Legal Analysis: Tanzania- Media Services Bill

In May 2015, ARTICLE 19 reviewed the draft Tanzanian Media Services Bill, 2015 against international standards and best practices on freedom of expression, with particular reference to African regional human rights instruments.
The Draft Media Services Bill, 2015 (‘the Draft Bill’) would come in the place of two existing pieces of legislation, the Newspapers Act and the Tanzania News Agency Act, both of which date to 1976. The former in particular is a controversial law which has been used to curtail freedom of expression in a number of instances, including through suspension of a number of newspapers whose coverage had angered the authorities.
ARTICLE 19 has previously called for the Newspapers Act to be repealed and replaced with a progressive media law. Regrettably, our analysis finds that although the Media Services Bill would bring minor improvement in some areas, its net effect is clearly negative for freedom of expression. It would make it impossible to practice journalism or run a media outlet without permission from regulatory bodies under the direct control of the government. This would predictably have a severe chilling effect on political debate, further compounded by tough criminal sanctions for vaguely-worded offences of “sedition” and publishing “false statements”.
Enactment of the Bill in its present form would place Tanzania in clear breach of its international obligation to respect and ensure the enjoyment of the right to freedom of expression.
 ARTICLE 19 accordingly welcomes the government’s recent decision to postpone tabling of the Draft Bill to allow a further exchange of views with the media sector and broader civil society.
 Key recommendations

• There should be no licensing requirement for newspapers, and preferably no registration requirement either;
• There should be no licensing or registration requirement for social media;
• There should be no new licensing requirement for broadcast media over and above the one under the Tanzania Broadcasting Services Act of 1993;
• The Council’s oversight and enforcement powers over the media should be reconsidered. Existing oversight mechanisms should not be duplicated, and where there are gaps, self-regulation should be encouraged as an alternative, for example through the Media Council of Tanzania;
• The Media Services Council should either not be established at all, or its independence from government and commercial interests should be safeguarded, among others by:
  • including a formal guarantee of the Council’s independence in the Bill;
  • ensuring that its members are appointed through a transparent process which allows for public input and is not controlled by any particular political party;
  • requiring members to act independently and prohibiting them from concurrently holding positions in government or media;
  • granting the Council the power to appoint its own staff rather than providing it with a Director of Media Service selected by the Minister;
  • allowing the Council to exercise its powers without the need for any consultation with the Minister;
• To the extent the Media Services Council retains any powers in this area, the Bill should make it clear
  • exactly which rules the Council is charged with upholding;
  • what procedure the Council must follow when bringing a case or hearing a complaint;
  • which penalties may be applied in which situation. We believe the range of penalties should be limited to a warning, a reprimand or an order to carry an announcement of the ruling;
• Media houses should not be required each to develop a separate code of ethics. There should be one or more central codes, such as the one adopted by the Media Council of Tanzania. Further, there should be no requirement to enact a journalists’ code of ethics over and above the codes of ethics of media houses;
• The prohibition on undue concentration of ownership found in Section 13(2) should be further elaborated. Appropriate limits should be identified, as well as the means by which they will be enforced;
• Section 14(b)(iv), requiring private media houses to carry the public broadcaster’s news bulletin, should be deleted;
• The Journalist Accreditation Board should preferably not be established at all. At a minimum, its independence from government and commercial interests should be safeguarded, along the lines described previously in relation to the Council;
• There should be no compulsory accreditation requirement for journalists. It should not be an offence to practise journalism without being accredited. Moreover, possession of a degree or diploma in journalism should not be a mandatory precondition to entry into the profession.
• Defamation/libel should be fully decriminalised in Tanzania;
• Statements about deceased persons should not be capable of constituting libel;
• As for available defences for libel (as civil action/tort):
  • the defence of truth under Section 31 should be absolute. Its application should not depend on whether the publication was for the public benefit;
  • a defence of ‘fair comment’ or ‘honest opinion,’ should be recognised, which can be relied on whenever a person expresses a view in good faith;
  • a defence of ‘reasonable publication’ should be recognised, which can be relied on whenever it was reasonable under all the circumstances for the person to believe that the information was correct and that its publication was in the public interest;
• Tanzanian legislation should require public figures to tolerate a greater degree of criticism than ordinary citizens;
• The procedure for making amends under Section 34 should be simplified. A person should be able to avoid liability if s/he promptly corrects an innocent mistake in a publication upon discovering it;
• Sections 36 and 40, which prohibit the dissemination of false news, should be deleted;
• Sections 39 and 39, which prohibit seditions publications, should be deleted;
• Section 41, which makes directors automatically liable whenever a media outlet commits a criminal offence under the Bill, should be deleted;
• Section 43, which gives the Board discretion to ban the importation of publications, should be deleted;
• It should not be possible to seize equipment of a media outlet without a court order. Section 44 should be amended to this effect.