Friday, September 09, 2011

National Conference on Self ~ Regulation in the Media

National Conference on Self Regulation in the Media was organised by the Press Complaints Commission of Sri Lanka,held at Sri Lanka Press Institute on 7th of September 2011 & 8th of September 2011

“For Methods of Regulation let fools contend; for what is Best Administered is Best” (Adapted from Macaulay)

Dr. Wickrema Weerasooria ,an Attorney~at~Law and the Insurance Ombudsman, Sri Lanka making the key note address at the National Conference on Self Regulation in Media

I am indeed honored to participate at this First National Conference on the subject of Self Regulation in the Media. When I look at the distinguished audience, my concern is whether I am worthy to deliver this key-note address at this opening ceremony.

In the letter inviting me, the Chairman of the Press Complaints Commission (PCCSL), Mr. Kumar Nadesan referred to my “wide experience in field of regulation in the Banking Sector”. That qualification about the banking sector may be correct. When, in 2002, I returned to Sri Lanka from my position as a Law Teacher in Australia’s Monash University, I accepted a short assignment as a Consultant at our Reserve Bank, the Central Bank.

Financial Ombudsman scheme
In that job in February 2003, I persuaded the Central Bank and our Banking Industry to create the Financial Ombudsman Scheme on the English and Australian models. This was a landmark event because it was the first industry Ombudsman scheme in the country and it applied to all banks and financial institutions such as finance and leasing companies and primary dealers. Two years later in 2005, the Insurance industry followed suit and established the Insurance Ombudsman scheme. At their request, I became the first Insurance Ombudsman. It was in October 2003 that you established the Press Complaints Commission of Sri Lanka which, in my humble view, is another Ombudsman Scheme.

Apart from the establishment of the above schemes, it is noteworthy that Sri Lanka’s first Ombudsman of modern time was the Parliamentary Ombudsman created by Article 156 of the 1978 Constitution. The Parliamentary Ombudsman hears disputes only relating to the public or state sector and submits an Annual Report to Parliament. In mid 2005 the Ministry of Finance and Planning on an initiative of its Secretary Dr. P.B. Jayasundera set up a Tax Ombudsman who functions from that Ministry and in mid 2008 the Ministry of Tourism set-up an Ombudsman to hear any “tourist related disputes”.

Avoid the terms ‘complaints’ and ‘regulation’

Ladies & Gentlemen, the title of today’s talk was not selected by me. Rather it was given to me by you. At the very outset, I request that you consider avoiding the terms “Complaints” and “Regulation”. There are several reasons for saying this. Firstly you are readily admitting that the Press invariably gives rise to complaints. Second, you also admit that the Press needs to be regulated. Media Freedom is a must but what is required is a Socially Responsible and Ethical Media.
The Media should also be sensitive to the needs of Readers and it should maintain the highest standards of journalism. Hence, in my humble view, it is far better to use the term Media Ombudsman rather than Press Complaints Commission. That name you adopted in October 2003 and you copied it from the United Kingdom model. Today, as I showed earlier, Ombudsman Schemes are well recognized in Sri Lanka and all that is required for this name change is a resolution and a notice in the press. So please think about it.

Who or what is an “Ombudsman”

There may be just a handful of you who have not heard of the name or term, Ombudsman”. It originated not from England or the United States but from Europe, from Sweden to be exact. In 1804 Sweden set up the office of Ombudsman. “Ombudsman” is two words “Ombuds” meaning “people” and “mahn” meaning “person” – making up the “Peoples’ person”. A person who looks after the peoples’ complaints.
Duk Ganna Rala and King’s problems with the queen
History tells us that during the time of our own Kings, there was an Ombudsman in the King’s Palace or Court. He was called the “Duk Ganna Rala” – “The Person who Received the Complaints”. However, it appears that the complaints he received were only that of the King and invariably the King’s complaints related to his problems with the Queen! So in that sense, the Duk Ganna Rala was not a Peoples’ Ombudsman.

Agony aunt

The English concept of an “Agony Aunt” has also been equated in a social sense, to an Ombudsman. The Agony aunt was an unmarried (spinster) an elder sister of the husband or wife with whom the children could discuss issues rejected by the parents. They wept on her shoulder and she attempted settlement.

