STATEMENT
Rwanda: Proposed media law fails to
safeguard free press
ARTICLE 19
05 Ja 2012
A e i ed media la p omi ed b he R andan go e nmen p io o
and d ing i Uni e al Pe iodic Re ie a he UN H man Righ
Co ncil in 2011 fail o afeg a d he igh o f eedom of e p e ion
and a f ee media.[1] ARTICLE 19 elcome e e al imp o emen in
he d af , b call on he go e nmen o b ing he la in o f ll
compliance i h in e na ional legal anda d on he igh o f eedom
of e p e ion.
The State retains its control over the media in the draft Law by determining
rules for its operation and defining journalists professional standards. Media
freedoms and the right to freedom of expression are not safeguarded and
can be restricted in violation of international law due to overbroad definitions
and the creation of vaguely defined prohibitions. The Minister in charge of
information and communication technologies (ICT) is given unlimited
powers to determine the requirements for establishing media outlets and
conditions for accepting foreign audio-visual media to operate in Rwanda.
ARTICLE 19 is also concerned that the proposed amendments leave
untouched problematic provisions in the current Media Law that are not in
compliance with international standards.
The draft Law amending the 2009 Media Law of Rwanda includes nine
articles covering legal definitions, the right to exercise the profession of a
journalist, the right to seek redress, requirements for launching an audio or
audiovisual media outlet, licensing for foreign audio visual media organs to
operate in Rwanda and penalties for crimes committed through the media.
The Media Law is a comprehensive legal act containing ninety-nine
provisions which determine the responsibilities, the structure and
functioning of the media. It regulates the establishment and functioning of
media outlets, including Internet publications. In addition, it regulates the
status of journalists, outlines press offenses, and describes the liability
regime for media and journalists and the rights to correction, reply and
refutation.
POSITIVE DEVELOPMENTS
The draft Law introduces additional definitions to explain the regime
established by the Media Law. Another positive feature is the repeal of some
problematic definitions concerning the right to reply, the right to
rectification, and the right to correction as these are not in compliance with
international standards and unnecessarily restrict the right to freedom of
expression.[2] ARTICLE 19 considers the following changes to be positive
from a freedom of expression point of view:
Removal of the requirement that journalists hold particular academic
qualifications as this unnecessarily restricts access to the profession[3]
Removal of excessively bureaucratic requirements concerning press
cards. These may be used as mechanisms through which to control who
operates as a journalist[4]
Lifting of a number of restrictions on journalists, including the prohibition
from the using of unlawful methods to obtain or to disseminate
information , neglecting essential information , distorting ideas
contained in an information or a text , which are unclear and can be
used by the authorities to harass journalists [5]
Repeal of the grounds on which the authorities can refuse to provide
information as these are not in compliance with international standards[6]
Lifting of the requirement for photojournalists to seek authorization by
the media authorities to perform their profession[7]
Liberalisation of the system of sanctions for the media by repealing the
provisions on warning or suspension of a press publication[8] and
penalties for irregular press publications[9]
Repeal of sanctions of suspension and closure of a publication , both
of which are disproportionate restrictions on the right to freedom of
expression[10]. There are always less intrusive forms of sanctions which
may be used to ensure the media comply with the Media Law and do not
violate the rights of others, for example fines[11].
CONTINUING PROBLEMS WITH THE DRAFT LAW
At the same time ARTICLE 19 is concerned that the following aspects of
the draft Law do not comply with international standards on freedom of
expression and information. Firstly, there are a number of problems in
respect of the definitions advanced by the Draft Law:
The definition of journalist is too broad in its scope and covers persons
who are not professionally engaged in journalism (such as bloggers and
social media users) into the existing media law regime: According to the
definition in Article 1 of the draft Law, any person involved in the
collection, processing and dissemination of information can be regarded
as a journalist. It means that persons such as university researchers,
bloggers and social media users, for example, would fall under this broad
definition and hence are subject to legal responsibility under the Media
Law. It is inappropriate and unnecessary for a media law to regulate nonjournalistic activities.
