The threat of unrestricted cross-media ownership in Zimbabwe
L.T. Nkomo IFSDZ PAPER 11/2011
Background
The application for a commercial radio licence by Zimbabwe Newspapers (1980) Ltd (Zimpapers) has sparked debate on cross-media ownership to the extent that Dr Chimedza, one of the board members of the Zimpapers used the Herald newspaper to accuse Prime Minister, Morgan Tsvangirai, of attempting to interfere with the activities of BAZ regarding their application for a commercial radio licence. BAZ is currently holding public interviews of the shortlisted applicants who include Vox Media Production (VOP), Hot Media and AB Communications in addition to Zimpapers Talk Radio. The complaint from Prime Minister, M. Tsvangirai is premised on the reasoning that those that own newspapers must not own radio or television stations because of potential hindrances to information pluralism. In other words, the dominance by one media group in more than one media stream will harm democracy in Zimbabwe. Cross-media ownership occurs ‘when a person or company owns outlets in more than one medium that is a newspaper, radio, and television in the same geographical market’ (Marc Edge). The fear that Prime Minister, M. Tsvangirai, appears to be expressing is that if Zimpapers’ Talk Radio project is awarded a commercial radio licence it will end up owning and controlling more than one media stream that is a number of newspapers and a commercial radio station.
Other politicians are particularly concerned with the possible licensing of Zimpapers Talk Radio because there is a strong perception that the Zimpapers newspapers operate under the significant influence of one of the GNU partners. One of the fundamental objectives of the GNU particularly with regards media reforms in Zimbabwe as stipulated in Article 19(17(d) and (e) of the GNU Pact is to
“(d) ensure that public media provides balanced and fair coverage to all political parties for the legitimate political activities
(e) that public and private media shall refrain from using abusive language that may mate hostility, political intolerance and ethical hatred what unfairly undermines political parties and other organizations ”
These objectives recognise that the media in Zimbabwe was polarized at the time of their formulation. These objectives embody the notion of media pluralism and the need to foster media equilibrium which entails the peaceful co-existence of different media operators regardless of their alignment and beliefs (Senevirante & Muppidi: undated). Section 2A (d) (ii) of the Broadcasting Services Act, Chapter (12:06) expresses a fundamental principle regarding broadcasting in Zimbabwe;
‘that the broadcasting services in Zimbabwe taken as a whole must ensure public debate on political, social and economic issues of public interest…so as to foster and maintain a healthy plural democracy’
In this context, unrestricted cross-media ownership will not foster and maintain a healthy plural democracy in Zimbabwe. There are political overtones expressed by those against the licensing of Zimpapers Talk Radio to the effect that because of Zimpapers’ perceived political stance as exhibited in its print publications, granting a commercial radio licence to Zimpapers’ Talk Radio project may further deepen media polarization in Zimbabwe.
This fear is again premised on the huge share of the audience that the Zimpapers group has by virtue of the number of its daily and weekly publications and as such has the critical mass to influence public opinion in one direction. Their position would be made stronger if it were to operate and control a national radio station and they will thus make the political landscape uneven. For instance according to the Media Monitoring Project Zimbabwe (MMPZ), May 2011 report, the following statistics were recorded on the number of newspaper articles published by the various newspapers under the Zimpapers stable on the activities of the three main political parties in Zimbabwe;
Publication
|
ZANU PF
|
MDC -T
|
MDC-M
|
The Herald
|
55
|
34
|
8
|
Chronicle
|
25
|
16
|
9
|
The Manica Post
|
5
|
3
|
2
|
The Sunday Mail
|
12
|
14
|
5
|
Sunday News
|
5
|
6
|
3
|
Total
|
102
|
73
|
27
|
The MMPZ statistics given above show uneven publications and this has a chilling effect on freedom of expression in Zimbabwe. These statistics help to strengthen arguments against granting Zimpapers Talk Radio a commercial licence. Webster & Bloom (1990: 104) observe that
‘… Public communication lies at the heart of the democratic process that citizens require if their equal access to the vote is to have any substantive meaning, equal access also to sources of information and equal opportunities to participants in debates which political decisions rightly flow.’
The publications of Zimpapers on political activities of the three main political contestants are unbalanced and as such run contrary to the spirit of information pluralism which is enshrined in the Broadcasting Services Act, Chapter 12:06. The question is that if they have failed to publish fair and balanced reports in their print media how can they be trusted to fairly discharge the same obligations as a broadcaster?
