimum levels of diversity, far less than what is needed to maximize the capacity of the broadcasting sector to deliver social added value. Excessive concentration of ownership is to be avoided not simply because of its effects on competition, but because of its ef- fects on the key role of broadcasting in society, and the latter requires specific and dedicated measures. As a result, some countries limit such ownership, for example to a fixed number of channels or to a set overall percentage of market share. Such rules are legitimate as long as they are not unduly re- strictive, taking particular account of such issues as viability and economies of scale, which can affect the quality of program content. Other forms of cross-ownership where rules to restrict concentra- tion are legitimate include measures to restrict vertical concentration, for example, ownership of broadcasters by advertising agencies; and cross-media concentration, for example, ownership of broadcasters by newspaper owners publishing in the same or overlapping markets. Commercial Private Sector Broadcasting 235 For example, the Indonesian Broadcasting Act of 2002 includes a general prohibition on undue concentration of broadcast ownership. Cross-ownership both between different broadcasting sectors (radio, television, subscription services) and between the print and broad- cast sectors is strictly prohibited. The law also prohibits more than one service being offered by a licensee in any particular area. These rules are applied both through the licensing process and through on- going monitoring of the broadcast sector. Ownership is one of the cri- teria to be taken into account by the regulatory body when assessing applications for broadcasting licenses. In South Africa, the law on concentration of ownership is more complex. First, no one may directly or indirectly exercise control over more than one private television license, or over more than two private FM or AM sound broadcasting licenses. Furthermore, no one may con- trol substantially overlapping either FM or AM services (although over- lapping ownership of one FM and one AM license would appear to be permitted). Cross-ownership rules prohibit anyone from controlling a newspaper and both a radio and a television license. And anyone in a position to control a newspaper with a circulation of 20 percent of the total newspaper's readership in a given area may not own a broadcast- ing license that substantially overlaps with the newspaper circulation: an overlap of 50 percent or more is deemed to be substantial and a 20 percent shareholding is deemed to constitute control. These rules may be waived in any particular case, as long as this does not run counter to the objects and principles of broadcast regulation, as set out in the law. Rules on Foreign Ownership Restrictions may be imposed on the extent offoreign ownership and control over broadcasters, as long as these restrictions take into ac- count the need for the broadcasting sector as a whole to develop and for broadcasting services to be economically viable. A total ban on foreign investment in the broadcasting sector is not legitimate. Restrictions on foreign ownership can be legitimately designed to promote local and national cultural production, ensuring the means for local and national opinions and cultural content to be expressed and heard. In many countries, dominant local control over such an important national resource is also considered necessary. Although 236 Broadcasting, Voice, and Accountability such claims may be overstated, control may indeed be needed for the implementation of policies that are designed to foster a public interest approach to media. But foreign ownership restrictions should not be used as a means to undermine the viability of services that provide alternative points of view: there are cases of restrictions on foreign funding designed to prevent donor support to independent media outlets. Furthermore, foreign investment can bring much-needed expertise and capital into the local market. Restrictions on this investment should not be so re- strictive that they reduce the range and diversity of services available. In Colombia, for example, foreign investment is allowed exclu- sively up to 40 percent of the stock of the broadcast concession holder. It is subject to reciprocal arrangements being in place with respect to the country of domicile of the foreign investor. 8 The United States is generally considered to be among the most restrictive countries with respect to foreign ownership. Under the Communications Act of 1934 foreign ownership of a broadcasting license is denied to: 1) foreign government or representative; 2) alien or foreign registered companies; 3) companies in which foreign interests control more than 20 percent of voting capital; and 4) any company directly or indirectly controlled by another company in which more than 25 percent of the voting capi- tal is owned by foreigners. Public Service Requirements Private commercial broadcasters may be subject to public service requirements in exchange for access to a limited public resource, namely the airwaves. Such requirements should be designed to fur- ther public interest objectives and should not be disproportionate in scope such that they threaten the viability of the service. The limited capacity of the radio spectrum places overall limits on the number of broadcasters that may be licensed. This, along with the 8 0. Loreti (2006), "Broadcast Law and Regulation in Latin America," commissioned paper. Commercial Private Sector Broadcasting 23 7 fact that the radio spectrum is a public resource to which licensees have privileged access, justifies the imposition of limited public service requirements for commercial broadcasters. Such require- ments are normally linked to promoting diversity of content in the airwaves, as well as maintaining quality. Often, such requirements are imposed as license conditions on a case-by-case basis for individ- ual broadcasters. Although this provides flexibility to tailor these ob- ligations to the specific market niche of each broadcaster, it also brings with it a risk of political interference. The specific nature of such obligations will vary depending on the context. In some cases, license conditions may include specific public service content requirements to carry, for example, news and information or education and cultural programming. In the United Kingdom, for example, the main terrestrial television stations nor- mally have their main news schedules fixed in their licenses and need to apply to the regulator if they wish to change the duration or tim- ing of the news. This is used to ensure, for example, that banner evening news programs are available at different times for viewers. An important public interest obligation in some countries is the requirement to carry a minimum percentage of locally produced pro- gramming. In many cases, it is far cheaper to purchase foreign pro- grams, especially older ones, including films, than to produce programs in-house or purchase them from independent local produc- ers. Local content requirements can counter a situation where all that is available to audiences is cheap, dated foreign programming. The African Charter on Broadcasting, adopted in 2002 by media practi- tioners and freedom of expression advocates from throughout Africa, for example, states: "Broadcasters should be required to promote and develop local content, which should be defined to include African content, including through the introduction of minimum quotas." In Canada, general license conditions provide that Canadian con- tent and news and public affairs programming must make up a min- imum of 60 percent of private and public broadcasters' schedules, except overnight. Broadcasters must reflect cultural diversity and gender equality in content and character portrayals and reflect both English and French communities in their programming. To qualify as Canadian, entertainment music, for example, must meet the MAPL test, which requires the lyrics to be written by a Canadian, the music to be entirely composed and performed by a Canadian, and the production to be recorded in Canada. 238 Broadcasting, Voice, and Accountability In other cases, licensees may be required to provide certain guaranteed levels of geographical coverage to ensure rural and mar- ginalized communities are properly served. Public Grants, Subsidies, and Advertising Public grants and subsidies may be offered to commercial broad- casters in order to promote a range and diversity of services and to encourage programming of public interest. They should be allocated according to set criteria and according to a fair and transparent process overseen by an independent body. Public advertising bud- gets spent on commercial broadcasting should be allocated on a strictly nondiscriminatory and best-value basis. Public grants can provide an important role in funding the produc- tion of programs of public interest or by providing incentives for such programs by contributing a partial subsidy toward the total costs of production. Production funding may include, for example, support for programs of particular educational or cultural value that would otherwise be unlikely to be made. Public grants and subsidies can also help promote diversity by stimulating media output in under- developed sectors, such as small minority media, or by maintaining diverse media ownership in declining markets. Grant schemes should be run in a fair and transparent manner to en- sure equal access to the benefits they provide. This should include clear criteria set out in advance, which are designed to further the goals to be achieved. To prevent political interference with the scheme, it should, as with all regulatory powers, be overseen by an independent body, which may be the broadcast regulator or a body established specifically for the purpose of administering a scheme of financial support. The Broadcasting Commission of Ireland (BCI), an independent regulatory body, administers financial support to independent broadcasters and producers in Ireland, including commercial broad- casters. Funding is provided on a competitive basis and is for public interest program making under the terms of the Broadcasting (Fund- ing) Act of 2003,9 to be broadcast by public service, commercial, or "Broadcasting (Funding) Act of 2003, available at: http://www.bci.ie/documents/ 2003fundingact.pdf Commercial Private Sector Broadcasting 239 community license holders. The act provides that 5 percent of the receiver set license fee paid by television viewers should be allocated to the Sound and Vision Broadcasting Funding Scheme. 10 In 2006, this amounted to around US$10 million. South Africa's Media Development and Diversity Agency (MDDA) provides technical and financial support to both community and small commercial media, to enable them to improve media services to historically underserved areas and people. As noted in the previous chapter, broadcasters' annual contributions to MDDA are deducted from their required contributions to South Africa's Universal Service and Access Agency, which supports expansion of telecommunications and broadcasting infrastructure. Public advertising, often a very substantial part of total advertis- ing spending, can also be subject to misuse as a discriminatory form of support, granted or withheld on the basis of editorial orientations toward the government. This is not a legitimate practice. Public ad- vertising should be allocated in a nondiscriminatory manner to pre- vent political interference in the media sector. In South Africa, for example, the Government Communication Information System (GCIS) produces a large array of public service messages, in collabo- ration with sector ministries, which it sells to both commercial and nonprofit broadcasters. These are produced in different languages for listening audiences in different areas. The criteria used to allocate public advertising should be related to the audience to be reached and follow principles of efficacy and best value, taking into account market considerations such as audi- ence share or distribution and the target audience. Ideally, the alloca- tion of such advertising should be done by a body that operates at arm's length from government. 10 Broadcasting Commission of Ireland, Sound and Vision-Broadcasting Funding Scheme (2006), available at: http://www.bci.ie/broadcastJunding_scheme/guide_submissions.html. This final chapter returns to the need, raised at several points earlier, for further research and data to inform future development of effec- tive broadcasting policies in developing countries. It also puts for- ward recommendations on the development assistance that is needed to support the growth of a robust, diversified broadcasting sector that answers public interest concerns. It concludes by point- ing to convergence between fostering accountability, engaging citi- zens, and building effective processes of collective leadership and by highlighting some key policy reforms. The Research Agenda One overriding observation that emerged from the experience of researching and compiling this guide concerns the difficulty of obtaining data and useful research on many aspects of broadcasting, especially comparative research at global and regional levels. Anecdotes are found in abundance, and some in-depth research is available, although it tends to focus on narrowly delineated issues or territories. Most existing research looks at developed countries, with limited relevance to the very different circumstances in developing countries and poor communities. This problem relates to data, an indispensable raw material for analysis. But it also relates to qualitative research on the dynamics and impact of policy and regulation, on the performance of the dif- ferent broadcast sectors and the challenges they face, and on the place that broadcast media occupy in people's lives and their influence on people's social, cultural, and economic existence. 240 Epilogue 24 t This dearth of material is surprising given the fact that the huge social impact and vitally important role of broadcast media are al- most unanimously accepted. Perhaps the enormous, sprawling, and ever-changing nature of the sector and the diffuse and multifaceted nature of the impact lend themselves readily only to relatively ab- stract theorizing or a narrow empirical approach. A further challenge to generating comparative research is the need to develop and apply adequate and standardized categorization of institutional definitions and sectors and subsectors. Research into the following areas would make a valuable contri- bution to concrete debates on media policy and regulation and to reinforcing the material contained in this guide: • Generating a dynamic overview of the fundamental struc- tural evolution of broadcasting requires basic numerical data and time series 1 such as statistics on the number of broad- casters in each sector and subsector at the various levels, lo- cal to international, and types of program broadcast. Also needed is data on independent broadcast regulators, differ- entiating those that also regulate other sectors. • A more detailed level of description, however, is needed to go behind the statistics to discern the contours and drivers of sec- tor dynamics. Descriptions and analyses of evolving govern- ment policy in broadcasting are a starting point. The legal and institutional structureof broadcast regulators, their sources of funding, and staff levels would be valuable, as would the for- mal institutional relationship between public service media and government, and their accountability, funding structures- especially innovative ones-and regulatory requirements im- posed on them. Similar information is needed on com- mercial and community sectors, their hybrids and their variants. Again, identifying basic trends and milestones in these contexts would also be useful. 1 UNESCO's Institute of Statistics is currently undertaking a global survey of broadcast- ing. Results will be available by the end of 2007. Although the questionnaire does not dif- ferentiate between public service and direct state control it will contain useful information on state/public, commercial, and community sectors in terms of: numbers of channels from local to international levels journalists employed, broadcast hours in different program cat- egories, foreign programs, audience, and reach, etc. See http://www.uis.unesco.org/ev.php ?ID=6554_201&ID2=00_TOPIC. 244 Broadcasting, Voice, and Accountability • The emergence of digital television and radio and pressures to move in this direction, including issues of the competing standards and different cost structures of digital; and • The partial trend toward integration of telecommunications and broadcast regulation, and indeed multisector regulation. These issues are not on the immediate agenda of broadcasting policy makers in developing countries. But the pace and technical complex- ity of development in the media and communication sectors is such that decision making is rarely exposed to adequate public scrutiny: when change happens it can be swift and, for most people, bewilder- ing. More needs to be done by governments, communications regu- lators, and international bodies responsible to ensure that the impact of technical choices and regulatory approaches on the public interest is adequately assessed and subject to public consultation before pol- icy decisions are taken. A first step would be to undertake basic re- search on emerging issues in a timely manner, so that it can feed into such a process of understanding and consultation. Options for Development Assistance What Donors Can Do Assistance to developing countries is much needed, to improve their enabling environments for broadcasting and other media. This is in- tegral to improving capacities for good governance, social accounta- bility, and participatory development. Reform media policy requires political will and citizen demand: compelling such reforms through "conditionality" is likely to be coun- terproductive for donors and development agencies. 5 The most fruit- ful opportunities for productive dialogue and assistance to improve the enabling environment for media functioning-and specifically for a robust, pluralistic broadcasting sector that serves public interest goals-tend to arise when countries are democratizing, opening their markets, decentralizing, or making other efforts to improve the trans- parency, accountability, and effectiveness of governance. Media policy reforms can be facilitated by stakeholders sharing in- formation and ideas, and by bringing pressure to bear on governments. 