In this paper, a comparative analysis is undertaken between the Botswana Media Practitioners Act 2008 and the Danish Media Liability Act 1998.
The latter is sampled on the basis that it is rated the number one (1) free press country according to ‘Reporters Without Borders’. Reporters Without Borders compiled the ranking by ‘asking its partner organisations (14 freedom of expression organisations in 5 continents), its 130 correspondents around the world, as well as journalists, researchers, jurists and human rights activists, to answer 52 questions to indicate the state of press freedom in 167 countries”.
Botswana was ranked 50 out of the said 167 countries.
It is worth noting that both countries have a regulated press, through the Botswana Media Practitioners Act, and the Danish Media Liability Act. This is very significant because it discounts the theory by anti-regulation groups that ‘regulation’ curtails press freedom.
In their book entitled ‘Media regulation, public interest and the law’, Mike Feintuck and Mike Varney note as follows: “In the modern context, the media must also be viewed as a huge and increasingly global commercial market. While all markets run the risk of domination by one or more major players, media markets appear to show a peculiar predisposition towards monopoly or oligopoly”.
Given that the media is also more about the public interest, there is sufficient justification to protect the public through regulation as a means of providing checks and balances because monopoly lacks same. It is for this reason that the above writers avow that “The centrality of the media to democracy as the primary information source cannot be overemphasised, and the very fact that democracy requires citizens to be informed if they are to act effectively as citizens, serves as a prima facie justification for regulation within a democratic context”. Both Botswana and Denmark have thus seen the need to regulate the Media so as to attain a balance with the public interest and to further democracy. This should not be seen as an attempt to suppress the media.
Under the Botswana Media Practitioners Act, there shall be established a Media Complaints Committee which shall hear petitions from members of the public aggrieved by an act or omission of a media practitioner in respect of a publication.
As for the Danish Media Liability Act, responsibility falls under the Press Council. The Press Council rules in cases relating to, “whether the publication made is contrary to sound press ethics, and whether under the provisions laid down, a mass media shall be under obligation to publish a reply, including the content, form and location of reply”. The Press Council (Denmark) and the Media Complaints Committee (Botswana) therefore undertake same role of adjudicating on complaints.
The Press Council and Press Complaints Committee are appointed by Ministers in their respective countries, whereas in Botswana, it is the Minister of Communication Science and Technology and in Denmark it is the Minister of Justice. Whilst in Botswana the Minister appoints the Press Complaints Committee without any need for consultation unlike in Denmark, there also exists the Appeals Committee whose Chairperson shall be appointed by the Minister, being a ‘legal practitioner, admitted to practice in the courts of Botswana and recommended by the Law Society of Botswana’.
To avoid what could be perceived as the Minister’s underhand involvement, the “manner of convening meetings of the Complaints Committee and the procedure and voting at such meetings shall be prescribed by the Executive Committee”. Suffice it to add that “A person aggrieved by the decision of the Appeals Committee at an inquiry under this Part may, within 30 days of the decision, appeal to the high Court”.
The right of reply also features prominently in both Acts. Part 6 of the Danish Media Liability Act reads as follows: Requests for reply in the mass media to information of a factual nature which might cause anyone significant financial or other damage, and which has been published in a mass media, must be heeded, except where the correctness of the information is unquestionable”.
Further, the “reply shall be published free of charge without undue delay and in any such conspicuous manner as may reasonably be warranted by the circumstances”. Article 10 of the Media Practitioners Act stipulates that “a publisher who publishes a statement about or against a person shall, when requested to do so by the person in respect of whom the publication is made, publish a reply from him or her”, in not later than two subsequent editions of the publication and in the same prominence as the original statement published. There is thus no much distinction between the two with regards the right to reply, save that in Botswana, there is due consideration to the time frame (two subsequent editions). The explanation behind mandatory time frame is necessitated by the fact that time is crucial in correcting or reinforcing a perception that is/has been created by a publication. Whilst this could appear to be a sticky bit, it is one area that could be subject to review following implementation.
The two Acts appear to have much in common, the marked departure being with respect to criminal liability as highlighted in the Danish Act, Part 3, Section 13 which reads: “The editor shall share in the liability for the content of an article bearing the author’s name published in the publication where, with the editor’s knowledge, the article was written by a permanent member of staff of the publication, where it was written upon the editor’s request or he or she had contributed in any way, or where the editor knew that the content was incorrect or implied an invasion of privacy”.
On the other hand, the Botswana Media Practitioners Act only criminalises aspects with regards membership of the Council. It has been suggested elsewhere before that a resident media practitioner who does not register with the Media Council shall be held criminally liable, but that is at best untrue, false and misleading.
It is worth reinforcing in the conclusion that the Botswana Media Practitioners Act compares to a large extent with the Danish Media Liability Act, the country rated as the number one (1) free press country. Batswana, the Media houses in this country, and government must come to recognise that they compare with the best in the world.
This however is not to suggest that we should bask in our glory, but in the spirit of continuous improvement, we should continue engaging one another positively to make the best out of our democratisation institutions.
Dr Dingalo is Director, Research and Policy Development (BGCIS) in the Office of the President
