The document discusses broadcast content regulation and media consumer rights. It provides an overview of regulation and fundamental freedoms, global practices on content regulation, implications of absent content regulation, examples of self-regulation success, threats of regulatory capture and rights violations, and conclusions. It examines Kenya's constitution and principles of freedom of expression and media. It argues that some regulation of broadcast content is needed to protect consumers and uphold all rights equally while not being unconstitutional.

1. Broadcast Content Regulation
and Media Consumer Rights
Alex Gakuru
12/05/2015

2. Presentation Overview
● Regulation and Fundamental Freedoms
● Global Practices on Content Regulation
● Absent Content Regulation Implications
● Examples of “Self-Regulation” Success
● Regulatory Capture and Rights Threats
● Conclusions

3. Regulation and Fundamental Freedoms
● Culture of selective amnesia vs. holistic view,
● Any argument against the constitution is mute,
● Repeated rights violations don't change facts,
● Universal Declaration of Human Rights (1948),
● Individual rights end where others' rights begin,
● Is there one particular freedom that reigns
supreme over all other freedoms?
● Read the constitution as one whole document.

4. Enforcement of Bill of Rights.
22. (1) Every person has the right to institute court
proceedings claiming that a right or fundamental freedom
in the Bill of Rights has been denied, violated or infringed,
or is threatened.
(2) In addition to a person acting in their own interest, court
proceedings under clause (1) may be instituted by—
(a) a person acting on behalf of another person who cannot act
in their own name;
(b) a person acting as a member of, or in the interest of, a group
or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its
members.

5. Freedom of Expression
33. (1) Every person has the right to freedom of
expression, which includes—
(a) freedom to seek, receive or impart information or ideas;
…..
(3) In the exercise of the right to freedom of
expression, every person shall respect the rights and
reputation of others.
[ subsection (3) reinforces respecting others rights ]

6. Freedom of the Media /1
34. (1) Freedom and independence of electronic, print and all other types of
media is guaranteed, but does not extend to any expression specified in
Article 33 (2).
(2) The State shall not—
(a) exercise control over or interfere with any person engaged in
broadcasting, the production or circulation of any publication or the
dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any
broadcast, publication or dissemination.
(3) Broadcasting and other electronic media have freedom of
establishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of signal
distribution; and
(b) are independent of control by government, political interests or
commercial interests.

7. (4) All State-owned media shall—
(a) be free to determine independently the editorial content
of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent
views and dissenting opinions.
(5) Parliament shall enact legislation that provides for the
establishment of a body, which shall—
(a) be independent of control by government, political
interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor
compliance with those standards.
Freedom of the Media /2

8. Consumer Rights
46. (1) Consumers have the right—
(a) to goods and services of reasonable quality;
(b) to the information necessary for them to gain full benefit from
goods and services;
(c) to the protection of their health, safety, and economic interests;
and
(d) to compensation for loss or injury arising from defects in goods or
services.
(2) Parliament shall enact legislation to provide for consumer
protection and for fair, honest and decent advertising.
(3) This Article applies to goods and services offered by public
entities or private persons.

9. Global Practices on Content Regulation
● Not a single “international standard” exists
● Content, context, culture, message, interpretation
● Television content rating (adult, child, violent etc.)
● Broadcast Industry Code of Practice/Standards
● Regulatory Authority - “when push come to shove”
enforces public interest and accountable to public
● Eliminating public interest regulator, suggests eliminating
the police→ public to self-regulate
● Kenya mirrors accepted global regulation approach

15. [ Commercial Television Industry Code of Practice, July
2004, sec1.22 (Israel )]

16. Europe
● IFJ Declaration of Principles on the Conduct of Journalists (
link)
● International Principles of Professional Ethics in Journalism
(link)
● Sweden:
● “There is freedom of the press and freedom of expression in
Sweden. There is a constitutional law that says we will have
freedom of the press and freedom of expression in Sweden.
It means that for example newspapers and electronic media
have great freedom to present which viewpoints they want
to and to print and broadcast those news they think are
interesting. Here one can read about the most essential
rules.” (link)

17. RULES ON PUBLICITY
Provide accurate news
1. The role played by the mass media in society and the
confidence of the general public in these media call for
accurate and objective news reports.
2. Be critical of news sources. Check facts as carefully as
possible in the light of the circumstances even if they
have been published earlier. Allow the reader/ listener/
viewer the possibility of distinguishing between
statements of fact and comments.
3. Newsbills, headlines and introductory sections must be
supported by the text.
4. Make sure of the authenticity of pictures. See to it that
pictures and graphical illustrations are correct and are not
used in a misleading way.