5 Conditionality refers to the practice of placing requirements or "conditions" on the recipient government's access to further assistance. Epilogue 245 Such coalitions can be important interlocutors and partners with de- velopment agencies and donors, and can provide a forum to define and agree on priorities and actions. Forums, Analyses, Policy, and Technical Advice Development efforts can provide information, encouragement and opportunities for stakeholders in developing countries to converge on policy reforms needed to make their broadcasting sector more vigorous, pluralistic, and independent. Consultations and fact-finding can lead to research and to policy and analysis and other diagnostic work. A broadcasting sector study in a specific country can analyze the policy, legal and regulatory, institutional and political economic context affecting the sector, compare current practices with global good practices, and offer recommendations. Such studies can be fol- lowed up by structured meetings and forums, to share analyses, as- sess and share good practices, and highlight issues. Projects-the processes of developing and implementing them-uncover issues and needs not previously addressed. The protagonists have an in- terest in solving the problems that emerge, and this engagement can lead to substantial policy dialogue and program change. Meanwhile, development assistance can strengthen the capacities of diverse in- stitutions and organizations, from national media commissions and regulatory agencies to grassroots networks, through training and ad- vice, study visits and "twinning" between organizations. Not only nongovernmental organizations, but increasingly, national and in- ternational associations and networks-community radio associa- tions and networks are a case in point-are also providing assistance not only to their own constituencies and members, but to similar as- sociations in other countries. In this mix, symposia, workshops, and forums can provide a good "moment" for key stakeholders inside and outside government to get is- sues on the table that lack a single government constituency. They can enable potential allies to get a broader perspective and even develop a consensus for action. The Development Dialogue Series organized by the World Bank office in Accra, Ghana, on "Giving Access to the Airwaves" showcased a growing interest in broadcasting policy and regulatory re- form, enabled stakeholders with widely divergent views to air their con- cerns, and provided opportunities to triangulate information and clarify facts. In some cases, a workshop provides the clarity and interest needed 246 Broadcasting, Voice, and Accountability BOX 55. Nigeria: A Forum Precipitates Action In July 2006, the World Bank and the World Association of Community Ra- dio Broadcasters (AMARC) co-convened a high-level symposium inAbuja, to discuss global good practice on broadcast policy that would enable de- velopment of a community radio sector. It followed a regional roundtable of AMARC and benefited from discussion of progress in other countries. This symposium was the first time that high-level Nigerian government of- ficials-from both the Executive and the National Assembly-and civil so- ciety stakeholders, along with the President of the World Association of Community Radio Broadcasters, community radio expert-practitioners from the region, and the Bank, met together to discuss the role of commu- nity radio and the need for a better policy and regulatory framework that provided access to the airwaves. This workshop built upon previous World Bank discussions with the steering committee of Nigeria's coalition for com- munity radio. It also benefitted from the Bank's collaboration with staff of the Fadama Project, which supports community-driven development in several regions of the country. At the end of the symposium, the president of AMARC, a representative of the World Bank country office, participants from the coalition, and Fadama's national coordination staff met with the Minister of Information, and briefed him on their findings. Also in July 2006, the Fadama national coordination unit agreed to fund several community radio (CR) stations, and to contribute to policy development for CR. Six community radio stations are expected to be funded by the Fadama III Project, as pilots for potential further support. In August 2006, Government established a Community Radio Policy Committee, including members of the CR coalition, with a mandate to draft a Community Radio Policy within two months. In December 2006, the Community Radio Policy Drafting Committee submitted its report to the federal government of Nigeria. In receiving it, the Minister of Information stated that it was unacceptable for a few people to be able to participate in information management while the ma- jority are forced to accept their voices and views. He said that government is convinced that opening up the airwaves to provide space for commu- nity radio would help address this situation and enrich governance as never before in the country. to stimulate immediate action-as when Nigeria's Minister of Informa- tion called for a community radio policy to be drafted, established a pol- icy committee composed of both government and nongovernmental representatives, and set a tight timetable for submission of the policy to government. The policy committee presented a draft consistent with global good practice in about three months. (See Box 55.) Epilogue 24 7 For low income countries, the deliberations on the government's Poverty Reduction Strategy Program (PRSP) also provide an important forum to mobilize support for policies and action programs that con- tribute to civic participation and good governance. 6 The PRSP pro- vides a framework for consultation and agreement with all the key donors and aid agencies working with the government, which tends to foster better collaboration and coherence in development support to a country. Increasingly, PRSPs-as well as development frameworks pro- duced in middle income countries-identify governance as a major focus area, and link this to civic participation. For example the Sec- ond Ghana Poverty Reduction Strategy (2006) has "Good Gover- nance and Civic Responsibility" as one of its three main pillars? The following matrix shows how several focus areas within that pillar align with the goal of promoting pluralistic broadcasting in the pub- lic interest, including community radio specifically. 6 Since 1999, governments in low-income countries have prepared Poverty Reduction Strategy Papers (PRSPs) that describe the macroeconomic, structural, and social policies and programs that a country will pursue over several years to promote broad-based growth and reduce poverty, as well as external financing needs and the associated sources of financing. They are developed through a participatory process involving domestic stakeholders and external development partners, including the IMF and the World Bank, and are updated every three years. The ultimate outcome of a PRSP is not the paper, but rather, public and community actions to reduce poverty. PRSPs are produced according to a number of principles: • They are country-driven, involving broad-based participation by civil society and the private sector as they are produced. • They are directed toward achieving results and focused on outcomes that would benefit the poor. • They recognize that tackling poverty requires a comprehensive approach because poverty is more than just a lack of income but that poor people also suffer from a lack of opportunity, security, and voice in decisions that affect their lives. • They are partnership-oriented in that they encourage the coordinated involvement of bilateral, multilateral, and nongovernment organizations in the country's poverty reduction program. • They are based on a long-term perspective for poverty reduction. • PRSPs foster greater openness in policy making. Governments have sought increasingly to include traditionally marginalized groups, the private sector, and civil society in developing them and because of this, poverty-reduction strategies developed through tills process tend to have broader community and stakeholder support and are "owned" by the government. http://web.worldbank.org/WBSITE/EXTERNAL/ TOPICS/EXTPOVERTY/EXTPRS/. 7 Available at: htlp://siteresources.worldbank.org/INTPRSl/Resources/Ghana_PRSP(Nov-2005) .pdf 248 Broadcasting, Voice, and Accountability TABLE 1 Matrix: Ghana Poverty Reduction Strategy (GPRS) II and Its Relationship to Voice and Media Technical Assistance (TA) GPRS II How Technical Assistance to Focus Areas within Improve Broadcasting Policy Good Governance and Regulation and Support for and Civic Community Radio Development Responsibility Relevant References in GPRS II Pluralism Relates to GPRS II Strengthening "Foster Civic Advocacy to TA will inform public opinion the practice of nurture the culture of and build communities' skills in democracy democracy"; "Support articulating issues important to institutions and schemes them, developing a factual aimed at empowering civic understanding and debating participation"; "free access to issues, and holding local public information" government accountable. Protecting rights "Promote the provision of Piloting would support under rule of law legal aid for the poor" partnership between GCRN and LRC,* to expand capacity-building in poor people's legal empowerment through radio programming. Enhancing • "Promote Development TA results, if successful, will development Communication in state and reduce regulatory barriers to communication civil society environments" community radio development, • "Ensure commitment to allocate a portion of the radio- enhance access to public frequency spectrum to information and enabling community broadcasting, and environment for media"; strengthen capacities of a • Strategies: "Facilitate access regulator that will have the and enabling environment mandate and capacities [for medial"; "Involve the to facilitate community radio marginalized in governance development in order to meet through access to information" the National Media Policy's "Encourage private [non- objectives. governmentall community radio stations" • Indicators include: "Number of additional community radio stations licensed & operational" *Ghana Community Radio Network and Ghana's Legal Resources Center. Voice and Rights Funds Some farsighted donors make funds available to grassroots organiza- tions to undertake actions that contribute to poor peoples' under- standing of their rights and to building their capacity to exert those rights effectively. For example, an initiative of the UK's Department Epilogue 249 for International Development (DfiD), Rights and Voice Initiative (RAVI), has been supporting the joint activities of the Ghana Legal Resources Centre and Ghana Community Radio Network to develop and broadcast social and legal empowerment programs, with active audience participation. As governance concerns are being translated into capacity building for civil society and the media, such efforts hold considerable future promise. The Specific Role of the World Bank The World Bank has a range of instruments it can potentially deploy to enhance an enabling broadcasting environment, and its strategic thinking is increasingly moving in this direction. The World Bank's Governance and Anticorruption (GAO Strategy In early 2007, the World Bank's Board of Executive Directors ap- proved a strategy for "Strengthening Bank Group Engagement on Governance and Anti-corruption" (March 21, 2007), a product of ex- tensive consultations with governments and forums of civil society organizations, media, and the private sector in all regions. The report recognizes the Bank's lessons of experience that: Strengthening accountability requires capacity in govern- ment and institutions outside central government, such as parliament, civil society, media, and local communities, as well as an enabling environment in which these stakeholders can operate responsibly and effectively. 8 The World Bank's primary clients for development assistance are still governments, but the governance strategy suggests that the Bank now has a mandate to help improve the enabling environment for media-the policies, laws, and regulations that enable media to con- tribute to broad social participation, oversight, and demand for good governance. In its "Strategy for Engaging Countries" the GAC report 8 Executive Summary, iv, World Bank, "Strengthening Bank Group Engagement on Governance and Anti-corruption" (March 21, 2007). 250 Broadcasting, Voice, and Accountability notes that, depending on the country context, the range of gover- nance interventions may include: Supporting more broadly participation and oversight by civil society, media and communities-and (a repeated theme in the GAC consultations) helping improve the enabling environment and capacity of these actors to play constructively their devel- opment role. 9 The Bank's decision on a strategy for strengthening governance repre- sents an important change in the authorizing environment for the Bank's country assistance programs. It will strengthen the Bank's multistake- holder engagement in client countries, and can shape multidonor assis- tance programs. Because the Bank convenes most of the consultative groups that marshal development assistance for the world's low-income countries, this breakthrough can have a considerable catalytic effect. The GAC strategy report states: While government transparency can help to facilitate partic- ipation and oversight, more proactive engagement of society is also vital. Countries can achieve this by: • Creating concrete opportunities for participation and oversight, for example, through participatory develop- ment of policies and public spending priorities (the poverty reduction strategy process has provided a major impetus in this area in IDA-eligible countries), social ac- countability in the delivery of services, community- driven development, civil society and media oversight over public procurement, monitoring of income and asset declarations, and other arrangements that empower le- gitimate social groups; • Supporting the development of an enabling environment and of capacity so that civil society organizations can effec- tively take advantage of these opportunities; and • Enabling the development of independent and competitive media that can investigate, monitor, and provide feedback on government performance, including corruption. 10 The strategy presents five entry points for its "Country Efforts: Entry Points for Anticorruption and Governance Reform." The second is to 9 0p. cit., 18. 10 0p. cit., 22. Epilogue 25 1 "increase opportunities for participation and oversight by civil soci- ety, the media and communities." 11 Also, while continuing to "work with the government as its principal counterpart," the World Bank will use a variety of instruments more systematically "-policy dialogue, analytic work, capacity-building, policy-based lending, and community driven development-to scale up existing and good practice to increase opportunities for oversight." 12 In December 2007, under President Robert Zoellick's leadership, the World Bank announced that it was launching a more proactive phase of work to implement the GAC strategy and mainstream it throughout World Bank operations. Implementation will focus on five areas; below we highlight the role that this guide can play in sup- porting them. • At the country level, Country Assistance Strategies (CASs) will begin to include GAC strategies. This will start in 26 countries, and will emphasize peer learning on effective approaches. This step increases the scope to emphasize, actively assist and monitor governments' policies, institutional development, and capacities to improve their transparency and accountability to the public; of these, the enabling environment for public scrutiny and voice will need to play a role. The GAC country strategies are likely to include measures that can be put into place quickly in government systems, and also programs of analysis, dialogue and institutional development to promote transparency and the enabling environment for public scrutiny, including for independent media development. A significant part of this enabling environment concerns the policy, legal and regulatory environment for independent and pluralistic broadcasting that serves the public interest and enables society to engage. This guide should be a useful tool in the country assessments and assistance efforts ahead. • The Bank's sector assistance will mainstream governance and accountability measures. This effort will expand opportunities for representative and accountable civil society organizations 11 0p. cit., Annex B: "Country Efforts: Entry Points for Governance and Anticorruption Reform, 48. 12 Ibid, 54. 252 Broadcasting, Voice, and Accountability to play specific management or implementation roles within projects, such as managing grants for local education or ensuring implementation of public works. Scaling up these measures will become increasingly feasible when they also strengthen platforms-such as community radio-for citizen information sharing, debate, decision making, and feedback to government, as discussed in this guide. • Anticorruption measures will be designed into Bank-financed projects to strengthen transparency and disclosure to the public. This is likely to include agreements with governments to publicize revenues and planned expenditures; public works commitments; responsibilities for program implementation; and other information relating to Bank-financed projects. An inclusive broadcasting sector can play a core role in allowing broad segments of the population to access this sort of information and to voice their concerns. Hence, though the Bank may focus its efforts on project transparency, strengthening institutions and capacities to get this information to the people will need to play a role. • The Bank will strengthen its work on the demand side of governance-providing assistance to strengthen the role of civil society in demanding good governance and holding government to account. Given the Bank's comparative advantage in helping governments to improve their policies and delivery of services, a key way for the Bank to support civil society's ability to exert demand will be to help governments improve the enabling environment for independent, robust, and pluralistic media. Complementing this could be World Bank financial and technical assistance to improve the independence, transparency and capabilities of broadcasting regulatory authorities, and project assistance to develop the community broadcasting sector as a vehicle for public voice and pressure. • The Bank will staff up to implement this strategy, in country offices and in an array of sectors. This will include field-based GAC advisors and creation of regional hubs to support implementation of the above lines of work. Epilogue 253 The Roles of the World Bank The World Bank plays particular roles that can focus attention and gal- vanize action. It promotes new, common development platforms, such as the PRSP and Comprehensive Development Framework for donor assistance to a country. It convenes members of the development community and other diverse stakeholders to focus on particular is- sues and galvanize support to address them. It provides advice to governments. It mobilizes funds for the poorest countries through the International Development Association (IDA). Further, it provides substantial, integrated programs of support to national governments, to implement policy improvements, strengthen institutions, and develop capacities, and provide investment financing for specific de- velopment objectives. Virtually all of the Bank's advisory and financial assistance is fo- cused at the country level, normally with the government as the main client. The Bank's primary engagement focuses on • the government's policy, legal, and regulatory framework, either focusing on specific sectors (telecommunications, roads, ports, railways; agriculture, natural resource management, and environmental sustainability) or improving broad government processes such as financial management and procurement, customs reforms, public access to information, and transparency; • institutional changes, such as improvement in delivery systems, financing, and cost-recovery systems for key public services; adjustments in ministry and subnational government responsibilities; and reform of regulatory authorities; as well as • investments targeted to improving the economic opportunities and well-being of poor and marginalized populations in society. Country Assistance Strategy The rolling three-year Country Assistance Strategy (CAS) is the pri- mary determinant of the themes and key issues the Bank will address, and instruments it will deploy. It also is designed to promote collab- oration and coordination among development partners in a country. 