Analytical paper by:
Senior Lecturer in Media and Communication
University of Mauritius
The Independent Broadcasting Authority (Amendment) Bill was voted on Tuesday 30 November 2021 after very heated debates both in the National Assembly and the media and despite public protests in front of Parliament. The Independent Broadcasting Authority (IBA) is the regulatory agency for radio and television broadcasting in Mauritius. It was created by the IBA Act 2000 to allow for the liberalisation of airwaves and the first private radio stations were established in 2002.
The most salient amendment in this 2021 Amendment Bill concerns the possibility for the IBA to apply to a Judge in Chambers for ordering the disclosure of journalistic sources. This can have damaging effects on journalistic practice, not just for radio stations but potentially for all media in the long term, as it creates a regulatory precedent. In a country where a law dating back to British colonial times, the Official Secrets Act, still prevails with stringent confidentiality requirements for all civil servants, such a provision creates a chilling effect on sources and journalists alike.
Other major changes concern the shortened duration of radio licences, the scrapping of the Standards and the Complaints Committees, the introduction of an Independent Review Panel, administrative penalties of up to Rs 500,000, removal of community radio and TV licence categories and the possibility for the IBA to introduce new codes.
The key amendments are as follows:
● IBA can apply to a Judge in Chambers for disclosure of journalistic sources;
● Shortened duration of licences: from 3 years to 1 year;
● The Standards Committee is removed;
● The Complaints Committee is removed;
● Introduction of a new committee called Independent Review Panel (IRP) for appeals;
● Codes already developed are not repealed but can be reviewed without consultation;
● Introduction of administrative penalties of up to Rs 500,000;
● Removal of the community licences categories;
● Codes already developed are not repealed but may be reviewed without consultation.
Application to Judge in Chambers for disclosure of journalistic sources
The proposed amendments provide for the possibility for the IBA to apply for an order by a Judge in Chambers to direct a person who refuses to do so on the ground of confidentiality to produce « any record, document or article » needed for the exercise of its regulatory powers.
This is against journalistic standards that require utmost respect for the confidentiality of their sources. The European Court of Human Rights states in its factsheet on protection of journalistic sources (1) that: « Article 10 of the European Convention on Human Rights safeguards not only the substance and contents of information and ideas, but also the means of transmitting it. The press has been accorded the broadest scope of protection in the Court’s case law, including with regard to confidentiality of journalistic sources. » (…) « [A]n order of source disclosure … cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”
Hopefully our judges will resist any frivolous requests and consider only very exceptional circumstances such as if our national security is at stake (which has never happened so far to our knowledge). Nonetheless, such a provision constitutes a red flag for journalists and potential whistleblowers. In other words, a chilling effect! It will require strong will and commitment for journalists to engage in serious investigative work despite the looming threat of a potential order to disclose their raw documentary sources, leading to self-censorship. It will be even more difficult for them to promise the utmost protection of anonymity to their sources as the latter may fear to be identified through the journalists’ raw documents.
There has been much discussion about the fact that the application to a Judge in Chambers would be made ex parte (2), that is, done by and for only one party (here the IBA) such that the journalists would not necessarily be able to defend their case against granting of the application. The PM has stated that the Judge in Chambers may actually call journalists to counter argue and that they should be trusted to assess requests in all fairness. This seems to be a valid point.
However, even if journalists were indeed called by the Judge in Chambers to explain why the application should not be granted, this process still puts the burden on them for proving why the anonymity of sources should be protected, which appears to be in contradiction with Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights whereby « States parties should recognize and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose information sources. » as per General comment No. 34. (3)
Shortened duration of licences
The amendment which has the most attracted criticism is the shortened duration of licences: from 3 years to 1 year.
There is a suspicion that this proposed amendment targets a specific private radio station which has been very active against the PM’s political party and whose licence will expire in December. If the Act is promulgated quickly, the shortened duration would be applicable when considering the radio’s application for renewal. In his summing up, the PM stated that another private radio station is also concerned (with the sub-text that the latter is pro-government), thus making the accusation void of substance.
It should however be noted that, in France and the UK, licences are for 5 to 10 years (depending on categories). In the USA, licences may initially be granted for up to 8 years after a lengthy approval process. French radio stations have to sign conventions with the regulatory agency, the Conseil Supérieur de l’Audiovisuel, prior to starting operations.
The amendments for Mauritius also state that, when deciding on the renewal of licence, the IBA may take into account any sanction already imposed previously by the Authority. This may actually represent a double penalty but similar provisions also exist for serious offenders in France (4) and the USA (5) though there are much more details on the websites about conditions and procedures in comparison with the IBA website in Mauritius.
Exit the Standards Committee
The mandate of the Standards Committee (which comprised 7 members) was to:
● Draw up a code of ethics for licensees;
● Draw up a code of advertising practice;
● Conduct audience research if and when required by the IBA;
● Make periodical reports on standards attained by licensees.
Provision was made for the codes to be reviewed from time to time in consultation with licensees and « a spectrum of listeners and viewers ».
