A newly proposed broadcasting bill urgently needed to end the dire situation of full state control of television and radio in Myanmar, risks creating a media open to government interference.
Television and radio broadcasters will in future be the greatest source of information in Myanmar, particularly for the poor and those living in rural areas where the printed press is too expensive, inaccessible or unavailable.
As the greatest source of public information, broadcasters are under significant threat from governments and others who wish to silence critical voices. It is vital therefore that Myanmar establishes an independent, reliable and diverse broadcast media as a strong foundation for democracy.
Broadcasting spectrums – the wavelengths available to carry broadcast signals – are limited in number. Therefore while governments should not regulate the printed press – because there can be an unlimited number of print publications – they should regulate broadcasting. This regulation of broadcasting protects the right to freedom of expression by ensuring the limited wavelengths are shared out in an independent and fair way.
The Broadcasting Law 1375 ME consists of 109 provisions and would regulate broadcasting in Myanmar. If adopted, it would completely change broadcasting in the country. It would establish two regulators: a National Broadcasting Development Authority to create strategies, manage the spectrum and licences; and a National Broadcasting Council, which advises the Authority on spectrum management issues, licence applications, and enforces the powers given in the law.
The basis for ARTICLE 19’s review
ARTICLE 19 reviews legislation based on international human rights law and comparative constitutional best practice. International law on the right to freedom of expression is an established body of law that sets out minimum standards that all states should respect. It is primarily set out in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, as well as in international customary law and regional treaties in Europe, the Americas, and Africa.
Myanmar is one of the very few states that have so far failed to ratify the international human rights treaties. Despite this, Myanmar still has obligations to protect the right to freedom of expression under international customary law, which applies to all states regardless.
Positive aspects of the proposed bill
The proposed bill includes some positive aspects:
- It recognises basic broadcasting principles such as protecting freedom of expression (Art. 4), as well as the need for independent regulation (Art. 18), for public participation (Art. 10), and for public, private and community broadcasting (Art. 4)
- The Authority includes different government agencies and non-governmental representatives in developing broadcasting policy, the spectrum management plan, and other broadcasting policies
- The Council, which is responsible for adopting and monitoring a broadcasting code of conduct, has a clear mandate and powers, an annual budget protected from government interference, and clear enforcement powers with diverse administrative sanctions
- The right of reply and rectification are ensured (Art. 86-89)
Recommendations for media independence
- State broadcasters should cease to exist: In democracies, all individuals, including representatives of the state, are free to give their opinions and inform others about their activities via the media. Only authoritarian governments spend public money on state-run broadcasting in order to spread their own opinions and activities without challenge. Unfortunately this proposed bill recognises state-run broadcasting, and, worse, does not explain what it is, how it is governed, or how it is accountable to the public.
ARTICLE 19 recommends that all state broadcasters should become public broadcasters and cease to exist.
- The government’s role in broadcasting should be defined: Under international law, the role and responsibilities of governments when regulating broadcasters should be clearly set out so that they cannot interfere in order to silence critical voices. However, the proposed bill only says that the Ministries of Information and Communication and Information Technologies should “issue rules” (Art. 108), which is unclear and insufficient to protect a free media.
ARTICLE 19 recommends that the proposed law clearly defines the roles and responsibilities of the Ministry of Information and the Ministry of Communications and Information Technologies.
- The Authority should not have licensing powers: In democracies, broadcasters are regulated by an independent body so that the government cannot silence critical voices. However, the Authority is not independent from the government and yet has the power to issue, renew and revoke broadcasting licences.
ARTICLE 19 recommends that all powers to issue, renew and revoke licences are given to an independent regulator, such as the Council.
- Safeguards for Council independence should be increased: In democracies, those who hold power over the media must be independent of government control. While the proposed bill has safeguards requiring Council members to be independent and impartial (Art. 18), their independence is at risk because they must first be nominated by politicians, and can later be sacked by the president (Art. 20b).
ARTICLE 19 recommends that Council member nominations should be open to any citizen or organisation in Myanmar, and shortlisting should be carried out by parliament according to clear and reasonable criteria. The nominated candidates should be interviewed in an open session in parliament, and then elected by a qualified majority, in order to avoid political bias.