254 Broadcasting, Voice, and Accountability A growing number of CASs make governance one of their main pillars, including for instance the CASs for Indonesia, Albania, and Bangladesh. The Albania 2006 CAS cites "civil society voice and par- ticipation" as one of the four ingredients of good governance. The 2006 Cambodia CAS seeks to "promote a stronger demand for good governance by increasing citizens' voice and participation in the pol- icy making process." The Country Assistance Program outlined in the CAS includes lending assistance, analytic support, and policy ad- vice. In fiscal year 2006, almost half of new lending projects included governance and rule of law components, with 19.2 percent of total new lending, or $4.5 billion, dedicated to supporting this area. Capacity Development and Non/ending Assistance Providing longer-term programs of technical assistance and training, the World Bank Institute (WBI) supports operations by strengthening country capacity in areas of high priority that cannot be adequately addressed through normal projects. WBI's assistance is often not channeled through governments and can, in those cases, be carried out more flexibly than is possible through the Bank's country lending and related advisory support. WBI works with multiple stakeholders in countries, regionally and globally, to share good practice, stimulate networks and communities of practice, and support south-south as- sistance. "WBI particularly works to strengthen societal instruments of accountability by supporting media development, parliamentari- ans, legal and judicial reform, civic participation, private sector capacity for collective action against corruption, and youth leader- ship."13 About half of WBI's work is focused on particular countries and supports the CAS through nonlending technical assistance, pol- icy advice, training programs, and institutional development support for diverse stakeholders. Sector Analysis and Policy Development Before providing its first lending project to a particular sector, the Bank may carry out a sector assessment. When the policy framework for the sector is weak, perverse, or fragmented, the Bank may ask for 11 Avai!able at: http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/O,contentMDK:20040922 -menuPK:34480-pagePK:34370-the5itePK:4607,00.html. Epilogue 255 BOX 56. Ghana's National Telecommunications Policy and Development of a Broadcasting Law In the lead-up to planning a substantial telecommunications project for Ghana, the government developed a Telecommunications Policy, and the World Bank advised on this effort through its Telecommunications Policy Review missions. One outgrowth of these discussions was that the National Telecommunications Policy adopted by the cabinet and pub- lished in January 2005 states the Government's intent to develop an ap- propriate legal and regulatory framework for broadcasting, and including in particular, for a three-tier system of public service, commu- nity and commercial radio and television stations. The Policy also ex- presses the Government's intention to undertake a comprehensive review of current broadcasting policy and legislation in Ghana, with the objective of further expanding access to broadcast radio and television media for all citizens, providing for the greatest diversity of voice and lan- guages and for the preservation and ongoing creation of indigenous con- tent. It describes community broadcasting as a priority which that should become a new area for development. As discussions proceeded to the barriers to entry facing community radio applicants, the Government requested the Bank to assist in a study of Ghana's broadcasting sector, analyzing how Ghana's enabling environment for broadcasting could be better aligned with emerging international good practice. The broadcasting study drew upon the draft guide to good practice available at the time. The Government circulated the broadcasting study for comment, along with the draft guide, in late 2005. Stakeholder discussions proceeded in 2006 with these resources in hand, convened by the broad-based Advocacy Steering Committee for a New Broadcast Law, and in early 2007, a team of Ghanaian experts drafted a framework for a Broadcasting Law for formal government review. a government policy statement. In the discussions on this policy, opportunities can appear to confer with senior government officials, including ministers, on issues that should be addressed. Telecommunications policy is a case in point and of particular relevance to broadcasting development. Telecommunications policy dialogue can provide an important context in which to discuss and analyze broadcasting policies, regulatory responsibilities, and proce- dures, and can lead the government both to make formal policy state- ments and to propose changes in the legal and regulatory framework. 256 Broadcasting, Voice, and Accountability While telecommunications policy is often dominated by issues of technology and technical alternatives, expanding its perspective to encompass the broad public interests of developing an informed, en- gaged society can enable it to address broadcasting policy issues. The 2005 National Telecommunications Policy of Ghana (Box 56) demon- strates this point. Governance, transparency, and civic participation projects are becoming an increasingly prominent part of the World Bank's work. (Examples appear in Box 57.) They offer appropriate opportunities for analysis, dialogue, and support to improve the policy, legal, reg- ulatory, and institutional framework affecting media functioning and Box 57. Scaling up Citizen Feedback: Peru In Peru, the Programmatic Social Reform Loan financed by the World Bank included training of community radio stations to promote citizen participation and social auditing, the facilitation of strategic planning meetings with rural and indigenous communities, and the preparation of a community radio program on social accountability and social auditing. The loan focused on improving the enabling environment for citizen par- ticipation in the social sectors through enhanced access to information and participatory budgeting. Many of the estimated 1,000 community ra- dio stations in Peru have been promoting citizens' rights and participa- tion by providing a channel for information and voice to poor people in their native languages. They became natural partners in the govern- ment's efforts to improve citizen feedback on social sector programs. Demand for Good Governance: Cambodia. Cambodia's proposed De- mand for Good Governance Project is devoted exclusively to develop- ing demand-side approaches to governance issues, strengthening and linking the work of both governmental and nongovernmental actors. The project is in its early stages and would develop the extent and abil- ity of citizens, civil society organizations, and other nonstate actors to hold the state accountable and to make it responsive to their needs. The project involves a process of four key elements: promotion, mediation, response, and monitoring of demand, with transparency, participation, and accountability mechanisms being key to the project. As part of the project's support to institutional development as well as to specific pro- grams, it focuses on capacity building of the national radio broadcaster as an institution and on programming that promotes, mediates, and monitors good governance. Epilogue 257 diversified broadcasting sector development. When Freedom of Information legislation is being considered, media freedoms and sup- portive policies should be addressed at the same time. The "Right to Tell" (as noted in the World Bank book of the same name) is inextri- cably related to making transparency measures work. Community driven development (CDD) projects are evolving into very large programs that build capacities for local public service delivery and mechanisms for local government accountability. The development of community broadcasting would constitute a big-im- pact intervention that would build systems and capacities for local, usually poor, communities to raise issues of concern to them, have regular conversations with local government leaders, and have an open mike to identify instances of corruption or governmental high- handedness. Because community radio stations develop their own programs, they provide a forum for the listening community to raise issues of importance to them and facilitate their own dialogue on these topics. They give communities an opportunity to strengthen their organiza- tional capabilities and to build alliances for action through their pro- grams. They enable poor communities to inform themselves about issues arising in public services, to mobilize and share information, engage each other, and to develop their skills in pressing govern- ment officials to be accountable. All of these aspects contribute to changing officials' calculus and incentives and encouraging them to behave as responsive public servants. In developing their skills in balanced reporting and analysis of issues, community radio stations can also play a vital role in conflict prevention and postconflict reconciliation. Box 58 highlights CDD project support for community radio in Timor-Leste and the role of community radio in making local gov- ernment accountable in Ghana. As noted in Box 55, a large CDD proj- ect in Nigeria-Fadama III-is also poised to finance community radio stations in several states. Development Communications Assistance Development communications is a growing area of donor assistance, and has evolved from equipping government with communica- tions strategies to a much broader, strategic orientation to the 258 Broadcasting, Voice, and Accountability Box 58. Community Driven Development and Post-Conflict Reconstruction: Timor-Leste Since 2000, the now completed World Bank supported Community Em- powerment and Local Governance Projects (CEP) began assisting Timo- rese communities to reconstruct their physical, economic, and social infrastructures destroyed by the violence of 1999. This project gave com- munities small grants for infrastructure and economic activities, sup- ported cultural heritage and social reconciliation activities, and also provided direct assistance to community radio. Under the last compo- nent, CEP was able to support and scale up grassroots media develop- ment, particularly community broadcasting, by funding the training of district reporters to support the national public broadcaster and helping establish eight community radios in selected districts afterward. As of April2007, seven out of eight community radio stations were broadcast- ing (the eighth is facing technical problems that are being addressed). As part of this effort, CEP's community radio component also helped estab- lished a Community Radio Centre (CRC) in Dili, which continues to serve as a support hub for the network of community radios. The CRC is a member of the larger community radio association of Timor-Leste (ARKTL). The CRC's mandate is to support these stations with training, technical assistance (maintenance and operations), and to promote op- portunities for partnership and networking with different groups-in- cluding donors-to build their capacity and support development of public interest media and civic voice. Community radio in Timor-Leste continues to be a dynamic, though struggling, sector given the lack of a conducive enabling environment and funding opportunities to grow and develop. But it plays a strategic role in the current process of nation build- ing, social reconciliation and development, and local governance. Making Local Government More Accountable: Ghana. In Ghana, a community radio station has begun to broadcast debate on a district assembly floor. Others have weekly call-in and write-in programs that put tough questions to the district chief executives (DCE) and raise con- cerns needing immediate government attention. This often provokes the DCE or assemblymen to call in and talk the issue through while the pro- gram is still on the air. The community radio stations broadcast follow-up meetings with officials, and the reporting of inaction can get fairly intense until the public service that was promised is delivered, or the public funds that were stolen are returned. These transformations affecting pub- lic servants' incentives are expected to spread quickly once community radio stations can be licensed appropriately. Epilogue 259 communications sector as a whole. 14 This area of work has the poten- tial to support not only communications sector assessments, as cur- rently, but also communications sector projects. These efforts are promising when they are supported by government commitment to freedom of information and expression and the cultivation of an engaged and informed society. Given its focus on enhancement of communication with the public sector, development communication has great potential to create a platform for the reform of ministries of information or communication and to help the dissemination of infor- mation from government to citizens and vice versa. Convergences: Fostering Accountability, Engaged Societies, and Collective Leadership Fostering robust, diverse, and participatory media is an integral part of furthering good governance and accountability. Pluralistic broad- casting can play a particularly powerful role because of its ability to include and shape social perspectives and capabilities, and its un- matched reach, especially to rural populations. It can foster information exchange and airing and sharing of diverse perspectives, showcase 14 The director for Development Communications in a speech in March 2007 summarized an "empowered communication environment" that would: 1. Reform Ministries of Information-including delivering information as a service, and turning state broadcasters into public broadcasters, as a "development com- municator"; 2. Decentralize communications-taking communication beyond the capitals both physically and in terms of language; 3. Improve the functioning of private media-how to build financial sustainability, and support the material infrastructure; 4. Find out how people receive information and the factors that influence trust; 5. Amend the legal environment for communication-regulatory and licensing; but also taxation and import regimes, freedom of information, and criminal liable laws; 6. Build a more sustainable market for media and associated sector; 7. Build the capacity of civil society in relation to communication; 8. Improve the training academic pipeline for media workers; and 9. Explore the potential of new media to leapfrog ahead. Available at: http://web .worldbank. org/wbsite/external/topics/extdevcommeng. 260 Broadcasting, Voice, and Accountability analyses, and stimulate public discussion and comment on govern- ment action or inaction. This ongoing feedback, analysis, and discus- sion through the media, and more inclusively through broadcasting, is an important complement to governments' efforts to support development and to improve their own transparency, ac- countability, and effectiveness. Genuine accountability is a continuous process of interaction between government and the people. Limited solely to election times, such opportunities for feedback and policy corrections would verge on formalistic tokenism. While development agencies have promoted policies to extend access to information-through, for instance, freedom of information legislation-they have rarely devoted equal attention to media inde- pendence, pluralism, accessibility, and capacity building at the be- ginning of the democratization process. However, enhancing horizontal communication in society, and the means to share diverse perspectives, is arguably just as necessary. The scale of the challenge facing developing countries, in particular in setting up the robust and sustainable institutional struc- tures that constitute the backbone of an enabling media environment, should not be underestimated. The creation of a genuinely inde- pendent broadcast regulator with the capacity and authority to de- velop the sector in the public interest; the transformation of usually state-controlled broadcasters into public service broadcasters; the fa- cilitation of the emergence of both private sector and nonprofit com- munity broadcasting with maximum potential to contribute to the public interest together represent a major undertaking. These are likely to be tackled at times incrementally, at times only through tak- ing bold steps forward. Even partial progress can lead to significant improvements in participation and voice. Moreover, governance improvements are likely to be better implemented and sustained where they are submitted to analysis and public scrutiny from diverse points of view. It thus makes sense to address the enabling environment for robust, diverse, and in- dependent media-including broadcasting-as an early step in gover- nance reform. Incentives for diverse news reporting and issue analysis, and ca- pacity development to improve the quality of media content, includ- ing broadcast programming, are also needed. Mentoring and training Epilogue 261 of reporters and editors, orientation and awareness-raising regarding codes of conduct and self-regulation within the industry all play a role. Exposing journalists to international practices in the field can help. All these opportunities can sharpen skills in fact-finding andre- search, fact-checking with multiple sources, and interview tech- niques. A critical feature of the media's ability to sustain their key role in society is an ingrained understanding among media workers of the importance of maintaining trust, independence, and integrity. For broadcasters, this is a particularly important responsibility. Whether intentionally or not, broadcasters influence their audiences' tendencies and outlook, and so have a very real effect on society at large. What people hear every day over the airwaves has a pervasive impact on people's sense of what is normal and acceptable. This in- cludes their inclination and ability to think critically, to listen actively or passively, to express their views openly and clearly or to stay with- drawn, to discuss differences in points of view analytically and re- spectfully or to become hostile and ad hominum. The content and style of broadcasting can have a strong impact on the listening public's skills and interest in civic engagement, its ability to manage and prevent conflict, and its confidence to partici- pate in and help shape the directions of their communities and soci- ety. In 1998, a local nongovernmental organization in southern Albania put it this way, when explaining why they planned to start a community radio station: There's a lot of help going to parliament and other structures of government in Albania. But here, people generally don't disagree strongly and still stay calm so they can keep talking. They take it personally and get angry with each other, and then get violent. We need talk shows and roundtables on the air, to model how to debate issues and deliberate, even with very different views. We need this to develop a culture of democracy. 