In this analysis, ARTICLE 19 reviews the draft Media Council Act, March 2019 (the Draft Act), currently being discussed in Malaysia, for its compliance with international human rights law, in particular standards on the right to freedom of expression.
ARTICLE 19 notes that international human rights standards do not prescribe a specific model of media regulation. Instead, they require that any regulation meets specific criteria in order to be compatible with the right to freedom of expression, as regulatory measures for the media could interfere with press freedom. With the exception of the broadcast media, for whom regulation is commonly accepted as necessary, ARTICLE 19 views specific legislation on the press with caution as it is often a tool for governments to excessively restrict, rather than protect, the right to freedom of expression. Self-regulation of the press is highly preferable to regulation by a statutory authority, which would risk endangering the independence of the media and impinge on the free flow of information.
At the same time, self-regulation must be meaningful: it must not only provide protection for members of the journalistic profession, but also hold them accountable to their profession and hold press outlets accountable to the public. ARTICLE 19 notes that, although self-regulation is the preferred model, statutory and coregulatory systems may be compatible with international human rights standards provided they include strong guarantees for media freedom and the independence of regulatory bodies. This applies to the proposal in the Draft Act.
Although the Draft Act contains a number of positive features, ARTICLE finds that the proposed scope of the Act – which covers all forms of media – is confusing; especially in the light of the existing regulation of the broadcasting sector by the Malaysian Communication and Multimedia Commission (MCMC). There is no mention of the MCMC in the Act and it is therefore unclear how the proposed Media Council will interact with the MCMC, or how any overlap in their mandates will be reconciled.
Further, ARTICLE 19 is concerned about the process that led to drafting of the Draft Act. The process was led by several major media organisations and lacked full transparency and the opportunity for all relevant stakeholders to participate. We submit that any agreement on press regulation requires broad public participation and agreement between all relevant stakeholders. Finally, ARTICLE 19 believes that the Draft Act should form part of a broader discussion about freedom of expression and the media environment in Malaysia, including the repeal or amendment of repressive laws, including the Printing Presses and Publications Act 1984, the Sedition Act 1948, Security Offences (Special Measures) Act 2012, the Official Secrets Act 1972, and the Film Censorship Act 2002.
Summary of key recommendations
- All stakeholders should link the development of the Act to improving protection of freedom of expression in the country, including advocacy for Malaysia signing and ratifying the International Covenant of Civil and Political Rights as a matter of urgency. This would send a strong message that international human rights standards guide any legislation related to the media, and freedom of expression in general, in the country. There should also be wide-scale consultation and participation of all stakeholders to finalise the Act;
- The Preamble of the Draft Act should explicitly provide for the independence of the Council and the fulfilment of the fundamental objectives of regulation: the accountability of members of the profession to their peers, accountability of media outlets to the public and protection for journalists;
- The Act should clearly differentiate between the regulation of broadcast and print/online media, or only cover the press under the Media Council Act. The relationship between the Media Council and the existing MCMC should be clarified; while the Communications and Multimedia Act should also be fully reviewed for its compliance with international standards;
- The option of membership in the Media Council could be extended to others who perform journalistic functions on a voluntary basis;
- The Act should include a provision stating that the functional, operational and administrative autonomy of the Council and the Exco is fully guaranteed in all matters and that any economic or political interference is prohibited;
- The Act should specify that members of the Exco cannot be members of government or members of a political party, and they are free to carry out their work without economic or political interference. The mechanism for ensuring the diversity of Exco members should also be improved, in particular by addressing gender balance in the composition of the Exco and outlining a clear process for appointing various stakeholder representatives;
- The procedure for adopting the Code of Conduct should be clearly outlined. The process of developing the Code should be participatory and open to public consultation, involving all stakeholders and the public;
- Thus, the Media Council should act reasonably and impartially; and exercise its discretionary powers in good faith and for a proper, intended and authorised purpose, within the limits of its decision-making powers;
- The Code of Conduct should be based on international professional ethics and good practices. This will help avoid possible arbitrariness inherent in vague, broad moral concepts. It should address misconduct by members of the press, including sexual harassment;
- All sanctions and remedial actions that can be imposed by the Council should be clearly specified;
- The remedial actions available should include the publication of correction and reply. The possibility of the Committee to direct the nature, extent and placement of corrections and apologies should be limited;
- The power to censure should be limited to violations of the Code of Conduct (Article18(1));
- The veto power granted to the Chairman in Article 18(2) should be deleted;
- A right of appeal against decisions should be included in the provisions;
- The purpose of the dispute mediator in Article 19 should be clarified;
- The Act should establish a scaled industry-specific levy as the main source of funds for the Council. Funding of the Council via governmental grants should be explicitly restricted and it should only be a source of supplementary funds. Any governmental grant should not be perceived as conditional on the Council conducting its work in a manner which is not antagonistic to the government;
Any subsequent legislation, following the repeal or amendments of certain acts, should be viewed as an opportunity to review the respective laws for their full compliance with international freedom of expression standards.