Proposals for the enactment of a comprehensive and precise media law to regulate and manage the mass media

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BRIEF BACKGROUND

It is without doubt that the current state of media regulation in Uganda is inadequate and weak. There are various examples of the effects of this inadequacy that need not be elaborated in this paper.

The Mass Media is currently directly regulated by the following laws:

• The Press and Journalists Act (Cap. 105)
• The Electronic Media Act (Cap. 104)
• Other peripheral laws regulate certain aspects of the Mass Media e.g.
• The Copyright and Neighbouring Rights Act 2006;
• The Access to Information Act 2005;
• The Official Secrets Act;
• The National Drug Policy and Authority Act (S.33)

WE are of the opinion that given the functions under Section 9 of the Press and Journalists Act, the Media Council is primely positioned to effectively regulate the media for the benefit of the nation.

However, the Media Council has had little impact in achieving its functions for two main reasons:

• Inadequate legislation; and lack of funding.

The proposals contained herein seek to address the above problems with a view to improve;

• The administrative efficacy of the Council and;
• The judicial efficacy of the Council.

With the ultimate goal of establishing an ideal media regulatory regime in line with the principles of freedom of speech and of the press as it were, whilst protecting the sanctity of the state and the privacy of the individual. This position is supported by the long title of the Press and Journalists Act which reads in part;

“An Act to ensure the freedom of the press, to provide for a Council for the regulation of the mass media …”

INADEQUATE LEGISLATION.
WHEREAS this aspect of the Council weaknesses (weakens?) what is generally to be addressed it is important to point out that the current legislation is not adequate to enable the Council realize the objectives of the Act, examples are (a) & (c) above and other examples are realized from the challenges the Council met whilst determining issues and complaints brought before its Disciplinary Committee.

LACK OF FUNDING.
THE current law does not address the issue of funding of the Council and/or its activities. It only gives a weak provision for the remuneration of Council members. The remuneration of members is separate from the financing of Council activities that are derived from its function. There is a need to enact appropriate legislation to ensure proper funding of the Council.

PROPOSALS.
The provisions of the Press and Journalists Act Cap. 105 be retained with the following additions and amendments.
A the legislation should be enacted as the “Media Act”, an Act to  promote a free and responsible media, and to provide for a Council for the regulation of the media …”
The Council established under the Media Act should be a body corporate for legal and administrative efficacy.

Definitions
“Media Practitioner”    This term should replace the term “Journalist”; it should be defined in light of the eclectic nature of the media today. It should include those with qualifications as journalists; reporters; radio disc jockeys and presenters; and others who may present any matter from the media to the public. The current definition restricts ‘journalists’ to be those registered with the institute.
In the alternative the above categories mentioned can be separately defined to give better clarity on their roles in the media. In any case each category must be allotted a particular standard as regards output eg. DJ’s may not be allowed to participate in political talk while on air whereas qualified journalists are allowed.

“Pornography”    this term should be given the dictionary meaning. In the event that a law is enacted particularly for pornography then the Act may adopt any new definition as from time to time made. There should, however, be a distinction with material used for and of art and culture.
“Obscene &Indecent”    these terms should be included in the defined terms as differentiated from pornography to widen the scope to include publications that offend our peculiar moral standards.

Justification
Redefining the word journalist shall clearly bring into the scope of regulation such persons who have hitherto not been recognised as such and put them into the scope of regulation. It will also supplement to other proposal hereinafter mentioned.
Putting a definition for pornography, obscenity and indecent material shall enable control of those media outlets that are publishing such content.

Publishing
Registration and licensing of Mass Media and Video Clubs/theatres
The current legislation only requires a proprietor of a media outlet register the particulars of an editor in order to publish. There is no requirement for video halls etc whereas these also fall under the mandate of the Council.

It is our proposal that the process of registration and licensing be made more elaborate so that more information about the person/vision behind the media organization and the proposed publication is obtained.

It is noted that unscrupulous persons have abused the principles of natural justice by advertising of legal summons in the newspapers. Summons are legal documents which afford a person time to answer to any matter referring to them and when they do not do so they suffer legal consequences including having a case decided against them in their absence (e.g. land evictions);
We propose as follows:
To publish through the mass media or operate a video outlet for public use a person should be licensed by the Media Council and;

• Must fulfill registration requirements;
• Be licensed as a publication of public record.
• All media practitioners should be licensed by the Council

Before being licensed a person must therefore fulfill the following:

• Fill out a form that captures the information on: ownership; editors; journalists to be employed (at least two); reporters;
• Indicate the format of his/hers/its publication/outlet – e.g. whether it has pornographic content or is of adult nature etc. or whether it is a magazine or newspaper or a daily, periodical or otherwise.

• Where the publication is to be of adult nature, to indicate proposed points of sale where children cannot access. (These areas have to be acceptable and also licensed by the Council)

• Any changes to any of the details subsequently must be authorized by the Council.