The definition of news item is overbroad and may be used to hold
journalists liable for any information reported by them: The definition
news item in Article 1 essentially includes any information published or
broadcast by the media. The broad definition is dangerous from a
freedom of expression point of view since Article 88 of the Media Law
provides for criminal responsibility of authors and presenters for offences
committed through news items. The broad definition of news items
means that journalists can be held responsible for any information
reported or distributed by them. This violates international standards,
which provide individuals with protection for justified opinions (value
judgements) and protect journalists from liability for reporting the
statements of third parties. ARTICLE 19 is concerned that the unlimited
responsibility of authors and presenters will have a chilling effect on free
news reporting.[12]
The definition of defamation is overbroad and may be used to impose
liability for the expression of opinions and to restrict in violation of
international law certain forms of expression such as satirical publications
or other forms of expression which by their nature are exaggerations, and
parodies: Article 1 of the draft Law introduces a definition of defamation
as any act of using words, images or pictures published that are not
accurate or true with the intention to offend the honour or estimation of
the person or expose him/her to public contempt . This definition can be
used to restrict satirical publications or caricatures, which by their nature
are exaggerations and parodies. Moreover, ARTICLE 19 is concerned
that the definition allows for the imposition of liability for the expression
of opinions, rather than for false statements of fact. We recall that
international standards require a balance to be struck between the right to
freedom of expression on the one hand, and the right of individuals to
protect their reputations on the other. However, defamation provisions
should not be used to restrict debate on matters in the public interest,
particularly as they relate to the conduct of public officials or limit the use
of different forms of expression, including those that are satirical.
In addition to the overbroad definitions outlined above, there are a number
of substantive amendments made by the draft Law that are also problematic
from a freedom of expression perspective:
The Minister in charge of ICT has unlimited powers to determine the
requirements for establishing media outlets and conditions for accepting a
foreign audio-visual media to operate in Rwanda: Article 4 of the draft
Law gives powers to the Minister in charge of ICT to determine the
requirements for establishing a local or foreign audio or audiovisual
media outlets operating in Rwanda. However, no regulatory framework
places any limitations on the exercise of this power, leaving all decisions
to the discretion of the Minister. The Draft Law provides no safeguards
against unnecessary restrictions on media freedom or against the abuse of
powers by the Minister. We note that the constitutional principles of
separation of powers and protection of human rights require that
Parliament as opposed to the Executive legislate on matters concerning
human rights including the right to freedom of expression. Furthermore,
when regulatory powers are delegated to the executive bodies the
legislation should contain safeguards against misuse or abuse of powers
by that executive body. These safeguards include guidance for the
exercise of the regulatory powers and requirements to engage in
consultations with affected stakeholders. There must also be judicial
oversight of any executive regulation of the media, to ensure that the
executive body is held to account for the misuse or abuse of their
powers.[13]
Introduction of new offences for example “publication of false
information, intended to undermine the morale of Rwanda Defense
Forces and the National Police and to endanger national security” or
“inciting the army or the national police to insubordination” or
“glorification or promotion of massacre, looting, arson, theft, rape,
terrorism or treason.” ARTICLE 19 considers that the ac
e (the
guilty acts) of these crimes are broadly defined and illegitimate
restrictions on freedom of expression.[14] Moreover, ARTICLE 19 notes
that the draft penal Code covers these offences.
Finally ARTICLE 19 is concerned that the proposed amendments leave
untouched other problematic provisions in the current Media Law that are
not in compliance with international standards, including:
The determination by the state rather than by media professionals of
media professional standards[15]
The test of legality of the restriction on the right to freedom of expression
set out in Article 17 of the Media Law does not include a requirement to
determine the necessity of the restrictions[16]
The confidentiality of journalists sources is not effectively protected.
Courts are able to require journalists to reveal their sources in relation to
any legal proceedings, rather than only in the most serious of criminal
cases. In contravention of international standards, the Media Law does
not provide that information disclosing the identity of a journalist s source
should only be ordered by a court where there is no other reasonable
alternative means available for obtaining that information[17]
The licensing by the Media High Council of all media rather than limiting
licensing to broadcast media only. Licensing of the broadcast media is
justified due to demand for broadcast frequencies exceeding the limited
number that are available at any one time. However, there is no
equivalent technical constraint that justifies imposing a licensing
requirement on the print media, or controlling the print media through
such a licensing regime[18]
The vague powers of the Minister in charge of information to “determine
the capital of media outlets”[19]
The requirement for authorisation by the Media High Council for
Rwandan journalists to become correspondents of foreign media
outlets[20]
The Media High Council is not independent from government influence
because the Minister in charge of information can reverse its decisions[21]
The registration regime for the copyright in press publications is not
necessary, as copyright under international law does not require
registration[22]
The unclear requirement for owners of internet cafes to screen and block
pornographic websites[23]
The excessive fines[24]
There is also a lack of clarity regarding the enforcement of the Media
Law, in particular it is unclear which bodies have the power to determine
press offences and what procedures and procedural safeguards are in
effect for the determination of liability and sanctions for those offences.
