OPEN LETTER FROM REPORTERS WITHOUT BORDERS TO THE YEMENI PRESIDENT
President Abd Rabbo Mansour Hadi
Republic of Yemen
Paris, 21 May 2012
Dear President Hadi,
Reporters Without Borders, an international organization that defends freedom of information, wishes to inform you of its concerns over the proposed law on private radio and television broadcasting and electronic media, which is due for debate in the near future.
Indeed, several clauses in the bill are at odds with the Yemeni constitution as well as international undertakings signed and ratified by your country.
Reporters Without Borders supports the campaign by the Freedom Foundation aimed at preventing hasty adoption of the bill to allow civil society to make recommendations.
Without going into all the draft law’s provisions in detail, Reporters Without Borders should like to point out some of its weaknesses.
Bill covers only private media outlets, does not supersede previous legislation
The bill deals only with private media outlets and contains no reference to public media, treating them as a separate category. It should be noted that there is no legal regulation of public radio and television in Yemen.
Of course, the system of regulation must take account of the differences between publicly- and privately-owned radio and television, but there must be elements that are common to both. Paragraph 41 of General Comment No. 34 by the UN Human Rights Committee, a panel of experts that monitors implementation of the International Covenant on Civil and Political Rights, states: “Care must be taken to ensure that systems of government subsidy to media outlets and the placing of government advertisements are not employed to the effect of impeding freedom of expression. Furthermore, private media must not be put at a disadvantage compared to public media in such matters as access to means of dissemination/distribution and access to news”.
Within the framework of the draft, there is no justification for treating the public and private sectors differently, which could lead to discrimination.
At the same time, the bill says nothing about the provisions of the press and publication law currently in force. In fact, clause 5 of the bill specifies that it is still binding on private media employees. It is vital that the current press legislation be reviewed in its entirety. Reporters Without Borders is concerned about the fact that the bill allows for the judge to apply the criminal code in press offence cases (clause 71).
Flagrant lack of independence in licensing system for private broadcasters
A committee to organize private radio and television will be created which, in its composition (clause 19, paragraph 1) and its competency, is in no way independent of the political leadership.
In fact, it is chaired by the deputy minister of information for audio and visual media affairs. Only four of its members are drawn from the community and the media. The committee is under the control of, and accountable to, the information ministry (paragraph 2). It is charged with defining the general framework of media policy (clause 20, paragraph 1) as well as the allocation of frequencies and licences.
It makes recommendations to the information minister on such matters as the granting, renewal, withdrawal or revocation of licences. It has three months in which to submit an opinion to the minister (clause 32). The minister may also issue recommendations of his own to the council of ministers (clause 35) within a 30-day deadline for final decision. Reasons are provided in the case of a rejection.
Since the body created to consider licence requests is not independent, the criteria for granting licences are neither transparent nor objective and are thus discriminatory.
An appeal against an unsuccessful licence application should ultimately be made through an independent judicial authority, whereas the draft law provides for a 30-day period for a request to be made by the media outlet concerned to the information minister for a rejection to be reconsidered. This means the bill provides for no legal redress.
The licence fee, referred to in clause 53, is particularly high: 30,200,000 rials (about 110 000 euros) for 10 years. The UN Human Rights Committee recently specified that states must refrain from imposing licence conditions and fees that were too severe.
No independent system of checks and sanctions
Clause 17 stipulates that judicial officers responsible for monitoring the application of the law are appointed by the justice ministry in agreement with the information minister. This is reaffirmed in clause 61. The system is contrary to the fundamental principle of judicial independence.
Chapter XII spells out the penalties for breaches of the law. The ruling executive may suspend the broadcasts of a private media outlet temporarily (clause 67). It also provides for fines, although the amount is not specified in the current draft. Clause 68 also provides for the seizure of equipment if the provisions of clauses 9 and 26 are not observed. In the event of further infringements, the broadcaster’s licence may be suspended or revoked (clause 69).
Nowhere is there any reference to an independent judicial authority responsible for monitoring the law’s application and for specifying the penalties for any infringements.
Some of the bill’s provisions are somewhat surprising and could have negative consequences. For example, audio and visual media outlets are required to keep recordings (audio in the case of private radio stations and video for television stations) for three months after a programme has been broadcast. This requirement is mentioned in clauses 12 and 63.
It could be that it is part of a broader system of storage for broadcast data. However, in this context it appears unlikely that archiving is the goal, but rather a desire by the information ministry to control and monitor private media outlets.
Vaguely written bill full of ambiguity
In clause 3, the draft says its aim is to guarantee respect for freedom of expression, yet some of the commitments it contains limit free expression. Clause 4, for example, points out that freedom of expression, among other things, must respect the country’s “higher interests” without defining this vague terminology. Similarly, paragraph 9 of clause 4 aims to ban the broadcasting of "any form of incitement to violence, terrorism, hatred, tribalism, regionalism, sectarianism or racism".
At the same time, paragraph 11 insists that the exercise of freedom of expression should not have “a negative impact on economic peace, national unity and public morals”.
There are also bans on attacks on religion (paragraph 12) or the president personally (paragraph 13), and the disclosure of state secrets (paragraph 14). These restrictions are repeated in part in clauses 9 and 47.
Vaguely and allusively worded as they are, they contain a large measure of ambiguity. Consequently, they constitute a real danger for freedom of expression and information.
Bill pays scant attention to electronic media
Electronic media, originally included as part of the bill’s heading, are not mentioned until section 11. Only one clause, no. 66, deals with the topic.
The lack of precision is symptomatic of the inconsistency of the bill, whose provisions are applicable to broadcast and electronic media equally.
For the reasons stated above, Reporters Without Borders asks you to radically revise the draft law in consultation with representatives of the media and civil society organizations. As we wrote in our letter to you on 1 March after you took up your appointment, it is important that all legislation regulating the media be reviewed to ensure the principles of freedom of expression and information are fully guaranteed and protected. Reporters Without Borders is ready to discuss these matters with you in the course of a forthcoming visit to Yemen by the organization.
We thank you in advance for heeding our comments and observations so that freedom of the media and information can become a reality in Yemen and thereby turn the page on the many dark years of repression.
Secretary General, Reporters Without Borders