We could not find any detailed information about the latest composition of the Standards Committee on the IBA website.
In effect, the first two codes were published in 2011 and are available on the website of the IBA. No review or consultation exercise has ever been made public as far as we know (we could not see any records on the IBA website).
Neither has there been any information about audience research or periodical reports about standards attained by licensees. According to the PM’s statement at the second reading of the Bill on Friday 26th November 2021, the Standards Committee has been ineffective since March 2013. This is what he stated:
« I am informed that the last meeting of the Standards Committee was held in March 2013. Since April 2013, the Standards Committee has not held any meeting at all and has been ineffective in terms of output. The board of the IBA has considered the issue and, at its meeting of February 2020, decided that membership of the Standards Committee be discontinued with immediate effect. From April 2013 to 27th of February 2020, an amount of Rs 1,245,240 has been paid to members of the committee which no longer had its result. »
Exit the Complaints Committee
As for the Complaints Committee, which also comprised 7 members, its mandate was to:
● Receive complaints;
● Consider and adjudicate on the complaints – based on any breaches of the two codes as well as unjust and unfair treatment and infringement of privacy (the formulations also included « or likelihood of unjust and unfair treatment » or « likelihood of unwarranted infringement of privacy »!);
● Conduct hearings for all interested parties;
The Chairperson of this Complaints Committee was supposed to be a law practitioner of not less than 10 years’ standing.
We could not find any detailed information about the latest composition of the Complaints Committee on the IBA website. According to media reports, the last Chairperson of the Complaints Committee appeared to be Senior Counsel Gilbert Ithier. No information could be found about the other members.
There is no complete record of complaints received, considered and adjudicated by the Complaints Committee on the IBA website. Nor is there any record of hearings held.
However, the PM stated in Parliament that the Complaints Committee has been working and has received 228 complaints since 2003, out of which 117 have been set aside as the complainants had lodged cases in court. A breakdown and details for the remaining 111 complaints which were processed would have been interesting here. The PM further stated that « The Bill now provides that a public complaint will be referred to the Authority by the director. This will help to speed up matters and will save cost and is in the interests of all parties. » No further details were given about the average time taken to process a complaint nor the average cost involved.
One should note that there used to be seven members in each of these two committees, including the two chairpersons, representing a total of 14 members for the two committees. One can legitimately ask whether the board or the executive, whose number of members would arguably not change after these amendments, will be able to handle the same volume of complaints on top of their usual missions.
The IBA Act makes provision for a minimum of 9 members and a maximum of 11 members including the Chairperson. There are currently 9 members listed on the IBA website, which gives a leeway of two more members who could be added in the future.
Enter the Independent Review Panel (IRP)
With the proposed amendments to the IBA Act, there would now be a new committee called the Independent Review Panel (IRP) whose mandate would solely be to process applications for any review of the IBA’s decisions. Most analysts have misunderstood the mandate of the IRP which we initially thought would replace the Standards and the Complaints Committees. In fact, according to our reading of the amendments, these two committees would not be replaced. The work would simply be done by the IBA itself (it’s not clear whether it will be the board or the executive of the institution). The mandate of the IRP would only be to review the decisions of the IBA (presumably in case licensees apply for reviews of decisions and sanctions by the IBA).
Three members would be nominated by the Minister, including a chairperson who would need to be a barrister-at-law of not less than 5 years’ standing, to the IRP and one officer would be designated by the Authority to act as secretary to the IRP.
The IRP would be able to co-opt a person with experience in broadcasting, communication, finance or law to be a member of the committee for dealing with an application for review but without any voting right in the committee.
Two members would be sufficient to constitute a quorum. Any member who has a conflict of interest with a matter being reviewed must disclose the nature of the conflict but can continue to deliberate if other members approve.
Hearings would be conducted in public except if decided otherwise by the IRP.
The size of the committee appears small with a quorum of two. In case there are only two members present, and there is disagreement between the two, how will a decision be made? If the Chairperson is absent, can another member act as Chairperson even if (s)he is not a barrister-at-law with 5 years in standing?
The small size of the committee also raises questions in case of conflict of interest. Other members may feel compelled to approve that the person continues to deliberate so as not to have only two members for discussions. Generally, it makes sense to have an odd number of members in a panel to avoid the possibility of ties.
As for the fact that the IRP may decide to hold hearings in private, it would have been desirable to have a framework to define what conditions could lead to such decisions so that these remain exceptional. In fact, previous hearings by the Complaints Committee have also remained strangely under the radar as the IBA did not publish any records on its website. Except for a few cases, the media have also remained quite silent about these hearings and the outcomes of the complaints, presumably as these would not offer a flattering image for them. Dissemination of such information would have been in the public interest as the ultimate objective is to improve the professional standards and practice and to uphold public accountability and democratic standards.
Administrative penalties of up to Rs 500,000
The proposed amendments state that the IBA may « impose such administrative penalties as it thinks fit ». The maximum penalty that can be levied is Rs 500,000 which would go into the General Fund whereas there was none previously in the Act.
There are not enough details about the possible nature of the administrative penalties and proportionality of fines with alleged breaches.
