The Ministry of Mass Media and Information has recently proposed a Draft ‘Code of Media Ethics’. Upon reading the preliminary draft which has been made available selectively, I would like to highlight certain immediate concerns about this step by the Ministry. These concerns are primarily made for the preservation of an essential element of democracy; the freedom of the Media. There shall be no specific comment on the content of the Draft Code at this juncture as it would be premature even though on a perusal of the same it is much warranted.
The first concern is a matter of professions and ethical guidelines. Professions require and do have ethical guidelines. Ideally, such is created and regulated by the profession itself. Therefore, the propriety of a Ministry or Government to pass by regulation a Code of Ethics applicable to a profession must be questioned. It brings up the wider question whether any other profession can be subject to similar governmental actions. The Minister does have the power to pass regulations subject to approval by Parliament under S.30(2) of the Press Council Act of 1973 however the question remains whether the content of such regulation can ever be a code of ethics and even so a code of ethics formulated by the Ministry.
Further it must be noted that it is not in the absence of a code of ethics from the Media Profession the Government has taken this step. There is currently a ‘Code of Professional Practice (Code of Ethics)’ of The Editors Guild of Sri Lanka and Free Media Movement adopted by the Sri Lanka Press Institute which is quite comprehensive, and up to date has maintained a Press Complaints Commission for the implementation of such. Interestingly, several elements of the same code have been extracted verbatim to the proposed code as well; however some of the additional ‘ethics’ proposed (especially in clause 1) cannot be said to be of a nature that any professional body would pass or that would be reasonably acceptable from the perspective of the Media Profession as it embodies very little professional insight on the workings of Media. Thus the propriety of the Government to pass it own set of ethics and superimpose such on the Media profession is clearly questionable.
The second issue that arises is as to one aspect of the content of the Draft Code which is one of the graver concerns. Clause 1 contains several grounds from (a) to (m) on which ‘No Publication should be published…’ for example ‘The containing of material against the integrity of the executive, judiciary and legislative’. The question that arises here is; can a code of ethics for media set out a restriction on content or subject matter that the media may deal with?
Ethics being primarily related to the conduct of the media should if at all regulate the ‘means by which the media acts’. These restrictions do not regulate the means. They regulate the ‘end’ or the end product that is the publication itself. There is a flaw in a code of ethics regulating the end and not the means to an end. From Clause 2 onwards there are considerations of these means. For example accuracy, standards of reporting, means of investigating, confidentiality and so on are matters within an ethical code which are the means by which the media should work. If at all any restriction on the content should not be other than that which is not allowed ‘by law’ which need not be stated and is implied and is further strengthened under The Press Council Act itself and by other laws. Certain elements of Clause 1 do not carry out that objective either. Interestingly, the Code adopted by the Sri Lanka Press Institute does not at any juncture have any such restrictions either, as it is itself a proper code of ethics standing within the purpose of a code of ethics.
The 3rd concern is that this particular draft code of ethics cannot be set out as regulations under the existing Law. Due to the inaction of several governments over time, it has been seen that the Media is subject to Laws in a haphazard manner.
The Press Council Act of 1973 deals with print media such as in the form of newspapers. However, the draft code attempts to herd in Electronic Media and Websites. The only form of Law currently applicable to these forms of media is the Sri Lanka Telecommunications Act No. 25 of 1991 which by its provisions do not provide for regulations of this nature and by its preamble does not suggest any such. Therefore the Government as a first step will have to consider legislative amendments to the Press Council Act or additional legislation before it can come up with these regulations. This would make it a further issue as currently existing media forms which have been allowed to so exist will be subsequently subject to new laws and regulations. Given this clear retrospective effect this lacuna in law should not be unilaterally imposed by the government but done with extensive dialogue and consultation with the Media Profession.
The final issue is then what would be the effect if these legislative amendments are made and the draft code of ethics is passed by regulation and made applicable to all the said media above. The code uses the words ‘shall adhere’ which in law usually suggests a mandatory provision. The code however does not suggest the method of implementation and as at current there have been suggestions from the Ministry that this code of ethics will only have an effect as such and no effect whatsoever as Law. To determine the truth of this one must read the Code of Ethics along with the existing Press Council Act of 1973 which is the Core Law according to sources that will be amended to facilitate these regulations.
S.2 of the said Act creates the body called ‘The Press Council’ which has the capacity to sue. Under S.3 it is constituted of seven members who include six members appointed by the President and one person called the ‘Director of Information’. Out of these six members appointed only two members are selected by the President from a nominated panel respectively from working journalists nominated by the Journalists Associations and a person to represent the interests of employees of newspaper businesses from such employee unions thus leaving four others to be selected by the President in addition to the appointee as Director of Information. Interestingly, a quorum of 5 suffices for the Council functions. Therefore there is grave concern as to the independence of this Council with respect to appointment, remuneration, removal, functioning quorum and so on.
Under S.9 the Council may take action by way of Inquiry. This can be done where there is ‘complaint made to it or otherwise’ and this includes inquiry by the Council of its own initiative. The reason for such inquiry can be a publication by an editor or a working journalist who commits a breach of professional misconduct or breach of the code of journalistic ethics. Therefore, the proposed Code of Ethics by regulation shall clearly fall under the criteria for instigating an inquiry.
Under S.11 the Council has the powers of a District Court to summon persons, compel the production of documents and administer and subject person to an oath. Further under S.12 refusal or failure to comply with the Councils abovementioned powers amount to ‘contempt of the Council’ of which a certificate may be submitted to the Court of Appeal by the Council Chairman and can be punishable under Article 105 of the Constitution as if it were contempt of the Court itself. Any orders of the Council are also final and cannot be questioned in any court of Law and further disobeying any order made by the Council amounts to an offence which can be prosecuted at a Magistrate Court with possible fines and imprisonment.
There is therefore no doubt as to the extreme powers that might be with the Press Council and the heavy blow to be dealt to the freedom of the media with the addition of this Code of Ethics. It could be suggested that the constitution, powers and functions of such a Council be reviewed and amended. Whilst regulation of Media is also a necessary component of government it should not be done without proper checks and balances. Having a ‘Code of Ethics’ and the adjudicative powers one on the side of government would amount to a serious concentration of powers which will seriously hinder against the freedom of the media.