18. Treat replies generously
5. Factual errors are to be corrected when called for. Anyone
seeking to reply a statement shall, if this is warranted, be
given the opportunity to do so. Corrections and rebuttals
shall be published promptly in appropriate form, in such a
way that they will come to the attention of those who
received the original information. It should be noted that a
rebuttal does not always call for an editorial comment.
6. Publish without delay statements of censure issued by the
Swedish Press Council in cases concerning your own
newspaper.

19. Respect individual privacy
● 7. Be careful in giving publicity where it can trespass upon an
individual's privacy. Refrain from such action unless it is
obviously in the public interest.
● 8. Exercise great caution in publishing notices concerning suicide
and attempted suicide, particularly out of consideration for the
feelings of relatives and in view of what has been said above
concerning the privacy of the individual.
● 9. Always show the greatest possible consideration for victims of
crime and accidents. Carefully check names and pictures for
publication out of consideration for the victims and their relatives.
● 10. Do not emphasize race, sex, nationality, occupation, political
affiliation or religious persuasion in the case of the persons
concerned if such particulars are not important in the context
AND are disparaging.

20. Exercise care in the use of pictures
● 11. Where applicable, these rules shall also apply to
pictures.
● 12. Making a montage, retouching a picture by an
electronic method, or formulating a picture caption
should not be performed in such a way as to mislead
or deceive the reader. Always state, close to the
picture, whether it has been altered by montage or
retouching. This also applies to such material when it
is filed.

21. Listen to both sides
● 13. Endeavour to give people who are criticized in a
factual report the opportunity at the same time to
reply to the criticism. Endeavour also to state the
views of all parties involved. Bear in mind that the
sole objective of some reports may be to cause harm
to the subjects of the reports.
● 14. Remember that, in the eyes of the law, a person
suspected of an offence is always presumed to be
innocent until he is proven guilty. The final outcome
of a case that is described should be reported.

22. Be cautious in publishing names
● 15. Give careful thought to the harmful consequences that
might follow for persons if their names are published.
Refrain from publishing names unless it is obviously in the
public interest.
● 16. If a person's name is not to be stated, refrain from
publishing a picture or particulars of occupation, title, age,
nationality, sex, etc., which would enable the person in
question to be identified.
● 17. Bear in mind that the entire responsibility for publication
of names and pictures rests with the publisher of the
material.

23. PROFESSIONAL RULES
● “Strong journalistic integrity is crucial for
reliability. Those who examine society must
also tolerate being examined.”
● It is important for the public trust that journalists
show tact in their work in the field.
● Trust in the media and their workers is based
on the following professional rules.

24. The integrity of the journalist
● 1. Do not accept an assignment from anyone outside the editorial
staff leaders.
● 2. Do not accept an assignment, invitation, gift, a free trip or any other
benefit - and do not make contracts or other engagements that could
bring into question your status as a free and independent journalist.
● 3. Do not give in to outside pressure intending to prevent or restrict
justified publishing.
● 4. Do not use your position as a journalist, or your presscard, in order
to exert pressure for your own or someone else’s profit or in order to
acquire personal benefits.
● 5. Do not utilize for your own or someone else’s profit unpublished
news concerning economic conditions or measures by state,
municipalities, organizations, companies or private persons.
● 6. Bear in mind the provision in the Collective Agreement for
Journalists according to which a journalist cannot be ordered to write
against his/ her conviction or to carry out humiliating assignments.

25. Obtaining of material
● 7. Comply with reasonable wishes from the persons
interviewed to find out beforehand how and where their
statements will be published.
● 8. Show particular consideration with people not used of being
interviewed. Inform him/ her about whether the conversation is
intended for publication or only for information.
● 9. Do not falsify interviews or pictures.
● 10. Show consideration in taking photographs and in procuring
them, especially in connection with accidents and crimes.
● 11. Observe copyrights to text, photographs and recordings.
● 12. Indicate the source when the published material is mainly
based in information from other parties.