Further recommendations for protecting rights
- Sanctions must not violate the right to freedom of expression: Disproportionate and harsh sanctions for broadcasters can easily result in punitive punishments that violate the right to freedom of expression. Unfortunately, the proposed bill does not require that sanctions should be “necessary” and “proportionate to the harm incurred”.
ARTICLE 19 recommends that the proposed bill require that any sanctions are proportionate and necessary, with respect to the harm incurred.
- Discrimination should be rejected: A basic pillar of international law is the principle of non-discrimination when protecting fundamental human rights, such as the right to freedom of expression. However, the proposed law discriminates by requiring that both parents of Council members are citizens. Although a requirement that members are citizens is common and reasonable, requiring their parents to be citizens too is discriminatory and not allowed under international law.
ARTICLE 19 recommends that the discriminatory requirement that Council members be born of parents who are both citizens, is removed.
- No rules on elections: In democracies, broadcasters are one of the main sources of information on competing political parties and their different policies. However, the proposed bill contains no electoral guarantees to ensure participation and informed choices.
ARTICLE 19 recommends that the proposed bill guarantee the right of parties and candidates to communicate their views during elections, the right of the media to report on elections freely, and the right of the electors to access all the information that they need to participate in elections and make an informed choice. In particular this guarantee should apply to news coverage of political parties’ campaigns, allocation of direct access coverage between the parties, voters’ education, and broadcasting of debates between the candidates
- Management of the broadcasting spectrum should be included: Broadcast spectrums should be managed according to clear criteria in order to ensure broad and fair participation. However, the proposed bill has no rules except for a brief statement that broadcasting is a “common development resource” (Art. 3), and giving powers to the Authority to develop a spectrum management plan.
ARTICLE 19 recommends that the proposed bill require that the spectrum is “managed in the public interest” and that all decisions on spectrum planning and frequency allocation are carried out in an open and participatory manner, including with the broadcasters. The Authority should also be obliged to respond to all recommendations on the spectrum management plan during the public consultation, before it adopts the plan. The plan must be published in the State Gazette and be easily accessible.
Recommendations for other rules and procedures
- Licensing procedures (Chapter Seven) should be open and transparent: Applicants should know why their applications have been rejected so that the system can be seen to be fair. Although the licencing criteria and procedure is clear, the Authority is not obliged to hear the applicants or to give clear reasons in writing for its decisions to refuse a licence.
ARTICLE 19 recommends that the licencing procedure is open, fair and transparent, by obliging the licensing body – we recommend that it be the Council – to hear the licence applicants and give clear reasons in writing for its decisions to refuse a licence
- Unrealistic quotas: Quotas for locally produced content are laudable in order to protect local voices on local concerns. However, such quotas risk being too expensive and onerous for some broadcasters, and may be self-defeating if they are set so high that broadcasters would go out of business trying to meet them.
ARTICLE 19 recommends that the quotas are decided in consultation with broadcasters and reflect their views.
- No advertisement complaints mechanism: Some people may wish to complain about the content of adverts and therefore require a complaints mechanism. However, while the proposed bill contains some rules on advertising, it has no monitoring or enforcement mechanism.
ARTICLE 19 recommends that the proposed bill provide a mechanism for monitoring of advertisements and a complaints procedure for violations of the rules. It should say that advertisements are subject to regulation and give the Council powers to adopt an advertisement code.
- Digitalisation and convergence should be included: All over the world, broadcasting is moving from analogue to digital technology and “converging” with other types of media, such as the internet. However, the proposed bill has no provisions on digitalisation or convergence, which will make it obsolete quickly.
ARTICLE 19 recommends that the proposed bill includes both digitalisation and convergence, in particular it should ensure that people are well informed about the process, have continuous access to diverse programmes and services, and are able to benefit from any interactive services
- Broadcast distribution services should be regulated: The proposed law briefly defines “broadcast distributions services” but has no rules on how they are made or operated.
ARTICLE 19 recommends that the concept of “broadcasting distribution services” be reconsidered, clearly explained, and have their licensing and operation clearly regulated.