Abstracts

Law Section for the 2006 IAMCR Conference "Knowledge Societies for All: Media and Communication Strategies"

Government’s move to amend the Press Council Act -1974 (Act: XXXIV 1974) aiming to empower the council to maximise punishment for offences of the media professionals has created dilemma and controversy among journalists community in Bangladesh. Without consulting the journalists community or media experts, the Press Council body has submitted a draft law to the Ministry of Information to amend the Sections 12(1) and 12 (2) of the act suggesting punitive measures, including cancellation of declaration at least for a day, against newspapers and journalists. The amendment move is now under consideration of the ministry has been creating heat debate among highly polarized journalists community in Bangladesh. Opposition-backed journalists stand against this amendment move saying that the government should not interfere in the freedom of the press for a handful of persons allegedly abusing the freedom. Politically appointed Press Council body and pro-government journalists union found the amendment is ‘very necessary for the sake of strengthening the Press Council to stop the misuse of press freedom’. Journalists’ stand has also raised controversy and a clash of opinions among different segments of people including civil society members, rights groups, media and journalism academia. They opined that the press council and journalists’ unions play important role to promote press freedom and further enhance professional standards. To play their role effectively, both the journalist unions and the press council must be fully independent and not be controlled by anybody or government authority; they should accountable only to their members and the profession. Analysing conventional role of the Press Council this paper is trying to accumulate different of opinions and judge the context of the proposed amendment.

Regulating in the interest of Government or in the Public Interest? Examining the Defects and the Need for Reform of the Nigeria’s National Broadcasting Commission’s Law

Nigeria’s National Broadcasting Commission (NBC) has been accused of partisanship in regulating Nigeria’s radio and television stations especially when and where the government’s interest is involved. The examples of such alleged partisanship include the denial of broadcast license to a leading member of one of the opposition parties; enforcement of the prohibition of live-rebroadcasting of foreign media’s news; and sudden closure of a television station which discovered and broadcast the wreckage of a crashed airline. In the first two cases the NBC was said to be (and seen as) acting to protect government from a media that the government would have no control about its contents or in the latter case to save the government from the embarrassment of the failure of government aviation agencies to locate the crash site more than 24 hours after the tragedy. As Nigeria’s democracy develops, the nation cannot afford a broadcast regulator that equates freedom of speech with what pleases the government. Thus, this paper’s twin tasks are to argue for the need to make NBC non-partisan or minimize its partisanship and to examine the best possible way to do so. The paper found that the current law establishing the NBC has vested the president exclusively with the power of appointment and removal of NBC commissioners and chief executive as well the final approval for broadcast licenses. Moreover, the NBC lacks adequate financial independence. Adopting an ITU Working Group’s Final Report on Establishment of an independent regulatory body[1] with some modifications as analytical framework, this paper argues for the approval and consent of the legislature in the appointment and removal of commissioners; a guarantee against removal of commissioners save for clearly defined egregiousness and only in accordance with due process of fair hearing; and granting more autonomy to the Commission in terms of finances and granting broadcast licenses. Moreover, as is the case with the U.S. FCC, appointment of such commissioners should be bipartisan in order to minimize regulating in the interest of the government rather than in the public interest.

Abuses of freedom of expression, invasion of private life, deliberated manipulation of images, a kind of fabrication of events and the exploration of emotions are good reasons to justify why journalism, and particularly television, is frequently criticised. Facing audiovisual media threats, Governments are expected to react in order to reinvent the place of TV and Radio in citizenship spheres. This is probably the intention of Portuguese Government that has recently instituted ombudsmen for Public Radio and TV broadcasters.

Aspiring to a critical reflection about the role and performance of mass media professionals, this regulatory measure, that is an obligation and not a recommendation, aims to be, in this strategic field, a sign of better supervision, better conscience and better accountability. Considering that public broadcast services must be a standard of reference for the other operators, Portuguese Government understands that, as a self-regulatory mechanism, these ombudsmen should be a kind of mediators between public or audiences and journalists, editors and programmers.

The idea of proposing an ombudsman to work behind the screens and microphones means necessarily very concrete questions, such as to discuss the effects of the audiovisual mediatization of daily events and the ethical limits of journalistic performance. Therefore what is legally established is a list of competences that start with the reception of public’s complaints and protests and end in the presentation of a weekly program (either in Radio or in TV), which is supposed to sum up some conclusions.

Although there is no long experience of these practices (in Portugal this measure is not into effect yet), there are some topics that would deserve a better reflection. What sort of efficiency is expected of ombudsmen activity? Which effects will it have in the entire audiovisual panorama, namely in private TV channels? Can an ombudsman that is hired by the channels be impartial? Can not this measure become a marketing campaign in favour of the operators as ethics and deontology may become a self-promotion pretext?

Classic books of journalism used to say that journalists are never news. Isn’t ombudsmen action a way to make them become the centre of discussion? What sort of discourse is this one improved by this vigilant attitude? Won’t ombudsmen have to face a problem of credibility, legitimacy and specification? These are some questions for which this paper pretends to essay some answers, searching for what can not be answered by the law.