26. RULES AGAINST EDITORIAL
ADVERTISING
● It is important to protect the reliability and
integrity of media.
● It requires media to be free and independent in
its reporting.
● Do not let any public distrust to develop by
letting third parties have an influence in the
content of publications.
● Ensure that editorial material and advertising
cannot be mistaken for one another.

27. Checklist for editorial advertising /1
Be careful and critical in the following situations:
● when third parties offer ideas and make proposals
including some kind of favour in return
● when offered free or heavily subsidized trips or
benefits
● when asked for promises for publicity beforehand
● when products or services are presented as
consumer information. Show clearly how the choice
of the products/services has been made and how the
products/services have been compared or tested and
that the editorial staff are the testers. Aim at many-
sidedness with this kind of presentations so that there
is no unfair promotion.

28. ● When third parties, for example PR offices, lobbyists, scholars,
companies, officials or organizations, actuate information and
communication. This concerns especially areas where the law
limits advertising, for example pharmaceuticals, tobacco,
alcohol and advertising aimed at children.
● With publicity concerning the products or other arrangements of
companies, organizations or official sphere of authority, so that
there is no unfair promotion
● With publicity of selling your own goods, services or other
arrangements
● When an arrangement is carried out together with a third party,
one must tell when it is relevant, with whom the co-operation
happened and the conditions for the co-operation
● When products or trademarks are exposed with an appearance
of product placement
Checklist for editorial advertising /2

29. Absent Content Regulation Implications
● Rampant vulgar content competing on airwaves
● Violence depicted on television, aired on radio
● Acceptable television dress code? (“my dress my choice”
● Children rights to protection continually violated
● Misleading advertisement increase(inc children)
● Advertisements revenues ~ Kshs 100 billion !
● Commercial media interests prevalence
● Slated political coverage, punitive media
● Increased tensions, negating national cohesion & integration
● Media Council of Kenya “self-regulator” role is quite different
● Strong democracy must have effective checks and balances

30. Absent Broadcast Content Regulation

31. Broadcast Regulation Framing
● Consumers voice not included on conversation
● New Fight “Free Media” vs. “Draconian Laws”
● Turf war - Communications Authority vs. MCK
● Freedom of Expression vs. Government Control
● Total disregard to Article 34 of the Constitution
● Lurid expression of sex and violence prevalent
● Accepted regulators have content oversight
● Provides room for industry-developed codes
● Programming Code included licensing conditions
● Media consumers complaints handling not covered

32. Notable Self-Regulation Exceptions
● Mechanisms effected (2013) avoided 2007 PEV
● Disparate “media ethics” initiatives/discussions
● Donors funding “media sphere” improvement
● Television content rating initiatives (KFCB?)
● Broadcasters slowly adopting “Editorial Policy”
● Differentiating new digital tv channels = choice
● Court decisions compelling media to improve
● Unfortunately, selective amnesia on adverse
judgements
● Constitution gradually forcing media improvement

33. Regulatory Capture and Rights Threats
● “Regulatory Capture” means manipulating public
regulatory entities to server private interests
● New “Institutional Corruption” threatens communication
in public interest
● Needless to say unconstitutional
● Public must be on guard against this threat
● Voice must be heard commenting on public
consultations (especially on ongoing CAs)
● Recommended: “How John Oliver Transformed the Net
Neutrality Debate Once” Last Week Tonight with John Oliver:
Net Neutrality YouTube video

34. Conclusions
● Public opinion sampled at Kikao Kikuu sittings
● Held Machakos, Nakuru, Mombasa and Nairobi
● Public decried broadcast content on radio and tv
● This opinion NOT aired by culprit broadcasters
● Whatever systems currently exist do not work
● Commercial interests must not corrupt society
● Article 11 of constitution (on media) be effected
● Broadcast Content Regulation is not optional
● Regulation not unconstitutional, on the contrary upholds it
● The media (and every person) must respect rights of all others
● Orchestrated misinformation, judging from the digital television
migration kerfuffle, has no future

35. asanteni sana kwa kunisikiliza
Alex Gakuru
gakuru@gmail.com

36. Credits
– Full list to be provided in due course –