15 This explanation underlines the role of broadcasting, and particularly of community radio, as a stimulant to local deliberation and debate. 15 Auron Tare, speaking on behalf of plans for Radio Butrinti, established in Saranda, Albania in 2000. 262 Broadcasting, Voice, and Accountability Regional and national media, by their nature, generally fail to establish that connection with local level realities, especially in countries with large poor populations often pushed to the margins of mainstream public debate. Here is where community radio can have a huge impact, helping the less well connected majority to have their concerns dis- cussed. Key Policy Reforms Of all the measures discussed in this guide, several stand out as ones that demand priority attention and where significant progress can potentially be made. Overall, protection of freedom of expression is fundamental. Without it citizens can neither engage each other effec- tively nor hold their governments to account. And without it, inde- pendent media development will be confounded. In that context, three areas of reform are extremely important for broadcasting sector development: 1. Developing an effective and accountable regulator, inde- pendent of both government and commercial pressure; 2. Enabling critique of public officials the media, without fear of prosecution or retaliation; 3. Promoting diversity and civic voice including through community nonprofit broadcasting. 1. Create an effective and accountable broadcasting regulator inde- pendent of both government and commercial pressures. Often a first major step in reforming the broadcasting sector is the creation of a broadcasting regulator that is independent both of government and of commercial interests. The task is not easy but merits early and concerted effort. The threat of regulatory capture- either by government or commercial interests-is ever present, especially in the early days when the regulator is building its cred- ibility and capacity. One strategy for addressing this is to institute specific mechanisms for public review of its decisions and proce- dures, including means by which the public can participate, and to generally ensure a high level of transparency and accountability within the organization. The effect is to build public confidence, which in turn can enhance authority and autonomy. Epilogue 263 2. Decriminalize defamation and remove protections for public officials. It is important to ensure that the wider legal environment enables and, if possible, facilitates public critique and investiga- tive reporting. This has a number of components, such as respect for the right to freedom of expression, and freedom of informa- tion laws, discussed in Part II of this guide. However, of all the perverse policies interfering with the robust functioning of the media for the public good, the excessive protection of officials from criticism, and the use of criminal sanctions for defamation, can have a particularly chilling effect on free discourse and thwart media's contribution. Given the political will, remedying this distortion would face few technical difficulties, and can make a significant difference to the practice of broadcasting journalism. 3. Promote diversity and civic voice: Open space for community nonprofit broadcasting and promote sustainable funding mecha- nisms for nonprofits. The overall goal proposed here is the creation of an environ- ment in which a range of different broadcast subsectors can emerge, from public service, to private sector, to community non- profit, and quite a few variations in between. The precise config- urations possible will depend on local circumstances and needs. But community nonprofit broadcasting, especially community radio, has a particular relevance in the context of a public interest approach given its capacity to address and create dialogue on matters of local interest; to cultivate habits and skills of citizen participation, including interacting with those in power; and to empower marginalized communities, including in their local lan- guages. The impact of community radio, where it is given the op- portunity to thrive, can be both direct and highly visible. An important first step is to recognize these different broad- casting subsectors in law, and for the licensing and taxation regime to differentiate requirements for community nonprofit broadcasters from those applied to commercial operators, with a view to eliminating barriers to entry and enhancing diverse vehicles for public debate, particularly for the poor. Licensing for community 264 Broadcasting, Voice, and Accountability nonprofit broadcasters should not impose fees, and should be streamlined in procedure. It should eliminate or greatly reduce technical requirements, compared to commercial broadcasters, and instead emphasize community participation in the owner- ship, management, and operation of the broadcasting station and support to the development and communication needs of the community served. Licensing for community nonprofit broad- casters should not place restrictions on their news and current events coverage, or uniform restrictions on their power and cov- erage; these should be determined instead on the basis of the needs of the community to be served and the topographical context. The community nonprofit sector is usually built initially on the en- ergy and commitment of the community itself. It can attract consid- erable donor support in some circumstances, but protracted reliance on this can have a negative impact. It is important to allow nonprofit broadcasters to mobilize resources from diverse sources, such as sponsorships, membership fees, announcements, and local advertis- ing. A central challenge is how to provide an ongoing core income and to create the conditions that will allow it to attract a diversity of other sources of funding. A good approach will also open a degree of distance between local commercial media and the community non- profit model by ensuring they do not directly compete, while main- taining complete autonomy from political interest by using a mechanism other than a government or parliamentary budgetary al- location. The French Radio Expression Support Fund (RESF), for ex- ample, gathers significant funding from a special tax levied on commercial radio and television advertising-a small tax on a rela- tively large pool-and redirects it toward" associative" radio, attach- ing certain conditions that include the capacity to attract local support and the production of quality programs of interest locally. These RESF resources are targeted to those stations that cannot mo- bilize more than 25% of their total resource needs from commercial advertising. Alternative public funding mechanisms are discussed in Chapter 12. Capacity Building for Broadcasting Reform and Development These policy and institutional steps should be complemented with the development of both regulators' and broadcasters' capacities. Epilogue 265 As new systems are put in place to simplify and accelerate licensing and frequency assignment to community nonprofits, the staff re- sponsible for implementing these systems will need concerted train- ing. Representatives of community broadcasters should participate in the same training since it is likely that the dialogue that will emerge from this shared experience will enable the procedures to be better tailored to realities, and both applicants and regulators get a clear sense of how the procedures are supposed to be implemented. Capacity building for broadcasters is also an important factor in enabling the sector to deliver on the public interest goals of cultivating active, constructive, social engagement. A key shortcoming at present is the lack of capacity of those who work in the broadcasting industry to maximize its potential for enhancing accountability, dialogue, and interaction. Such programs should of course include training in pro- gram production, moderating, and reporting. But they should also include training in how to structure roundtable discussions and clarify and enforce ground rules, how to encourage a diversity of views and a practice of acknowledging and building on each others' contributions, how to demonstrate critical analyses and deliberative pursuit of issues, how to maintain and encourage calmness and respect for all. For community nonprofit broadcasting, this extends to training of community reporters and producers, and stimulating people at the grass roots-even the very poor and marginalized-to raise questions that concern them, to critically evaluate the information they get, and to identify sources of information and local professional experts-the lo- cal nurse, the agricultural extension officer-to give regular programs and answer questions on the air. This mode of thinking and doing is one way of nurturing people's capacities for collective leadership. Successfully implementing steps toward a public interest approach to broadcasting demands leadership-at the political level in the early stages and, as progress is made, at every level within the sectors, in pub- lic service, private and community nonprofit sectors. Moreover, the very purpose of a broadcasting sector that encourages informed engagement is that it builds leadership capacities and practices throughout society. As experts pointed out consistently at a "Leadership Matters" con- ference in April2007} 6 leadership is not an individual responsibility or 16 World Bank Capacity Day 2007: "Leadership Matters-Vision, Effectiveness, and Accountability," Washington, DC, April19, 2007. 266 Broadcasting, Voice, and Accountability ability-it is a collective process. Building capacity for leadership needs to be experiential, iterative, and continuous. It is about building collab- orative capacities, abilities to respect diversity and work together de- spite differences, developing capacities to deliberate, analyze, propose and cocreate the future. A public interest approach to broadcasting development has the same goals. Bibliographical Annex This Bibliographical Annex is a collection of core documents and ref- erence materials designed to provide readers with summaries and links to the original text of source materials referred to in the guide, as well as other tools and materials that readers might find useful. These materials are organized into the following categories: 1. Media and Development (267-279) 2. Community Media (280-289) 3. Communication and Development (290-294) 4. Financing Broadcast Media (295-297) 5. Targeting an Audience for Broadcast Media (298-299) 6. Sustaining Broadcast Media (300-301) 7. Tool Kits and Handbooks on Community Media (302-309) 8. Mass Media: Gender, Race, and Youth Issues (310-311) 9. Information Communication Technology (ICTs) (312-316) 10. Assessing and Measuring the Impact of Information Communication Technology (ICTs) (317-319) 11. Impact Assessments, Monitoring, and Evaluation (General) (320-323) 12. International Declarations on Development and Freedoms of Expression, Communication, and the Press (324-326) 13. International Conventions and Covenants (327) 14. Responsibilities of Special Rapporteurs on Freedom of Expression (328-329) 15. Legal and Regulatory Development Frameworks for Broadcast Media (330-332) 16. Freedom of Expression, Access to Information, and Press Freedom (333-353) 17. Laws Evincing Good Practice on Freedoms of Information, Communication, and the Press (354-360) 18. Mass Media and Governance (361-365) 267 268 Bibliographical Annex 19. Mass Media and Democratization (366-373) 20. Cases and Comments on Freedoms of Expression, Communication, and the Press (374-377) This annex is designed to be used by government officials, media practitioners, civil society groups, and members of the general public who are interested in good practices in broadcasting policy, law, and regulation. While this annex is not exhaustive, it does provide an in- troduction to important broadcasting issues; key international stan- dards and good practice standard documents; useful materials that focus on evaluating communication, participatory projects, and ex- periences; impact assessment methodologies; useful instructional material to create and sustain broadcasting outlets (including com- munity radio stations), salient cases, and comments on freedoms of expression, communication, and the press; guidance on creation of locally specific policies, legislation, regulation, and institutions; and much more. TABLE 1 Media and Development Coverage Year Topic Source Summary Website Global 2006 Country BBC Webpage provides interactive drop menus, which allows users to http:/ /news.bbc.co.uk/1/hi/ Profiles Monitoring access full profiles of every country and territory in the world. country_profiles/ default.stm Each profile includes information on history, politics, economics, and background on key institutions. The webpage additionally allows users to access audio and video clips from BBC archives. Global 2006 Media Bias and Matthew Article examines how and why an uninformed consumer http:/ /faculty.chicagogsb. Reputation Gentzkow and generally infers that the quality of an information source is edu/ matthew.gentzkowI Jesse M. higher quality when its content (or reporting) conforms to that research/BiasReputation.pdf Shapiro consumer's prior expectations. It uses evidence to build a model of media bias in which firms slant their reports toward the prior beliefs of their target customers to build a reputation for quality. The article concludes, as the model indicates, that bias will be less severe when consumers receive independent evidence on the true state of the world and that competition between independently owned news outlets can reduce bias. Global 2006 Learning for Peter Taylor, Report examines perspectives on how to facilitate learning to http:/ /www.pnet.ids.ac.uk/ Social Change: Andrew Deak, bring about social change. It summarizes these perspectives docs/FLASC.pdf Exploring Jethro Pettit, from dialogue that occurred through e-forums and an Concepts, and Isabel Vogel international workshop in 2006. Methods and Practice Institute of Development Studies (!DSl N C'l ID N '-I Coverage Year Topic Source Summary Website 0 Global 2005 Public Service UNESCO The report examines and proposes strategies to strengthen the http:!/portal.unesco.org/ Broadcasting- cultural and educational functions of public service ci/en/ev.php-URL_ID= Cultural and broadcasting, in light of new technological and communication 1914l&URL_DO=DO_ Educational environments throughout the world. Chapter I examines how TOPIC&URL_SECTION= Dimensions the idea of public service broadcasting has evolved and how it 20l.html is linked to the idea of citizenship, which requires that it be de-linked from the political authority of the state and the (available in economic leverage of the market. Chapter 2 suggests that a English and French) strictly commercial approach to television (even in large, rich markets) is not reconcilable with cultural goals. Rather, it argues that broadcasting policy should provide for the maintenance, development, and support of strong, politically independent public institutions. Chapter 3 provides an overview and analysis of satellite broadcasting services in Asia. Chapter 4 examines the cultural and educational functions of public service broadcasting in Western Europe. Chapter 5 assesses the status of culture and education in electronic media programs in Eastern and Central Europe. Chapter 6 examines the educational and cultural functions of broadcasting liberalization in Sub-Saharan Africa. Finally, Chapter 7 explores the public service functions of community radio and television in Latin America. Global 2004 Read All About Christopher Article suggests that media is integral to economic reform, http://www.blackwellsynergy lt 1 Understanding Coyne and because of its consensus-building potential. It uses game .com/doi/pdf/ the Role of Peter Leeson theory to demonstrate how a free-media sector supports 10.1111/ j.0023-5962 Media in economic development by transforming potential conflict into .2004.0024l.x Economic coordination. A free-media sector that operates in a favorable Development legal environment and provides quality information is also a mechanism for coordinating the activities of politicians with the demands of the populace. The article also examines case studies to illustrate successful instances of this type of coordination (Poland, Hungary), continued prevalence of conflict (Ukraine), and coordination not in the public interest approach, identifies conditions that help determine what kind of approach is feasible in different contexts, and summarizes lessons learned (from World Bank experience) to implement a systematic approach to empowerment. It includes references to the importance of free and pluralistic media, as well as the fundamental importance of access to information, community media, and more. Global 2002 Media and the Chido E.F. Thesis paper examines the extent to which participatory http:! /www.comminit Empowerment of Matewa radio production contributes to the empowerment and .com/evaluations/ Communities for advancement of women and marginalized communities. It idmatewa/ sld-22 4l.html Social Change (A thesis additionally examines how community needs interests are submitted to the served by participatory radio production. The paper's University of methodology included interviews; observations of radio Manchester for listeners clubs; research mobilization of related articles, the degree of PhD documents, annual and general reports; and more. in the Faculty of Education) Global 2002 Strengthening United Nations Paper provides an overview of how local FM radio has http:!