From Christian-nationalism to ubuntuism as a normative framework for media regulation, practice and performance in South Africa

Since the beginning of the 1990s, South Africa is experiencing fundamental political, economic, social and cultural changes. It is a society in transition from an authoritarian to a democratic order in line with Western principles of democracy. In the processes of transformation the South African media has not been left aside. There is an ongoing process of changing the racial composition of the SA media from predominantly white to black and of instituting and revising new regulatory policies in line with international policy trends and developments. In terms of skills, products, and technology the country today hosts what is probably the most advanced media sector and system on the African continent. Since South Africa became a democracy in 1994, freedom of expression is entrenched in the Constitution of 1996. However, the African moral philosophy called ubuntuism[2] is from time-to-time hold before as a possible new normative (ethical) framework for (South) African media regulation, practice and performance. As was the case with Christian-nationalism under apartheid, this could pose a serious threat to freedom of expression.

After a brief introduction to the nature of the multicultural and multilingual South African society, and a brief introduction to the South African media system and its main regulatory features, ubuntuism is explained as an African philosophy. Thereafter a case study of “ubuntu journalism” as it was argued before the South African Broadcasting Complaints Commission, is presented. In comparing ubuntuism with apartheid’s Christian-nationalism, the argument that ubuntuism poses a threat to freedom of expression is expanded. Questions are posed about: (i) the suitability of ubuntuism (any moral philosophy) as the foundation of normative media theory, especially in the context of the changed nature of traditional African culture and values, (ii) the uniqueness of ubuntuism as an African moral philosophy in relation to, for example, Western communitarianism, (iii) the possible political misuse of a moral philosophy and the threat thereof for freedom of expression, (iv) the viability of ubuntuism as a normative media framework in a globalized and technology-driven media environment, and (v) the practical implications of a moral philosophy as a normative framework for journalism. The paper concludes with an evaluation of the value of the (South) African debate about ubuntuism as a normative framework in the context of international research about normative theory and its future value for regulatory policy.

This research examines the pattern of attacks on journalists in Iraq by the American military. That pattern is unambiguous and is widely discussed within the media industry, though ignored by the public and most scholarship. Recent arrest warrants by a Spanish court for America soldiers involved in one attack may spur media, academics, and governments to confront the problem; but also illustrate the problem at the crux of this paper – the apparent lack of reliable legal protections for journalists covering the Iraq conflict.

This project is based on systematic compilation of casualty data from a wide variety of sources, ongoing since the US invasion. These data show over 100 people killed doing or supporting journalism in Iraq and suggest that over 40 violent attacks on the press can be linked to US troops or the pre-election, US installed government. Workers for most leading international media have been killed. This project judges whether the pattern can be attributed to policy or accident, and describes the media industry response to this phenomena.

A repertory of coercion - much of it already applied within the US - has been employed to silence or "correct" press criticism of the US-led war, with coordination and sophistication. Methods range from the orchestrated provision of offended and insulted American diplomats and executives to answer anti-U.S. sentiment, to rhetorical attacks on offending media (e.g. the Hutton inquiry in the UK), to coercion through violence against journalists. The emerging pattern of application of the latter approach is the focus here. Data compiled over three years suggests the possibility that particularly non-compliant media have been the targets of violence. The author addresses both the problems of discovering and theorizing such a change in policy, as well as its legal ramifications.

This research documents in particular the unprecedented series of attacks on journalists in Iraq by the US military or by Iraqi authorities operating under US military authority. It argues that these, without exception, are in violation of legal regimes at the local, national, and international levels; but the paper also explores the controversy over whether the laws of the United States are applicable in these circumstances. The considerable evidence to date that the United States has unofficially adapted a selective reading of the Geneva Conventions, and complies with these inconsistently, is one of several indicators suggesting that an un-stated policy of violent coercion may be in operation in regard to journalists, despite their protection under Geneva. This paper ultimately questions if the “rules” governing media involvement in modern warfare have changed, and encourages further research to explore the question.

Session 2: Recent trends in legal aspects of the development of the Internet.

As has happened with our understanding of the economics of information and of the processes by which knowledge becomes codified, the informatization of society has deepened our appreciation of the variety of means by which political forms as complex adaptive systems become transformed within the broader legal field. The terms “government,” “governance,” and “governmentality” capture such forms in different positions within that Bourdieuian field: the term government refers to the formal practices and institutions of geopolitically recognized states, governance includes the formal and informal practices and institutions of both private and public sector actors, and governmentality involves the cultural habits and attitudes that enable and sustain both governance and government. Most of the literature on democracy and cyberspace starts from more or less well developed and more or less explicit generalizations about what constitutes effective political practice. Difficulties translating and adapting legacy law into terms applicable under contemporary conditions should alert us, however, to the fact that emergent forms of democratic practice may be developing, perhaps to become as or more important than traditional types of political activity in pursuit of political goals. This paper reverses the question and asks: What constitutes political activity within cyberspace? What types of democratic – and what types of counter-democratic – practices are appearing? What are the implications of the cultural habits of governmentality within cyberspace for governance and, ultimately, government? And how is cyberspace affecting the relationships among governmentality, governance, and government?