Dispute Resolution outside Arbitration and Litigation

Another reason why I was selected to speak today was my long experiences on the subject of Alternative Dispute Resolution and the experiences of the Financial an Insurance Ombudsman schemes and how they relate to the scheme adopted by the Press Complaints Commission.
People are clearly disenchanted with litigation where the real winners or beneficiaries are the lawyers who appear for both sides. Despite the saying that “justice delayed is justice denied” there is a very long delay in our court system. A case will normally take up to eight to ten years for a final conclusion. Hence, disputants looked to arbitration as an alternative to litigation but arbitration also now involves long delays mainly because of the involvement of lawyers who only appear in the afternoons after their normal Court work. Accordingly, there is a shift to other methods of resolving disputes such as the Ombudsman Schemes.

Similarities between Financial /Insurance /Media Ombudsman

There are many similarities between the Financial Ombudsman, the Insurance Ombudsman and the Press Complaints Commission or the Media Ombudsman which is the term I recommend.
• We are all voluntary bodies established by the respective industries.
• We all deal with and handle subjects that concern the general public.
• We are all established under our Companies legislation as a company limited by guarantee.
• We are all part of the Alternate Dispute Resolution Mechanism and yet our mediation and settlement of disputes is different from Arbitration and Litigation .
• The services of all three of us are free and expeditious. They are also easy to access and use without the hassles and delays of litigation.
• All Three schemes are supported by Codes of Conduct adopted by the industry. You have your Code of Professional Practice which every journalist should honour.
• Like in the case of the Financial and Insurance Ombudsman, where the complaint is first referred to the Bank or Insurance Company itself, in your case also the complaint is first referred to the newspaper concerned and only if they cannot resolve the matter, is it examined by an Arbitration Tribunal of your Dispute Resolution Council (DRC) and an Adjudication made.
• Also thankfully Lawyers are not welcome in all our three dispute resolution mediations.
• In mediating disputes, we do not have to abide by Rules of legal procedure and the law of evidence which governs litigation and even applies to Arbitration though to a very much lesser extent.
• Our decisions (whether you call them “Awards” or “Adjudications”) are respected by the industry that established us.
• All our three Schemes are not a burden on the Consolidated Fund and hence not a burden on the taxpayer.
• All three of us, issue annual reports of the disputes we have attempted to resolve and therefore our work is transparent.
• Hopefully, we all enjoy the confidence of the “Complainants” who come before us.

There are a few obvious differences between the schemes

(i) The main difference is that in both the Financial and Insurance Ombudsman Schemes, the complainant is seeking some monetary relief but in the PCCSL scheme there can be no monetary payment but a Right to Reply, Correction, Apology etc.
(ii) In both the Financial and Insurance Ombudsman Schemes, the complainant has the right to seek further redress before the State Regulators such as the Central Bank / Insurance Board or even before the Consumer Affairs Authority. This is provided by law. In your scheme, there is no such State authority other than the Press Council to which I will refer later.
(iii) While you have a possible reference to the High Court for Arbitration award if the newspaper declines to abide, in the Financial and Insurance schemes there is no such provision.
(iv) You say that your decision is final and conclusive and cannot be challenged in a court of law. We do not say this and in my view your assertion has no legal validity.
(v) Also, very significantly, the Finance and Insurance sector is strictly controlled by the State for example the Central Bank and the Insurance Board. A bank or insurer cannot operate unless you are a company and approved and licensed and you have a huge capital adequacy deposit. There is no similar requirement with the print media.

Hidden Value Addition of Voluntary Dispute Settlement

In my view, quite apart form any relief to the complainant, there is a great hidden value in All Three Schemes, namely they act as a watchdog or self appointed policeman of the particular industry. The staff in financial institutions and insurance companies now know about the Ombudsman. Some staff also refer disgruntled clients to the Ombudsman. As the Ombudsman I also give public talks and write articles to the media about the insurance industry. At times I am critical but they accept in the spirit in which I say, which is mainly to improve the industry.

