The Media Decree gives too much power to government officials, provides insufficient avenues of appeal, and limits the ability of citizens to participate in political debate, according to an analysis prepared by a New York-based legal group. The International Senior Lawyers Project also expressed concern over the decree’s lack of transparency, lack of rights of access to information, and provision for direct government regulation of content, including the power to censor criticism of itself. The ISLP, which provides free legal services to grassroots NGOs and governments in least-developed countries, prepared the analysis for the Ghai Commission that drafted a proposed fourth constitution for Fiji
Government-owned and/or controlled media have a tendency to promote propaganda crucial to maintaining an existing political power base and suppress attempts by the media or individual journalists to challenge the approved “government line” on controversial issues. In such a context, journalists are (rationally) motivated to report what is deemed acceptable by the government.
Concerns with the decree identified by the ISLP also include vagueness in wording that could lead to self-censorship by journalists, the personal liability of employees of media organizations, censorship of material prior to publication, and the enshrining of seditious libel provisions that prohibit criticism of the government. The ISLP’s top five concerns with the Media Decree are:
- Executive Control
- Lack of Procedural Safeguards
- No Right to Access Information
- Direct Regulation of Content
- Restrictions on Political Speech
The decree fails to distinguish between the executive, legislative and judicial functions in regulating the media, noted the analysis. It vests control of the Media Authority, which regulates the media, in the hands of government officials who have broad powers over both it and the Media Tribunal, which adjudicates media disputes. “For example, the President controls the appointment and removal of members of the Tribunal, and the Minister controls appointment and removal of members of the Authority, with or without cause.” The full name of the decree is the Media Industry Development Decree (2010), which the analysis found misleading.
Despite its stated purpose to “encourage, promote and facilitate the development of media organizations” (Section 8(a)), the Authority generally controls and restricts the media, hears complaints against the media, and has broad discretion to launch an investigation against any media organization irrespective of whether it receives a complaint
The ability of media to challenge the decree legally and to appeal its decisions are “severely limited if not entirely prohibited,” the ISLP notes. The penalties provided – media organizations can be fined up to $100,000 and individual journalists can be fined up to $10,000 and imprisoned for up to two years – are out of line, according to the analysis.
To prevent the chilling of legitimate speech by disproportionately punishing illegal speech, liability for publication should be specifically circumscribed to limited circumstances and proportional to the government interest being protected by the restriction.
Also worrying to the ISLP are the broad powers provided in the Media Decree to censor material prior to publication or broadcast. “A system of prior restraint curtails the opportunity for public appraisal and increases the chances of abuse, and, in the long run, the preservation of civil liberties rests upon an informed and active public opinion.” While the regulation of content in the public interest or in the interest of public morality is generally accepted in democracies, the ISLP notes, the language used in the Media Decree is too vague to allow good decisions to be made by news media, which would tend to err on the side of caution. Its provisions on religion and public morals, for example, include “overbroad concepts which are likely to cause self-censorship.”
While the decree requires the publication of the Media Tribunal’s decisions, the ISLP notes, it does not provide for Freedom of Information requests by the public. One of the most objectionable provisions of the Media Decree, according to the ISLP, is that enabling pre-publication review and censoring of material that could “undermine the Government and the State of Fiji.” Seditious libel laws that prohibit criticism of the government have been struck down in countries worldwide, but one is included in the Media Decree.
While the Decree’s inclusion of national security and communal discord as justifications for restricting speech find resonance in modern democratic societies, state dignity and honor do not.
