Me­dia Law Re­vis­ited

Southasia - - CONTENTS - By Faizan Us­mani

In most devel­op­ing coun­tries, poor law en­force­ment re­mains the most com­mon con­cern. Be­sides strug­gling with such never-end­ing so­cial evils as poverty, un­em­ploy­ment, il­lit­er­acy, etc., what else ails these coun­tries is their in­abil­ity to en­force law and or­der ef­fec­tively.

A devel­op­ing na­tion, Pak­istan is no ex­cep­tion. Through the coun­try has shown com­mend­able progress in terms of leg­is­la­tion and pol­i­cy­mak­ing per­tain­ing to dif­fer­ent ar­eas and sec­tors, it has not been able to ef­fec­tively im­ple­ment the ex­ist­ing laws, which in­cludes its me­dia reg­u­la­tions and poli­cies.

The book ‘Pak­istani Me­dia Law: A Com­par­a­tive Study,’ writ­ten by Dr Muham­mad Abrar, is the lat­est con­tri­bu­tion to this im­por­tant sub­ject that has re­ceived more at­ten­tion in re­cent years, par­tic­u­larly af­ter the pri­vati­sa­tion of elec­tronic me­dia in Pak­istan in the early 2000s.

A PhD in Law from the Univer­sity of Glas­gow, U.K., Dr Mo­ham­mad Abrar is a Pak­istan-based writer. He has pub­lished ex­ten­sively in in­ter­na­tional schol­arly jour­nals and mag­a­zines and also has pre­sented re­search pa­pers at many in­ter­na­tional con­fer­ences. Prior to his doc­tor­ate in law, he served the Fac­ulty of Law at the In­ter­na­tional Is­lamic Univer­sity, Is­lam­abad as a vis­it­ing lec­turer and pro­gramme co­or­di­na­tor. He has also served as an ad­vo­cate of the La­hore High Court, Rawalpindi Bench.

Us­ing both pri­mary and sec­ondary sources, the book is purely re­search-based and of­fers com­par­a­tive, de­scrip­tive, ex­plana­tory and per­spec­tive analy­ses on the TV broad­cast­ing in­dus­try. Di­vided into nine chap­ters, it at­tempts to fill in the re­search gap in the field of law en­force­ment and reg­u­la­tory su­per­vi­sion of elec­tronic me­dia in Pak­istan.

The book’s first two chap­ters in­tro­duce the cur­rent state of me­dia laws in the coun­try and de­scribe how the elec­tronic me­dia in­dus­try is reg­u­lated, with the key fo­cus on the rel­e­vant leg­is­la­tion and its en­force­ment. In this sec­tion, the au­thor gives a de­tailed over­view of the Pak­istan’s le­gal sys­tem in the con­text of the me­dia and crit­i­cally highlights the de­fi­cien­cies in the en­force­ment mech­a­nism.

The writer rightly points out the fact that, though Pak­istan has in­tro­duced some laws to con­trol and reg­u­late the elec­tronic me­dia, it has failed to en­force the rel­e­vant reg­u­la­tions and has not been able to deal with a range of reg­u­la­tory is­sues re­lat­ing to ter­res­trial, satel­lite, ca­ble, mo­bile TV and In­ter­net Pro­to­col Tele­vi­sion (IPTV).

Ac­cord­ing to him, the Pres­i­dent of Pak­istan has the sole right to ap­point peo­ple on key me­dia posts, which in the end, turns out to be a po­lit­i­cal se­lec­tion rather than ap­point­ments made purely on merit, thus se­verely af­fect­ing the main­te­nance and run­ning of a fair sys­tem. For in­stance, ac­cord­ing to the PEMRA Act, the au­thor­ity con­sists of a chair­man and 12 mem­bers,

all of whom are ap­pointed by the Pres­i­dent of Pak­istan. Through this man­ner of se­lec­tion, ac­cord­ing to the au­thor, the Pres­i­dent has a di­rect in­flu­ence on PEMRA’s mem­ber­ship and, in­di­rectly, on the de­ci­sions taken by the au­thor­ity.

