Enforce this

The Broadcasting Authority wants to clamp down on stations breaching its guidelines by imposing new fines. But BA Chairman Joseph Scicluna admits a good part of these guidelines would be unrealistic to enforce, particularly where political stations are concerned

Imagine a scenario in which it shall not be permissible for Net TV and One TV to claim that news bulletins on the opposite channels will ensure that opposing views will be heard. Where their news “should avoid looking like a notice board or the party’s propaganda machine”. Where their journalists “should be impartial on issues of political controversy” and party officials or candidates are “prohibited from newsgathering or from presenting the news”. And journalists having programmes on PBS shall in no way have any conflicts of interest, express their personal views on controversial issues, or express support for a political party or policy.
Whether you agree with all that or not, that is what the Broadcasting Authority’s guidelines for news and current affairs say, about to be legally enforced with fines of up to Lm1,000 in a few months’ time.
The only problem is that all the provisions listed above will remain, with the authority’s self-admission, non-enforceable, even though they are listed with a set of guidelines to come into force soon.
The Broadcasting Authority Chairman, Joseph Scicluna, now in his ninth month on the hot seat of the television and radio national watchdog, admits that the guidelines that have been existing since 2004 were not really being adhered to, hence the need to fine those who breach them, or rather parts of them.
“We’re concerned with the general adherence to the guidelines,” Scicluna says. “I wouldn’t say there is a general disregard to them. Most of the stations follow these guidelines, but there are some basic guidelines we are concerned about. One of them, for example, is about reconstruction material. Footage that is reconstructed, that is simulated, should be declared to be so. And there is also the obligation that old footage from the archives should be labelled as such. Unfortunately this doesn’t happen most of the time, and the reasons are usually to deceive televiewers. When you put fresh footage with old footage you can be sending an incorrect message. These guidelines apply to every station but the political stations are the most to breach them.”
Another example of breaches noticed by the BA relates to recorded telephone interviews.
“If you call a person by telephone you’re obliged to tell the person that you are recording him and to ask for her permission to broadcast it,” Scicluna said. “This doesn’t always happen and we’ve had particular cases of this breach.”
The enforceable guidelines in fact relate mainly to privacy issues, editing and archiving, undercover reporting, violence and children’s rights – basic journalistic ethics that are already somehow covered and enforced by the Press Ethics Commission and the Data Protection Commissioner, raising fears that this would be yet another court for journalists.
“What we’re concerned with here are broadcasters, not all journalists,” Scicluna says. “I wouldn’t say we’re establishing another court. We have guidelines here which since they were published in 2004 the BA had stated it was considering to make them enforceable. If they are going to be ignored then it’s better not to have any guidelines at all. It is in that context that we want to enforce them.”
Trouble is that a great part of these guidelines will remain not enforced. Take impartiality – the authority says in the guidelines that it is responsible “to ensure that a broadcaster preserves due impartiality in respect of matters of political or industrial controversy or current public policy”. Forget for a second all the questions of the meaning of impartiality; how can the authority guarantee impartiality on the political stations?
“There are already existing laws on impartiality that are being enforced,” Scicluna says, referring to the traditional approach taken by the authority to view Net TV and One TV as balancing each other in their own one-sided views of the world.
“As you know, the Authority has consistently, over the years, taken the position that one political station balances the other. It’s not a gratuitous position – it is also provided for in the broadcasting law – which allows the BA to look at the full picture. On the other hand PBS is strictly bound by impartiality. I think it is inevitable that a political station has an editorial slant. What we’re doing is trying to establish a framework of respectability for all stations.”
But in contrast with the authority’s own approach, the new guidelines state specifically that “a broadcaster should ensure that principal divergent points are reflected in a single news bulletin when the issue involved is of a current and active controversy”. And even more explicitly: “It shall not be permissible for the broadcaster to claim that news bulletins on other channels will ensure that opposing views will be heard. A news bulletin … should avoid looking like a notice board and, more importantly, as if it forms part of an organization’s propaganda machine.”
Scicluna, or rather the guidelines themselves, instantly shatter any expectations of a healthier media landscape that is not dominated by the frenetic partisan polarisation.