CHANGES NEEDED
ARTICLE 19 calls on the Government of Rwanda and all stakeholders to
work to incorporate the following recommendations to bring the Media Law
into compliance with international standards on freedom of expression and
information:
1. ARTICLE 19 recommends that the proposed definition of journalist be
amended by placing the focus on the nature of the information and
specifying that a journalist is a person engaged in information via means
of mass communication
2. There is no need for a definition of a news item. Instead, Article 88 of the
current Media Law which includes the expression news item should be
modified to ensure that journalists and media are not responsible for
opinion founded on facts and made in good faith and that they are
protected against liability for statements of others
3. The definition of defamation should be revised so as to apply to any
intentional false statement of fact, either written or spoken, that harms a
person's reputation
4. Articles 12, 17, 20, 24, 25, 26, 38, 57 and 78 of the Media Law should
be revised and brought in compliance with international law and media
standards.
FOR MORE INFORMATION
Please contact Stephanie Muchai, Legal Officer - ARTICLE 19 Eastern
Africa, [email protected] or call +254 727 862 230.
[1] Report of the Working Group, paras. 79.12-15
[2] See Article 1 of the draft Law.
[3] See Article 1 of the draft Law.
[4] See Articles 5, 6, 9, and 11 of the draft Law.
[5] See Article 13 of the draft Law.
[6] See Article 14 of the draft Law.
[7] See Article 50 of the draft Law.
[8] See Article 75 of the draft Law.
[9] See Article 76 of the draft Law.
[10] See Article 84 of the draft Law.
[11] See Article 84 of the draft Law.
[12] ARTICLE 19 recalls that international courts make a distinction
between opinions (value judgments) and statements of facts. For example,
the European Court of Human Rights has stated that freedom of opinion is a
fundamental part of the right to freedom of expression and that in contrast to
statements of facts, individuals should not be expected to prove the
truthfulness of opinions. The European Court of Human Rights has held that
the right to freedom of expression protects the right of everyone to express
an opinion as long as it is based on facts and was made in good faith. See
the case of Lingen . A
ia, Judgement of 8 July 1986, Application no.
9815/82, para. 46.
[13] For example, the Delegated Powers Scrutiny Committee of the British
parliament keeps under constant review the extent to which legislative
powers are delegated by Parliament to government ministers.
[14] Article 6 of the draft Law. ARTICLE 19 has already expressed
concerns that journalists and the media in Rwanda are held responsible for
press offenses in violation of international law. See ARTICLE 19 s
submission to the Supreme Court of Rwanda in the case against two
journalists of Umurabyo newspaper who were sentenced by the High Court
in Kigali to 17-year and 7-year jail terms on 4 February 2011 over articles
critical to the Rwandan authorities. The decision demonstrated that judges
don t know how to strike the right balance between the right to freedom of
expression and other rights and legitimate interest. ARTICLE 19 is of the
opinion ha one of he eakne e of he Media La of R anda i ho
eek liabili of jo nali and impo e anc ion fo p e offen e .
o
[15] Fo e ample, p ofe ional anda d a e e abli hed in A icle 12 of he
Media la impo ing obliga ion on jo nali
o p bli h e ified info ma ion,
and gi e he floo o all pa ie .
[16] A icle 19 (3) of he In e na ional Co enan on Ci il and Poli ical Righ
(ICCPR) e o he e fo a e ing he legi imac of e ic ion on
f eedom of e p e ion. I a e ha he e e ic ion hall be onl a a e
p o ided b la and a e nece a :
[1] Fo he e pec of he igh and ep a ion of o he ;
[2] Fo he p o ec ion of na ional ec i o of p blic o de , p blic heal h o
p blic mo al
The e e i a h ee pa e o de e mine he legi imac of limi a ion o
f eedom of e p e ion. Fi l he in e fe ence o he igh m be p o ided
fo in he la , econdl i m p o ec o p omo e an aim ha i deemed o
be a legi ima e aim in in e na ional la and hi dl , he e ic ion m be
nece a fo he p o ec ion of p omo ion of ha legi ima e aim.
[17] A icle 20 of he Media La .
[18] See A icle 24 of he Media La .
[19] See A icle 24 of he Media La .
[20] See A icle 25 of he Media La .
[21] See A icle 26 of he Media La .
[22] See A icle 38 of he Media La .
[23] See A icle 57 of he Media La .
[24] Fo e ample, A icle 78 of he Media La p e c ibe a fine fo
$8,400 fo an ac of in e fe ence i h p i ac .
p o