Rwanda: Proposed media law fails to safeguard free press

Transcription

1 STATEMENT Rwanda: Proposed media law fails to safeguard free press ARTICLE Jan 2012 A revised media law promised by the Rwandan government prior to and during its Universal Periodic Review at the UN Human Rights Council in 2011 fails to safeguard the right to freedom of expression and a free media.[1] ARTICLE 19 welcomes several improvements in the draft, but calls on the government to bring the law into full compliance with international legal standards on the right to freedom of expression. The State retains its control over the media in the draft Law by determining rules for its operation and defining journalists professional standards. Media freedoms and the right to freedom of expression are not safeguarded and can be restricted in violation of international law due to overbroad definitions and the creation of vaguely defined prohibitions. The Minister in charge of information and communication technologies (ICT) is given unlimited powers to determine the requirements for establishing media outlets and conditions for accepting foreign audio-visual media to operate in Rwanda. ARTICLE 19 is also concerned that the proposed amendments leave untouched problematic provisions in the current Media Law that are not in compliance with international standards. The draft Law amending the 2009 Media Law of Rwanda includes nine articles covering legal definitions, the right to exercise the profession of a journalist, the right to seek redress, requirements for launching an audio or audiovisual media outlet, licensing for foreign audio visual media organs to

2 operate in Rwanda and penalties for crimes committed through the media. The Media Law is a comprehensive legal act containing ninety-nine provisions which determine the responsibilities, the structure and functioning of the media. It regulates the establishment and functioning of media outlets, including Internet publications. In addition, it regulates the status of journalists, outlines press offenses, and describes the liability regime for media and journalists and the rights to correction, reply and refutation. POSITIVE DEVELOPMENTS The draft Law introduces additional definitions to explain the regime established by the Media Law. Another positive feature is the repeal of some problematic definitions concerning the right to reply, the right to rectification, and the right to correction as these are not in compliance with international standards and unnecessarily restrict the right to freedom of expression.[2] ARTICLE 19 considers the following changes to be positive from a freedom of expression point of view: Removal of the requirement that journalists hold particular academic qualifications as this unnecessarily restricts access to the profession[3] Removal of excessively bureaucratic requirements concerning press cards. These may be used as mechanisms through which to control who operates as a journalist[4] Lifting of a number of restrictions on journalists, including the prohibition from the using of unlawful methods to obtain or to disseminate information, neglecting essential information, distorting ideas contained in an information or a text, which are unclear and can be used by the authorities to harass journalists [5] Repeal of the grounds on which the authorities can refuse to provide information as these are not in compliance with international standards[6] Lifting of the requirement for photojournalists to seek authorization by the media authorities to perform their profession[7] Liberalisation of the system of sanctions for the media by repealing the

3 provisions on warning or suspension of a press publication[8] and penalties for irregular press publications[9] Repeal of sanctions of suspension and closure of a publication, both of which are disproportionate restrictions on the right to freedom of expression[10]. There are always less intrusive forms of sanctions which may be used to ensure the media comply with the Media Law and do not violate the rights of others, for example fines[11]. CONTINUING PROBLEMS WITH THE DRAFT LAW At the same time ARTICLE 19 is concerned that the following aspects of the draft Law do not comply with international standards on freedom of expression and information. Firstly, there are a number of problems in respect of the definitions advanced by the Draft Law: The definition of journalist is too broad in its scope and covers persons who are not professionally engaged in journalism (such as bloggers and social media users) into the existing media law regime: According to the definition in Article 1 of the draft Law, any person involved in the collection, processing and dissemination of information can be regarded as a journalist. It means that persons such as university researchers, bloggers and social media users, for example, would fall under this broad definition and hence are subject to legal responsibility under the Media Law. It is inappropriate and unnecessary for a media law to regulate nonjournalistic activities. The definition of news item is overbroad and may be used to hold journalists liable for any information reported by them: The definition news item in Article 1 essentially includes any information published or broadcast by the media. The broad definition is dangerous from a freedom of expression point of view since Article 88 of the Media Law provides for criminal responsibility of authors and presenters for offences committed through news items. The broad definition of news items means that journalists can be held responsible for any information reported or distributed by them. This violates international standards, which provide individuals with protection for justified opinions (value