Regulation of the Media

Now I turn to the topic of the regulation of the Media and what the Press Complaints Commission is doing in that direction. Without any hesitation or qualification I am of the view that the whole purpose of media is that it should be Free. As George Orwell said “it should even tell us what we do not want to hear”. In that sense, in my view Media should not be regulated. Having said that I want to outline a part of the sad history of our nation where the print media has been viciously interfered with by successive governments since the early 1970’s. An excellent recent text which documents this story is the 300 page book entitled “The Other War – (Sri Lankas recent struggle for media freedom) by Rajiv Weerasundera.
Relying on that book for my facts, I can state that regrettably, in Sri Lanka we have witnessed the following vicious ways of direct and indirect media regulation.
• Banning /Closing Down of Newspapers or creating a situation which forces the paper’s closure. (The Davasa Group)
• Killing of popular Journalists (Richard Zoysa) and Founder / Chief Editor of a paper. (Rohana Kumara, Satana / Lasantha Wickrematunge, Sunday Leader)
• Burning of Press (Sunday Leader), TV station (Sirasa)
• Seeing to it that Editors/Journalists disappear where no body (corpse) is found. Surprisingly, Police investigations are never completed.
• Death Threats and Intimidation of Journalist which makes them flee the country. (Iqbal Athas)
• “White Van” syndrome where Journalists are picked up and unmercifully beaten and dropped off. (Keith Noyahr) The muzzling of “recalcitrant” journalists.
• Death Threats and Intimidation of Journalists which “makes” them “write differently or ineffectively”. Journalists are coerced or won over to be loyal to the political elite and avoid critical or investigative journalism.
• Restriction of or increasing the Duty on Newsprint which is a basic necessity to publish papers. It is said that newsprint accounts for over 60% of the total cost of producing a newspaper in Sri Lanka in comparison to 25-30% in western nations.
• Restriction or Control of Advertisements.
• “Censorship” of News by “Competent Authorities”.
• Imposing and keeping in force “Emergency Regulations” which curtails a true free media because of a fear of offending the Regulations even indirectly.

The Colombo Declaration on Press Freedom and Social Responsibility as the Catalyst

Perhaps the most significant event of Free Media in Sri Lanka since our Independence in 1948 is the 1998 Colombo Declaration on Press Freedom and Social Responsibility.
That Declaration was revised in December 2008 and the published revision contains all that needs to be done including legislation to ensure a Free and Responsible Media. The original 1998 Declaration which was adopted after a four day conference in Colombo is supported by the Newspaper Society of Sri Lanka: The Editors’ Guild of Sri Lanka, and Free Media Movement and the Sri Lanka Working Journalists Association.
The Sri Lanka Press Institute (SLPI), the Sri Lanka College of Journalism (SLCJ), and the Press Complaints Commission of Sri Lanka (PCCSL) were thereafter established as a direct outcome of the Colombo Declaration of 1998.
The Press Complaints Commission (PCCSL) of 2003
The PCCSL was also inspired by similar institutions in England and Sweden. In England, also the name used is the Press Complaints Commission. Hence, it was used for Sri Lanka although as I said earlier the term “Media Ombudsman” is far better. Now that other similar schemes are functioning people know the Ombudsman concept.
As the mechanism set up by the newspaper industry to self regulate the media, the PCCSL now in its 8th year, provides for an independent Dispute Resolution Council (DRC) who, with the staff of the PCCSL, will first attempt to mediate any complaint failing which will utilize an Arbitral Tribunal consisting of not less than three of its members to “adjudicate” on the complaint.

What Complaints are Covered?

The PCCSL’s leaflets which have been very well drafted tell us its objectives and what it can do. The media violations covered for complaint are as follows;
• Inaccurate reporting
• Articles affecting privacy
• Insensitive reporting on crime and sex
• Naming victims of sex crimes
• Articles promoting communal tension
• Articles promoting religious tension
• Prevention of journalists harassing people to get information

Who Can Complain?

• Anyone who is directly affected by an article
• Individuals as well as organizations
• Parents and guardians can complain on behalf of minors

Making a Complaint

• Contact the PCCSL where a complaints officer will help
• Fill in a simple form
• Complaints are handled in Sinhala, Tamil and English languages.

What Media is Covered?

• The PCCSL handles complaints against all Sri Lankan Newspapers; in Sinhala, Tamil and English.
• A majority of the Newspapers are supporting PCCSL and respect its mandate.

What Relief can the Complainant Obtain?

• A right of reply
• An apology
• A correction
• Or a combination of all three
In his 2009 Annual Report, PCCSL Chairman Mr. Kumar Nadesan refers to such relief as “restoring damaged reputations and hurt emotions”.

What if the Relevant Media ignores the PCCSL decision?

• A majority of the Editors are members of PCCSL and will normally abide by its decisions.
• Exceptionally, the PCCSL can enforce its decisions under Arbitration Act No 11 of 1995 through the High Court.