“If you’ve noticed, that section is not going to be enforced, and there are reasons for that,” he said. “These are wide-ranging guidelines, declarations of principles and definitions which are will not be enforced for the time being, and so are the provisions on impartiality. What regulates impartiality is the Constitution and the Broadcasting Act, which allow the BA to look at the overall picture.”
But isn’t this a disservice to the audiences? Allowing a totally one-sided bulletin in the assumption that it will be balanced out by another totally one-sided bulletin?
“I think the public is sick of this exaggerated slant.
But what can you do as authority?
“We’ve started from here. We admit that as long as there are political stations this is inevitable, but let’s do things in a more respectable context.”
You also say that comments are admissible in a news report as long as they are balanced and factual.
“Again, that part will not be enforced. It’s desirable to have those guidelines adopted, let’s put it this way, but that’s not something we will enforce now.”
The phrase ‘will not be enforced’ becomes unbearably embarrassing for the chairman as I face him with the list of guidelines impinging on the political stations. There is the guideline that officials in a party, campaigning organisation or lobby group “should not be involved in newsgathering, production and presentation of news and current affairs programmes” – when in fact everyone knows there are political candidates reading the news and presenting current affairs programmes while the newsrooms’ agenda is clearly dictated by the respective parties.
“That is one of the wider guidelines which we won’t be enforcing,” the chairman says, with a hint of irritated embarrassment at my focus on the non-enforceable guidelines set out in the authority’s document. “The enforceable parts are mentioned specifically, I don’t know if you’ve read them.”
Yes I have but aren’t you admitting you are powerless to enforce these crucial ethical guidelines, like admitting defeat with party stations?
“I don’t think we’re powerless, I think the authority is being realistic, rather then letting everything go. We’re working within the circumstances, which include political stations.”
Another guideline that will not be enforced is about “combinations of semi-fabricated news items without care for accuracy solely aimed for partisan propaganda”. The guideline says that such fabricated news and propaganda “shall be prohibited”.
Again, how will you prohibit that if it’s not enforceable?
“I have to repeat that these parts you quote are not going to be enforced. It wouldn’t be realistic to try and enforce that kind of guideline; it wouldn’t make sense for the authority to take on commitments it cannot honour.”
So when you say that propaganda “shall be prohibited”, by whom shall it be prohibited exactly? Are you expecting the political stations to prohibit themselves from broadcasting propaganda, which happens all the time?
“Those are guidelines. We wish to see a certain amount of self-regulation, and we shouldn’t give up on that, but it’s not always possible. Take advertising for example. We issue charge upon charge related to advertising, but other countries rely on self-regulation.”
The guidelines also make a specific distinction for public broadcasters in stating that “those known to the public primarily as presenters of, or reporters on, news programmes or programmes about current affairs broadcast on the public service broadcaster must be seen to be impartial. It is important that no off-air activity, including writing, the giving of interviews or the making of speeches, leads to any doubt about their objectivity on-air.”
The guideline is based on the view that public broadcasters expressing their personal views about any controversy, political debate or electoral issues would “severely compromise” their credibility, although that could be contested on grounds of freedom of expression.
“That distinction is clearly made because public broadcasters have a public service mission. Again that is not one of the enforceable sections, not because we don’t believe in those guidelines – we believe 100 per cent in those guidelines – but we don’t have the legal mandate to enforce them. If the authority had to enforce those provisions then in all probability it would be breaching the European Convention for the Protection of Human Rights and Fundamental Freedoms where freedom of expression is concerned.
The authority cannot fine a public broadcasting journalist for writing a column on politics. The advice we have is that could be in breach of the convention’s provisions. So again that should be something regulated between the journalist and his employer, in this case PBS. So those are guidelines which we deem desirable, but we can’t enforce them.”
About independent producers working for PBS on current affairs programmes, the guidelines says they should have no outside interests or commitments which could damage the public service broadcaster’s reputation, yet the BA is unable to prevent or act upon conflicts of interest.
“I don’t think it’s the BA’s role to prevent conflicts of interest, particularly commercial. We have no mandate to go into such issues. That’s an issue between the independent producer and the station,” Scicluna said.
The way the authority intends to enforce these guidelines is mainly through a reporting system, where aggrieved parties but also viewers who are not direct victims of a suspected breach of ethics will be able to lodge complaints to the authority.