Analysis of developments within virtual worlds (including electronic games) reveals four areas in which emergent practices of governmentality and governance are appearing that are likely to have – or are already having – an impact on geopolitical governments. Study of these environments extends the familiar discussion about government use of information technologies by looking at some types of practices rarely considered from this perspective, including such matters as the switch from predictive to expressive simulations, the role of digital public art in reshaping the public sphere, definitions of users and consumers as citizens, and the importance of interactions among technologies typically treated as distinctly stand-alone by policy-makers. Studying virtual worlds and electronic games also reveals ways in which experience within cyberspace affects our ability to exercise specific types of agency, with political consequences both online and offline via socialization and knowledge gains. Specific technical design features that have explicit governance effects can also be identified.

Lastly, and most profoundly, studying the emergence of political forms within cyberspace throws light on the power of boundaries, in two senses. First, as new political forms and practices emerge that shift relationships among the domains of governmentality, governance, and government. Second, the study of power in cyberspace makes clear that the most effective sites of political activity are at boundaries themselves – between content and process, between what is technologically available and what is actually experienced, between regulation from outside of entities and regulation from within, between extrajurisdictional control and jurisdictional control, between regulation of individuals and regulation of social groups, between parametric and non-parametric change, and between play and politics. The paper will conclude by extending the conversation about governmentality and governance within cyberspace to implications for geopolitically-based governments at the national and international levels.

Over the years, the Internet has evolved into an alternative public arena, such as a street or coffee shop, a place where individuals, who until now lacked an appropriate venue to vent their frustrations and discontentment, can now freely express themselves to masses of people simultaneously. This paper posits that the spontaneous, free-for-all interactive nature of the Internet can be compared to conversations overheard on a street corner, bus or café. Just as one dismisses angry offensive speech heard on the street or subway even though such speech in principle can be defined as defamatory, one should also disregard the publication of certain speech on the Internet.

After demonstrating that courts throughout the world consider the Internet as an unreliable source of information where rumor and speculation abound, the author raises the novel proposition that speech on the Internet cannot, except under specific circumstances involving traditional mediums, be libelous due to the context in which it is spoken, namely the Internet itself. In the same fashion that name calling and crass remarks made by a street vagrant or spectator at a sports event are discounted by those who hear them as remarks made out of frustration and anger and therefore not taken seriously, so too should much of the speech published on the Internet be treated.

This paper challenges the widely held assumption that all derogatory statements made on the Internet can trigger civil suits for defamation against the person making the statement or third parties such as service providers. Unless such remarks are published in reliable, news or other closely monitored sites, this paper contends that they should be exempt from libel laws and either be formally incorporated in law as a defense to defamation or be explicitly removed from the definitions of defamation under law.

The Internet and online services have been rapidly assimilated into popular culture in Korea. Currently, over 30 million Koreans use the Internet, which accounts for 70% of the population, and more than 90% of those aged 10~20 spend a significant amount of time on the Internet every day. Not surprisingly, Korea has become one of the most technologically advanced and wired nations in the world with the involvement of the public. Responding to such Internet fever, online service providers including portals and Internet based newspapers provide online forums where users, who previously had virtually no means to speak their own voices and express opinions, exchange different views and make comments on news stories without time and space constraints. This has contributed to enhancing freedom of expression in cyberspace.

Yet, unmoderated remarks posted on the Internet often defame individuals’ reputation and infringe the right of privacy, causing the victims to withdraw from society and even drive some to commit suicide. The recent case involving former political dissident Im Soo-kyung is an illustration of the downside of the Internet. Im’s 8-year-old son was drowned in Philippine last year. In response to the news stories, some online foul commentators called her a communist or even went so far as to state that she deserved her son’s death. Libelous and dirty comments were overwhelmingly posted on the net, and the prosecution indicted some of the commentators, which was unprecedented in Korea.

The prosecution’s move against the netizens fueled heated debates over the lassaiz-faire oversight vs stricter online regulation. Opinions are split; advocates support strict legislative enforcement, claiming that the move would be an effective tool in significantly reducing online violence. Opponents, however, argue that it would lead to a severe chilling of freedom of expression, and serve as a means of online surveillance by the government. Responding to Im’s incident, Korean government proposed an Internet real-name system, as a form of online safeguard, which mandates major Internet service providers request netizens provide their real names and IDs in order to log on.

This paper is primarily concerned with cyberspace freedom of speech in Korea with an emphasis on online libel laws and cases. Specifically, it examines the proposed Internet real-name system and whether it would reduce cyber crime as intended or be an underserved infringement on freedom of speech on the Internet.

[1] ITU: Final Report on Question 8/1: Establishment of an independent regulatory body. (Document 1/204[Ref.1]—E). 7 November 2001. Available online at http://www.itu.int/itu-d/study_groups/sgp_2002-2006/sg1/documents/2001/204rev1e.doc

[2] Ubuntuism can be explained as the lived expression of an instinctive moral attitude and predisposition towards seeing and experiencing the self, others, life, and the world in a communitarian way. “I am because we are, and since we are, therefore I am.”