Statistics of Success

“The Proof of the Pudding is in the eating”.
During the period January to December 2009, the PCCSL received 122 complaints as follows:
• Sinhala language press ; (which comprises 70% of the print media) 72 complaints
• Tamil language press ; 12 complaints
• English language press ; 31 complaints
• Outside the print media ; 07 complaints

Resolution of Complaints

• Resolved ; 34 complaints
• Complainant did not proceed ; 25 complaints
• Out of mandate ; 42 complaints . (including not concerning media : 07 complaints)
• No progress from Editor : 11 complaints
• Sub-judice : 10 complaints
The Acting CEO of the PCCSL (Mr. Kamal Liyanaarchchi) refers to a 3F’s formula as the benchmark of the PCCSL. “Free, Fair and Fast”. Disputes are resolved free and fairly and fast.

Commendation of PCCSL, its DRC and the dedicated staff

In preparation for this talk I read almost all the publications put out by PCCSL. I studied Your Dispute Resolution Mechanisms, Your material to create Awareness, about your Training Seminars and your Annual Reports and other publications. . Believe me, Ladies and Gentlemen, I have nothing but the highest admiration for the excellent work you have done. Your staff, the Members of the Commission and above all the Members of the Dispute Resolution Council (DRC) led by its Chairman Mr. Sam Wijesinghe, who is the Chief Guest today. Especially the members of the Commission and the Dispute Resolution Council have done yeoman service to our country and what is significant is that this commitment has been voluntary and honorary without any fee or reward.It is also noteworthy that the PCCSL is the only voluntary self regulating body in South Asia.
I have also read the summaries of the List of Complaints which are found in all three languages in each Annual Report. I have gone through each and every one of them. As an Ombudsman for over seven years, I must confess that I have learnt so much form them; how complaints were dealt with and how the dispute was resolved.

A Few Perceived “Shortcomings” of PCCSL Scheme

I seek your indulgence to refer to what I think, are a few shortcomings of the PCCSL dispute resolution mechanism.
(i) The explanatory last paragraph in the Complaint Form appears “daunting” to an average reader/ complainant. I suggest its redrafting in Plain simple language.
(ii) It is wrong to say that the Adjudication of the PCCSL is deemed to be final and conclusive for all purposes and cannot be challenged before a court of law. Legally such a statement is not valid; any complainant is entitled to seek redress in a court of law if not satisfied with the steps taken by PCCSL. That is so in the case of both the Financial and Insurance Ombudsman. Only Parliament can say that a matter cannot be challenged in the Courts.
(iii) The Complaint Form to the PCCSL requires the complaint to identify the clause in Media’s Code of Professional Practice that has been breached. This is not practical. How can an average complainant know about the Code and its contents? The Financial and Insurance Ombudsman only asks for the name of the Bank/Insurance Company and that of the Complainant and his address. Our respective offices find out the details from the bank/insurer etc. The PCCSL office should ask only for the basic complaint and then get the details from the newspaper concerned and not place that burden on the complainant.
(iv) The complainant is asked to enclose a copy of the newspaper article that is complained of. He or she may not have it. Here again, the staff of PCCSL can get the basic facts from him and get the newspaper to give the details.
(v) The Annual Reports of PCCSL admit that some (few) Editors of newspapers do not abide by the PCCSL decisions. In my view, this is very bad. Having agreed to and subscribed to the Scheme they cannot or should not ignore the PCCSL decision. This does not happen with the Financial/Insurance Ombudsman.

State Media outside the PCCSL scheme

(vi) It is regrettable that the State print Media such as the Lake House group which publishes six papers (2 English, 2 Sinhala and 2 Tamil) is not subscribing to the PCCSL mechanism. This is not the case with the Financial Ombudsman and the Insurance Ombudsman. The State Banks (Bank of Ceylon, Peoples Bank, National Saving Bank etc) and the Sri Lanka Insurance Corporation are members of the schemes and abide by them.

Enforcement of PCCSL Adjudication under Arbitration Law

(vii) Under the PCCSL scheme if the newspaper concerned does not comply with your adjudication, there is provision for its enforcement by the complainant under the Arbitration Act. Such a step will be a problem because the newspaper concerned can argue that your Adjudication is not a “legal arbitration” owing of the informal procedure adopted. As I stated earlier it is far better for the PCCSL to ensure that all newspapers within the scheme abide by its decisions. The resort to Arbitration law may not succeed.