Such a sys­tem of se­lec­tion has loop­holes in that the au­thor­ity and the Coun­cil of Com­plaints could both be in­flu­enced by po­lit­i­cal mo­tives. For ex­am­ple, the Pres­i­dent could choose to pro­tect the agenda of a po­lit­i­cal party to which he be­longs. At this time, it is dif­fi­cult for the PEMRA chair­man and the au­thor­ity’s mem­bers to pro­vide fair and non-par­ti­san en­force­ment sys­tem, says the au­thor.

In ad­di­tion, the au­thor­ity gives its fi­nal de­ci­sion against a com­plaint on the rec­om­men­da­tion of the Coun­cil of Com­plaints, which merely serves as an ad­min­is­tra­tive body bereft of any leg­isla­tive sig­nif­i­cance. More­over, de­spite suf­fer­ing a loss ow­ing to me­dia piracy or other in­fringe­ments, no per­son or or­gan­i­sa­tion can go to the court di­rectly with­out the prior ap­proval of PEMRA, mak­ing the en­force­ment mech­a­nism slow and lengthy.

De­fined by the au­thor as ‘key chap­ters of the book,’ chap­ter 3, 4, 5 and 6 shed light on the spe­cific en­force­ment is­sues that are mainly re­lated to ca­ble-cast­ing, satel­lite and ter­res­trial broad­cast­ing. In these chap­ters the au­thor dis­cusses the weak­nesses of the reg­u­la­tory pro­vi­sions and rec­om­mends some vi­able so­lu­tions. Re­fer­ring to il­le­gal broad­cast­ing by ca­ble TV op­er­a­tors, he says PEMRA al­lows ca­ble op­er­a­tors to run their own TV chan­nels, but they mostly tele­cast pi­rated In­dian and English films, plays and songs, which is a di­rect in­fringe­ment of copy­right.

The trans­mis­sion of il­le­gal satel­lite pro­grammes by ca­ble op­er­a­tors con­tin­ues un­abated re­gard­less of re­peated warn­ings is­sued by PEMRA. The au­thor also raises some valid ques­tions about the process of grant­ing a li­cence that helps op­er­a­tors to cre­ate a monopoly. Un­reg­is­tered TV chan­nels, unau­tho­rised pro­grammes and ad­ver­tise­ments, as well as unau­tho­rised ca­ble TV ac­cess are the lead­ing en­force­ment is­sues that have yet to be ad­dressed, ac­cord­ing to the writer.

Chap­ter 4 highlights fi­nanc­ing is­sues in pub­lic ser­vice me­dia, which is provided un­jus­ti­fied fi­nan­cial ben­e­fits by the gov­ern­ment merely on cul­tural and so­cial grounds. In most coun­tries, such as Ger­many, Ja­maica and Es­to­nia, their pub­lic sec­tor me­dia do not de­pend on gov­ern­ment funds and di­rectly gen­er­ate money by sell­ing air­time to the pri­vate sec­tor or by col­lect­ing fees from pri­vate broad­cast­ers. The pub­lic me­dia in Pak­istan should be given pro­tec­tion for ad­e­quate, pre­dictable and in­de­pen­dent mech­a­nisms of fi­nanc­ing.

With ref­er­ence to other coun­tries, chap­ter 5 of the book de­lin­eates both the ex­ist­ing and prospec­tive chal­lenges posed to dig­i­tal broad­cast­ing, namely mo­bile TV and IPTV. It also ex­plores the le­gal im­pli­ca­tions of emerg­ing tech­nolo­gies and their im­pact on me­dia reg­u­la­tory au­thor­i­ties.