/www.unfpa.org/ Partnerships among Population Fund been used in countries throughout the world to promote upload/lib_pub_file/486_ Local FM Radio (UNPFl and health and development goals. It was created to inform filename_ I57_filename_ Networks and Population Media United Nations Population Fund country representatives of commmunityradio.pdf Reproductive Health Center (PMCl the potential use of local and community radio to achieve Agencies on health objectives. HlV/AlDS-A Review of the Effectiveness of Local FM Radio in Promoting Reproductive Health, HlVI AIDS Prevention, ~~..J r~-....l~- r:- .. : .... __ Global 2002 Distributing David Stromberg Chapter examines the effect of mass media on the recipients http:/ /www.iies.su.se/- News and of the political information it transmits, as well as what stromber/wbbook.pdf Political Influence Institute for information is actually received. It states that this process International influences policy formation because politicians generally Economic Studies, target informed members of the public and refer to well- Stockholm covered issues because informed people are more likely to University, and vote than uniformed people, and are also more likely to vote Centre for for the candidate who furthers their interest. The chapter Economic Policy additionally demonstrates that voters are more responsive to Research favorable policies that are thoroughly exposed by the media. Global 2002 Mass Media David Stromberg Article examines the incentives had by the media to deliver http:! /www.iies.su.se/- Competition, Institute for news to different groups and argues that the mass media stromberI MediaComp.pdf Political International affects policy because it provides most of the information (see also) http://www Competition, Economic Studies, people use to ascertain their voting preferences and offers a .iies.su.se/- stromberI and Public Policy Stockholm model that maps this phenomenon. Radio. pdf University, and Centre for Economic Policy Research Global 2002 World The World Bank Chapter lO of the report focuses on the development http://www. worldbank.org/ Development implications of the media (which the report defines to wdr/200!/fulltext/fulltext Report 2002: include broadcasting technologies, such as radio, television, 2002.htm Building and the Internet). Specifically, the report examines the role of Institutions for the media as a beneficial academic instrument, as a Markets mechanism to improve public health, and as a mechanism to affect politics and culture. It goes on to state that to be effective, the media must: l) be independent/accountable; 2) be characterized by high quality reporting; and 3) enjoy a N broad reach (to as much of the public as possible). ~ VI N '.J Coverage Year Topic Source C'l Summary Website Global 2001 World The World Report examines the various dimensions of poverty, http://web.worldbank.org/ Development Bank including the lack of adequate food, shelter, education, WBSITE/EXTERNAL/ Report health, and other deprivations, as well as vulnerabilities to TOPICS/EXTPOVERTY10, 200012001: health problems, economic dislocation, and natural contentMDK:20195989- Attacking disasters. It goes on to show how poverty yields pagePK:148956-piPK:2166 Poverty powerlessness, with particular regard to key social, political, I8-theSitePK:336992,00 and economic decisions. The report specifically identifies .html the lack of a freely flowing information exchange as a key barrier to economic development throughout the developing world, and remarks on the importance of JCTs. Global 2001 A Passion for Bruce Girard Book provides twenty-one alternative radio experiences, http://www.comunica.org/ Radio: Radio (editor) written by people from various countries who are passion/pdf/passion4radio.pdf Waves and actively involved in the medium. Community Global 2001 Who Owns the Simeon Djankov, Working paper examines the patterns of media ownership http://papers.ssrn.com/sol3/ Media? Caralee Mcliesh, in ninety-seven countries throughout the world. It papers.cfm ?abstract_id= Tatiana Nenova, concludes that in almost every country, the largest media 267386#PaperDownload and Andrei Shleifer firms are owned by either the government or by private families. It states that government ownership is more World Bank Policy pervasive in broadcasting than in printed media, and is Research Working generally associated with less press freedom; few, if any, Paper No. 2620 political and economic rights; and inferior social outcomes, and Harvard particularly in health and education. It further states that Institute of these negative aspects of government control are not Economic Research restricted to government monopolies of the media. Paper No. 1919 Global 1999 Development Amartya Sen Book states that development has been reconceived by the as Freedom promotion of human freedom and that open dialogue, civil freedoms, and political liberties are requisite to achieve sustainable development. The book tests this argument using several case studies, including countries in Africa, the Far East, and the former Soviet bloc. It focuses on the individual, in terms of agency and as a participant in economic, social, and political actions. The book states that there are five distinct types of instrumental freedom: I) Political Freedoms: opportunities to determine who should govern and on what principles, including the freedom of political expression and an uncensored press; 2) Economic Freedoms: opportunities to use economic resources for consumption, production, or exchange; 3) Social Opportunities: societal approaches to education, health care, etc., which influence both individuals' substantive freedom to live better and their effective participation in economic and political activities; 4) Transparency Guarantees: the need for openness and the freedom to deal with one another under guarantees of disclosure and lucidity; and 5) Protective Security: the need for a social safety net to prevent public misery, or even starvation and death. The book further demonstrates that development requires the removal of major sources of "unfreedom" (poverty, tyranny, poor economic opportunities, systematic social deprivation, neglect of public facilities, intolerance, and over-activity of repressive states) and that the market is generally able to contribute to high economic growth and to overall economic progress. The book warns that the importance of the market must be N secondary to the direct significance of the freedom to '-I interchange (words, goods, gifts, etc.). '-I N '-I Coverage Year Topic Source Summary Website 00 Global 1999 Radio and Gordon Adam and Handbook examines the role of broadcasting in http:/I data.unaids.org/ HIV/AIDS: Nicola Harford HIV I AIDS prevention. It focuses primarily on Publications/! RC -pubO 5/ Making a commercial and public service broadcasting. JC429-Radio_en.pdf Difference- The Essential Handbook UNAIDS Media Action International Global 1995 Our Creative UNESCO Report provides a reevaluation of development processes, http:!/unesdoc.unesco.org/ Diversity: to attend to the needs of various cultural groups; generally images/0010/001055/ Report of the addresses the role of media in development, including the 105586fo.pdf World imbalance of media control, which prevents many cultural Commission voices from being heard. It concludes with a list of ten on Culture and action items designed to sustain a continuing public forum Development on culture and development. Asia 2001 Media versus jan 5ervaes and Article examines the contemporary disagreement regarding http:!/www.wacc.org.uk/ Globalization Rico Lie how to conceptualize globalization in terms of its structural, wacc/content/pdf/1144 and Localization socioeconomic consequences, and which implications it has on state power and governance. It notes that this debate is essentially comprised of three separate theses on globalization: I) the (hyper) globalist perspective, 2) the skeptical or traditionalist perspective, and 3) the transformationalist perspective. The article examines these different approaches to globalization in light of Asian media and culture. Chile 2005 America Latina y juan Pablo Web page provides information on and a detailed electronic http:/ /www.radio.uchile.cl/ las Fortalezas de Cardenas diary about the influence and importance of radio in Chile, notas.aspx7idNota= \8\69 Ia Radiodifusion and in Latin America in general (including community (in Spanish) radio). Diario electronico: "Radio Universidad de Chile" East-Central \999 Using the Slavko Splichal Article provides an overview of how mass media might be http://www.wacc.org.uk/wacc/ Europe Principle of made accessible to citizens and used as a public instrument publications/media_developme Publicity to The World for the benefit of citizens, rather than as a vehicle for nt/archive/ 1999_3/using_ Create Public Association for reaching and persuading potential consumers and voters, the_principle_of_publicity_to_ Service Media Christian and/ or for generating profit and power. It states that create_public_service_media Communication public service broadcasting should receive public funding and not be controlled by the state or commercial interests. Ghana 2001 Regional Radio: Carla Heath Working paper examines the reaction of the state-owned http:/ /www.cjc-online.ca/ A Response by Ghana Broadcasting Corporation to the legalization of viewarticle.php7id=620 the Ghana private broadcasting in Ghana: the opening of regional FM Broadcasting radio stations. It provides an overview of the political and Corporation to economic context in which the stations were established, Democratization their structures, and examines their programming. The and paper concludes that with these new stations, the Ghana Competition Broadcasting Corporation is expanding and enhancing its public service mandate, though institutional structures and scarce financial resources have combined to prevent the GBC from becoming independent of vested interests from government, commerce, and nongovernmental N organizations. "' ID N QO 0 Coverage Year Topic Source Summary Website India 2001 Enlightened William Crawley Article provides an overview of the Indian broadcasting http://www.opendemocracy Regulation: and David Page experience, which serves as a case study of how democracies .net/ecology-publicservice/ The Future should carefully balance the needs of the market with the article_42.jsp Indian Way? interests of civil society. The article states India's broadcasting media has been driven by advertising and international business and is characterized by a relatively new sense of diversity, which has resulted in fewer public broadcasters. Mexico 1995 Social Uses and Lucila Vargas Book examines how and why race, ethnicity, class, and http://www.comminit.com/ Radio Practices: gender affect the extent and quality of people's participation materials/ materials/ The Use of International in development efforts in Mexico. The book (Chapter 2) sets materials-1146.html (for Participatory Communication out a methodology for examining the social and cultural purchase) Radio by Ethnic and Popular implications of participatory radio. Minorities in Culture- Mexico Westview Press Nepal 2004 Come Gather Suruchi Sood, Study explores the extent to which listening groups-or those http://gaz.sagepub.com/cgi/ around Manisha groups exposed to broadcast media-have higher levels of reprint/66/ II 63 Together -An SenGupta, Pius Raj correct knowledge about family planning, including intent to Examination of Mishra, and practice, and personal advocacy compared to nonlistening Radio Listening Caroline jacoby group members. The study concludes that listening groups' Groups in exposure to radio programs was positively related to correct Fulbari, Nepal johns Hopkins knowledge about family planning. Bloomberg School Gazette: The of Public Health International Center for Journal For Communication Communication Programs, Studies, Vol. Baltimore, MD 66(]):63-86 Peru 2006 Voces y Movidas Iorge Acevedo Book describes radio as a tool for democratic participation and http://www.cnr.org.pe/voces Radiociudadanas (editor) human development in Peru, using case studies and firsthand .pdf -Experiencias, accounts on the experience of those that have been involved ltinerarios, Coordinadora in radio (including community radio). y Reflexiones Nacional de desde Ia Radio Coordinadora Nacional de Radio Website surveys how donors, investors, media, and media http:! /www.bbc.co.uk/ Sub- 2006 Africa Media BBC World development organizations might collaborate to support and worldservice/trust/ Saharan Development Service Trust strengthen Africa's media sector. It provides a series of seventeen researchlearning/story 12006/ 12/ Africa Initiative reports on the state of the media in Angola, Botswana, 061212_amdi_index.shtml Research Cameroon, Democratic Republic of Congo, Ethiopia, Ghana, Reports Kenya, Mozambique, Nigeria, Senegal, Sierra Leone, Somalia, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe. Each report includes information about one of these Sub-Saharan African countries and examines media sector developments and emerging challenges to be faced by future media development activities. Each report also offers a specific case study that demonstrates good practices in media development in that country. United 1998 Public Television Monroe Price Article discusses the challenges and missed opportunities http:!/www.ijclp.org/ I_ 1998/ States in America associated with the role of public television in the United ijclp_webdoc_2_1_1998.html Project: Public States. Television and New Technologies N 00 N 00 N TABLE 2 Community Media Coverage Year Topic Source Summary Website Global n/a Civic Voice: The World Provides an overview of how public interest radio http:!/siteresources.worldbank Empowering Bank programming, including by community radio stations, can play .org/INTCEERD/Resources/ the Poor a vital role in empowering poor people, accelerating RADIObriefpdf through community and local level problem-solving, and introducing Community more demand for accountability. It additionally provides (see also) http://siteresources Radio background information on the World Bank's support to .worldbank.org/INTCEERD/ community radio in the context of several operational projects. Resources/RADIO - EACreport.pdf Global 2005 Community- Sean b Siochru Report examines how community-based networks and http:!/www.propoor-ictll based and Bruce technology, including community radio and related .net/ content/pdfs/ Networks and technologies, might facilitate economic and social development, OO_UNDP_Report_ Innovative Girard particularly strengthening the voice of communities. It states p.l-58.pdf Technologies: United Nations that despite ever-increasing access to information New Models to Development communication technology, many areas~particularly rural and Serve and Program poor urban~continue to be underserved. It suggests that Empower the community-owned infrastructure and networks might Poor effectively combat this trend. It will allow previously underserved people to draw on community resources and labor, which will promote sustainability, and expand in contexts previously characterized by market instability. The report argues in favor of community-owned networks because they have a stake in the continued development of the community. Global 2005 Public Service Indrajit Banerjee Sourcebook provides an overview of best practices concerning http:!I portal.unesco.org/ ci/ Broadcasting: A and Kalinga public service broadcasting, designed for media professionals, en/ev.php-URL_ID=20469 Best Practices Seneviratne, decision makers, students, and the general public. The &URL_DO=DO_TOPIC& Source Book AMIC (editors) sourcebook examines legal, regulatory, financial, and other URL_SECTION=20I.html UNESCO significant issues, such as editorial independence, universality, secured funding free of all pressures, distinctiveness, diversity, representativeness, unbiased information, education and enlightenment, social cohesion, citizenship, public accountability, and credibility. Global 2005 Evaluation of Heather Report examines the pilot phase of UNESCO's Community http://portal.unesco.org/ ci/ UNESCO's Creech, et al. Multimedia Center model en/files/22129/11477736959C Community MC~Evaluation_Final.pdf/ Multimedia UNESCO CM C +Evaluation~Final.pdf International Centers: Final Institute for Report Sustainable Development Global 2005 Community Kate Coyer Working paper provides a general overview of the purposes and http:!/www.lse.ac.uk!Depts/ Radio impacts of community radio, including its gradual emergence in global!EventsPDFs/GCSWork Licensing and national policies throughout the globe, as well as an shop~Annenberg/Coyer.pdf Policy: An examination of regulation trends, community radio legislation, Overview and licensing issues. It additionally provides a series of examples of community radio in various cultural and geographic contexts. Global 2003 Social World Bank Note examines how and why public interest and community http:! /siteresources.worldbank Accountability broadcasting is a sustainable, interactive asset for broad-based, .org/INTCEERD/Resources/ and Public participatory development. It shows that community media are RADlO~sdn76.pdf Voice through particularly important for people in the developing world to Community provide them with access to information and enable them to (see also) http://siteresources Radio articulate their concerns, give feedback to government, and .worldbank.org/INTCEERD/ Programming marshal information and local expertise to combat local problems Resources/RAD IOtranscript~ and grasp local opportunities. The note also states that community part !.pdf broadcasting allows populations in developing countries to be N 00 heard, become informed, shape knowledgeable opinions, learn (see also) http://siteresources ~ .worldbank.org/INTCEERD/ Resources/RAD!Otranscript~ part2.pdf Global N QO .!:> Coverage Year Topic Source Summary Website the give-and-take of informed dialogue, and to become more decisive agents in their own development, which might yield social accountability, decentralization, democratization, and poverty reduction. Global 2003 Community Steve Buckley Report examines the so-called digital divide and recharacterizes http:!/ifex.org/en/content/ Media and the it as a "communications divide" in light of the unequal access of view/full/67461/ UNESCO Information poor people to the global communications environment and the Society absence of structural measures and commitments to redress past imbalances. The report states that these people are thus deprived of the freedoms of information and of expression. To counteract this lack of access, the report suggests that community media are a vital means to enable public participation, strengthen cultural and linguistic diversity, and to promote gender equitable information society that includes the voices of the poor and the marginalized. Global 2001 Community Steve Buckley Report provides an overview of the concept of the "digital http:!/imfundo.digitalbrain Radio-The divide" and examines the need for investment in the .com/imfundo/web/tech/ New Tree of lmfundo information infrastructure of developing countries, particularly documents/kb 19/kb 19.pdf Speech Knowledge community media. It further examines potential challenges to Bank and the information infrastructure development, such as continuing United Kingdom mistrust among some communities in the developing world of Department for advanced communication systems. International Development Global 2001 Making Waves: Alfonso Book contains fifty case studies (in story form), half of which http:!