My Re-Assessment of the Media Decree

        Opinion
         Crosbie Walsh
On April 12th I published a list of ten items that I took to be people's general concerns about the Draft Media Decree, together with my comment where necessary. To read, click here.

Four months on, the Decree has been promulgated in its final form. The reaction of the international media, then and now, has been almost wholly negative which is not altogether surprising given that the existence of one of their own, the Fiji Times, is threatened. A closer and more open-minded examination of the Decree, however, would show that many of the concerns have been addressed, and for the most part the Decree fills the acknowledged longstanding gap in media regulation in Fiji. Indeed, in some respects, but particularly in its stated aims and code of ethics, the Decree could well be emulated by other countries.

The following discussion compares the ten areas of general concern noted in April with the Decree as it it now stands:



1. The power of the Minister and the power of Government.
(a) A consensus view, with which I agree, is that recommendations on the appointment of the chairpersons and members of the Media Industry Development Authority (MIDA) and the Tribunal should be by a wider grouping, including people who are not part of Government.
Update. Wide consultations have obviously taken place but with whom is not known. It should be noted, however, that appointments by Ministers are common in New Zealand and elsewhere. It is only the present political situation in Fiji that makes this provision of special concern. We will be in a better position to judge when appointments are made. The only one so far, of Dr Satendra Reddy as the MIDA chair, seems wise and uncontroversial.

(b) The Decree makes no mention of members of the MIDA or the Tribunal and the qualifications that will be necessary to fill these positions. This is an important omission.
Update. Membership composition is now known. MIDA will comprise:
A chairperson (Dr Satendra Reddy); the Solicitor General (Mr Christopher Pryde) or his nominee; one person representing the interest of consumers in Fiji; one person representing the interest of children; one person representing the interest of women; and one person with experience in journalism and/or the media industry. The Tribunal will be chaired by a judge.”
On the face of it, this seems fair and balanced, with representation assured from groups often under-represented in decision-making bodies.

2. The Minister can give directions to the MIDA through the Director. This potentially undermines media freedom even though the Minister may only give directions consistent with the Decree.
Update. This provision is unchanged. I am not totally happy with it, but I cannot see how a Minister can be prevented from ensuring MIDA decisions are consistent with the Decree. Indeed, it is his duty to do so. The only concern, again, is that this power may be “stretched” beyond its intent. My reading is that, if such a circumstance arose, MIDA could appeal to the Courts..

3. The Minister can dismiss the Authority Chairperson. I see no problem with this as long as there is "reasonable cause" that is made public.
Update. No change.

4. The ambiguity of terms such as public and national interest. I have no major problems with the ambiguity if the deciding authorities are more representative, and if government appointees comprise a minority membership in the deciding authority. The critical issue is who, in the absence of precedent, defines terms such as national interest and public order? Definitions are likely to be highly subjective and this could lead to a degree of self-censorship which is not ultimately in the best interests of the nation. 
 Update: No change.

5. The lack of transparency in the working of the MIDA and the Tribunal. My view is that the public (or generally acceptable public watchdogs) should be informed of decisions and as much as possible of the proceedings leading to the decisions. Update: Decisions can now be appealed in the Courts.

6. The penalties for breaching the Decree are excessive. These range from up to $100,000 for editors and journalists and/or five years imprisonment and up to $500,000 for organizations and/or five years imprisonment. I think Government should engage in further consultations to determine more appropriate penalty levels.
  Update. The penalties have now been reduced for media organizations to $100,000; $25,000 for publishers and editors and $1000 for reporters and journalists.

7. The requirement to publish a “byline” for all news items that would identify the author.
  Update. This requirement is now limited to items in excess of 50 words, an improvement for news briefs but still far too strict. If the intention is to distinguish between news items (typically 200-500 words) and opinion pieces and editorials which are generally longer, the limit should be 500 words. Better still, the criteria be news facts or opinion, not the number of words.


