Guidelines for an Independent Regulatory Framework for Commonwealth Broadcasting Organisations

AuthorCommonwealth Secretariat

Page 67

Executive summary
  1. At the Meeting of Law Ministers from Small Jurisdictions in October 2004, Ministers discussed a paper (see Annex 1) setting out the basic principles of the regulation of broadcast services. It was decided at that Meeting to ask the Secretariat to bring forward proposals for a work programme to further develop those principles with a view to assisting the roll-out of best practice throughout the Commonwealth.

  2. It was noted at that Meeting that there are several reasons for introducing regulation of broadcasting: democratic purposes, cultural and consumer protection reasons, and economic purposes.

  3. Open and pluralistic broadcasting is a key component of a democratic society. The specific features of broadcasting regulation which go directly to the promotion of democracy are: having a right of appeal and a right of reply; an obligation for news to be accurate and impartial; and rules which prevent discrimination and incitement to crime, including religious or ethnic hatred.

  4. It is vital for the application of these rules - as well as the full range of broadcasting regulation - to be done by a regulatory body that operates independently of political or industry influence and control. To be independent, the remit and the means of funding of the regulator should be set out in law. The appointment process must be managed in a way that avoids political interference, and individual regulators must not have any conflicts of interest which prevent them executing their duties in a clearly objective way.

  5. A country's culture will affect the detail of rules that are intended to protect minors and avoid offence on grounds of taste and decency. Generally, the content of advertising is also regulated, at least to ensure it is legal, decent and true.

  6. Broadcasting regulation can also have economic purposes such as the application of international trade agreements or promoting inward investment. Regulation can also be used as an incentive for domestic production sectors and to promote new technology such as digital broadcasting.

  7. Although many Commonwealth states have sophisticated broadcasting legislation with dedicated, independent regulators and public service broadcasters, not all do. To further roll out best practice throughout the Commonwealth, in the support of the necessary separation of government from civil society, and in pursuance of democratic principles, Ministers are invited to take note of the guidelines below and endorse them with a view to the Secretariat assisting countries to draw up the necessary legal and regulatory infrastructures for requesting member states.

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Guidelines for an independent regulatory framework for commonwealth broadcasting organisations
  1. Following the Meeting of Law Ministers from Small Jurisdictions in October 2004 in which Ministers discussed a paper setting out the basic principles of the regulation of broadcast services, the Secretariat has developed these guidelines with a view to assisting the roll-out of best practice throughout the Commonwealth.

  2. From initial desk research of a number of Commonwealth states (see Annex 2) it would appear that the majority have not yet established independent broadcast regulatory authorities, but still retain direct state control over issuing broadcast licences, and in many cases, the regulation of content and content-related issues.

  3. The lack of independent regulatory bodies tends to be matched by the retention of state, rather than independent public service broadcasters (PSBs). Yet, the creation of independent regulators and PSBs is one of the ultimate tests of the establishment of a successful democracy.

  4. This paper sets out the clear benefits of regulating broadcasting by means of an independent body, and of the provision of broadcasting in the public interest - in the famous words of Lord Reith of the BBC - to "inform, educate, and entertain" citizenry. Practical considerations of how to establish independent regulators and public service broadcasters are discussed.

Independent regulation
  1. It is accepted best practice throughout the world that as an independent broadcasting industry develops, so too must an independent regulatory system to licence and oversee this industry. The development of democracy requires the availability of a variety of sources of information and opinion so that the population can make informed decisions at times of elections. Throughout the world, television and radio are now the main sources of news and information. To enable open debate for the proper operation of democracy there needs to be a plurality of service providers to enable access of viewers and listeners to a wide range of sources of news and information.

  2. If decisions on who shall hold a broadcast licence are left as the sole preserve of government, there is unlikely to be - or to be seen to be - a fair, equitable range of service provision. Indeed, in many countries where the government (or a government-controlled regulator) determines new licences, those broadcasters - unsurprisingly - all overtly support the government.

  3. But if government control of broadcasting regulation provides a degree of political support, then why should a government give up this control? Last year, the government of a country in South East Europe that not only controlled the regulatory authority but also all the television broadcasters lost power in a general election. People said that "the voters were smarter than the viewers". Proper delegation of licensing responsibilities to an independent regulatory body set up by statute not only creates faith in the fairness of the licensing process, but can also remove governments from the potential political turmoil which can be associated with the grant of licences. In the last few years we have seen political unrest turn to protest and murder as a result of a government-sponsored broadcasting regulator in Armenia revoking the licence of a popular television station which was perceived to support the opposition party. Since then, Armenia has changed its law to enable the creation of a more independent regulator - putting more distance between the state and the regulator, and de-politicising broadcasting regulation.

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  4. Throughout the former Soviet bloc in Eastern Europe countries have struggled with the separation of media and the state. Now, it is only the most fervently dictatorial and still communist states such as Belarus and Moldova that retain strict state control over the regulation of broadcasting. Even so, newer democracies such as the Czech Republic and Poland still struggle with ensuring their broadcasting regulators are sufficiently independent to refute allegations of government interference and political pressure. Members of the Commonwealth, with a longer democratic tradition, should find the process easier. Commonwealth countries understand the separation - and interplay - between the executive and the legislature, and so are better placed to appreciate the clear benefits of releasing broadcasting from executive control, but still subjecting it to clear and proportionate legislative constraint. Yet, even within the Commonwealth, there is room for improvement. There are voices calling for the introduction of broadcasting institutions that are independent of political manipulation, and licensing regimes which encourage diversity, but not at the expense of quality.1

  5. So, on a practical level, what are the considerations and practical obstacles to setting up an independent broadcasting regulator?

Creation and Remit
  1. The first matters to decide are the scope of broadcasting regulation, those issues which will remain the preserve of the government, and those which will be the responsibility of the independent regulator. The paper at Annex 2 examines the range of issues which broadcasting regulation typically covers.

  2. It is normal for governments to retain responsibility for broadcast frequency planning, within ITU and regional agreements, often within a single department which manages all allocated spectrum. However, the UK is an example where a single, converged regulator - Ofcom - has been created to cover broadcasting, telecommunications and spectrum management.

  3. Beyond spectrum planning and management, it is also common for governments to retain certain powers in relation to competition issues, or at least to make them the preserve of a specialist competition regulator, rather than a dedicated broadcasting regulator. Again, the UK is an exception, but only in a limited sense. The UK communications regulator, Ofcom, has concurrent powers with the UK competition regulator on issues relating to anti-trust and cartel behaviour, although the competition regulator has sole responsibility for deciding whether mergers are anticompetitive.

  4. Other broadcasting-related intellectual property issues are sometimes the preserve of a broadcasting regulator, although more often than not, countries leave disputes over copyright, trademarks, etc. to the general application of law.

  5. Other than these issues, the dedicated broadcasting regulator is normally tasked with...

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