4 judgements) and protect journalists from liability for reporting the statements of third parties. ARTICLE 19 is concerned that the unlimited responsibility of authors and presenters will have a chilling effect on free news reporting. [12] The definition of defamation is overbroad and may be used to impose liability for the expression of opinions and to restrict in violation of international law certain forms of expression such as satirical publications or other forms of expression which by their nature are exaggerations, and parodies: Article 1 of the draft Law introduces a definition of defamation as any act of using words, images or pictures published that are not accurate or true with the intention to offend the honour or estimation of the person or expose him/her to public contempt. This definition can be used to restrict satirical publications or caricatures, which by their nature are exaggerations and parodies. Moreover, ARTICLE 19 is concerned that the definition allows for the imposition of liability for the expression of opinions, rather than for false statements of fact. We recall that international standards require a balance to be struck between the right to freedom of expression on the one hand, and the right of individuals to protect their reputations on the other. However, defamation provisions should not be used to restrict debate on matters in the public interest, particularly as they relate to the conduct of public officials or limit the use of different forms of expression, including those that are satirical. In addition to the overbroad definitions outlined above, there are a number of substantive amendments made by the draft Law that are also problematic from a freedom of expression perspective: The Minister in charge of ICT has unlimited powers to determine the requirements for establishing media outlets and conditions for accepting a foreign audio-visual media to operate in Rwanda: Article 4 of the draft Law gives powers to the Minister in charge of ICT to determine the requirements for establishing a local or foreign audio or audiovisual media outlets operating in Rwanda. However, no regulatory framework places any limitations on the exercise of this power, leaving all decisions to the discretion of the Minister. The Draft Law provides no safeguards

5 against unnecessary restrictions on media freedom or against the abuse of powers by the Minister. We note that the constitutional principles of separation of powers and protection of human rights require that Parliament as opposed to the Executive legislate on matters concerning human rights including the right to freedom of expression. Furthermore, when regulatory powers are delegated to the executive bodies the legislation should contain safeguards against misuse or abuse of powers by that executive body. These safeguards include guidance for the exercise of the regulatory powers and requirements to engage in consultations with affected stakeholders. There must also be judicial oversight of any executive regulation of the media, to ensure that the executive body is held to account for the misuse or abuse of their powers. [13] Introduction of new offences for example publication of false information, intended to undermine the morale of Rwanda Defense Forces and the National Police and to endanger national security or inciting the army or the national police to insubordination or glorification or promotion of massacre, looting, arson, theft, rape, terrorism or treason. ARTICLE 19 considers that the actus reus (the guilty acts) of these crimes are broadly defined and illegitimate restrictions on freedom of expression. [14] Moreover, ARTICLE 19 notes that the draft penal Code covers these offences. Finally ARTICLE 19 is concerned that the proposed amendments leave untouched other problematic provisions in the current Media Law that are not in compliance with international standards, including: The determination by the state rather than by media professionals of media professional standards [15] The test of legality of the restriction on the right to freedom of expression set out in Article 17 of the Media Law does not include a requirement to determine the necessity of the restrictions [16] The confidentiality of journalists sources is not effectively protected. Courts are able to require journalists to reveal their sources in relation to

6 any legal proceedings, rather than only in the most serious of criminal cases. In contravention of international standards, the Media Law does not provide that information disclosing the identity of a journalist s source should only be ordered by a court where there is no other reasonable alternative means available for obtaining that information [17] The licensing by the Media High Council of all media rather than limiting licensing to broadcast media only. Licensing of the broadcast media is justified due to demand for broadcast frequencies exceeding the limited number that are available at any one time. However, there is no equivalent technical constraint that justifies imposing a licensing requirement on the print media, or controlling the print media through such a licensing regime [18] The vague powers of the Minister in charge of information to determine the capital of media outlets [19] The requirement for authorisation by the Media High Council for Rwandan journalists to become correspondents of foreign media outlets [20] The Media High Council is not independent from government influence because the Minister in charge of information can reverse its decisions [21] The registration regime for the copyright in press publications is not necessary, as copyright under international law does not require registration [22] The unclear requirement for owners of internet cafes to screen and block pornographic websites [23] The excessive fines [24] There is also a lack of clarity regarding the enforcement of the Media Law, in particular it is unclear which bodies have the power to determine press offences and what procedures and procedural safeguards are in effect for the determination of liability and sanctions for those offences. CHANGES NEEDED