8. Search Powers and Limited Rights of Appeal. I have no problem with the search powers if they also involve the police and/or require an magistrate's warrant, but I think there should be a right of appeal up to the High Court.
Update. These changes have now been made.

9. The Decree may also impact on those deemed to be in breach of the Decree, even when they are bloggers or journalists overseas, and foreign journalists based in Fiji. The probable impact on the Suva-based Pacific Islands News Association is particularly disturbing. 
  Update. No change except that internet service, telecommunications and advertisement providers are not considered media.

10. Limitations on Foreign Ownership.
(a) The draft Decree will put a 10% limit on foreign ownership, and the divestment of interests or shares in excessive of this within three months. 
 Update. This provision is unchanged. 
(b) All directors of media organizations will be required to be Fiji citizens, to have permanently resided in Fiji for five of the previous seven years, and to have lived in Fiji for nine months a year.
Update. The residency requirement has been relaxed, and “permanently residing” now means any person residing in Fiji for 3 out of the 7 years prior to registration and thereafter residing in Fiji for at least 6 out of 12 months of a year. (Section 37) 
(c) Directors (in all except of State-owned media enterprises) may hold only one directorship in another, non-voting interest, in another media organization, but their financial interest must not exceed five percent. 
 Update. The prohibition under the Decree for cross-media ownership has also been revised. Now, if a person owns a beneficial interest in any one media organisation, then that person may own a further interest in only one other media organisation provided that  if the business or trade of that other media organisation is in the same medium, then the person may hold up to 25% non-voting interest in the other media organisation;  if the business or trade of that other media organisation is a different medium, then the person may hold up to 5% of non-voting interest in the other media organisation.

Summary
In my opinion most concerns have been satisfactorily addressed. I am not happy with the 10% limitation on foreign ownership. A 30-40% limit would have put the paper in local ownership, and not so provoked the foreign press that they might have spend more time looking at the desirable parts of the Decree. I am disappointed Government has not kept to its original notice of lifting the Public Emergency Regulations once the Media Decree was in place. The Decree ensures a more balanced media. What is now lacking is opportunities for meetings and public discussion, still prohibited by PER. I trust those close to Government will tell them how important it is for unofficial and official dialogue to recommence, and how any further extension to PER will lose them support from moderate opinion in Fiji. And I am acutely aware that even good legislation can be abused by those who try hard enough. It is to be hoped that those appointed to MIDA and the Tribunal will see this does not happen. Their job is protect the public – and the media.

Comments

Kubuabollocks said…
Croz, I see Ratu Inoke Kubuabola, the foreign minister, is making the extraordinary comment that the Media Decree is " a break from Fiji's colonial past". For God's sake, we've been independent for 40 years and saw no reason to control the media until now. What self serving nonsense. We can assume Ratu Inoke's comment refers to the regime forcing News Limited Limited to divest itself of the Fiji Times. Leaving aside the retrospective nature of the Decree and the ludicrously limited time frame for News Limited to get out of Fiji, let's just ask ourselves some basic questions: Is there now a local buyer for the Fiji Times? The answer - I'm told - is no, at least not yet, and News is not interested in a fire sale. What will happen if News Limited can't find a local buyer? It's already said it will have no option but to close the paper. How does this benefit Fiji? It doesn't, except for removing a source of irritation for the regime. How does it harm Fiji? By costing jobs, depriving us all of an important and historical media outlet and jeopardising foreign investment in the country. All of which indicates that on balance, even an Australian owned media outlet is preferable to no media outlet at all. "Breaking with the colonial past" is only good if it produces a better outcome for Fiji. This doesn't do that at all. And to add insult to injury, we now have the regime resorting to crude chauvinism to justify the unjustifiable.
What if... said…
Croz, what happens if they can't find a buyer for the Fiji Times? Will you then be supporting the Media Decree? When nearly 200 people lose their jobs? It's all very well to support local ownership of the media. But I wonder how you and the regime will justify job losses in 3 months time. As if we don't have enough problems already.
Croz Walsh said…
@ What if ... Reading my analysis of the Media Decree and the changes made to the draft will show that I'm happy with most of the Decree, and uncertain or unhappy about other parts. As stated, I think the foreign ownership limit should have been raised to 30-40%.

