FOCUS: Arab Leagues SatBroadcasting Charter
by J. Steven Rich, Attorney, Paul, Hastings, Janofsky & Walker LLP
Earlier this year, Arab ministers of communication meeting in Cairo adopted a set of guidelines entitled Arab Satellite Broadcasting Charter: Principles for Regulating Satellite Transmission in the Arab World. Only Qatar (home of the controversial Arab news channel Al-Jazeera) and Lebanon initially withheld support for the document, and conflicting reports suggest that Lebanon may have reversed its position and later signed the document. The contents of this charter already have generated a great deal of controversy, particularly among human rights organizations and free speech advocates.
The charter applies to
transmission entities in any of the member Arab states in the League of Arab States, as well as to any entity which practices any acts or activities related to satellite broadcast transmission or satellite rebroadcast transmission from or directed to the Arab states territories, [provided] that they have a representative office or offices in any of them.
Thus, even a satellite operator providing transponder capacity to a local service provider could be subject to these restrictions if it has a single office within any country that is a member of the Arab League.
On its face, much of the charter appears to be supportive of a free press. For example, Article 1 states that the goal of the charter is to
regulate broadcasting transmission, rebroadcasting transmission and reception in the Arab world, to ensure the right to express opinions, preserve Arab culture and promote cultural dialogue through satellite broadcasting. Similarly, Article 5 refers to freedom of expression as the cornerstone of Arab media. However, when the above statements are considered in the context of the entire document, it becomes apparent that freedom of expression is supported only within certainly tightly defined limits.
Article 4 of the charter contains one of the most widely criticized provisions, and provides useful context for the statements concerning free press that are contained elsewhere in the charter. That article provides that, among other things, each satellite broadcast transmission or retransmission entity must act in a way that will not jeopardize social peace, national unity, public order and general propriety. Such language, particularly the references to national unity and public order, could be construed as prohibiting satellite broadcasters from carrying any commentary or news that would reflect poorly on a countrys ruling party.
While Article 5 of the charter, as noted above, refers to freedom of expression as the cornerstone of Arab media, the same sentence provides insight into the limitations on such freedom. Taken in its entirety, that sentence reads as follows:
[each regulated entity] shall abide by freedom of expression as the cornerstone of Arab media, provided that such freedoms are practiced with full responsibility, for the protection of the supreme interests of Arab countries and the Arab world.
This leads to the distinct possibility that a regulator in a single country will make a determination of what is in the best interest of the Arab worlda determination that may differ markedly from one country to another. For example, a regulator in Saudi Arabia may have a very different view of what is in the best interest of the Arab world than would a regulator in the United Arab Emirates, and an Egyptian regulator might see things differently from his Jordanian counterpart.
The recent actions of Egyptwhich, together with Saudi Arabia, co-sponsored the charterprovide fodder for critics of the charter. For example, state-owned NileSat dropped the Al Hiwar network within weeks after the adoption of the charter; Al Hiwar, based in London, is viewed as sympathetic to the Muslim Brotherhood, Egypts main opposition group. Egypt also has either temporarily or permanently suspended the operations of several other satellite channels this year, and has prevented the launch of others. In addition, Egyptian police confiscated the transmission equipment of a news syndicate that provides footage to news agencies such as Al Jazeera and the Associated Press. Saudi Arabia also has stepped up its activities against satellite broadcasters since passage of the charter.
Many of the restrictions contained in the charter, not surprisingly, focus on broadcasts that would be offensive to the Muslim faith. Article 6, for example, provides that satellite broadcasters must
refrain from insulting God, revealed religions, prophets, [religious sects], and religious symbols and comply with the religious and ethical values of Arab society and maintain its family ties and social integrity.
Other restrictions address similar concerns, such as a prohibition on inciting hatred based on ethnic, color, or religious discrimination and a requirement to respect human dignity and the rights of others. Such restrictions arguably could be viewed as prohibiting not only commentary such as the controversial cartoon depicting the prophet Mohammed wearing a bomb-shaped turban, but even news coverage of the controversy or of the ensuing fatwa that was announced against the Danish cartoonist who drew that cartoon and others considered offensive to Islam.
Certain portions of the charter go well beyond prohibiting broadcasts that insult the Muslim faith, and essentially prohibit the broadcast of entertainment programming that could be viewed as inconsistent with such faith. For example, Article 6 requires each covered entity to
prevent from satellite broadcasting transmission or satellite retransmission any materials that would include obscene scenes or dialogue or pornography.
The same article requires broadcasters to
eliminate from satellite broadcasting any material that would promote smoking and/or alcohol drinking, but rather highlight their dangers
refrain from describing crimes of all forms and kinds as an alluring act or portraying the perpetrators as heroes or justifying [their] motives.
Such restrictions could reasonably be viewed as prohibiting the broadcast of any films with morally ambiguous heroesincluding, for example, such blockbusters as The Italian Job or Oceans Elevenand requiring heavy censoring of films, even classic ones, in which characters smoke and/or drink.
Defenders of the charter have observed that other parts of the worldincluding the United States and the European Unionimpose restrictions on the advertising of tobacco and/or alcohol. It is also noteworthy that even Hollywood studios have increasingly moved away from on-screen portrayals of smoking in an attempt to avoid encouraging young people to smoke. Whether the restrictions contained in the charter go much beyond those found in other parts of the world will turn in large part on how broadly Arab regulators interpret the term promote in the context of tobacco and alcohol use.
Interestingly, the charter does guarantee freedom of expression, or more precisely, freedom of viewing, in one respect. In a political acknowledgment of the popularity of sports in the Arab world, Article 5 provides that each broadcaster must
ensure the Arab citizens right to view the major national, regional and international events including national figures or teams through a free to air or encrypted signals regardless of the ownership of these sports events rights, whether inclusive or exclusive.
This provision reportedly arose as a result of the decision in 2006 by Saudi-owned Arab Radio and Television to enforce its exclusive right to broadcast World Cup matches, which went out on encrypted satellite channels and was unavailable to millions of viewers in North Africa. However, the language is broadly worded and could be read as covering virtually any national, regional, or international event of significance if any Arab figures are involved. Conversely, the charter would not appear to prevent a local regulator from banning an international sporting event such as the Olympics if the portion in question included no athletes from that country.
The charter, which sets forth a general set of principles rather than detailed policy prescriptions, contemplates that national enabling legislation will be required in order for it to become effective. For this reason, many commentators have argued that the policy is not yet binding and is of no legal effect. However, some signatoriesincluding Egypthave taken the opposite position, and based on Egypts actions the charter has clearly had an effect regardless of its technical status. It is still difficult to gauge the practical effect of this charter elsewhere, as it remains to be seen whether more progressive Arab League countries such as the United Arab Emirates will be willing to take action against satellite operators within their borders because of content that is deemed offensive in more conservative places such as Saudi Arabia.
About the author
J. Steven Rich is an attorney in the Washington, DC office of Paul, Hastings, Janofsky & Walker LLP. Mr. Rich specializes in corporate and regulatory matters involving communications, media and information technology companies, including companies in the satellite industry.