The main argument here is that ‘larynxes’ must not be given only to a few people and media space must not be controlled by a few people or organizations. Unrestricted cross-media ownership hurts information pluralism and destroys the essence of the modern public space. People no longer meet only in city halls to conduct political debates but even in print and electronic media spaces, thus media monopolies are anathema to democratic values that are exercised in public spaces. The success of democracy depends on the level of information diversity available to the people (Webster & Bloom (1990:104)) and an ‘…informed citizenry is more apt to contribute to national development (Senevirante & Muppidi: undated).
Zimbabwe’s Media Market
Zimbabwe’s broadcast media market is currently a de facto monopoly in terms of radio and television broadcasting services. The Zimbabwe Broadcasting Corporation (ZBC) is the only operator running two television stations and four (4) radio stations especially after the closure of Joy TV which was owned by Flame Lilly Broadcasting Limited on 31 May 2002 (Ifex: 2002). Several attempts were made by a number of potential broadcasting companies to secure licences without success, and the case in point is that of Capital Radio (Private) Limited vs Minister of Information and Publicity in the President’s Office and The Attorney General (Intervening) SC 128/02. Notwithstanding the promulgation of the Broadcasting Services Act, Chapter 12:06 which liberalized the broadcasting sector following the Supreme Court decision in Capital Radio (Private) Limited v Minister of Posts and Telecommunications Corporation SC99/2000 which declared ‘that section 27 of the Broadcasting Act 12:01 was unconstitutional in that the monopoly it granted the Zimbabwe Broadcasting Corporation was an infringement of the right to freedom of expression guaranteed under section 20(1) of the Constitution of Zimbabwe, BAZ has been reluctant to issue broadcasting licences. This has thus sustained ZBC’s monopoly in radio and television broadcast markets to this day. The reluctance to issue either radio or television broadcasting licences has also consequently led to the opening up of pirate radio stations such as Radio VOP and SW Radio which broadcast direct into Zimbabwe from external bases.
It must be noted that there is intense competition in the print media market particularly following the licensing of daily newspapers such as News Day, The Daily News, The Daily News on Sunday and The Patriot sometime in May 2010 in addition to those that were already in existence which include the newspapers under the Zimpapers stable such as The Herald, The Sunday Mail, The Chronicles, The Sunday News, Manica Post, H-Metro and B-Metro and the privately owned weekly publications such as The Financial Gazette, The Independent and The Standard.
Drivers of Cross Media Ownership
Ordinarily, cross-media ownership is pursued to achieve economies of scope across multiple media as costs may be reduced through the synergy of sharing staff and content in different media and revenue may be increased through the sale of multimedia advertising packages. The convergence of technologies particularly in the communications industry (broadcasting, telecommunications and other information communications systems) is making cross-media ownership attractive as newspaper owners are shifting some of their focus to the internet by establishing web portals that offer both text and/or video and audio content resembling traditional television and radio content services. Matthew Bloom (2006) rightly observed that both internet and satellite radio programming are finally challenging terrestrial radio in a manner similar to cable’s challenge to broadcast television a generation earlier; these new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. Broadband technology enables one to broadcast talk radio and music over the internet to reach listeners via their personal computers. Satellite broadcasters use a pay model, selling special radios for listeners to tune into digital satellite programming. Online and satellite stations are increasing their audiences while traditional radio has struggled for over a decade to maintain its audience.
Developments in technology are again the driving force behind what is known as ‘convergence journalism’ a development where key people, multimedia editors assess each news event on its merits and assign the most appropriate staff for the story as well deciding along the way which parts of the story are told most effectively in either print or broadcast and/or other digital forms (Quinn, 2005:32, Dailey et al, 2005: 5; et al, 2011:216).
In light of these technological changes traditional radio and television, broadcasters are migrating their programmes to the internet in order to capture audiences who are moving away from the scheduled programming that is usually associated with traditional broadcasting. This is happening in markets that are highly developed and with high internet penetration rates. Thus content sharing becomes particularly critical in highly competitive environments and in mature markets where customers are able to elect what they want to hear or watch from an array of electronic media platforms. Thus business survival is now difficult for those that are publishing on one media platform particularly in mature markets where competition for content and audiences is stiff because of high numbers of media outlets, hence the need for cross-media synergies. The level of maturity of a media market in terms of competition and degree of liberalization of the industry in a country is critical for policymakers in determining what kind of limitations should be placed on cross-media ownership. The general practice is that the more liberalized (high numbers of media operators in each media stream) the market the lighter the restrictions on cross-media ownership and the reverse is true.
The legal position on Cross-ownership
Prior to 2007, Zimbabwe had limitations on cross-media ownership provided for in Section 19(1) (b) of the Broadcasting Act, Chapter 12:06 which read ‘no broadcasting licensees … shall own or control a newspaper or more than ten per centum of the securities in a body corporate owning or controlling a newspaper’. This repealed provision would have disqualified Zimpapers from applying for a radio broadcasting licence because it owns and has control in a number of newspapers publications in circulation in Zimbabwe. The provision was well suited for Zimbabwe’s immature and inefficient broadcast market and was consistent with the spirit of democratic pluralism embedded in broadcasting laws.