And I say this despite my disappointment with how the Fiji Times has handled the post-coup situation. This also is documented in the blog. Write "Fiji Times" in "Search the Blog" to see the numerous occasions I think the FT abused its priviledged fourth estate status.
Blatant evasion said…
Croz, you didn't answer the point. If the Fiji Times closes because Murdoch can't find a suitable local buyer, will insisting on local media ownership be worth the loss of 200 jobs? It's about time you and all these other coup apologists answered the question. Because you will be held to account by the rest of the country if you've put a highly contestable ideological point before the welfare of ordinary people. I don't care what the Fiji Times has done. It wasn't the receptionist or the security guard or the delivery boy or the street seller who was responsible for the paper's editorial line. And if local ownership is such a big deal, why now? Why 40 years after independence? Why in the middle of an economic downturn when these poor bastards have nowhere else to go? Answer that.
Croz Walsh said…
@ Blatant evasion ... The question was not evaded. It is you who evade the reason for the 10% limit by saying you do not care what the Fiji Times has done. What a terrible admission!

The substance of the decree is about responsible journalism, not the Fii Times, the only provision about which you seem concerned. I am more concerned the Decree may be abused unless highly principled people are appointed to MIDA and the Tribunal.

I said I was unhappy about the 10% limit on foreign ownership.

With respect, your moral blackmailing about lost jobs and ideological points does not put you on the high moral ground. Of course, I'm concerned about the loss of jobs, as I was about the loss of tourist jobs that those opposing Government seem not to care about. It is insulting to ask. And what is ideological about my analysis?

What is needed (but unfortunately is unlikely to happen) is a "realistic" increase in the foreign ownership limit -- and you to acknowledge the desirable features of the Decree. Please carefully re-read what I have said about the draft and final Decree, and then ask yourself have I done Croz a disfavour.

Please excuse the "agro" but I'm tired of defending myself against what I have not said or inferred, and readers who draw their own conclusions before carefully reading what I have written.
The war begins said…
Rupert Murdoch has launched his predicted offensive against Fiji with two explosive stories in today's Australian newspaper. The length and tone of these clearly indicate that News Limited intends to bow out of the Fiji Times with all guns blazing. Whatever the merits of these stories, the damage that will be inflicted on the country will be enormous. The regime was warned and so was everyone else. Now, we're going to be taught a lesson in the realities of the international marketplace. One of the stories is plaInly aimed at deterring Australian tourists from visiting Fiji. The coming weeks will be very ugly.
Red Dragon said…
@ Croz & Blatant evasion

This comment from Blatant evasion is typical of the dumbed-down thinking and writing that has taken the Fiji Times from what was once a reputable newspaper with a long and cherished history to a bunch of people only concerned with their future employment prospects. What kind of judgement and common sense is shown to us all here? What were the CEO and the Board of Directors thinking to have allowed this mindset to remain in situ for so long? Of course, one must be concerned about the rate of unemployment in Fiji and be determined to keep good jobs on the rise. But many at the Fiji Times have never given a moment's thought about such matters until now. Not once did they think of their nation's sovereign interest and why it must be served. If they are skilled and industrious and, above all, investigative journalists with imagination and professionalism they will find jobs: here or elsewhere as others far more skilled than they have been obliged to do in Dubai, Oman, Qatar and even in Australia and New Zealand who have taken in all kind of people: even those hiding from future corruption charges. There will be no time limit on these they may rest assured. Blame those who have run away from abusing their office and public funds while the Fiji Times span myths and .....yes...lies for their own ends.
Response to "Agro" Walsh said…
Wow, Croz, or is it "Agro" a la The Muppets? I can understand your irritation at being misrepresented or misinterpreted but I think you'll acknowledge your general sympathy for the Media Decree. Can I make a couple of points in response?

