BPST under scrutiny

When DMC announced the launch of a broadcasting standards body in Dubai, some broadcasters and publishers suspected that their freedom of expression might be at stake. Digital Studio went to TECOM’s chief legal officer to sort out the legalese.

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By  Vijaya Cherian Published  January 4, 2004

|~|hobbybig.jpg|~|DMC CEO Abdulhamid Juma & Gerard Hobby.|~|The Dubai Technology and Media Free Zone Authority has announced the launch of the Broadcast and Publication Standards Tribunal (BPST) to adjudicate issues related to freedom of expression and the appropriateness of media content produced by companies in the Free zone. The Free zone authority has also released a list of regulations and codes of guidance that companies in DMC can refer to for clarification on the appropriateness of the content they produce. The launch of this unit has raised concerns among broadcasters and publishers in the UAE, who question if the body is another censorship authority in the country. “I think the unfortunate conclusion that people have drawn is that we are somehow reacting to something that has happened and that is not the case. We have been working on this initiative along with other initiatives for almost three years with the Chartered Institute of Arbitrators, London,” says Gerard Hobby, chief legal officer of the Dubai Technology, Electronic Commerce & Media Free Zone Authority. “The Arabic speaking press was especially convinced that we were setting up a censorship authority. It took a lot of explanation from ourselves and the UAE national panel of experts for them to think otherwise. You have to get away from the perception that we are becoming some sort of a mini Ministry of Information,” he adds. Ahmed bin Byat, director general of the Dubai Technology went one step further to dismiss these concerns, adding that the body has actually been set up to guarantee freedom of expression. “This Tribunal is a new initiative that goes another step towards realising the vision of His Highness General Sheikh Mohammed Bin Rashid Al Maktoum, crown prince of Dubai and UAE Defence Minister to guarantee freedom of expression,” Byat comments. “With the media community in the Free Zone growing quickly, we see the critical need to create the institutions and frameworks that will give companies the certainty and security required to thrive and prosper. By establishing such a Tribunal, we can provide a transparent mechanism for determining what is appropriate freedom of expression with respect to issues such as fairness, privacy and, of course, content in general,” he adds.||**||Freedom of expression|~||~||~|It has always been mandatory across the Middle East to have content approved prior to publication. The Tribunal, however, does not seek to take on this role and will not serve as a content approval authority. Adjudications will only be made in response to applications made by Free Zone companies or by the Free Zone Authority itself. The adjudications will be based on regulations and codes of guidance that are modeled on international best practice examples. “We are talking about a situation where everybody has the freedom to write what they want and they are subject to review in terms of the codes of guidance and the BPST. This is very similar to the UK system,” explains Hobby. “There is no obligation on the part of any of our publishers or broadcasters to submit anything for approval. Freedom of expression is our cornerstone and that remains,” he adds, explaining that the body does not plan to check what the free zone’s publishers and broadcasters are writing. “Because one, we don’t have the resources and secondly, we don’t have the desire to do so,” he explains. Hobby adds that the free zone’s approval process in terms of licensing is sufficient to ensure the credibility of broadcasters and publishers. “We expect them to use their own experience, judgement, and knowledge to provide content and material appropriate for the region,” he adds. The regulations and codes of guidance are not meant to ban, prohibit or filter any content. It will merely provide parameters for broadcasters and publishers to judge whether a particular content is appropriate or not. In fact, the tribunal will also not accept any applications or requests from members of the public. It will adjudicate only in response to applications made by companies in the Free Zone or by the Free Zone Authority itself where there is specific uncertainty. For this, the Tribunal has put together an adjudication panel comprising two international lawyers, Sir Brian Neill and Jonathan Caplan QC, who will, in turn, be assisted and advised by a panel of five eminent UAE lawyers, Essam Al Tamimi, Dr Habib Al Mulla, Mohammed Al Suwaidi, Ziad Galadari and Abdulla Rashid Hilal.||**||Equal parties|~||~||~|If any broadcaster or publisher wants their content reviewed, they would have to approach the Chartered Institute of Arbitrators, London and not the free zone directly. “We have set up a process for which the management and administration is contracted out to an independent third party — we have done this deliberately to show everyone that the process is impartial and independent. The Chartered Institute of Arbitrators, London has been appointed manager of the BPST. So any applications to this tribunal are made through the Chartered institute directly, not through us because we will always be a party to this tribunal in one way or other,” explains Hobby. The institute can be approached to pass a determination on both past and future transmissions. Transmission as used in the regulations refers to any sort of publication of content whether in written or broadcast form. A broadcaster or publisher could apply to the tribunal for a determination on whether a particular content intended for future transmission complies with the recommended standards. DMC itself will not pass a determination on any application. Rather, it will approach the tribunal as an equal party like any other broadcaster or publisher. “It is wholly inappropriate for us to tell you what you can or cannot publish. We have set up this process to cover that small fraction of grey area where we may disagree with a broadcaster or publisher with regard to a transmission. So the ambit of this tribunal, at this stage, is an application from us against a particular broadcaster or a particular broadcaster against us,” explains Hobby. By this policy, if the free zone takes objection to a past transmission, it also has the right to seek a review of that transmission by the tribunal to determine whether the content was appropriate or inappropriate in terms of the codes of guidance. If the tribunal determines that a particular transmission has been inappropriate, it may recommend steps such an apology, clarification or any other such sanction to remedy this. At the same time, the tribunal has also been keen to establish that this practice is common to most overseas jurisdictions and is only intended to give broadcasters and publishers the comfort that this independent body will make a determination that the free zone is also bound by. “The last thing that DMC wants to do is close broadcasters or publishers down. We are obviously not in the business of doing that as we would be cutting our own throat commercially. What we are seeking, however, is responsibility and accountability, so if a particular broadcaster or publication is found to be offensive or to defame someone or breach other standards set out in the codes of guidance, then we want that broadcaster to admit it,” explains Hobby.||**||Social and religious mores|~||~||~|One thing that Abdulhamid Juma, CEO of Dubai Media City clearly points out at this stage, is that “in interpreting the codes, broadcasters and publishers should take into account the prevailing social and religious mores of the UAE, the Middle East and the region. In many instances, what may be acceptable in a western country may be unacceptable in a Middle Eastern country,” he says. While it is true that the region does filter more content than the West, it is also true that the UAE has been gradually moving towards more liberal press practices. “DMC is the first to admit that what is acceptable or not acceptable, what is appropriate or inappropriate, is not fixed, particularly in the UAE at this stage of its development. Anyone in the broadcast and publishing industry will agree with the statement that in the past five years, the boundaries of what is acceptable have changed a lot. We also accept that some broadcasters do push the envelope so to speak. “However, we have made it clear to all the publishers working in the zone that they are working from Dubai and the UAE and not necessarily, in the UAE. If they want to sell and distribute content in the UAE, they are obliged to conform with the laws of the land,” he adds.||**||

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