State Media subject to Guaranteed Fundamental Rights

Article 14 of our 1978 Constitution guarantees freedom of speech and expression including publication but (regrettably) has not gone as far as the First Amendment to the American Constitution which guarantees that “no laws should be enacted abridging the freedom of speech or the press” . A free media is specifically guaranteed in the American Constitution but ours only guarantees “freedom of speech, expression and publication”.
Although the State media may not currently subscribe to the PCCSL, any aggrieved person can seek relief under Article 14 of the Constitution. There are reported judgments of such instances.

Abolition of Criminal Defamation

The abolition of the criminal defamation provisions in our Penal Code (Section 479/480) was I believe, mainly due to the efforts of the Free Media Movement. Our country is also indebted to a courageous editor (Sinha Ranatunga) of a leading paper (The Sunday Times) who stood in the dock (normally occupied by common criminals) on a prosecution initiated by the then President (Chandrika Kumaratunga) ; See the reported decision entitled Sinha Ranatunga v The State [2001] Volume 2 Sri Lanka Law Reports p 172. I am indeed happy that Mr. Kumar Nadesan as Chairman PCCSL in his Message to the PCCSL’s Annual Report for 2009 has referred to this defamation case filed at President Kumaratunga’s instance. These events have now been well recorded for future knowledge in Rajiv Weeresundera”s excellent book “The Other – War”. I referred to earlier.

Other matters of Importance to PCCSL

In concluding my talk I briefly mention some other matters which I think are important to your work.
(i) The re-activation of the Press Council established by the Sri Lanka Press Council Act No. 5 of 1973 which provides for seven members out of which six are appointed by the President. Five of the seven have been appointed. Two more, one representing the media union and one representing journalist remain to be appointed. Thus, while the Press Council remains a legal entity its dispute hearing body has not been fully constituted. Hence, in my view, its decisions can be challenged for procedural irregularity by writ or under fundamental rights jurisdiction.
(ii) With the growing recognition of the Sri Lanka Press Institute and the Sri Lanka College of Journalism, a text on Media Law which can cover the law and judicial decisions on Defamation (libel and slander ) and Contempt of Court will be most welcome. There are some excellent judicial case studies such as (i) In re Hulugalle (1938) 39, New Law Reports 294 (Contempt of Supreme Court) (ii) Hewamanne v Manik de Silva and the Associated Newspapers (1983) 1 Sri Lanka Reports P1. (iii) 42 New Law Reports 481 (Contempt of Court); (iv) Attorney- General v Vaikuntharasan (1952) 53 New Law Reports 558, (v) Rex v Evening Standard Company (1950) 51 Ceylon Law Weekly; (vi) In re Jayatilleke (1962) 63 New Law Reports p 282 (vii) In re Tillaklaratne (1991) 1 Sri Lanka Report 134 (viii) Sinha Ratnatunga v The State (2001) 2 Sri Lanka Reports 172
As to the importance of the print media let me leave you with a famous quote from Thomas Jefferson, the 3rd President of the United States. He said; “If the people had to decide for a government without newspapers or newspapers without a government, I would ask them to vote for the latter”.
To conclude in paying a well deserved tribute to all of you, including the Editors and other working journalist of our country, let me quote a well known saying from Lord Buddha’s teachings, which I normally quote in my talks. Having explained the Dhamma, Lord Buddha says “You yourself should strive towards perfection. The Buddha can only show the way”.

Similarly my humble request to all Editors, Journalists and others associated with the Media is “You yourself should strive toward ensuring a Free and Socially Responsible Media. The Code of Professional Conduct and the Press Complaints Commission and all what it is doing, can only show way”.

Thank you.

Dr. Wickrema Weerasooria is an Attorney~at~Law and the Insurance Ombudsman, Sri Lanka. This is his key note address at the National Conference on Self Regulation in Media organised by the Press Complaints Commission of Sri Lanka,held at Sri Lanka Press Institute on 7th of September 2011.

A participant reads the Frequently Asked Questions (FAQ) about Self ~ Regulation

A section of audience at the National Conference on Self Regulation in Media

The Chief Guest Sam Wijesinha, former Secretary General of Parliament and Parliamentary Ombudsman and currently the Chairman of the Dispute Resolution Council (DRC) of the Press Complaints Commission of Sri Lanka addressing the gathering at the National Conference on Self Regulation in Media

Another section of audience at the National Conference on Self Regulation in Media


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