In this analysis ARTICLE 19 reviews the Draft Guidelines on Ownership and Cross-Ownership in the Broadcasting Sector (the Guidelines), recently adopted by the Public Utilities Regulatory Authority (the Authority) of The Gambia in application of Section 227 (e) of the Information and Communications Act of 2009 (the Law). The Guidelines are being introduced as part of a broader reform of the broadcasting sector in the country. They are to guide the process of allocating licences to radio and television stations on a provisional basis.
ARTICLE 19 welcomes the opportunity to comment on the Guidelines from the perspective of international standards on freedom of expression. We believe that even during complex times of transition, it is of the utmost importance that each step towards democratisation is taken in full compliance with international human rights standards, which are the foundations for the construction of a democratic society. Hence, the allocation of licences to audiovisual media must meet international standards on human rights: any failure to meet the requirements of international law will risk discrediting the broader process of reform of the broadcasting sector, and result in serious threats to the freedom and independence of the licensees.
ARTICLE 19 also reiterate our recommendation to the Government of The Gambia (the Government) to review its legislation for its compliance with international freedom of expression standards and to repeal all laws that have been used to stifle free expression. We stand ready to assist the Government in this process and ensure that The Gambia adopts a legal and regulatory framework that enables the full exercise of freedom of expression and access to information rights.
- The Government of The Gambia should undertake a comprehensive revision of all laws that have been used to stifle free expression, and ensure that a complete framework on media pluralism, diversity of content and transparency of ownership is integrated into the laws of The Gambia, in conformity with international standards;
- The Government and the Authority should ensure that the provisional allocation of licences takes place within a clear framework of public, transparent rules and guidelines, which allow all interested media actors to apply. In particular, the provisional allocation of licences should happen in a manner that ensures that licensees will benefit from sufficient foreseeability for business development over the length of the provisional licence, and provide clarity as to the transition towards a ‘final’ spectrum management mechanism;
- The Government should ensure that the Authority is fully independent and that the provisional allocation of licences is implemented in full respect of due process standards, including a clear timeframe, and access to judicial review;
- The Authority should clarify the scope of application of the Guidelines: they should apply only to media actors that can be regulated under international standards;
- The Government and the Authority should review the notion of ownership, in the Law and the Guidelines respectively, to address the variety of means that can be used to control a media company;
- The Government and the Authority should review the criteria and thresholds for ownership and cross-ownership for an optimal contribution to pluralism and diversity in the media landscape of The Gambia. This would include removing all reference to content provision licences. This would also require identifying the proper criteria and thresholds that, in the context of the national media market, will serve to prevent undue dominance and the resulting impoverishment of pluralism and diversity while supporting the development of a vibrant and dynamic media sector;
- The Government and the Authority should further detail rules, including relevant procedures, that meet the requirements of international standards and that are applicable to threats to pluralism and diversity that result from changes in the ownership or control structure of a media company, or from merger projects;
- The Government and the Authority should ensure that relevant information on media ownership is made available to the public both by the media themselves and by the regulatory authority.