Why the new draft media law is alarming

In a country ranked 119th out of 180 on Reporters Without Borders’ press freedom index, and where punitive practices against journalists are becoming commonplace, media reform is needed more than ever.

Regulated by a law passed in 1962, the sector has been waiting 13 years for Parliament to pass a proposal drafted by Ghassan Moukheiber, an MP at the time, in 2010, in collaboration with Maharat Foundation.

Yet, the proposal in question — to which various NGOs, professionals, and MPs also collaborated — was subjected to multiple changes in the parliamentary committees and subcommittees.

Many observers attribute these “manipulations” to political interests and agendas, and expressed fear that its initial objective of promoting media freedom and independence will not be fulfilled.

The 106-article draft arrived at the Administration and Justice Committee in July 2021. The committee then sent it to the Media and Communications Committee and other sub-committees, after caretaker Information Minister Ziad Makari and UNESCO — in the wake of a partnership concluded with Parliament — made a critical analysis of the draft, to bring it into line with international criterion for freedom of expression.

“The comments we made on the proposed text are in line with the spirit of establishing a progressive and modern law that protects the rights of journalists and regulates their profession,” Makari told L’Orient-Le Jour, noting however, the risk that Parliament ultimately adopts an “anachronistic” law.

Regulatory body

Presently, and after the session was delayed several times, the parliamentary committee is discussing article 32 of the draft, which focuses on the formation of an independent body known as the Regulatory Authority, tasked with monitoring and managing the media sector, and which would replace the National Audiovisual Council.

In the version of the proposal that the committee has, the regulatory body consists of 10 members elected by the MPs, including four journalists, four members of the Syndicate of Lebanese Press Editors, four owners of media outlets, a communications engineer and a lawyer.

The lawyer should be elected between three candidates put forth by the Beirut Bar Association, and two candidates put forth by the Tripoli Bar Association.

UNESCO and Makari prefer that the body be made up of more people, including a lawyer, two engineers, two journalists who are members of the syndicate, two deans of communication faculties, two candidates from the National Anti-Corruption Commission, two candidates from the National Commission for Lebanese Women and two candidates from the Coalition to Defend Freedom of Expression in Lebanon — made up of several organizations, including Amnesty, HRW, Maharat Foundation and Daraj. The candidates would be pre-selected by their syndicates or the civil society group in which they are active.

The Coalition to Defend Freedom of Expression rejected the idea of creating such a body. In its observations appended to the document, it noted that while the notes of UNESCO and Makari suggest including more segments in the body, it is likely to grant greater independence. They instead call for “self-regulation” of media companies.

“The experience of having regulatory bodies in Lebanon has not succeeded in guaranteeing independence,” the coalition wrote.

Speaking to L’Orient-Le Jour, coordinator of the Alternative Press Syndicate Elsy Moufarrej, who is closely following up on the file, also expressed her disapproval of creating a regulatory body.

“Even if the candidates were initially chosen by civil and professional actors, their election by Parliament could encourage clientelism and division of shares between political forces,” Moufarrej said.

MP Bilal Abdallah, a member of the committee, retorted. “We are portrayed as being against the people, whereas the people elected us.”

“The best thing would be for media companies to create internal mechanisms through which their journalists are held to account for breaches of bylaws based on transparency and ethical standards,” said Moufarrej.

“This accountability would shut the door to any political interference in the sector,” she added.

Makari, on the other hand, believes that self-regulation cannot work in a country where “media companies do not share uniform criteria, particularly since they vary according to political leanings and sectarian affiliations.”

Prison sentence

Defamation provisions (amongst other things) in the draft law, that are set for penalties are alarming.

“Any defamation or slander of a Head of state by a media outlet or journalist is subject to public prosecution by the public prosecutor’s office,” the proposed text reads, specifying that the perpetrator of such an offense shall be subject to “a prison sentence ranging between six months and two years.”

UNESCO and Makari rejected this rule, opting for its deletion. This move was welcomed by the Coalition, which believes that “public figures shall tolerate criticism and shall not be given extra protection.”

In any event, Makari believes that if journalists are found guilty of defamation, they can usually be tried by a civil court, which would order them to pay financial compensation for damage.

However, “articles of the Penal Code were transposed into the proposed media law,” said Moufarrej.

Abdallah told L’Orient-Le Jour, however, that the committee’s debates are based on “the freedom of expression and permissiveness criteria.” He added that “boundaries” nevertheless need to be drawn.

“While it is not permissible to muzzle voices that oppose those in power, there must be a separation between political criticism and accusations, on the one hand, and insults to dignity, on the other,” he continued.

Abdallah said that there must be “a minimum of responsible freedom, which stops short of the dignity of others.” These comments suggest that the MPs are unlikely to rule out prison sentences for journalists accused of defamation.

Other punishable acts provided for by the draft include the publication of information during cabinet meetings, secret sessions held by Parliament and parliamentary committees, investigations by the Central Inspection Board and the Judicial Inspection Authority, and the deliberations of the Higher Judicial Council.

Under the proposed text, only decisions expressly announced by these authorities may be published. However, the acts in question are not punishable by prison, but by a fine ranging from 10 to 12 times the minimum wage.

According to the Coalition, publication bans should be limited to those set out in the Right of Access to Information Law, and in particular to national security-related issues.

Abdallah said this matter has not yet been discussed within the committee. He merely noted that debates within the cabinet sessions or Parliament are often transcribed “simultaneously” in the media.

The maintenance of the Court of Publications, an exceptional criminal court allowing only one appeal to the Court of Cassation, also triggered criticism.

In the Coalition’s view, this body should be replaced by a civil court whose decisions would be subject to two appeals, one in the court of appeal and one in the court of cassation, which would guarantee “a fair trial.”

In the same spirit, Makari advocated “the abolition of this court, which only exists in a very few countries in the world.”

The legal status of journalists

The proposed law also advocates the need to obtain a prior license from the regulatory body before setting up a media outlet. The Coalition believes this rule amounts to “preventive control,” and instead proposed registration with the Ministry of Economy.

As for the creation fees mentioned in the text under discussion, the Coalition believes they prevent ordinary individuals and young people from setting up media outlets, while making it possible for those who have the means to start large companies.

According to the Coalition, the fees should be imposed only on broadcast media that use terrestrial or electromagnetic waves or other similar channels, while media broadcasting via the Internet and satellites should pay only a token registration fee. The aim is to “give all sections of society an opportunity to broadcast.”

The Coalition also called for the abolition of the Lebanese Press Syndicate (owners of media companies), which it believes has power over the Syndicate of Press Editors.

Lastly, the law defines journalists as those affiliated with the Syndicate of Press Editors and working in news agencies, or in written, broadcast or electronic media.

The Coalition criticized this definition, noting that many journalists are not members of the guild, and advocated for the creation of other structures.

It also lamented that the status of ‘journalist’ as set out in the proposed text does not include freelancers, YouTube page authors or podcast creators.

For his part, Makari is pleased that “social media activists are not designated as journalists.”

This article was originally published in French in L'Orient-Le Jour. Translation by Joelle El Khoury.