7 ARTICLE 19 calls on the Government of Rwanda and all stakeholders to work to incorporate the following recommendations to bring the Media Law into compliance with international standards on freedom of expression and information: 1. ARTICLE 19 recommends that the proposed definition of journalist be amended by placing the focus on the nature of the information and specifying that a journalist is a person engaged in information via means of mass communication 2. There is no need for a definition of a news item. Instead, Article 88 of the current Media Law which includes the expression news item should be modified to ensure that journalists and media are not responsible for opinion founded on facts and made in good faith and that they are protected against liability for statements of others 3. The definition of defamation should be revised so as to apply to any intentional false statement of fact, either written or spoken, that harms a person's reputation 4. Articles 12, 17, 20, 24, 25, 26, 38, 57 and 78 of the Media Law should be revised and brought in compliance with international law and media standards. FOR MORE INFORMATION Please contact Stephanie Muchai, Legal Officer - ARTICLE 19 Eastern Africa, muchai@article19.org or call [1] Report of the Working Group, paras [2] See Article 1 of the draft Law. [3] See Article 1 of the draft Law. [4] See Articles 5, 6, 9, and 11 of the draft Law. [5] See Article 13 of the draft Law.

8 [6] See Article 14 of the draft Law. [7] See Article 50 of the draft Law. [8] See Article 75 of the draft Law. [9] See Article 76 of the draft Law. [10] See Article 84 of the draft Law. [11] See Article 84 of the draft Law. [12] ARTICLE 19 recalls that international courts make a distinction between opinions (value judgments) and statements of facts. For example, the European Court of Human Rights has stated that freedom of opinion is a fundamental part of the right to freedom of expression and that in contrast to statements of facts, individuals should not be expected to prove the truthfulness of opinions. The European Court of Human Rights has held that the right to freedom of expression protects the right of everyone to express an opinion as long as it is based on facts and was made in good faith. See the case of Lingens v. Austria, Judgement of 8 July 1986, Application no. 9815/82, para. 46. [13] For example, the Delegated Powers Scrutiny Committee of the British parliament keeps under constant review the extent to which legislative powers are delegated by Parliament to government ministers. [14] Article 6 of the draft Law. ARTICLE 19 has already expressed concerns that journalists and the media in Rwanda are held responsible for press offenses in violation of international law. See ARTICLE 19 s submission to the Supreme Court of Rwanda in the case against two journalists of Umurabyo newspaper who were sentenced by the High Court in Kigali to 17-year and 7-year jail terms on 4 February 2011 over articles critical to the Rwandan authorities. The decision demonstrated that judges don t know how to strike the right balance between the right to freedom of expression and other rights and legitimate interest. ARTICLE 19 is of the

9 opinion that one of the weaknesses of the Media Law of Rwanda is how to seek liability of journalists and impose sanctions for press offenses. [15] For example, professional standards are established in Article 12 of the Media law imposing obligations on journalists to publish verified information, and give the floor to all parties. [16] Article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR) sets out the test for assessing the legitimacy of restrictions on freedom of expression. It states that these restrictions shall be only as are provided by law and are necessary: [1] For the respect of the rights and reputation of others; [2] For the protection of national security or of public order, public health or public morals There exists a three part test to determine the legitimacy of limitations to freedom of expression. Firstly the interference to the right must be provided for in the law, secondly it must protect or promote an aim that is deemed to be a legitimate aim in international law and thirdly, the restriction must be necessary for the protection of promotion of that legitimate aim. [17] Article 20 of the Media Law. [18] See Article 24 of the Media Law. [19] See Article 24 of the Media Law. [20] See Article 25 of the Media Law. [21] See Article 26 of the Media Law. [22] See Article 38 of the Media Law. [23] See Article 57 of the Media Law.

10 [24] For example, Article 78 of the Media Law prescribes a fine for up to $8,400 for any act of interference with privacy.