/www.comminit.com/ Stories of Gumucio- detail community radio experiences in Africa, Asia, and Latin making-waves.html Participatory Dagron America. It further examines the impact of community radio on Communication The Rockefeller social change and community development. for Social Change Foundation Global 2000 Promoting S. T. Kwame Book provides case studies to present challenges faced by http:/ /www.unesco.org/ Community Boafo (editor) community media in African countries, such as insufficient webworld/publications/ Media in Africa economic, technical, and human resources. community_media/ UNESCO Global 1991 Les Mille et un Fran~ois Handbook examines several types of programming that might be (available in French and English) Mondes- Querre used by community radio stations. It also provides guidance for Manuel de community radio practitioners, in terms of south-south participation Radio Rurale FAO and creating programming that respects local cultures. Afghanistan 2002 The Potential Bruce Girard Study examines the potential of and provides recommendations http :1I comunica.org/ for Community and Jo van der for the establishment of community-based radio in Afghanistan. It afghanistan/cr_afghan.pdf Radio in Spek additionally provides examples of how community radio is able to Afghanistan support community development. It was designed to provide Communication agencies and organizations considering supporting radio, media, or Assistance communication activities in the Afghanistan. Foundation Australia, 2001 Community Eryl Price- Report provides an overview and comparison of community http:/ /www.commedia.org.uk/ Canada, Radio in a Davies and radio in Australia, Canada, France, Holland, Ireland, and South about-community-media/ France, Global jo Tacchi Africa to formulate specific recommendations related to the publications/publication-items/ Holland, Context: A development and implementation of the "Access Radio" community-radio-in-a-global- Community Ireland, Comparative scheme in the United Kingdom. context/ (for purchase) Analysis in Six Media and South Countries Association Africa Bolivia 2004 Community Alan O'Connor Paper examines the history and development of miners' radio Radio in Bolivia: (editor) stations in Bolivia and presents valuable lessons for community The Miners' The Edwin radio in general. N Radio Stations Mellen Press QO l.f1 N co Coverage Year Topic Source Summary Website C'l Bolivia 2001 Las Radios Carlos A Book examines community radio stations affiliated with Populares en Ia Camacho ERBOL (the main network of community radios in Bolivia), in Construcci6n Azurduy terms of whether their programming content promoted de Ia democratic participation. It additionally explores the impact of Ciudadania- Universidad some of these community radios on public opinion (see Enseiianzas de Andina Simon Chapter IX) and provides its methodology in an annex. Ia Experiencia Bolivar (UASB) de ERBOL en Bolivia Eastern 2003 Radio Bjorn Willum Report examines the role of Radio Maendeleo, a local http://www.i·m·s.dk/ Democratic Maendeleo and community radio station based in Bukavu (Eastern Democratic media/pdf/Radio%20 Republic of the Regional Republic of the Congo) in the regional peace process in South Maendeleo%2 Oand%2 Othe%2 0 the Congo Peace Process Kivu. The report concludes that Radio Maendeleo played a regional%2 Opeace%20process% in Eastern positive role in informing the local population in and around 20in%20Eastern%20Congo% Congo-A Bukavu about development issues and local politics as well as 20by%20Bjrn%20Willum% political analysis coordinating NCO work. It went on that the station's limited 2014%200ctober%202003.pdf prepared for broadcasting range prevented it from playing a larger, more International constructive role in the regional peace process. Media Support based on an assessment mission to South Kivu Europe 1998 Radio Publica Manuel Report examines local and community radio in Europe, with a Local Chaparro focus on Spain and local public radio stations in the Andalucia Escudero region. It provides an overview of how municipal radio stations brought about community-level telecommunications Fragua Editorial democratization and media decentralization. Ghana n/a Radios Wilna W. Training manual for community radio staff includes chapters on http:! /www.panos-ao.org/ Commun- Quarmyne community radio programming and participatory acting spip.php7article33 85 autaire: research, as well as how to engage community actors and Panos Afrique Apprendre a facilitate community participation. Participer-Un de !'Ouest Manuel de formation Ghana 2003 Enhancing Blythe McKay Study analyzes the role of Radio Ada in the livelihood of http:! /www.comminit.com/ Community fishermen in southeast Ghana. Following in-depth interviews, evaluations/eva12005/ over the Participatory Rural Appraisal WRAl activities, participant thinking-1408.html Airwaves: observation, and document analysis, the study concludes that Community fishermen in southeast Ghana rely on Radio Ada (among other Radio in a media) for information to sustain their livelihoods, because it Ghanaian fishing provides useful information related to fishing; promotes culture, Village identity, and community; provides access to news; creates opportunities for voice/dialogue; and establishes trust on local and regional levels. India 2005 Community Kanchan Paper provides four case studies of grassroots projects using http:/ /www.comminit.com/ Radio in India: Kumar S N community radio for development. These case studies evaluate evaluations/eval2005/ A Study School of community radio initiatives through interviews with project evaluations-llO.html Communication, managers and NCO personnel, as well as focus group discussions University of on the benefits of community radio. The publication provides a Hyderabad list of questions that were used during focus group discussions. India 2002 Community Population Paper provides overview of the processes by which the http:! /www.comminit.com/ Radio foundation of Population foundation of India created two community radio experiences/pdskdv4 2002/ Programs- India programs to teach listening groups about customs and practices experiences-1279.html India of the tribal community. N QO (see also) http://www. ...... comminit.com/ evaluations/idkdv 2002/ sld-23 64 .html N QO QO Coverage Year Topic Source Summary Website Latin 2001 La Radio Andres Geerts y Book examines the impact of community radio in Latin America Popular Frente Victor van America. The methodology included fieldwork and interviews al Nuevo Siglo: Oeyen (editors) with staff and audiences of seventy-four community radio Estudio de stations in twelve Latin American countries. The Annex ALER Vigen cia 2 provides a list of the instruments used to mobilize research. e Incidencia Latin 2001 Siguen Hernan Book surveys the opinions of thirty communication specialists America Vigentes las Gutierrez and working in Latin America, and provides an overview of popular Radios Maria Cristina community radio broadcasting in the region. The book includes Populares? Matta (editors) information on the impact of community radio on social change in Latin America in recent history. ALER Mali 2001 Impact Data- Mary Myers Project description provides information on Radio Douentza, http:!/www.comminit.com/ Radio one of the first independent community radio stations in Mali. evaluations/idmay IS/ Douentza Impact data indicates that the station has positively impacted sld-2298.html local communities despite a relatively small operational budget, and was widely regarded as a primary source of information. For example, those exposed to the radio were better informed about AIDS than other regions. Mexico 2002 La Radio lnes Cornejo Book analyzes the development of indigenous radio in Mexico, http:!/www.mexicanadecomuni lndigenista en Portugal with focus on the Yucatan region and assesses the impact of cacion.com.mx!Tables/ Mexico indigenous radio on social change. It provides the methodology FMB/fondoeditorial/radioind Fundacion used, which includes questionnaires, field interviews, and .html Manuel observation. Buendia Mozambique 2005 Assessing Birgitte jallov Paper provides impact assessment of eight community radios in http:! /www.comminit.com/ Community Mozambique. The methodology of the impact assessment pdf/lmpactAssessment Change: focused on the extent to which broadcasting responds to the FinalRadiojournalVersion.pdf Development public interest, including the quality of research, the use of of a "Bare culturally relevant formats, and how public feedback informs Foot" Impact subject matter; the rights and responsibilities of community Assessment radio volunteers; and whether the radio station stimulated Methodology desired development and social change. Senegal, 2006 INFORMO Roy Kessler Program report demonstrates that community radio stations are http:!/www.informotrac.org/ Guinea- mRAC and Martin an important part of south-south social engagement, which downloads/informotrac- Bissau, and Program- joint Faye facilitates poverty alleviation. The report focuses on mission_report. pdf Sierra Leone Review Mission achievements of the INFORMO(T)RAC Program. Report: A Review of the INFORMO mRAC (Initiative for Mobile Training of Community Radio) Program. South 2005 Community Anthony A Paper provides an overview of the evolution of community http:! /www.personal.psu.edu/ Africa Radio as Olorunnisola radio in post-apartheid South Africa, in which a three-part faculty/a/x/axo8/joburg/ Participatory broadcasting infrastructure (public, commercial, and manuscript.htm Communication community) replaced the State-run broadcasting monopoly in Post- (South African Broadcasting Corporation). Apartheid South Africa South 2004 When the Adele Mostert Paper provides a case study of ABC Ulwazi, which created http:! /www.ee4.org/Papers/ N 00 Africa Broadcast Ends, and Prof. john educational and development-related radio programs for EE4_Mostert.pdf \C) the Program Is van Zyl community radio stations in South Africa. The paper remarks Not Over: on the importance of holistic approaches to community radio N \0 Coverage Year Topic Source Summary Website 0 Maximising the programming, to make community radio programming Effectiveness of accessible to consumers of different social, economic, cultural, EE Programs at and psychological experiences. Community Radio Level South 2004 Media for AMARC Report assesses the amount of African community radio http:!/www.id2l.org/insights/ Africa, Sustainable Africa, Panos programming content that deals with sustainable development. insights58/art08.html Mali, Development Southern The report also highlights the importance of community media Senegal, Content Africa, in terms of facilitating community and national ownership of (see also) http:!/africa.amarc and Survey-A Pronatura· development agendas, particularly when programming content .org/files/M4SDStudy Zambia Baseline Study Chiapas- is broadcast in local languages. The report concludes that May041.pdf Report on Mexico, and "Community radio stations [on the African continent] are not Sustainable Open Society doing enough to ensure that local communities participate in Development Foundation, the selection and production of programs regarding sustainable Content/ South Africa development issues, especially in deciding what themes or Themes for topics to cover." Community Radio Stations in Africa and Central America Uganda 1999 Impact Data- Project description provides information on "Capital Doctor," a http:!/www.comminit.com/ Capital Doctor call-in radio show that began in 1994. Local Ugandans call in to experiences/pds07-ll-99/ the show and experts answer questions on health issues. experiences-244.html United 2003 New Voices: Anthony Everitt Report evaluates different approaches to the concept of http:/ /www.comminit.com/ Kingdom An Evaluation community radio (for the specific purpose of informing a evaluations/ steval/ sld-2l65.html of 15 Access regulatory agency how a station, "Access Radio," might be Radio Projects organized, funded, licensed, promoted, and regulate& (see also) http:/ /www.comminit The methodology of the report included broad scale .com/experiences/ pdskdv community questionnaires. ll2003/experiences-957.html Zambia 2001 Development Kitty Warnock Paper assesses the development impact of the Development http:/ /www.comminit.com/ through Radio Panos through Radio project at the local, community, and national pdf/zambiaDTR.pdf . Europe 1998 The Digital Age: Marcelino Oreja Report summarizes key elements of a European audiovisual http:/I ec.europa.eu/ avpolicy I European (chairman) policy: I) an examination of the role of audiovisual media in docs/library/studies/finalised/ Audiovisual public policy initiatives; 2) the establishment of digital hlg/hlg_en.pdf Policy-Report European broadcasting (in its many forms) to prepare for the information from the High Commission age; 3) development of European distribution and rights Level Group on management; 4) support broadcasters, in terms of distributing Audiovisual and financing audiovisual productions; 5) adapt existing support Policy measures for film/audiovisual content to current needs; 6) implement measures to support the funding of public service broadcasting; 7) develop regulatory regimes for audiovisual content; and 8) develop copyright safeguards for audiovisual production content. India 2004 Media Reform Ashish Sen Article provides an overview of the direction of media reform http://www.waccglobal.org/ in India: in India and examines mainstream and community media in wacc/publications/media_ Legitimizing The World India to ascertain whether the course of media reforms development/archive/2 004_1 I Community Association for conform to a larger and cogent media policy, or if they are media_reform_in_india- Media Christian symptomatic of a crisis management and reactive culture. legitimising_community_media Communication United 1997 Libel and the Eric Barendt, Book studies the impact of defamation law on several forms of http:! /www.questia.com/ Kingdom Media: The Laurence mass media in the United Kingdom and any resultant chilling PM.qst7a=o&d=l4370720 Chilling Effect Lustgarten, effect on free expression by the media, with particular regard to Kenneth Norrie, libel law. It further examines how the media handles libel risks, and Hugh the extent to which sources of media rely on outside legal Stephenson advice, and the use of insurance protection. TABLE 16 Freedom of Expression, Access to Information, and Press Freedom Coverage Year Topic Source Summary Website Global n/a A Model Article 19 Model law is a completed template, which might be adapted http:/ /www.article 19.org/ Freedom of for use by government officials. It includes the following pdfs/standards/modelfoilaw.pdf Information provisions: Definitions and Purpose; The Right to Access Law Information Held by Public Bodies; Measures to Promote Openness; Exceptions; The Information Commissioner; Enforcement by the Commissioner; Whistleblowers; Criminal and Civil Responsibility; and Miscellaneous Provisions. Global 2006 The Role of the Pippa Norris Background paper examines the impact of press freedom on http:/ /portal.unesco.org/ci/ Free Press in several indicators of democracy and good governance and en/ev.php-URL_ID= Promoting UNESCO details the distribution of press freedom and regional trends. It 21899&URL_DO=DO_TOPIC Democratization, (Meeting on concludes that a free press is significant for a range of good &URL_SECTION=20l.html Good World Press governance indicators, and it is an important part of the process Governance, Freedom Day: of democratization. It additionally interprets this conclusion in and Human Media, terms of strengthening political and human development to Development Development, alleviate poverty. and Poverty Eradication) Global 2006 Map of Press Freedom House Webpage offers an interactive map that displays the overall level http:/ /www.freedomhouse Freedom of press freedom in countries all over the world. It provides .org/template.cfm7page=251 & users with detailed, country-by-country analyses of the state (or year=2006 lack) of independent media and citizens' access to unbiased information. As of 2006, the overall global average score of press freedom, as well as the global average scores for the legal and political environment for press freedom, worsened. ~ ~ Ill "" "" C'l Coverage Year Topic Source Summary Website Global 2006 Freedom of Agnes Speech notes increasing instances throughout the world of http://www.article 19.org/ Expression and Callamard restrictions on freedom of expression, or attempted restrictions, pdfs/conferences/ Press Freedom: justified on the grounds of national security. It provides examples human-security-speech.pdf Article 19 Protecting and of laws that restrict press freedoms, with particular regard to Respecting antiterrorism efforts, in the name of national security. The speech Human Security argues that these restrictions are not an appropriate response to security threats. It provides an overview of the approach set out by the johannesburg Principles, which are twenty-five principles that detail a limited scope of restrictions, which might be imposed upon freedom of expression, press freedom, and access to information in the interest of national security. Global 2005 Freedom and Sara Buchanan, Report provides an overview of how countries in Western http://www.article 19.org/pdfs/ Accountability: Luitgard Europe, particularly Sweden, Germany, and the United publications/self-regulation- Safeguarding Hammerer, and Kingdom, have developed press councils or complaints south-east-europe.pdf Free Expression Oliver Money- commissions to achieve media self-regulation, which promotes through Media Kyrle (editors) freedom of expression and of media, as well as regulatory Self-Regulation accountability. It further examines initiatives in five countries in Article 19 Southeast Europe (Albania, Bulgaria, Bosnia and Herzegovina, Romania, and Slovenia) designed to improve journalistic standards and establish media self-regulation, using testimonials from key stakeholders in the process, such as media owners, editors, journalists, and nongovernmental organizations. Global 2005 Freedom of Richard Carver, Manual is designed to provide lay persons-primarily public http:!/www.article 19.org/pdfs/ Information: et al. officials-with an introduction to principles underlying freedom tools/foitrainersmanual.pdf Training Manual of information. It describes how public bodies might provide Article 19 for Public public access to information, communicate with requesters who Officials are entitled to information, and details the processes by which requests for information are handled. Global 2004 What's the Amartya Sen Article argues that an independent media provides a voice to the http:! /www.wan-press.org/ Point of Press neglected and disadvantaged, while simultaneously preventing article.php3 7id_article=3 881 Freedom7 World governments from insulating themselves from public criticism. It Association of further reiterates Sen's famous observation that no substantial Newspapers famine has occurred in any independent country with a democratic form of government and a relatively free press. Global 2002 Press Freedom, Rudiger Ahrend Working paper provides an overview of how a key function of a http:!