The Zambian media was recently alarmed after the government there suggested the introduction of statutory media regulation. It was perceived that this would inhibit the press and threaten their freedom of expression and as a result they launched a sustained campaign for self regulation. 

This article seeks to highlight the legal and practical limits of self-regulation under English law with a view to asserting the suggestion that statutory regulation would be more practical and beneficial to the media in Zambia. The article is also written on the premise that the Zambian media would adopt a self-regulatory body similar to the Press Complaints Commission in Britain.

Limits of Self-Regulation under English law
Self-Regulation involves media organisations forming an independent body, setting up their own code of conduct and operational structure as well as raising their own funds. In Britain, the Press Complaints Commission (PCC) is an independent self-regulatory body which adjudicates complaints from the public and acts as an “informal conciliator, leaning on newspapers to admit mistakes or oversights…” It is funded by a levy on newspaper and magazine publishers who subscribe to its authority.

However, the efficacy of self-regulation has been questioned by prominent media law writers Robertson and Nicol who have entertained the view that the PCC is “an ineffective regulator which fails to offer adequate redress in a great many cases”. A similar view was echoed by the ECHR decision in Peck v United Kingdom (2003) ECHR when it was found that “The PCC rejected the applicant’s [Peck] complaint without a hearing…” Mr Peck was caught on CCTV when he attempted to commit suicide in a public place. This footage was publicised without his permission and the ECHR upheld his claim for invasion of privacy notwithstanding the PCC’s earlier rejection of the same complaint.

More recently, the Media Standards Trust weighed into the debate adding that the PCC should not have serving editors on its board and revealing that newspaper and magazine editors are not bound to follow advice from the PCC. Furthermore figures from the 2008 PCC Annual Report indicate that of the 4698 complaints that were brought only 45 were adjudicated. Even though the PCC claim that a considerable number of those complaints were “resolved”, one is less confident of their ability to provide adequate redress. Such scepticism is compounded by the fact that the PCC has no power to fine offending publications and even in successful complaints, victims are not provided any form of compensation.

With this background, it is difficult to see how an efficient self-regulatory system would operate in Zambia. In addition to the potential lack of redress and inability to punish offending publications inherent in self-regulation, the Zambian media industry will have to contend with the idea of funding such a body. Additionally, the independence of such an organisation would be easily compromised by the extraordinary influence that media organisations would yield over the constitution and composition of its committee.

Advantages of Statutory Regulation
Alternatively, one could argue that statutory regulation will be more pragmatic for the Zambian media industry. Contrary to the idea that this would stifle freedom of expression, one only has to look at the efficient regulation of broadcasting institutions by bodies such as OFCOM in Britain and the FCC in the USA. There is no reason why a similar model cannot be applied to the print media. In Zambia’s case, statutory regulation, in addition to improving the standards and professionalism of the print media would also provide the much needed funds for a regulatory body. Such funds could be raised by imposing a statutory levy on newspaper and magazine publications as well as by fining breaches of the regulatory codes.

Additionally, any potential threats to freedom of the press arising from statutory regulation could be extinguished by the safeguards entrenched in the Zambian constitution. This includes Art 20 (1) which protects the freedom of expression and Art 20 (2) which prohibits the enactment of any laws which may derogate from the freedom of the press. Section 3 of the Defamation Act Cap 68 also provides individuals with recourse to the courts in the event of libel or slander. The authority to establish a statutory regulatory body can be derived from Art 20 (3) of the Zambian Constitution which provides that it is not a derogation from the freedom of the press to enact a law “that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons…”A statutory regulatory body established to safeguard individuals’ rights to privacy as well as regulating the media would fall into such a category.

Conclusion
Zambian society should not be misled by the unsubstantiated claim that statutory regulation automatically impinges on freedom of expression. Instead, one should realise that in a democratic society, the competing right to privacy of the individual should be safeguarded and protected with as much vigour and enthusiasm as we protect freedom of expression. Statutory regulation is one way of doing this. In the event that a statutory body institutes codes or guidelines which may threaten freedom of expression, the print media in Zambia has got recourse to the courts, just like any other Zambian citizen.

Walker Syachalinga is in the third year of a Law LLB