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Analysis of Broadcast Content Regulations

The Ministry of Information, Culture, Arts and Sports recently published draft Broadcast Content Regulations (2017), under the Electronic and Postal Communications Act. This briefing note presents an analysis of the regulations, including but not limited to their implications for freedom of expression. Suggested amendments that would mitigate the concerns raised are put forward.

Analysis

Vague and broad terms and freedom of expression

There are numerous articles in the proposed regulations that limit freedom of expression in some way. Much of this is reasonable – for example to protect public health, to ensure that sponsored content is clearly labelled as such, or to ensure balance in news reporting and fair coverage of competing candidates during election campaigns. However, in several cases, the wording of these terms is particularly broad and open to misinterpretation, and therefore vulnerable to abuse as a means of closing down space for legitimate expression of views. For example:

  • 5(h): a requirement for commercial broadcasters to “provide programmes that promote national peace, unity and tranquillity and that does not endanger national security”.
  • 6(2)(b): a requirement that religious content service providers must not “offer programmes that feature the views or beliefs of any race or religion which are unacceptable to the target audience”.
  • 10(1)(a): a requirement on every broadcaster to ensure that their content “upholds national sovereignty, national unity, national interest, national security and Tanzania’s economic interests”, among other things.
  • 10(1)(g): a prohibition on broadcasting anything that has the potential to influence the minds of viewers / listeners without their being aware or fully aware of what has occurred. 

The restrictions on content that might endanger national security are reasonable and clear, and of course it is entirely justifiable to try to protect religious minorities and to prevent civil disorder. The difficulty, however, is that many of the terms used above are not defined, vague and/or open to abuse. Protection of “unity and tranquillity”, for example, is language that could be used as a justification for closing down space for legitimate criticism and debate. A similar argument applies to “upholding national unity” and “economic interests”. And in 16(5), “likely to” could easily be replaced by “intended to”, or legitimate coverage of controversial news events could be prevented. 

Duplication and inconsistency

Large sections of the draft regulations duplicate each other to a large extent, sometimes covering the same issues three or more times. For example, content of a violent nature is covered at length in article 12, and also in 10(2)(c), 37(7)(a); sexual content is covered in articles 26 and 27, and also in 10(2)(b), 31(1)(b) and 37(7)(c); offensive language in and 10(2)(a), 28(d), 31(1)(b), and 37(7)(d). There is also duplication of terms related to the protection of children from unsuitable content in articles 11 and 13, 5(f) and parts of 12, and the use of English, Kiswahili and other languages in article 28(a) as well as 5(d) 6(1)(f), 7(1)(n-o) and 30(2)(a).

Such duplication is entirely unnecessary and likely to result in confusion.

Relatedly, there are several examples of inconsistency in the regulations, particularly with regard to the treatment of the public service broadcaster, commercial broadcasters, non-commercial broadcasters and community broadcasters. For example, in article 5, commercial broadcasters are required to “include drama, documentaries and children’s programmes that reflect the themes and cultural identity of the nation”, “avoid racial and religious hatred”, “avoid programs related to nakedness, gambling, violence, superstition and astrology”, “avoid defamation and blasphemy” and “provide programmes that promote national peace, unity and tranquillity”, while none of these requirements apply to public broadcasters, non-commercial broadcasters or community broadcasters. Similar, each of these other types of broadcasters are subject to numerous requirements that do not apply to the others.

Such inconsistency lacks any clear logic. If it makes sense to put such restrictions on one type of broadcaster, then (perhaps with a few exceptions), it also makes sense to apply them to all other types of broadcasters.

Further, other inconsistencies in the proposed regulations directly contradict each other. For example, regulation 14(3)(i) requires that broadcasters “shall not broadcast any programme sponsored by a political party” and 18(1)(d) says that broadcasters must “not permit any broadcast sponsored by or made on behalf of a political party” during election campaigns. However, 18(1)(c) explains how content sponsored by political parties should be introduced.

Click here to read the full analysis.

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