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Guidance for Burmese journalists on promoting an empowering press law

UPDATE: Media Bill nears completion (Mizzima, 14 January 2013)

(SEAPA/IFEX) - 15 August 2012 - Note: This guideline is jointly prepared by the Southeast Asian Press Alliance (SEAPA) and the Centre for Law and Democracy (CLD) to provide support for the media community in Burma in addressing the anticipated introduction of a press law and a press council. Journalists and civil society groups are encouraged to use this guideline for their discussions and advocacy strategies. We only ask you to attribute the document to SEAPA and CLD.

(This document is also available in Burmese in PDF and Word formats)

I. Introduction

The government of Myanmar is developing a new press law for the country, as part of a wider process of democratisation. It is universally recognised that a diverse and free media is a key part of any framework for democracy. Citizens receive the large majority of their news and current affairs information through the media, and this is central to their ability to participate in public affairs, which is at the heart of a democratic system of government.

The evidence suggests that the government aims to adopt a law which will significantly liberate the print media from the strict controls under which it has traditionally operated. However, good intentions are one thing, while delivery of a law which specifically ensures media freedom is another thing.

International law contains fairly detailed standards and rules regarding what is acceptable in a press law, in the sense of being consistent with the guarantee of freedom of expression. These standards are derived from primary guarantees of freedom of expression, including Article 19 of the Universal Declaration of Human Rights, as well as the interpretation of these guarantees by authoritative international bodies, such as the United Nations Human Rights Committee and the Special Rapporteur on Freedom of Opinion and Expression.

An informed media and civil society sector is a key means for ensuring that any press law which is adopted is as strong as possible in terms of compliance with international standards. This guide provides journalists and other media workers, as well as civil society more broadly, with information about those international standards, with particular reference to the content of a positive press law. In this way, it aims to contribute to the process of democratisation in Myanmar.

II. Self- and Co-Regulation: Pros and Cons
Different Systems of Regulation

The systems for regulation of the media can generally be divided into three categories: self-regulatory, co-regulatory and regulatory (or statutory regulatory). The first is where the media (or relevant media sector, such as newspapers or broadcasters) organises the system of regulation by themselves. In most cases, these systems consist essentially of developing a code of conduct or similar document setting out what is considered to be unprofessional media behaviour, and then establishing a body to receive and decide on complaints about this.

Co-regulatory systems are similar to self-regulatory arrangements, inasmuch as they are significantly run by the media or a media sector, but differ inasmuch as the system is backed up by legislation. Pure regulatory systems are where laws establish oversight bodies which are not largely run by the media, although media representatives may participate in them. Both co- and self-regulatory systems often go beyond a simple complaints function and involve other forms of regulatory activity.

Which System is Preferable?

It is generally agreed that self-regulatory systems are, at least in theory, the preferred approach for the print media sector, most importantly because they are the least prone to government interference. There are, however, two good reasons to consider co-regulatory systems. First, in many countries, the media, or relevant media sector, lacks the maturity or coherence required to form a self-regulatory system. Indeed, even in relatively mature media environments it can be difficult to develop pure self-regulatory systems, among other things because different media outlets compete with each other - for example for market share and headlines - and this can make it difficult to cooperate.

A co-regulatory approach can resolve this problem. By establishing the key parameters of the system in law, it does not depend on different media outlets being able to reach complete agreement on them. This does not mean that media support and buy-in to the system is not important; proper consultations with the media and broad support from media outlets and workers for the system is essential to its success. But the push provided through legislation can be crucial to moving the project forward. Furthermore, a co-regulatory approach can require all media outlets to be part of the system, which avoids the problem of needing to get complete agreement among all actors before moving forward.

This relates closely to the second reason, which is that self-regulatory systems lack any means for enforcing compliance with their decisions. As a result, media outlets may ultimately ignore decisions which go against them, although there may be social costs to this, such as a requirement to withdraw from the system and exposure of their shortcomings. Co-regulatory systems, on the other hand, have legal backing which can render their decisions formally binding. This is not just an enforceability issue; it can also help bolster the credibility of the system in the eyes of the public. Public credibility is important because, if the public does not use the system (i.e. by making complaints) it will fail to achieve its goals.

Pure regulatory systems for the print media are almost unknown in democracies, because there is no reason not to give the print media a strong role in the regulatory system, a key characteristic of self- and co-regulatory approaches. Where pure regulatory systems are in place, they have often been used to perpetrate serious abuses of media freedom.

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