- Electoral, media, and legal experts discuss pros and cons of media-related guidelines operative during periods of elections and of SL’s situation in comparison with the world
Given the role and influence of media institutions in shaping the public’s opinion with regard to electing public representatives, it is crucial that media institutions act responsibly during an election period. However, the matter is more complex than it appears to be, because media institutions and journalists too have certain opinions and biases about politics and elections. Even though countries have adopted election-related media guidelines, among other methods, whether such is the most effective method that could be employed to ensure responsible and impartial conduct on the part of the media, is still a question.
This was the central point of discussion in a recent online discussion on “Is the Violation of Media Guidelines an Electoral Offence?” where several election, media, and legal experts pointed out the pros and cons and practical uses of media guidelines.
The what and why of election related media regulations
The experts discussed the importance and role of media reporting during election seasons and the necessity of election related media guidelines.
In this regard, Institute for Democratic Reforms and Electoral Studies Executive Director Manjula Gajanayake opined that when it comes to media reporting, Sri Lanka is not a very rich country. The problem in Sri Lanka with regard to how the media affects elections – be it through media guidelines or the media related culture – is that although Sri Lanka has produced experienced journalists, only a handful of journalists became writers or readers of the culture relating to elections. With regard to the need for media guidelines, he said that even though elections are considered crucial in democracy in a country like Sri Lanka, his experience is that many voters seek to misuse the weaknesses of an election process, and that it is not so different when it comes to the media.
Noting that those who are engaged in the media industry are also a part of the general society, he added that although media personnel are sometimes considered to be figures of exceptional quality, that is however, not the case most of the time, due to the tendency to engage in irregularities which exists more or less in media personnel as well.
“When compared with media guidelines in other countries, one thing that could be observed in media guidelines in Sri Lanka is that Sri Lanka directly focuses on only digital and print media. But, if we were to look at the situation in India, that country has paid more attention to matters pertaining to regulating social media use.”
In addition, Gajanayake pointed out that in Sri Lanka, media guidelines are not legally binding, and that therefore, the violation of the same does not attract any punishment. He also explained the limited nature of the existing media guidelines, adding that they are more of directions for self-regulation by media institutions than directives.
In response to a question as to why media guidelines are necessary, Sri Lanka Young Journalists’ Association President Tharindu Jayawardhana opined that there is no necessity for the Election Commission (EC) to issue media guidelines or to include provisions regarding the same in the Constitution, if media institutions and journalists adhere to internationally recognised media ethics.
Noting that at present, there are several media-related codes of ethics issued by a number of parties in Sri Lanka, he added that all internationally recognised media-related codes of ethics guide media institutions to be impartial, refrain from publishing fake news, and to protect personal freedoms and privacy.
“We saw that the EC issues media guidelines only with regard to election periods. However, activities aimed at changing the public’s opinion take place during the period preceding the election more than in election periods,” he noted, adding that certain incidents and activities that take place before election periods aiming to change the public’s opinion come under media ethics, although they do not come under the EC’s election related media guidelines.
Jayawardhana was of the opinion that issuing media guidelines targeting election periods do not contribute to a significant change. What is more, he added that whether media ethics or media guidelines are adhered to or not depends more on the personal opinions of journalists and the political interests of the media institutions that the journalists represent, than on the legal situation.
Election-related media guidelines in SL’s law
Moreover, the discussion paid attention to the legal and constitutional background of election related media guidelines and also their practical aspects, where disparities between the guidelines applicable to privately owned and State owned media institutions were noted.
In this regard, Attorney-at-Law Jagath Liyana Arachchi opined that even though media guidelines have certain legal powers, those are, however, applicable only to State owned media institutions. Noting that the EC has been vested with the power to impose media guidelines through the Constitution, he quoted Article 104GG of the Constitution (which comes under the Chapter on the EC), which states that public officers, any employee of any public corporation, business or other undertaking vested in the Government under any other written law and any company registered or deemed to be registered under the Companies Act, No. 7 of 2007, in which the Government or any public corporation or local authority holds 50% or more of the shares of that company, that refuse or fail without a reasonable cause to cooperate with the EC to secure the enforcement of any law relating to the holding of an election or the conduct of a referendum, or fails without a reasonable cause to comply with any directions or guidelines issued by the EC, shall be guilty of an offence and shall on conviction be liable to a fine or to imprisonment or to both.
Liyana Arachchi added however, that when it comes to private media institutions, this sort of legal obligation does not exist, and that the guidelines are more of a self regulatory nature, further noting that when imposing media guidelines however, they apply to all types of media. “When it comes to media guidelines, one of the main aspects is that during periods of elections, the media should act impartially. When we look at national newspapers, and television and radio channels, one might think on the outset that all these media institutions should be balanced in reporting in the context of elections. However, there is a questionable situation as to how fair this is, especially given the matter that for a long time in Sri Lanka’s media industry, newspapers affiliated with political parties existed. There is both politics in newspapers, and also newspapers in political parties that are used as a part of the political parties’ propaganda mechanism,” he said, questioning as to how newspapers affiliated to political parties could be expected to act impartially. Liyana Arachchi paid attention to the use of social media, which is used for various political parties’ activities and objectives.
He added that the situation of the digital media is different, because the digital media’s frequencies are owned by the nation, which has been acknowledged in certain court rulings where these frequencies were treated as a public good. Unlike in the case of newspapers, he said that digital media institutions have a bigger responsibility when using frequencies which he said calls for adherence to media guidelines. He explained certain aspects of the use of media guidelines by media institutions at the international level: “In certain countries, within a certain number of days after an election has been declared, media institutions should publicly reveal their partiality. That is, if they support a certain political party or a candidate. Media guidelines do not apply to media institutions that have done so, but only to those that have not. A law that provides for such a system within the Constitution was proposed in 2015 through the 19th Amendment to the Constitution. However, that was rejected by the Supreme Court stating that various parties should not be allowed to use in that manner radio channels which operate on frequencies which are a public property.”
Speaking of monitoring the conduct of media institutions in connection with election related activities, Liyana Arachchi said that although media guidelines have been imposed since 2015 and complaints have been lodged with the EC with regard to media institutions including State owned institutions violating those guidelines, thus far, no cases have been filed. With regard to providing equal opportunities for all candidates, including independent candidates and political parties as stipulated through the media guidelines, he said that such a fair representation cannot be observed in media institutions in Sri Lanka.
Meanwhile, discussing whether media guidelines or ethics should be made law, Jayawardhana said that such laws could be misused to control the media unnecessarily, and that that is also the intention of Governments presenting various proposals to introduce such regulations. “The best example is the International Covenant on Civil and Political Rights (ICCPR) Act. The ICCPR was introduced to protect the people’s civil and political rights. Sri Lanka also enacted it as an Act to protect the people’s rights. However, it is now being used in a manner that violates the people’s civil and political rights. The Computer Crime Act, which was brought in to stop computer related crimes, is being used to violate the people’s rights. By the same logic, if media ethics or media guidelines are made law, Governments will certainly use it to oppress journalists and media institutions.”
When it comes to media reporting pertaining to elections, SL is not a very rich country: Institute for Democratic Reforms and Electoral Studies Exec. Director Manjula Gajanayake
Making media guidelines law could be misused to control the media unnecessarily: Sri Lanka Young Journalists’ Association President Tharindu Jayawardhana
Although media guidelines are legally binding to a certain extent, it is applicable only to State owned media institutions: Attorney-at-Law Jagath Liyana Arachchi