Islamabad, 29 January 2020
PUBLIC STATEMENT BY DIGITAL MEDIA OUTLETS, DIGITAL AND MEDIA RIGHTS ACTIVISTS, PROMINENT JOURNALISTS AND OPINION MAKERS, AND LAWYERS ON PEMRA’S NEW POLICY DRAFT ON LICENSING AND REGULATION OF OVER THE TOP (OTT) SERVICES AND ‘WEB TV’
Being cognisant of the demands of the emerging digital media market and industries and acknowledging the growing need for developing the digital media market as an industry, we, representatives of a group of civil society organisations and digital media platforms, and concerned individuals, strongly urge the Pakistan Electronic Media Regulatory Authority (PEMRA) and the Government of Pakistan to take a step back and review its decision to introduce ad-hoc, ill-advised, under-researched and non-nuanced policy frameworks that stand to permanently shape the emerging digital media market in Pakistan.
Any policy that will have a direct and lasting impact on an emerging industry must go through the prescribed policy development frameworks and should not be enacted as a policy addendum by a regulator, without any parliamentary oversight. We also remind both PEMRA and the government that the digital media industry remains completely outside PEMRA’s legal jurisdiction and any effort to regulate the digital media market would be a gross overstep of the PEMRA’s mandate and authority.
Furthermore, the policy is not a reasonable classification or proportional in terms of Articles 18(c) and 19 of the Constitution of the Islamic Republic of Pakistan. Therefore, we the signatories deem this proposed regulatory and licensing policy unacceptable in its current form.
In particular, we remain concerned that:
- The introduction of this draft policy, clearly lacking in any understanding about the nuances of the digital medium, and pushed through PEMRA, a regulator whose jurisdiction is limited to broadcast media, raises serious concerns about the objectives of this exercise. Given the regressive environment for free speech and suppression of dissent in the country, the intention to regulate OTT and vaguely defined ‘Web TV’ appears to be a poorly disguised attempt to ensure that independent content producers using the digital medium can be brought under a regulatory mechanism focused on creating prior restraint and enabling increased censorship of digital content. The mechanisms of regulation proposed in the draft stand in contradiction of the international standards that PEMRA itself mentions as examples within the draft. The draft policy also completely fails to acknowledge the Internet as a global medium and attempts to create a content regulation framework that is divorced from the realities and design of the medium, giving weight to the concern that this attempt at regulation is in fact an attempt to curtail online political and creative expression.
- PEMRA’s repeated references to its broadcast Code of Conduct 2015 suggest that it seeks to curtail the freedom of creative expression exercised by content producers and artists online. The application of a code of content that was designed specifically for linear broadcast TV to OTT content is ludicrous as OTT services, much like most of the Internet, do not force users to watch content rather it is the users who can choose to watch content on demand.
- Digital media services, specifically OTT services, remain an integral part of emerging digital media economies. The draft policy stands to seriously damage the growth of the OTT market in Pakistan by creating regulatory frameworks that discourage both major international players and local new entrants. By introducing a restriction to abide by PEMRA’s code of conduct, PEMRA is in effect trying to bring an industry created for a global digital market under a policy that was created for national TV and radio broadcasters. The draft policy creates unrealistic and unnecessary liabilities for International players and thus will discourage their entry into a market that inherently carries huge business risks and doesn’t offer much in terms of incentive. The provision to apply PEMRA’s broadcast code of conduct on OTT services could discourage foreign companies, such as Netflix and Amazon, to work in Pakistan. A debate on Internet intermediary liability — holding technological intermediaries, such as websites, liable for the unlawful or harmful content created by their users — is outside PEMRA’s jurisdiction.
- The introduction of hefty licensing fee(s) creates a clear barrier for entry and encourages the creation of a monopoly on a medium that is celebrated for its potential to create opportunities for independent content producers. In addition, PEMRA’s assertion that the policy aims to create a level playing field is deliberately misleading, as the prescribed licensing framework provided by PEMRA puts an extremely high barrier to entry for local entrepreneurs and businesses. It also contradicts the Government of Pakistan’s efforts to encourage digital content producers and provide ease of business for digital businesses. The regulator appears to be actively creating an environment that would restrict the growth and expansion of local, independent players.
- The manner in which the draft policy was shared to solicit public input appears to be symbolic and non conducive to actual debate. More importantly, any policy that aims to regulate a whole new industry should be coming through the Parliament not a regulator, and that too a regulator which is going beyond its own legally defined regulatory mandate.
We, thus, strongly urge PEMRA to remain cognisant and considerate of its own mandate and abandon this effort to license and regulate an industry that clearly falls outside the mandate and jurisdiction under the PEMRA Act (Amnd. 2007).
We urge the regulator to adhere to the principles of fundamental freedoms clearly drawn in the Constitution of Pakistan, and the international covenants signed by Pakistan, including but not limited to Universal Deceleration of Human Rights.
We also urge the regulator to conduct a market-based, scientific study of the industry and regulatory models in other economies before proposing any further policies that stand to have a direct and deep impact on the future of the media industry in Pakistan.
We draw the government’s attention to Pakistan’s obligations as a UN member state and refer it to recommendations on digital content regulation made by the UN Special Rapporteur on Freedom of Expression, David Kaye, who has stressed upon the principles of human rights by default, including legality, necessity, proportionality and legitimacy, for any regulatory actions.
We thus, request the Government of Pakistan, in particular the Prime Minister, the Cabinet and members of the Senate and National Assembly’s standing committees on Information Technology and Information & Broadcasting to take up their legislative mandate and dispel efforts to create new industry regulation frameworks through the announcement of extended policy measures without having gone through the prescribed legislative process and urge the government to remain responsive and considerate of the human rights concerns that remain inherent to such regulatory measures.
Media Matters for Democracy (MMfD)
Pakistan Press Foundation (PPF)
Global Neighbourhood for Media Innovation (GNMI)
Centre for Peace and Development Initiatives (CPDI)
Women in Media Alliance (WIMA)
The Centrum Media (TCM)
The Current PK
Naya Daur Media
Amber Rahim Shamsi, Senior Journalist
Benazir Shah, Journalist
Bilal Farooqi, Journalist
Fahmidah Yousfi, Editor
Farhan Janjua, Journalist
Hamid Mir, Senior Journalist
Mehmal Sarfaraz, Senior Journalist
Najia Asher, Senior Journalist & Media Development Professional
Naseem Zehra, Senior Journalist
Owais Tohid, Senior Journalist
Ramsha Jahangir, Journalist
Raza Rumi, Journalist
Sadaf Khan, Media Development Professional
Salwa Rana, Lawyer
Talha Ahad, Digital Journalist
Tanzeela Mazhar, Senior Journalist
Waqas Naeem, Media Development Professional
Yasser Hamdani, Lawyer
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