/papers.ssrn.com/sol3/ Human Capital, watchdog press is to expose corruption, and the related papers.cfm 7abstract_id=620 I02 and Corruption development implications. It states that there is an inverse correlation between the extent of corruption in a country and variables that indicate its development level. It also points to empirical evidence that demonstrate that countries with high levels of press freedom have lower levels of government corruption. Global 2002 Access to the Toby Mendel Document sets out principles, or standards, on how to promote http:!/www.article 19.org/pdfs/ Airwaves: and protect independent broadcasting and simultaneously ensure standards/ accessairwaves.pdf Principles on Article 19 that broadcasting serves the public interest as a whole. They Freedom of include broad standards on how to regulate in the public interest, Expression and as well as how to prevent this regulation from becoming a means Broadcast of government control. They additionally provide guidance on Regulation how to address the need for regulators to prevent commercial interests from becoming excessively dominant. Global 2000 Voices of the Deepa Narayan, Book draws on research conducted in 1999 involving over http:! /www.-wds.worldbank Poor: Crying Robert 20,000 poor women and men from twenty-three countries to .org/external/default/ out for Change Chambers, highlight the common theme of powerlessness. The book WDSContentServer/ Meera K. Shah, examines ten dimensions of powerlessness that emerge from WDSP/IB/2001/04/07/0000949 and Patti the study and presents the methodology and the challenges 46_01032805491162/Rendered/ ~ Petesch faced in conducting the study. The book includes remarks on PDF/multiOpage.pdf ~ the importance of access to information as a way to counteract "-J The World Bank ~ ~ 00 Coverage Year Topic Source Summary Website powerlessness, as well as how media are important awareness- raising tools in the developing world. Global 1999 The Public's Article 19 Report details a step-by-step analysis of international principles to http:/ /www.article 19.org/pdfs/ Right to Know: assist readers to measure whether domestic laws (in the reader's standards/righttoknow.pdf Principles on country) genuinely permits access to official information, and for Freedom of governments to achieve maximum transparency. The report Information generally refers to broadcast media, under the rubric of the Legislation freedom of expression through any media. Global 1996 The Article 19 johannesburg Principles comprise twenty-five principles http://www.article 19.org/pdfs/ johannesburg suggested by a group of experts in international law, national standards/joburgprinciples.pdf Principles on security, and human rights, based on international and regional National law, and international standards relating to freedom of Security, expression and access to information. The principles are divided Freedom of into four sections: General Principles, Restrictions on Freedom Expression, and of Expression, Restrictions on Freedom of Information, and Access to Rule of Law and Other Matters. Information Global 1994 Guidelines for Patrick Merloe, Study examines the role of election campaign broadcasting in http :1/www.article 19 .org/pdfs/ Election with Sandra transitional democracies and the relationship between free and standards/ election-broadcasting- Broadcasting in Co liver fair elections and access to television and radio, and stresses in-transitional-democracies.pdf Transitional that respect for freedom of expression, particularly during Article 19 campaign periods, increases the likelihood of success for a Democracies democratic transition. It additionally draws from the experiences of both transitional and more mature democracies, as well as from principles of international law, to provide a set of guidelines concerning broadcast coverage of election campaigns based on international law and practice. Global 1993 The Article 19 Sandra Coliver Handbook provides summaries of decisions from courts around http:/ /www.article 19.org/pdfs/ Freedom of the world that establish precedents that protect the rights to publications/ 1993 -handbook. pdf Article 19 Expression freedom of expression, assembly, association, and access to Handbook: information. It additionally provides summaries of relevant International international case-law (those that both protect and restrict and freedoms), and basic information about human rights treaties Comparative and procedures for filing complaints with intergovernmental Law, Standards bodies. The handbook is designed for use by lawyers, and Procedures researchers, and human rights campaigners. Global 1964 Mass Media Wilbur Schramm Study provides an overview of the role of mass media in http:/ /ann.sagepub.com/cgi/ and National development. It argues that development agents might use content/ citation/3 60/ I/204 Development: UNESCO powerful media outlets to communicate messages about The Role of technological innovations in the course of development (for purchase) Information in initiatives. the Developing Countries. Afghanistan 2007 Presentation to Toby Mendel Presentation to the Religious and Cultural Affairs Commission http:! /www.article 19.org/pdfs/ the Religious of the Afghan National Assembly on the development of conferences/ afghanistan- Article 19 freedom of expression principles and the draft media law. media-presentation. pdf and Cultural Affairs Commission of the Afghan National Assembly Africa 2003 "Our Culture" Keyan Tomaselli Article examines perspectives on freedom of the press in Africa, http:! /gaz.sagepub.com/cgi/ vs "Foreign with regard to professionalism, essentialism, and citizenship, and content/ abstract/ 6 5/6/4 2 7 ~ Culture" -An critiques the insistence by some African media academics that ~ Essay on the media must exhibit "African values." It also examines the (for purchase) Ill Ontological and role of authority in determining the way ~ ~ 0 Coverage Year Topic Source Summary Website Professional that the media are understood by communication students in Issues in African some African countries, and argues for a greater integration of Journalism cultural and media studies into journalism education to broaden cultural perspectives among journalists. The article additionally provides suggestions on how to address these issues in course curricula. Africa 1999 The Right to Sally Burnheim Report examines a comparatively subtle form of censorship: http://www.article I9.org/pdfs/ Communicate: some African governments are moving to control the provision publications/africa~internet.pdf Article 19 The Internet in of Internet services through monopolies of existing Africa telecommunications services. It details examples where some governments have assumed total control of new technology, to retain sole access to the revenue, and in some cases to exert control over users. The report further presents the dangers associated with the lack of adequate telecommunications, and thus, the society's ability to develop depends on lack of access to information and constraints on the freedom of expression in Africa. Armenia, 2005 Under Lock and lryna Smolina Report provides an overview of the extent of the http:!/www.article 19.org/pdfs/ Azerbaijan, Key: Freedom Article 19 implementation of freedom of information legislation in publications/under~lock~ and of Information Armenia, Azerbaijan, and Georgia, and the impact of this and~key.pdf Georgia and the Media legislation on the media in these three countries. It additionally in Armenia, provides summaries of the evolving media landscapes in each Azerbaijan, and of the three countries. Georgia The 2005 Conference Article 19 Conference report provides an overview of the importance of http:/ /www.article 19.org/pdfs/ Balkans Report on media self-regulation in the context of Southeastern Europe to conferences/ sarajevo- Freedom and safeguard media independence, enhance media conference-report. pdf Accountability professionalism, and reduce judicial action against the industry. Conference on Media Self- Regulation in Southeast Europe Bulgaria 2003 Memorandum Article 19 Memorandum analyzes the draft law and finds that while it http:/ /www.article 19.org/pdfs/ on the Draft provides guarantees for the independence of the agencies analysis/bulgaria-broadcasting- Law on Radio responsible for regulating the Bulgarian broadcast sector law-2003.pdf and Television (including an explicit though general provision concerning the of the Republic independence of the principal regulatory agency), these of Bulgaria provisions do not go far enough, particularly regarding appointing members to these bodies. It additionally praises the law's treatment of sources of funding for the national broadcasters, increased advertising quotas, and the creation of new governing bodies for the national broadcasters, and states that the criteria for the grant of broadcasting licenses and frequencies should be more specific. Cambodia 2006 Freedom of The Community Study analyzes Cambodia's Press Law, which contains provisions http://www.article 19.org/pdfs/ Expression and Legal Education that are intended or might be construed to regulate or control publications/ cambodia-baseline- the Media in Center, with the press. It additionally generally examines the status of the study. pdf Cambodia Article 19 and media in Cambodia, with particular regard to media ownership the Human and the laws regulating its functioning, with reference to Rights and international standards. It further provides recommendations - ~ .a:. Development Association aimed at the media and the government, to promote the development of a diverse and free media environment that promotes and protects the freedom of expression. ~ ~ N Coverage Year Topic Source Summary Website Cambodia, 2006 Freedom of Article 19 and Series of 7 reports that examine the freedom of expression and http:!/www.article 19.org/pdfs/ Ttmor Expression and the Center for the media in the Philippines, Singapore, Thailand, Indonesia, and publications/malaysia-baseline- Leste, the Media in Media Freedom Timor Leste in light of continuing violence and challenges to study. pdf Indonesia, the Philippines, and providing citizens with balanced and objective information. The http://www.article 19.org/pdfs/ Malaysia Singapore, Responsibility reports also provide a series of recommendations, including publications/singapore-baseline- Philippines, Thailand, institutionalizing measures to prevent violence against journalists, study. pdf Singapore, Indonesia, and legislation and constitutional amendments to permit foreign http://www.article 19.org/pdfs/ and Timor Leste investment in the media sector, and other strategies to bring the publications/philippines-baseline- Thailand media policy and regulatory environment in these countries in study. pdf line with international standards and good practices. http:!/www.article 19.org/pdfs/ publications/thailand-baseline- study. pdf http :1/www.article 19 .org/pdfs/ publications/indonesia-baseline- study.pdf http:! /www.article 19.org/pdfs/ publications/timor-leste-baseline- study.pdf Cook 2007 Memorandum Article 19 Memorandum analyzes the 2006 Cook Islands "Act to http:/ /www.article 19.org/pdfs/ Islands on the Draft Establish the Media Commission," in light of international analysis/cook-islands-media- Media Act of standards on the right to freedom of expression. It focuses the law-06.pdf the Cook functions of the national commission, established by the act, Islands which would be granted broad regulatory powers over radio, television, print, and Internet media content in the Cook Islands. It would additionally not only license broadcast media, but also monitor the extent to which all media comply with "community standards and expectations" and hear and decide complaints brought by members of the public, as well as levy fines. The memorandum expresses concerns over these expansive powers. Ethiopia 2003 Briefing Note Article 19 This briefing note provides an overview of the concerns relating http:! /www.article 19.org/pdfs/ on the Draft to the draft Ethiopian Proclamation Concerning Press Freedom. analysis/ ethiopia-media-law.pdf Ethiopian It concludes that draft proclamation is overbroad in terms of its Proclamation scope, includes problematic restrictions on who may practice Concerning journalism, and provides for a government-controlled licensing Press Freedom system for media outlets. Also, the draft law provides for restrictions on access to information held by public authorities and broadcasting and publication content restrictions. It further provides for the establishment of a government-controlled Press Council with powers to prepare and enforce a code of ethics, powers vested in the prosecutor to suspend media outlets, and a harsh sanctions regime. Europe 2001 Problems with a Risto Kunelius Article discusses problems associated with the application of the http:! /www.javnost-thepublic.org/ European and Colin Sparks concept of the public sphere to the current situation in the media/datoteke/ 2001-1- Public Sphere: European Union. It states that the mass media in the European kunelius.pdf An Introduction Union remain predominantly organized along the lines of the constituent states of the union rather than on any genuinely transnational basis, which creates tension between ways issues are discussed: European issues versus issues of national interest. Fiji 2006 Submission on Article 19 Memorandum analyzes the proposed 2006 Fijian Broadcast http :1/www.article 19 .org/ the 2006 Licensing Bill and provides recommendations to promote pdfs/analysis/fiji-broadcasting- Broadcast independent regulation of broadcasting, particularly regarding law. pdf Licensing Bill of the manner in which members of the Broadcast Licensing Fiji Authority are appointed. It suggests that the bill establish a balance between providing the broadcast regulatory body with powers over broadcasting to achieve public interest purposes, and safeguarding the body's independence from potential ~ governmental or commercial interference. ,j:o. ~ ~ ""' ""' Coverage Year Topic Source Summary Website Georgia 2006 Comments on Article 19 Comment provides recommendations on the format and http:!/www.article 19.org/pdfs/ the Draft structure of Georgia's Broadcasting Code of Conduct, to analysis/georgia-broadcasting- Georgian improve its user-friendliness for broadcasters and its suitability coc.pdf Broadcasting for enforcement by the Georgian National Communications Code of Commission. Conduct Hong Kong 2006 Submission to Article 19 Report examines the role and justification of public service http://www.article 19.org/ the Committee broadcasting in Hong Kong in light of public financial and other pdfs/analysis/hong-kong-psb.pdf on the Review resources required, and provides an overview of Radio Television of Public Hong Kong's accountability, with regard to broadcasting Service regulation. The report recommends that Radio Television Hong Broadcasting in Kong be re-established as an independent broadcaster, governed Hong Kong by a board that represents the people of Hong Kong. It further recommends ways in which the broadcasting administration might evaluate the effectiveness of public service broadcasting, and how to engage the public in such a process. Iran 2006 Memorandum Article 19 Memorandum examines the legal framework regulating the http:!/www.article 19 .org/ on Media media in Iran (including the Constitution, the Press Law, and pdfs/analysis/iran-press-law. pdf Regulation in the Penal Code) in light of international standards governing the Islamic the right to freedom of expression. It details constraints to Republic of Iran freedom of expression under this legal framework, with particular regard to broadcasting content restrictions (television and radio broadcasting are controlled by a State broadcasting monopoly under the Constitution) and harsh penalties for violations of the Press Law. Iraq 2006 A Media Policy Article 19 and Proposal outlines a draft policy for the development of a free and http:/ /www.article 19.org/ for Iraq UNESCO independent Iraqi media. It includes safeguards that balance State pdfs/ analysis/iraq-media- intervention in certain areas with nonintervention in other areas. It policy. pdf further promotes the right to freedom of expression of the media, and provides for the public's right to receive information on matters of public interest from a variety of sources. Israel 2007 Memorandum Article 19 Memorandum analyzes Israel's 1965 Broadcasting Authority http :1 /www.article 19 .org/ on the Law in light of international standards on freedom of pdfs/analysis/israel-psb-07.pdf Broadcasting expression and public service broadcasting and provides Authority Law recommendations on how the Israel Broadcasting Authority of the State of might improve its governing bodies, structure of governance, Israel financial arrangements, and accountability to the public. Jordan 2006 Memorandum Article 19 Memorandum provides an analysis of the Audiovisual Media http :1/www.article 19 .org/ of the Audio- Law of the Kingdom of Jordan and its accompanying bylaws in pdfs/analysis/jordan-audiovisual- Visual Media light of international standards, comparative constitutional law media-law. pdf Law of the and good practices in countries around the world. It further Kingdom of outlines Jordan's international and constitutional obligations to Jordan ensure freedom of expression. Kazakhstan 2007 Memorandum Article 19 Memorandum analyzes the 2006 draft Law of Kazakhstan "On http:!/www.article 19 .org/ on the Draft Law Publishing," in light of international standards on the right to pdfs/analysis/kazakhstan- of the Republic freedom of expression and details concerns regarding the publishing-06.pdf of Kazakhstan licensing scheme and the publishing restrictions proposed in the "On Publishing" draft law. Kazakhstan 2007 Memorandum Article 19 Memorandum analyzes Kazakhstan's Law on Mass Media in http:/ /www.article 19 .org/ on Kazakhstan's light of international standards on the right to freedom of pdfs/analysis/kazakhstan-media- Law on Mass Representative expression, and details concerns regarding restrictions on the la.pdf ~ ,j:o, Media on Freedom of development of a free, independent, and pluralistic media in 1.11 the Media of the Kazakhstan and the public's right to receive information on Organisation for ~ ""' C'l Coverage Year Topic Source Summary Website Security and matters of public interest. The memorandum provides Cooperation in recommendations on strengthening the law's provisions related Europe to regulatory authorities; the right to publish and registration; content and language restrictions; journalists' rights and obligations; the right to freedom of information; the right of reply; the duty to deposit copies of all publications with central agencies; and the accreditation regime. Kenya 2006 Statement on Article 19 Statement details concerns regarding the proposal of statutory http://www.article 19 .org/ the Draft Media regulation of the media in Kenya, which risks endangering the pdfs/analysis/kenya-media- Council of independence of the media and impinging on the free flow of council-bill.pdf Kenya Bill information. The statement emphasizes the importance of media self-regulation. Korea 2003 Media, the Hun Shik Kim Article examines the diversification of the news media in Korea http :1/www.springerlink.com/ Public, and from the 1990s, as a result of deregulation and content/kl4n7237267t4855/ Freedom of the democratization. lt additionally examines the impact of media (for purchase) Press diversity on the public's use patterns and its trust in the media and evaluates the current state of freedom of the press in Korea. The study concludes that the Korean press still faces a variety of restraints, despite improvements in certain areas. Kosovo 2003 Memorandum Article 19 Memorandum outlines Kosovo' s international and http:!