Being a career civil servant, Scicluna largely shies away from giving his personal opinion, and grounds most of his answers in what the laws provide. To the question about the public perception that BA members, who are appointed by the parties, are really political puppets towing their party lines, Scicluna says: “It’s not the case. I’ve noted this kind of discussion going about BA members and I’ve thought a lot about it. According to the Constitution, the appointment of BA members is the Prime Minister’s competence, in consultation with the Opposition. I don’t feel I should interfere in that process, but there are some points worth noting. If someone believes that having other members will reduce partisan polarisation in the political stations, I think it’s not the case. Secondly, it’s not true that just because members are appointed by the parties they only think with a political mind. That’s a misconception. My experience in the last nine months is of mature members who can think with their own minds. Don’t even think that just because there is a charge against a political station, members will decide according to the party concerned.
“Having said that I would personally have no problems to have other members on the authority, but I believe that if other members are to be appointed this should be done with the consensus of the two parties. I think this is very important for the authority, because otherwise it can be derailed in its operations.”
But what about being inclusive and extending BA membership to civil society, which is an essential part of our democracy?
“By all means, but I feel it is important to stress consensus. I am appointed by consensus too, and it is possible to seek consensus in this country.”
I ask him about the fact that parties use their political luggage to collect funds to finance their television stations. Isn’t that putting private stations in an unfair disadvantage?
“That’s something we don’t go into.”
Why not?
“Because there is nothing in the law stipulating that they can’t collect funds. PBS collects funds for l-Istrina…”
That’s for charity.
“Yes of course, and don’t forget that PBS has a public service obligation and it gets government funding. There’s nothing in the law stating that they can’t collect funds.”
Let’s say a private station owner complains to you that the parties’ cross-subsidisation of their own media is putting him at a commercial disadvantage. How would you react?
“There’s nothing holding him from doing the same.”
He has no party to fall back on.
“There’s nothing in the law on that and the authority has no power to do anything about it.”
The PBS editorial board report of last year was an indictment against the station’s commercialisation and abdication of its public service broadcasting ethos. Aren’t you concerned about this?
“In the 2005 BA annual report we’ve commented on this, because we are worried that the PBS’s production capability has decreased. We want the public broadcaster to produce well its own news and current affairs programme. At the same time one shouldn’t demonise independent producers. The industry has grown as a result of new production houses. We talk of quality but given the resources we have we can’t downplay the quality of existing programmes all the time. That doesn’t mean that PBS should be in a position to produce so little news and current affairs programmes.”
What can you do about it?
“There’s not much we can do, we can keep voicing our concerns but we can’t dictate to PBS what kind of programmes to broadcast or not.”
In the meantime PBS churns hours of teleshopping as if it were a cheap regional private station and the BA, again, cannot do much about it, according to the chairman.
“What the authority can do is only to make sure that they are within the parameters of the law, and they are. And our law on advertising and teleshopping is mainly based on EU directives. Now of course as a private citizen, to switch on the TV and see only teleshopping is extremely irritating.”
Here, ambivalently, the law makes no distinction between the public broadcaster and private stations when it comes to teleshopping time.
“No, absolutely.”
Don’t you think there should be a distinction?
“It’s not my competence, it’s a policy decision. You have for example the BBC which broadcasts no adverts, but then look at the heavy subsidies it gets. Now are the Maltese ready to fork out all that subsidy? At present the subsidy is Lm0.5 million. To cut off adverts that subsidy has to rise substantially. Are the Maltese ready to fork out more taxes to increase the subsidy? That’s the issue in my opinion.”
Scicluna also shies away from taking a stand about the PBS dichotomy of having two ministers responsible for it, one for restructuring and another one for broadcasting policy.
“It’s not my competence as BA Chairman to speak on issues of public policy,” he said. “It might be that in the context we’ve been through it made sense. You had a situation of restructuring of the public sector, that was one minister’s responsibility, and another one responsible for broadcasting policy.”
Meanwhile Scicluna would do well to brace himself for some pleasures yet to come as anytime in less than a year and a half he will be taking some important decisions. He says it’s been so far, so good, and that he’ll remain calm and fair as he has been in the last nine months, seeking consensus and sticking religiously to the Constitution.