The repeal of Section 19 (1) of the Broadcasting Services Act by Section 14 of the Broadcasting Services Act (Amendment) Number 19 of 2007 removed restriction on cross-media ownership in Zimbabwe. Therefore, there is nothing that can prevent BAZ from awarding Zimpapers Talk Radio, a commercial radio broadcast licence if they meet the criteria set out. A constitutional challenge is an available option particularly to seek a determination by the Supreme Court on whether unrestricted cross-media ownership is a violation of Section 20 (1) of the Constitution and if the Supreme Court affirms this then Zimpapers may be disqualified from holding a broadcast license. This will also force the responsible Ministry to trigger the amendment the relevant Section 19 of the Broadcasting Service Act, Chapter 12:06. The evolution of constitutional jurisprudence is beginning to embrace the idea of media pluralism as being an integral part of freedom of expression even though many constitutions are not explicit in this respect. Michal Barton (2010) argues that media pluralism should be regarded as a constitutional principle and media pluralism should not be considered as a vertical relationship between the State and the Individual (in the form of a ‘right to pluralism”) but should be considered an objective constitutional value which is derived from the constitutional guarantee of freedom of expression and that every democratic state should be bound by such constitutional values in its regulatory activities.’ This is a persuasive argument which requires the determination of the Supreme Court of Zimbabwe sitting as a constitutional court.
Constitutional Implications
Section 20 (1) of the Constitution of Zimbabwe guarantees the protection of freedom of expression and this is the basis upon which print, radio and television media licensees are permitted to publish or broadcast on their licensed platforms. However, the Supreme Court of Zimbabwe in two important judgments in the matters of Retrofit (Private) Limited v Posts and Telecommunications Corporation and The Attorney General (Intervening) 1995 (9) BCLR 1262 (Z) ruled against the monopoly of the Posts and Telecommunication Corporation in providing telecommunications Services in Zimbabwe and in Capital Radio (Private) Limited v The Minister of Information and Publicity and the Attorney General (Intervening) (Supra) where it decided that the monopoly of the Zimbabwe Broadcasting Corporation was unconstitutional. Zimbabwe’s constitutional jurisprudence therefore clearly holds that monopolies, particularly in the communications sector, are unconstitutional because they violate the provisions of Section 20 (1) of the Constitution. Freedom of expression is regarded as the lifeblood of democracy. In In re Munhumeso 1995 (2) BCLR 125 (ZS) the Supreme Court re-emphasised that freedom of expression was a pre-requisite for the progress of democracy and it is important in that;
(a) it helps an individual to attain self-fulfilment;
(b) it assists in the discovery of proof;
(c) it strengthens the capacity of an individual to participate in decision-making; and
(d) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
The fears that unrestricted cross-media ownership induces in Zimbabwe is that unrestricted domination of media streams available in Zimbabwe by a single entity will stifle free speech because of lack of information pluralism which is necessary to assist individuals to discover the truth, make informed decisions and may hinder some individuals from attaining self-fulfilment. Unrestricted cross-media ownership would, therefore, be a negation of freedom of expression and information pluralism in this context. Unrestricted cross-media ownership is worrisome taking into account the level of maturity of the broadcast media market in Zimbabwe which although legislation has liberalized, there is little competition and market efficiency. Unregulated cross-media ownership may, therefore, be prima facie unconstitutional because of the monopolistic effects it may create in the media market in Zimbabwe.
Comparative perspective
Other countries such as South Africa have a restriction on cross-media ownership. Zimbabwe and South Africa share a number of common features in their histories. They were both under British colonial power and because of this, the two countries had the same common law that is, Roman-Dutch law. The two countries legal jurisprudence has evolved in a similar direction and both countries have liberalized their telecommunications and broadcasting sectors, though South Africa has made more significant advances in terms of capital investment and improving competition of multipliers (broadcasters and publishers) in these sectors. As such their media industry is much more mature and competitive than Zimbabwe’s market. This makes South Africa a relevant reference point on this subject.
