International Journal of Communications Law and Policy

Issue 2, Winter 1998/1999

 

Media Law in Central Asia - How Autocrats are Learning to Look Democratic
by Eric S. Johnson

 

The five states of Central Asia had statehood thrust upon them in 1991. None have the strong sense of country that for example Estonia or Armenia retained throughout the Soviet period. None are really pro-civil society, or seriously committed to freedom of expression. But in all, the fundamental commandment for everyone in government is "hold on to power". The governments theoretically allow political parties, but they’re emasculated. They theoretically hold elections, but the outcome is forgone. They theoretically allow free media—but make it very difficult for the media to practice their trade. Though it’s my impression this is widespread in the world, my experience is not wide enough to make sweeping generalizations. At any rate, the processes going on Indonesia now lead one to believe that it is different.

 

In 1990 people in the NIS saw an opening and began to create local TV private stations. Many began to cover local news, and this is where the Internews Network comes in.

Internews is an NGO helping independent media in 15 countries. It’s main purpose is to build the capacity of stations to be viable local broadcasters serving local needs with independent local news. This is achieved through the following activities: conducting seminars; providing residencies; publishing textbooks; helping to obtain equipment; organising co-productions with stations, particularly news; sponsoring production contents; getting stations on-line, and encouraging them to communicate; making e-materials available to stations, e.g. on our web site; and publishing bulletins on media.

 

Serve as centers for information transfer, i.e. NGOs looking for stations can find them through us; we help our stations find out about new technologies
Acquire and version quality programming
Actively encourage creation of reliable data on viewing
Organize stations into networks and associations
Assistance in building business plans, finding investors
Provide legal advice to stations and to the gov’t

But the emphasis, in the end, is on building the capacity of stations to be viable local broadcasters serving local needs with independent local news.

Discussing the merits of private v. public broadcasting is a separate topic. Another important philosophical question is how willing you are to rely on a free market to regulate things like program content. But here I want to brief you on how the governments work to control the free distribution of information through broadcast media through means which they have adopted from the West.

 

Many of you will find many of these measures familiar because they’re similar to some in CEE. But the CEE countries have a tradition of civil society so it’s easier to find a sector of the population which is willing to vocally support free media, and in some countries there is even consensus between the rulers and the ruled that free media is a good thing. CA lacks this. CEE lacks the major energy resources of e.g KZ which cause western governments to not be as insistent on human rights issues. Also, CEE is within the sphere of interest / influence of Europe and therefore there’s more pressure on them and more attention paid to them—CA gets forgotten.

Who are we talking about? KG, TJ, UZ, KZ—50 million in all, 45 cities over 100K (many smaller cities have broadcasters but they are predominantly hobby-type operations), 100 private broadcasters—mostly TV. Though not densely populated, the region is important because of huge energy deposits.

 

 

We concentrate on helping broadcasters because the prohibitive costs of newsprint (none of these countries have a domestic paper production industry) and of distribution make newspapers a not-very-viable form of information transmission, and in fact one of the chief reasons cited by purchasers of newspapers is to get the TV schedule.

Qualities which should permeate media law but don’t:

• predictability of application
• time to adapt to new regulations
• common understanding of what a rule means (50% language law, for instance)
  
• transparency of application
• level playing field between state and private TV
• bias in favor of freedom, not repression
• independent arbiter (courts)

Arguments mustered by the governments against the freedom we advocate:

• stability—but this is really about covering up corruption
• morals—but the region’s morals are not that different from the West’s
• nation-building—well, ok.