You can't legislate for responsible journalism, just as you can't legislate for responsible behaviour. In any event, one man's "responsible" is another man's "irresponsible" when it comes to opinion generally and especially when it comes to the Fiji Times. Is there a national clamour for the paper to be brought to heel? I hardly think so.

Why is it such a terrible admission for someone not to care what the Fiji Times has done in its editorial columns? It's a newspaper, for God's sake, not a court of law. If you don't like what it says, don't read it, just as your own readers can go elsewhere if they don't like your own opinions.

There's no "moral blackmailing" in publicly questioning the wisdom of putting the livelihoods of ordinary Fijians at risk with legislation that no elected government in 40 years of independence has seen fit to introduce. And there's nothing unreasonable in questioning the moral right of a dictatorship to deprive anyone of the freedom of expression they've always enjoyed until it was removed at the barrel of a gun.

It doesn't matter whether the Media Decree allows 10 per cent foreign ownership or 49 per cent. It's still a retrospective and summary order for a foreign company to divest itself - within a ludicrously short time - of an asset it acquired legally under a legally constituted government. This regime is illegal and has been declared as such by Fiji's highest court.

I'd also submit that your own foreign ownership proposal, which is less punitive, is totally irrelevant under the present circumstances. No local buyer has yet emerged for any part of the Fiji Times and even if the current foreign ownership provision was to be wound back, you've yet to demonstrate that any local interests would step in to fill the void, especially under the present circumstances.

The Fiji Times is highly profitable, which is why its Australian owner is screaming so loudly about its virtual expropriation. But it would be a brave man in Fiji who'd even contemplate trying to buy it while the regime behaves with such capriciousness and the economic outlook is so bleak. The fact remains that peoples' jobs are threatened because the regime fears not a counter coup but the badly written musings of a very ordinary newspaper. A classic case of even a bad pen being mightier than any sword.
Croz Walsh said…
@ Blatant, etc ... Sorry, but it's you who keep shifting the goalposts. I never denied being in general sympathy with the Decree, though criticising parts of it. I never said you can legislate for responsible jouralism, no more than you can legislate to stop crime, but you can legislate to punish it and irresponsible journalism.

True, for 40 years no Goverment passed media legislation or insisted on a media code of ethics (though perhaps they should) but people like Daryl Tarte have been trying to get responsible journalism for a long time.

You grossly underestimate the power of the media (but curiously say a bad pen is mightier than any sword.") If the media were so ineffectual, why are you and I debating it, why are media freedom and media bias important, and why is the foreign media bewailing the possible demise of the Fiji Times (with little mention of the desirable features of the Decree.)

The media is not just about money; it's also about power and influence as governments, political parties, lobbyists, advertisers worldwide -- and Rupert Murdoch -- know only too well.

No more on this by me but you and others might like to take the debate further.
Anonymous said…
@ Media Morass

While dwelling upon Australian-owned media in Fiji, what about that dreadful rag, the Daily Post? Which allowed its own journalist to be terrorised and threatened for daring to reveal the truth of things as they were? We now learn that close to F$1million may have been embezzled there by its now 80% Australian Owner? What has he done about this? What did he do about it when he first learned of it. This is taxpayers' money diverted yet again to some tainted and peverted private use? Used in fact to assist in the survival of a newspaper which had become a treacherous and onerous weapon against ordinary and innocent civilians including some of their own employees. It does not get too much worse than that. What name do we give to such low-lifes: Colluders in Terror?
sara'ssista said…
it is amusing to see how those that condemn the fiji times for 'abusing it position' etc etc are very quick to criticise the reportage and demand they change , but are not so quick to remain firm in thier condemnation of the coup, the tactics and cronyism that has resulted, but not demand the same scrutiny or deman change, they appear to have rolled over very quick and taken to , 'well its happended nopw just live with it and see the positive'.Why don't you have the same attitude to the fiji times ?... why because there is a big green bully prepared to ignore the norms of good governance and threaten and intimidate without any checks or balnces whatsoever, thats why, which you appear to placate at every opportunity.

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