South Africa’s communications industry is governed by the Electronic Communications Act, 36 of 2005 (ECA). While the ECA permits cross-media investment, it, however, places restrictions on the level of investment in cross-media business in Section 66 (1) thereof by stating that cross-media control of broadcasting services must be subject to such limitation as may from time to time be determined by the National Assembly acting on the recommendations of the regulator (Independent Communications Authority of South Africa). Section 66(2) of the ECA restricts persons who control newspapers from acquiring or retaining financial control of a commercial broadcast service licensee in both television service and sound broadcasting service. A restriction of this nature will not be new to Zimbabwe because the previous Section 19 (1) of the Broadcasting Services Act, Chapter 12:06 had more stringent restrictions than section 66 (2) of the ECA and therefore serious considerations must be made to restore cross-media ownership restrictions under Zimbabwean law. The levels of restrictions may differ but it must be such that the newspaper media owner or vice versa should not have a controlling interest financially as a shareholder or in the Board and must be barred from exercising editorial control over the benefiting entity. Section 66 (2) of the ECA does not prohibit a person who controls a newspaper from acquiring equity in a television or radio broadcast station but restricts that person or company from acquiring financial control in a television or sound broadcasting licensees. Section 66 (3) of the ECA provides that no person who controls a newspaper may have control of a commercial broadcasting service license either in television or sound broadcasting services. The limited permission on cross-media investment in South Africa is done in recognition of the need for the establishment of synergies through converging of technologies particularly with respect to content aggregation and choice of media platform for publication of certain news events. It also enhances competition in the media market and democratic pluralism.
M. Edge (undated) points out that diversity of media ownership is considered crucial to ensuring diversity of news information to the people. The media influences public opinion and the objectives of information pluralism, if media monopolies emerge from cross-media ownership, will not be realised. Different types of media with different ideologies, beliefs and leanings must coexist and be at equilibrium in any democratic society (Senevirante & Muppidi: undated). The current Zimbabwean licensing process must therefore be suspended pending an urgent amendment of the Broadcasting Services Act, Chapter 12:06 because if the process is allowed to continue and Zimpapers’ Talk Radio project is awarded a licence it may be very difficult for the government to reverse that decision and require Zimpapers to restructure its shareholding retrospectively.
The case of Telecel Zimbabwe Limited is relevant in this context in which the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) cancelled the former’s mobile telecommunications licence for failure to comply with Section 36 (1) and (2) of the Postal and Telecommunications Regulatory Authority which imposes restrictions on ownership and control of cellular, telecommunications and postal licensees. Telecel continues to operate after noting an appeal against that decision to cancel its licence and obtained a High Court Order restraining both the Ministry of Transport and Communications and POTRAZ from interfering with their operations pending the determination of their appeal. Therefore, the most practical and legally safe decision is to amend the Broadcasting Services Act, Chapter 12:06 coupled with the suspension of the current licence application evaluations being done by BAZ.
There is a greater public interest in protecting Zimbabwe’s democratic and constitutional values than protecting the commercial interests of one entity. In any case, if that entity were to be licensed, it will transmit its broadcast programmes using radio frequencies which are a public resource. The public interest factor is, therefore, stronger and on this basis, BAZ should seriously make recommendations to the responsible Minister of Information and Publicity to trigger the amendment of the relevant sections of the Broadcasting Services Act, Chapter 12:06 for the inclusion of cross-media ownership limitations. BAZ has that power in terms of Section 3(1) of the Broadcasting Services Act, Chapter 12:06 and in terms of this Section, it may do one or more of the following;
(c) to receive, evaluate and consider applications for the issue of any broadcasting licence or signal carrier licence for the purpose of advising the Minister on whether or not he should grant the licence;
(e) to advise the Minister on ways of improving and promoting a regulatory environment that
will facilitate the development of a broadcasting industry in Zimbabwe that is efficient,
competitive and responsive to audience needs and the national interest
(f) to encourage diversity in the control of broadcasting services
These functions are profound and the BAZ has to be honest with itself and accordingly advise the Minister that unrestricted cross-media ownership will not encourage diversity in the control of broadcasting services and that the introduction of limitations on cross-media ownership will enhance the regulatory environment by promoting diversity of media ownership and control as well as information pluralism.
Conclusion
De facto monopolies that emerge from unrestricted cross-media ownership work against freedom of expression which is an indispensable ingredient of democracy hence the need for media pluralism. Pluralism is essential in any democratic society that recognizes and encourages the existence and the rights of different views, perceptions and expressions to coexist in a peaceful manner (Senevirante & Muppidi: undated). What is needed is a strong commitment by the government of Zimbabwe and BAZ to the human rights obligation to promote and protect media pluralism through appropriate laws and regulatory directives and determinations. BAZ may therefore on the basis of the foregoing advise the Minister of Information to decline awarding Zimpapers Talk Radio a broadcast licence in addition to advising him to cause an appropriate amendment of the Broadcasting Services Act, Chapter 12:06 as suggested above in order to prevent the creation of an unrestricted cross-media ownership which may be difficult to reverse.
