By Toby Mendel
Broadcasting laws are important
Most democracies, and quite a few non-democracies, have adopted broadcasting laws. At their best, these laws can promote a number of important social and human rights objectives. They can establish independent bodies to regulate broadcasting, so that this is not done by a ministry or another body which lacks independence from government. They can put in place a fair, competitive processes for obtaining broadcasting licences, ensuring a level playing field and promoting various public interest objectives through licensing (such as controlling undue concentration of ownership of broadcasters). They can establish various mechanisms to promote diversity in the broadcasting sector. And they can put in place appropriate systems for addressing harmful content in the airwaves or, put differently, for promoting professionalism among broadcasters.
Mongolia, however, is an exception in this area, since it does not have a broadcasting law. This is not for lack of trying and both advocates and officials have spent many years promoting the idea of a broadcasting law, so far without success. As far back as 2002, I was a co-author of the publication Mongolia in Transition: Analysis on Mongolian laws Affecting Freedom of Expression, produced by Globe International and ARTICLE 19, which, among other things, recommended the adoption of a comprehensive broadcasting law. In 2009, the Asia-Pacific Institute for Broadcasting Development (AIBD) worked closely with the Mongolian National Broadcaster (MNB) to prepare a broadcasting law, but the resulting draft was never adopted. Following this, in 2013-14, the Asia-Pacific Broadcasting Union (ABU) worked closely with the Communications Regulatory Commission (CRC) to draft a broadcasting law which, again, was never adopted. In both cases, I was the international expert on the team.
Mongolia does have a Law on Radio Waves, passed in June 1999, and a Law on Communications, passed in October 2001. The former establishes a general system for licensing the airwaves for both broadcasting and telecommunications activities, while the latter creates the CRC. However, CRC is not independent of government among other things due to the fact that the Prime Minister appoints the Chair and other members of the Commission, on the basis of nominations by the Minister responsible for communications. Furthermore, neither law provides for specific rules on broadcasting. As a result, these laws fail to promote the important potential objectives of a broadcasting law, noted in the first paragraph of this blog.
The perils of not having a broadcasting law
In many respects, Mongolia represents an almost classical study of what happens in a country which, while a reasonably progressive transitional democracy, lacks a proper legal/regulatory framework for broadcasting. Because the regulator, the CRC, is not independent, it is not regarded as a legitimate decision-maker. This, in turn, seriously undermines its ability to make hard decisions. For example, a competition to determine which television stations would get access to the national, digital transmission network, held over one and one-half years ago, has still not been decided. The result is that the six legacy (historical) channels remain on the national network rather than this having been decided in a fair, competitive manner.
More generally, instead of holding competitions for a limited number of broadcasting licences, based on what the country can reasonably support, licences were, at least in the past, issued to every bidder who met minimum technical standards (the so-called “fit and proper” test). Although some brakes have been put on this recently, the result has been a massive oversupply in the number of channels, many of which operate at a loss and with tiny audience shares. This, in turn, fractures advertising revenues and otherwise creates serious market distortions, making it very difficult for even the most popular channels to invest the resources that are needed to produce quality content.
The lack of independence of CRC, combined with an inadequate legal framework, also makes it almost impossible to regulate content, whether in the form of enforcing positive obligations (such as a requirement for all channels to carry 50 percent Mongolian content) or professional standards (such as not to broadcast hate speech or content which is inappropriate for children during the daytime). This has significantly exacerbated the problem of low standards in broadcasting.
Another problem is the absence of effective rules to promote diversity in the broadcasting sector. One measure which has been put in place is to require so-called “cable channels” (i.e. those which, in accordance with their licences, are distributed exclusively over cable networks) to concentrate 80 percent of their programming in the specialized area indicated in their licence, such as history, culture, education, news or sports. Even this rule, however, is widely ignored and rarely enforced. Otherwise, there are no rules limiting concentration of media ownership, promoting diversity through the licensing process or supporting the establishment of community broadcasters, all key diversity mechanisms in more developed broadcasting systems.
Moving forward, albeit with some headwinds
In an important breakthrough, at the end of December 2016, the CRC did place a draft Broadcasting Law before parliament. This is significant because it represents a real opportunity to move forward on this issue. At the same time, as a recent Analysis of the draft Law by the Centre for Law and Democracy shows, there are significant problems with the draft.
The first and perhaps most significant problem is that the draft Law does nothing to enhance the independence of the CRC. Indeed, it says nothing at all on this subject. Despite this, the draft Law grants very significant powers to the CRC, including to license broadcasters and to undertake the very sensitive task of applying content rules. The problems with independence do not stop there. The draft Law creates a Development Fund for National Broadcasting, with the worthy goals of improving the quality of Mongolian content, and funding priority and more costly content production. However, the draft Law also calls on the government to collect and set the rules for disbursing the Fund, both very politically sensitive tasks.
The failure to promote the independence of the regulator is exacerbated by the fact that the term for broadcasting licences is set at the unrealistically short period of three years, whereas in almost every other jurisdiction this is at least seven years. The result is that every broadcaster will have to apply every three years to the politically controlled CRC for licence renewal. The draft Law also fails to establish even a framework of rules to ensure that licensing processes are fair, transparent and assessed on the basis of pre-established and legitimate criteria. The draft Law is also silent as to the question of how television stations get access to the highly coveted national distribution system, for how long and so on, leaving this to the sole discretion of CRC.
In terms of diversity, the draft Law does include basic rules on concentration of ownership of broadcasters, although it fails to establish analogous rules regarding cross-ownership between the broadcasting and print media sectors. It also includes a very general call for quotas for Mongolian, local and licensee produced content, but the specifics are to be set by the CRC. While positive, it would have been preferable for the Law to include more detail on these important matters. Significantly, the draft Law entirely fails to recognize community broadcasting, which is never even mentioned. For example, the definitions recognize public and commercial broadcasting, but not community broadcasting.
Finally, the draft Law establishes a number of direct content restrictions and then appears to leave enforcement of these rules to the CRC, mainly through the licensing process (i.e. by suspending or revoking licences for breach of the rules). Better practice in this area is to grant the regulator the power to adopt and then apply a detailed code of conduct for broadcasters, and to provide for a graduated system of sanctions, including warnings, a requirement to broadcast a statement acknowledging the breach and fines before the more serious measures of license suspension or revocation are invoked.
To be fair, it is very positive that Mongolia appears to be moving forward with the adoption of a broadcasting law and, despite its shortcomings, the draft Law does contain a number of positive features. At the same time, given how long Mongolians have waited for this, it would be a lost opportunity if greater effort were not spent trying to improve the existing draft. The Analysis by the Centre for Law and Democracy provides a good starting point for such improvements.
About Toby Mendel
Toby Mendel is the Executive Director of the Centre for Law and Democracy (CLD), a Halifax, Canada based international human rights organization that focuses on foundational rights for democracy (freedom of expression, the right to information, freedom of association and assembly and the right to participate). He has worked on these issues globally and in countries around the world at CLD and, previously, with ARTICLE 19, for some 20 years. He also works with a range of inter-governmental organizations – including UNESCO, the World Bank, the OSCE and the Council of Europe – on these issues.