• Pay fees as prescribed by the Council. Fees shall be varied according to format,, type, area of circulation.

• Indicate whether the publication will be used for public record i.e., to publish legal documents.

For media practitioners an application to be one should be made to the council which shall indicate the category of practice (e.g. journalist or reporter or DJ), the qualifications and/or experience of the applicant.
To this effect it is proposed that we co-opt some aspects of the Protection of Children Act 1978 and The Obscene Publications Act, of the United

KingdomJustification
The above will enable the following;

Widen the area for collection of funds from the registration and licensing process. Currently the requirement for registration of editors is being ignored and enforcement is difficult, whereas if it were a clear prerequisite to publish there would be compliance.

• Know the format or proposed content of a publication to enable control of pornography and obscene/indecent publications. It will also create the necessary insight for regulating political publications.

• Establish clearly liability in complaints and ease the enforcement process as regards individuals employed in the media outlets.

• Protect the public from pornography by confining such material in adult stores.

• Protect children from pornography and exploitation by unscrupulous persons. This will also be in line with international principles for the protection of children.

• Ensure that issues of ‘public record’ are properly published in accordance with set standards.
• Check and control ethical standards by ensuring that at least a certain quotient of personnel is qualified for the purpose.

Funding & Premises

• There is currently no provision in the Act for the funding of the Council unlike in the case of the Electronic Media Act which clearly stipulates the way the Broadcasting Council is to be financed.
• The proposal is that a section similar to the one mentioned above be incorporated in the Media Act.
• The Council should also be housed in separate premises from its line ministry to give a clear perception of independence.
• Justification.
• The Council will with certainty be funded on a vote from government and by other means made legal thereby.
• There will be compliance and trust from the public when the Council is seen to be independent of the appointing authority.

Composition of the Council.
We propose the following:
The various stakeholders nominate at least 3 representatives of whom the Minister shall choose one or two.
Positions be created to include representatives from the Theatre/Cinema associations.

Staff
There is a clause in the Act which provides for staff of the Council.
It is proposed that a provision be made for staff of the Council i.e., a secretariat be created to implement and enforce the orders and directives of the Council.

Justification
To execute the functions of the Council as provided it is necessary to have support staff who are well remunerated. To do so requires a recognised and clearly mandated status of all staff of the Council.

NIJU
The entire part of the Act regarding NIJU is redundant; it ignores the dynamism of the subject sector.
We propose that the entire Part IV of the Press and Journalists Act be deleted (appointment of members from NIJU therefore unnecessary).
Associations and self regulation by media practitioners.
Journalists should be allowed to form their own associations. The Council shall play the role of regulator of these associations; as such the legislation should be amended to include sections that prescribe in clear terms the regulatory role of the Council in the following areas:
registration of associations;
fees to be paid for registration;
listing persons and minimum membership of the association;
code/ scope of operations of the associations;
recourse in case of disciplinary matters viz a viz self regulation.

Complaints
Jurisdiction of Council.
The Council has been challenged on many occasions as to its jurisdiction in as far as complaints are concerned. The argument had been that the Council only has jurisdiction over complaints concerning journalists as defined in the Act. To clear this confusion the legislation should be amended to clearly define Media Practitioners (as above) and to clearly state under the complaints (S.31) section what complaints the Council may entertain i.e., to include all personnel of a media outlet and any organization licensed by the Council.
Furthermore all complaints in respect of the Media should be addressed by the Media Council be it electronic or print media in so far as it concerns ethics, professionalism and in general content of publication/broadcast.

Procedure
The procedure of conducting of hearings of complaints has been very ad hoc; the 1st schedule of the Act is not designed for the entire judicial process. I would propose that the Act co-opts the Civil Procedure Rules albeit with necessary modifications and allowing the Council discretion to operate in a more appropriate manner to its function.

Penalties
The current law gives limited penalties arising from proven complaints, two against journalists and one against a media organization. This has proved to be inadequate as it often turns out to be a slap on the wrist. Indeed cancelling a journalist’s license has been farcical since the majority has not been operating under license.
The proposal is that additional and more realistic sanctions be introduced as follows;
on application seizure of offending material by the Council before the act; injunctions against offending journalist/organization award of punitive damages against a journalist(s)

Justification
These amendments will improve the judicial efficacy of the Council. They will also bring the Council to the fore front of media regulation with a view to promoting a free but responsible press/media.

Regulations

• Regulations to further enable the proper operation of the Media Act should be issued in the following areas:
• Regulations on procedure of the Disciplinary Committee
• Regulations on implementation of the orders of the Council
• Regulations on process and penalties of accreditation.
• Regulations on issue of licences to media practitioners.
• Regulations on sale of pornographic material.
• The Council is in the process of putting the above proposals into a draft bill to be presented to you for study and appropriate action.
• Signed, For & on behalf of the Media Council,
• SECRETARY, PAUL MUKASA