It should here be noted that there wasn’t any detailed framework which was made public either for the former Standards and Complaints Committees. What types of « punishments » were being meted out for what types of breaches?
Overall, the Authority’s Board also seems to be given more latitude in that it will be the one to adjudicate on alleged breaches and to decide on the penalties to be imposed. Previously, complaints had to be adjudicated by the Complaints Committee which then forwarded its decision or recommended the issue of directions to the Board of the IBA.
It should be noted that other countries also have the equivalent of administrative penalties. For example, through the Conseil Supérieur de l’Audiovisuel (6) in France and Ofcom (7) in the UK. In France, the CSA can impose a fine of up to 3% of the company’s annual and 5% for a repeat offence (8).
There was no such provision in the IBA before these proposed amendments. While it may appear reasonable to include financial sanctions as deterrent to unethical behaviour and non-compliance with regulations, proportionality is essential to avoid autocratic behaviour by the IBA. In his summing up in Parliament on Tuesday 30 November 2021, the PM stressed on the fact that the penalty « shall not exceed Rs 500,000 », representing a range of between Rs 1 and Rs 500,000, and that the principle of proportionality remains applicable. Only time will tell how the IBA will use this range as there are no indications within the law about potential segments. It only states that the gravity of the breach and non-compliance with the Act will be considered by IBA when determining the quantum of the penalty.
Removal of the community licences categories
A point which has been overlooked by all analysts is the removal of existing provisions for community radio or TV licences which were considerably cheaper than commercial licences. These have been removed altogether.
Although no licence has been granted so far, there is no information on whether there have ever been any applicants and even if there has never been, this is a missed opportunity. Why should these be removed? One could have imagined the setting up of village or campus radio stations on a small scale. This is a missed opportunity.
Codes already developed are not repealed but may be reviewed without consultations
The amendments retain the existing Code of Ethics and Code of Advertising Practice. They state that the IBA may also develop new codes which would become binding on the licensees. The existing codes may also be reviewed by the Authority as and when it thinks fit.
No mention of consultations with licensees or listeners and viewers is made whereas in the previous Act, consultations were possible when doing reviews of the codes. No broad consultation has ever been made public however when the codes were being drafted and adopted in 2011. This represents a top-down approach in stark contrast to public consultations which are possible elsewhere (9).
This is also a missed opportunity for more democratic participation in the co-regulation of a public service.
The debates about the proposed amendments are a good opportunity to review the state of media operations and media regulation in Mauritius. It is undeniable that there are issues with journalistic practice in Mauritius with regular unethical behaviour which need to be regulated, neither solely by the State, nor solely by the industry, but rather in a co-regulation model which includes State actors, industry actors and the public at large (through its civil society and other representatives).
Laws do exist to address issues such as defamation, libel, contempt of court, publication of false news, sedition, etc. These however date back to colonial times with sometimes obsolete provisions and fines which need to be revised (10). Additionally, what linkage would there be with these existing laws? Would the administrative penalties be set over and above potential fines and sentences in courts of justice?
Why not carry on with the work started by Prof Geoffrey Robertson QC in 2013 with his extensive preliminary report (11)? As we wrote in a previous article (12), Robertson made three broad recommendations: a complete review of existing laws as well as the introduction of a Media Commission and of Freedom of Information legislation.
Furthermore, most radio stations have an online presence nowadays. Web radio and web TV stations are nowadays possible through YouTube, Facebook and Instagram lives and possibly even Twitter spaces. So, how would these be addressed?
What about operators who may choose to be legally based abroad to skirt around local regulation? Remember offshore pirate radio stations such as Radio Luxembourg (13) and Radio Caroline (14) in European countries and inshore stations such as Lorraine Coeur d’Acier (15).
In essence, a holistic viewpoint is needed for more coherence.
Finally, more transparency is needed in the operations of all committees. The website of the IBA should be used to communicate to the public continuously about its activities, adjudications, committees, etc. Why should we wait for a statement in Parliament to know the number of complaints received and treated? Ideally, the nature of complaints, the deliberations and the final decisions should by default be made public (except if these can harm individuals who require utmost confidentiality).
Because, after all, regulating radio broadcasting is supposed to be in the public interest first and foremost!
● Analysis of legal documents and legislation is tedious due to the lack of intelligibility of the formats and language used. In the case of Amendment Bills, it is even more complex due to the need to go back and forth between the original Act and the proposed amendments. It would be desirable to create documents that highlight the changes and present the final Act as it would appear after amendments right from the outset to avoid confusion and misinterpretation (an accusation often levelled against those who critique the proposals);
● When this Amendment Bill was presented for voting, Opposition members requested for a division of votes in view of an eventual application for judicial review of the constitutionality of the law. This proposal was turned down by simple majority vote as could be foreseen. Division of votes could have been a regular feature of National Assembly proceedings rather than an exceptional measure to integrate personal accountability of Members of Parliament on both sides of the House vis-à-vis their respective electors.
9. See for example https://www.csa.fr/Reguler/Consultations-publiques