Chap­ter 6 dis­cusses some key is­sues that are re­lated to sports broad­cast­ing and state aid that is provided to the pub­lic sec­tor, with spe­cial ref­er­ence to the anti-si­phon­ing laws. It says there is no com­pe­ti­tion be­tween the pri­vate and the pub­lic me­dia, which tends to be a di­rect re­sult of state aid gen­er­ously granted to Pak­istan Tele­vi­sion (PTV), a pub­lic sec­tor TV chan­nel that is owned by the gov­ern­ment. The aid helps PTV to hold a dom­i­nant po­si­tion in com­par­i­son with pri­vate TV chan­nels, re­strict­ing fair com­pe­ti­tion in the mar­ket.

Chap­ter 7 fo­cuses on the devel­op­ment of me­dia tech­nol­ogy in­ter­na­tion­ally and ex­plores the le­gal frame­work fol­lowed in dif­fer­ent coun­tries per­tain­ing to the pro­tec­tion of rights in TV broad­cast­ing. The chap­ter dis­cusses var­i­ous in­ter­na­tional agree­ments, such as the 1961 Rome Con­ven­tion, the 1974 Brussels Satel­lite Con­ven­tion, the 1986 Berne Con­ven­tion, the 1994 Agree­ment of Trade-Re­lated As­pects of In­tel­lec­tual Prop­erty Rights (TRIPS), as well as the 2002 WIPO Per­for­mances and Phono­grams Treaty.

Chap­ter 8 highlights cur­rent ini­tia­tives be­ing pur­sued in­ter­na­tion­ally for broad­cast­ing devel­op­ment. It ex­am­ines how new agree­ments are im­ple­mented glob­ally. Chap­ter 9 is the con­clud­ing sec­tion of the book and sets out nu­mer­ous rec­om­men­da­tions in re­la­tion to me­dia law en­force­ment and reg­u­la­tion of TV broad­cast­ing in Pak­istan. De­spite the pres­ence of me­dia laws, as per the key find­ings of the book, PEMRA has been fac­ing nu­mer­ous en­force­ment is­sues, while there is a con­sen­sus that en­force­ment in the TV broad­cast­ing sec­tor is at a low ebb.

The book rec­om­mends the re­moval of reg­u­la­tions that re­strict ju­di­cial pro­ce­dures (e.g., Sec­tion 34 of the PEMRA 2007 Act), propos­ing a ro­bust reg­u­la­tory frame­work for im­prov­ing the en­force­ment of me­dia laws. To re­solve me­dia dis­putes and com­plaints, a spe­cial me­dia court must be es­tab­lished in place of such pow­er­less ad­min­is­tra­tive bod­ies as PEMRA’s Coun­cil of Com­plaints, the au­thor writes.

A must-read for jour­nal­ists and me­dia pro­fes­sion­als, ‘Pak­istani Me­dia Law: A Com­par­a­tive Study’ by Dr Muham­mad Abrar is a valu­able ad­di­tion to lit­er­a­ture avail­able per­tain­ing to laws for elec­tronic me­dia and ef­fec­tively de­ter­mines how elec­tronic me­dia and TV broad­cast­ing can be reg­u­lated and laws en­forced more ef­fec­tively.

Pub­lished by the Ox­ford Univer­sity Press (OUP), Pak­istan, the book is in hard­back. Con­sid­er­ing the sig­nif­i­cance of schol­arly ma­te­ri­als pro­duced on such rarely-dis­cussed sub­jects, such books should be avail­able at prices lower than the PKR. 995 at which this book is priced.

When it comes to books of gen­eral in­ter­est, the OUP needs to re­con­sider its pric­ing struc­ture, as it is al­ready gen­er­at­ing sub­stan­tial rev­enue from pub­lish­ing school books and cur­ricu­lum-based ma­te­rial in large quan­ti­ties ev­ery year.

It is also worth not­ing that the book con­cerns it­self with tele­vi­sion broad­cast­ing only and does not take into ac­count other me­dia, such as print and ra­dio. Per­haps the writer has kept these ar­eas for fu­ture books.

The writer rightly points out that though Pak­istan has in­tro­duced some laws to con­trol and reg­u­late elec­tronic me­dia, it has failed to en­force the rel­e­vant reg­u­la­tions.

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