/www.article 19.org/ on the Law of constitutional obligations, with an emphasis on freedom of pdfs/ analysis/kosovo-broadcast- Broadcasting expression and its implications regarding broadcast regulation, comm.pdf through the and also examines the draft law in light of these obligations, establishment of and provides suggestions for improvement. the Independent Media Commission Kyrgyzstan 2005 Memorandum Representative Memorandum analyzes the Law of the Kyrgyz Republic on http:! /www.article 19.org/pdfs/ on the Kyrgyz on Freedom of Mass Media and the the Law of the Kyrgyz Republic on the analysis/kyrgyzstan-media. pdf Mass Media the Media of the Professional Activity of the journalists in light of international Law and the Organization for standards on the right to freedom of expression. It sets out Law on Security and concerns regarding provisions within these laws that grant the journalists' Cooperation in regulatory authority broad power to restrict content, suspend Activities Europe and media outlets on broad grounds, and impose a registration Article 19 regime that might be abused for political purposes. Both laws additionally impose "journalistic duties" that would be unnecessary if the laws included self-regulation provisions. Latvia 2005 Memorandum Representative Memorandum examines both draft laws in light of international http:/ /www.article 19.org/pdfs/ on a Proposal on Freedom of standards on freedom of expression and broadcasting analysis/latvia-psb. pdf for a Draft Law the Media of the regulation, with particular attention to the proposed funding on Public Service Organization for structure of public service broadcasting organizations, as well as Broadcasting Security and the proposed safeguards for their independence. This Organizations Cooperation in memorandum further examines the proposed new regulatory and a Draft Law Europe and plan for the broadcasting sector in general, and analyzes on Radio and Article 19 provisions concerning content restrictions and the proposed Television in structure for the right of reply. Latvia Liberia 2005 Comments on Article 19 Comment provides an overview and suggestions to improve http:! /www.article 19.org/pdfs/ the Liberian the Liberian draft Law and Policy Providing for the analysis/liberia-psb.pdf Draft Law and Establishment of the National Public Broadcasting Service. It Policy Providing details how the draft law ensures the effective independence of for the the new broadcaster from government and commercial forces, Establishment of as well as its accountability to the people in terms of finances the National and program content. It additionally examines the draft law's ~ Public treatment of programming objectives. Broadcasting ""' "'-~ Service I.H ~ 00 Coverage Year Topic Source Summary Website Macedonia 2003 Memorandum Article 19 Memorandum provides an overview of how the draft law, which http://www.article l9.org/pdfs/ on the Draft proposes an overhaul of the legislative regulatory framework for analysis/ macedonia-bro.03 .pdf Broadcasting broadcasting in Macedonia, is generally based on international Law of law and good comparative practice, and would thus enhance the Macedonia right to freedom of expression in broadcasting in the country. Specifically, the law proposes the establishment of a new broadcast regulator, as well as a new legislative framework for the establishment of a Macedonian public service broadcaster. It additionally introduces a set of program standards for all broadcasters-public and private-and it includes protections relating to the confidentiality of journalists' sources. It also requires public authorities to release information on matters of public interest. The memorandum additionally offers some recommendations to bring other aspects of the law in line with international standards and good practices. Malawi 2004 Memorandum Article 19 Memorandum examines the way in which the 1998 Malawi http:/ /www.article l9.org/pdfs/ on the Malawi Communications Act regulates the country's broadcasting analysis/ malawi.bro.03 .pdf Communications sector in light of international standards on freedom of Act of 1998 expression. It also generally explores the constraints and regulations that the act imposes on broadcasters. Malaysia 2006 Memorandum Article 19 Memorandum provides drafting assistance on Malaysia's 2006 http:!/www.article l9.org/pdfs/ on Malaysia's Press Council Bill, to encourage the establishment of an analysis/malaysia.prs.06.pdf 2006 Press independent, self-regulating Press Council that promotes press Council Bill freedom and professional and ethical journalism. It focuses on strengthening the Press Council's independence and structure using international standards governing the right of freedom of expression and freedom of the press. The 2007 Note on the Article 19 Note critiques the draft Broadcasting Bill of the Maldives, using http://www.article 19.org/pdfs/ Maldives Draft international standards relating to broadcast regulation and analysis/maldives-broadcasting- Broadcasting Bill democratic governance. analysis. pdf of the Maldives Mongolia 2002 Memorandum Article 19 Memorandum offers an overview of key international standards http://www.article 19.org/pdfs/ on the Law of and provides recommendations on how concerns with Mongolia's analysis/mongolia.psb.02.pdf Mongolia on Law on Public Radio and Television might be addressed. These Public Radio recommendations relate to the process of appointing the and Television Representative Governing Board, which is largely under the control of government and all of the shares of the broadcaster are vested in the government; the draft law's treatment of the role and mission of the public broadcaster; and the lack of guaranteed access to particular public sources of funding (or any detail regarding how public funding would operate). Namibia 2006 Memorandum Article 19 Memorandum analyzes Namibia's draft communications bill http://www.article 19.org/pdfs/ on the Draft using international standards on freedom of expression and analysis/namibia-broadcasting- Communications broadcast regulation, and provides recommendations on the law.pdf Bill of Namibia nature and functions of the proposed regulatory body, and on the regulation of broadcasting services, with particular regard to the independence of the body. It states that without sufficient guarantees of independence, the regulatory body might be subject to ministerial influence or control. Nepal 2006 Submission to International Submission provides observations and recommendations to http://www.article 19.org/pdfs/ the High Level Press Freedom promote media freedom in Nepal, which are consistent with analysis/nepal-media- Media Council and Freedom of international standards. It specifically provides submission. pdf (Nepal) Expression recommendations on amending Nepal's Interim Constitution to ~ Mission to Nepal provide for greater protection for freedom of expression and of .a:. the media; reforming the State media to guarantee structural \0 independence; promulgating legislation providing for .... Ill Q Coverage Year Topic Source Summary Website governmental transparency and giving full effect to the right to know; amending the Working journalists Act of 1995 to improve protection for journalists; and encouraging comprehensive reforms of media law and regulation in Nepal. Palestine 2006 The Legal Toby Mendel Provides a general legal framework for media in Palestine using http:!/www.article 19.org/pdfs/ Framework for and Ali Khashan international standards and good practices. analysis/palestine-media- Media in framework. pdf Palestine and under International Law Republic of 2006 Memorandum Article 19 Memorandum analyzes the draft Audiovisual Code of the http :1/www.article 19 .org/pdfs/ Moldova on the Draft Republic of Moldova in light of international standards on analysis/moldova-audiovisual- Audiovisual freedom of expression. It remarks that the draft code seeks to code. pdf Code of the regulate the country's entire broadcast sector, including the Republic of awarding of licenses to privately owned channels and the Moldova management of the country's public service broadcaster. It additionally details concerns regarding the proposed centralization of responsibilities within the new regulator, which will additionally act as the supervisory body for the public service broadcaster. The memorandum also details concerns regarding the absence of provisions that provide for community radio in the draft code. Republic of 2005 Key Article 19 Report provides a series of recommendations designed to bring http:!/www.article 19.org/pdfs/ Montenegro Recommendations the Republic of Montenegro's draft Law on Free Access to analysis/montenegro-recs- on the Law on Information in line with international standards and good may-2005.pdf Free Access to practices. Information of the Republic of Montenegro Romania 1997 Romania: An Monica Report examines the framework of media law and policy in http:! /www.article 19.org/pdfs/ Analysis of Macovei, with Romania, and offers recommendations on how Romanian law analysis/romania-media-law-and· Media Law and Ed Rekosh (related to freedom of expression) might be brought in line practice. pdf Practice with international standards, particularly those of the European Article 19 Convention on Human Rights. It is intended to be a resource for Romanian journalists and legislators. Russia 2003 Memorandum Article 19 Memorandum provides a provision-by-provision analysis of the http:! /www.article 19.org/pdfs/ on Russian Russian federal government's Law "On Mass Media," as well as analysis/russia.med.03.pdf Federal Draft its compliance with international standards. It praises the law for Law "On Mass including a clear prohibition against State censorship, protecting Media" confidential sources, and establishing a system to allocate licenses to private broadcasters. However it concludes that the law lacks provisions that ensure independence of the regulatory bodies, regulates journalists' rights and duties, and imposes content requirements. Sierra 2004 Sierra Leone- Search for Study evaluated the role of information in social change in http:!/www.sfcg.org/sfcg/evaluat Leone Key Findings Common Sierra Leone, as well as the effectiveness and impact of Search ions/ summary_sl.pdf#search= from 2004 Ground (SFCGl for Common Ground's efforts in the country. Evaluators %22Community%20radio%20 External conducted interviews with stakeholders (including individuals, evaluation%22 Evaluation focus groups, and representatives from certain organizations). The evaluation includes feedback from historically disadvantaged groups. Solomon 2003 Memorandum Article 19 Memorandum analyzes the Broadcasting 1976 Ordinance of http:!/www.article 19.org/pdfs/ Islands on the the Solomon Islands which established the public service analysis/solomon-island. bro. Broadcasting broadcaster (the Solomon Islands Broadcasting Corporation) in 03.pdf 1976 Ordinance light of international standards and offers recommendations on of the Solomon how to enhance its independence. - ~ ill Islands 1;.1 111 N Coverage Year Topic Source Summary Website South 2004 Changing William Bird Webpage provides information on the Media Monitoring http:! /www.wacc.org.uk/wacc/ Africa Media Policies Project, an independent, nongovernmental organization that publications/media_ in South Africa World monitors the media within a human rights framework, which development/archive/2004_1 I Association for has examined the race and racism, gender issues, youth issues, changing_media_policy_in_ Christian and HIVI AIDS issues in the media. south_africa Communication Sri Lanka 2007 Press Freedom International Report examines the current situation of the Sinhala, Tamil, and http:!/www.article 19.org/pdfs/ and Freedom of Press Freedom English language media in Sri Lanka, with particular regard to publications/sri-lanka- Expression in and Freedom of effects of restrictions on the free flow of information through mission-rpt.pdf Sri Lanka: Expression Tamil language media outlets. It offers findings related to safety, Struggle for Mission informal censorship, and media policy reforms. Survival Sudan 2006 Draft Public Article 19 Draft Public Service Broadcasting Bill for Southern Sudan, http:!/www.article 19.org/pdfs/ Service presented to the southern Minister of Information, to be analysis/ southern-sudan-public- Broadcasting Bill considered for promulgation. service-broadcasting-bil.pdf Sudan 2006 Draft Bill to Article 19 Draft Bill to allow the establishment of self-regulatory http:!/www.article 19.org/pdfs/ Promote Media mechanisms for the media for Southern Sudan, presented to analysis/southern-sudan- Self-Regulation the southern Minister of Information, to be considered for promotion-of-self- promulgation. regulation-bi.pdf Sudan 2006 Draft Media Article 19 Draft Media Policy Framework for Southern Sudan, presented http://www.article I9.org/pdfs/ Policy to the southern Minister of Information, to be considered for analysis/southern-sudan-media- Framework promulgation. policy-framework. pdf Sudan 2006 Draft Article 19 Draft Bill to provide for the regulation of independent, http://www.article 19.org/pdfs/ Broadcasting pluralistic broadcasting in the public interest in Sudan. analysis/southern-sudan- Bill broadcasting-bill.pdf Tajikistan 2002 Memorandum Article 19 Memorandum notes that the laws in Tajikistan that regulate mass http:!/www.article 19.org/pdfs/ on the Laws in media provide for guarantees for media freedom, a system for analysis/tajikistan.med.02.pdf Tajikistan allocating licenses to private broadcasters, a system for accessing Regulating Mass information held by public bodies, and legal requirements that Media domestic laws comply with international law. It also outlines the obligations of Tajikistan to promote and protect freedom of expression under international law, and offers recommendations for how the laws might be brought in line with international standards relating the laws' provisions on: the registration of the media; the regulation of journalists; the regulatory regime for broadcasting; content issues; defamation; privacy; protection of sources; penalties; and freedom of information. Tanzania 2007 Memorandum Article 19 Analysis of Tanzania's draft Media Services Bill of 2007, which http:! /www.article 19.org/pdfs/ on the proposes to regulate print and broadcast media in Tanzania by analysis/tanzania-media- Tanzanian creating a registration mechanism for individual journalists and services-bill.pdf Media Services print media outlets. It further provides for a Media Standards Bill2007 Board and a licensing regime for broadcasters, which will impose certain content restrictions on broadcasting for the purpose of protecting confidential sources of information. The draft bill additionally establishes a new defamation regime for Tanzania. Uganda 1990 Mass Media as jacob Matovu Article assesses mass media (print and broadcasting) in Uganda http:! /jbs.sagepub.com/cgi/ Agencies of in terms of its contributions to socialization. lt concludes that content/citation/2 0/3/3 4 2 Socialization in mass media in Uganda has been an ineffective agent of national Uganda socialization because few have access to television, and print media is underutilized because of low national literacy levels (particularly in rural areas, where the majority of the Ugandan population is concentrated), and the lack of an effective 1.;.1 distribution system. Ill 1.;.1 TABLE 17 Law Evincing Good Practice on Freedoms of Information, Communication, and the Press ""' 1.11 "' Coverage Year Topic Source Summary Website Australia 1992 Radiocommu- Government of Act provides for the management of the radio-frequency http:!/www.austlii.edu.au/au/ nications Act Australia spectrum. It is designed to ensure the efficient allocation and legis/ cth/ consol_act/ra 199 2218/ 1992 use of the spectrum to maximize the public benefit and provide an efficient, equitable, and transparent system of charging for the use of spectrum, which accounts for both commercial and noncommercial uses of the spectrum. Australia 1982 Freedom of Government of Act grants the right to access information in the possession of http:!/www.comlaw.gov.au/ Information Act Australia the Government of the Commonwealth, including operational comlaw/Legislation/Act 1982 documents of departments, public authorities, and documents Compilation l.nsf/0/92C0277C in the possession of ministers (with certain limitations). It also 49A2F348CA2571A8001205D vests the public with the right to seek amendments to records O?OpenDocument containing personal information that is incomplete, incorrect, out of date, or misleading. Similar legislation has been promulgated in all Australian states and territories: Australian Capital Territory ( 1989); New South Wales ( 1989); Northern Territory (2003); Queensland ( 1992); South Australia ( 1991 ); Tasmania ( 1991 ); Victoria (1982); and Western Australia ( 1992). Bulgaria 2000 Access to Public Government of Act regulates and details the general right of access to public http:!/www.legislationline.org/ Information Act Bulgaria information, including administrative public information, and legislation.php 7tid=219&lid= other forms of official information. It includes provisions to 6453&less=false ensure administrative transparency, and includes public interest rules governing proactive disclosures. Canada 1991 Broadcasting Government of Act sets out a broadcasting policy for Canada and the operating http:!/laws.justice.gc.ca/en/ Act 1991, c. II Canada procedures and policies for the Canadian Broadcasting showtdm/cs/B-9.01 mad(;asl'inq in the third world tend either to lament the lack of gov- ernance, accountability and competence, or to speak down to their readers. This book is part of a new generation that acknowledges ability and a willingness to move forward into the twenty-first century with integrity and imagination. It is not patronizing, and it is certainly not boring. It focuses on really useful approaches to setting up, sustaining, and governing broadcasting systems across the world. This is an excellent book whose combination of sound scholarship and intelligent advice will be welcomed by policymakers and broadcasters alike." -Ruth Teer-Tomaselli, UNESCO Chair in Communication for Southern Africa, Culture, Communication and Media Studies, University of KwaZulu-Natal Cover illustrations: Top photograph by Kate Coyer, a post-doctoral research fellow with the Annen- berg School for Communication at the University of Pennsylvania and the Center for Media and Communication Studies at Central European University. Other photographs courtesy World Bank staff and photo library. IIil Ill 37295~ ISBN 978 - 0 - 8213 - 7295 - 1 900 DO> Washington, DC 9 780821 11111 11111 111111 The World Bank Group