 

The problems

1. Frequency licensing. Very high licensing charges—used Australian model—apparently because it’s the most expensive of all the systems they examined, partly to try to make as much money as possible for the Ministry of Communication’s budget since latter is not getting money from the government. Sudden announcement that VHF spectrum reserved solely for government use. State TV not required to go through licensing process at all. License length and renewability. Who has to give "references" (PRSSNI in Indonesia, for instance). Requirement for there to be "competition", which we got removed.
2. Signal quality. Many stations VHS or S-VHS; governments in some cases beginning to spuriously require Betacam-level quality to put private stations out of business.
3. Taxes on import of equipment. And in UZ, currency conversion is a problem.
4. Income taxes; VAT; extra taxes on advertising. Some countries considering VAT exemptions for media, as Russia has done. At any rate, private & gov’t ads should be taxed similarly.
5. Legislative development is carried on in secret, with the public’s chance to participate said to be "after it hits parliament", but parliament is a rubber stamp and rarely does anything other than what it’s asked to by the executive branch. KG is an exception.
6. Localism v. federalism. Local taxes can be punitive—better to have things controlled in the capital. Same with frequencies. Often the capital doesn’t know what’s going on out there too—communications not so hot. Further from the capital = more freedom.
7. Level playing field for state-owned and private TV. State TV often accepts ad revenue—where does it go? State TV need not apply for licenses or prove commitment to the public good.
8. Limitations on advertising alcohol and cigarettes; time zone problem in KZ, where State TV in the capital advertises tobacco or alcohol starting at 22.00, resulting in broadcasts in the other end of the country at 20.00, even as local private broadcaster prohibited from showing such ads until later.
9. Not allowing associations to operate—creating alternative state-sponsored structures as in Indonesia. Or trying to co-opt them as in UZ.
10. Language law starting to be used e.g. in KZ to selectively damage or close private broadcasters that are too independent. Domestic-production requirements as of yet are almost absent.
11. Intellectual property law. Governments will sometimes mandate that everything that does on TV has to be certified as legally acquired when brought into the country, and charge a fee for the certification, thus taking enforcement of rights out of the hands of the owners and using the issue to beat private stations with—even as government stations shamefully pirate.
12. Libel law. Truth is not the absolute defense; if you "offend" someone high, especially the president, it’s prosecutable. Criminal v. civil penalties for defamation.
13. Treason, ethnic strife forbidden—even in some cases just talking about it. The forbidden topics of SARA (ethnicity, race, religion, intergroup) in Indonesia.
14. Content restrictions on e.g. violence and porn—not really much of a problem, officially.
15. Petty checkups like the fire service, the tax service.
16. Requirement that private stations carry state news. In TJ stations would shut off rather than carry state news. In Indonesia the requirement to carry state news has been reduced from 14/day to 4 and the stations have themselves imposed a ten-min limit.
17. Funding State TV. Sometimes a tax on private TV (Estonia, Indonesia).

 

Our approach is to look for chinks in the armor where something can be done. In each country we have hired a staff lawyer who:

• knows about all media law; publishes media law stuff in books, on internet, by e-mail
• knows all the regulators
• offers our assistance in legislative drafting; we provide expert commentary on their draft, or we will even work to bring in a specialist on media law from the West; sometimes we’re even asked to help draft legislation
• helps stations defend themselves from legal attacks—give advice to stations, help them with information
• help stations and station associations lobby, i.e. figure out who to talk to, how to say things
• be a resource to local media when writing about media law issues
• organize conferences on media law to raise the issues’ visibility.

 

Difficulties in our approach

• having a working court system is a prerequisite for all parties to agree to use the law as a basis to settle disputes
• we are foreigners and this lends some political aspects to our work. This is why we concentrate on helping the stations help themselves. And we tend to "become" local organizations over time
• difficult to understand why we do what we do—there is no tradition of NGOs so our motives are suspect; diversity in funding sources is therefore important.

A few words about the Internet: there isn’t much in these countries. Most have only one or two 128-Kbps channels serving the entire country. Only the very largest cities, with populations over 500K, have providers. Telephone lines are really crappy. So the Internet is not a reality for most people. And because the infrastructure is so poor, and incomes are dropping ($30-$100/mo), it won’t be. There isn’t even any at all in TJ.

There is nothing new about autocrats repressing freedom of expression. But perhaps paradoxically it is exciting that these governments do try to cloak efforts to stifle the free media by using "acceptable" Western concepts of media regulation, for it at least affords a chance to the media to fight for their rights and, sometimes, win a battle, or at least not lose the war. At the very least, these countries are beginning to take that most important of steps: take into account the wishes of your constituencies before implementing decisions. But we still have a great deal of work to do.