28 Jan Media the New Frontier

The concept of holding ideas and the right to make them known is an integral part of any social order. The need to understand these ideals is protected in the many Constitutions world over. The Constitution, 2010 under Article 11(2) provides that the State shall promote all forms of cultural expression through literature, the arts, traditional celebration, science, communication, information, mass media, publications, libraries and other cultural heritage and (c) promote the intellectual property rights of the people of Kenya.

Media

Communication can only be passed through publishing and broadcast and influences people widely. There are different types of media namely;

• Press
• Radio
• Television
• Films
• Web (Internet)

 

Broadcast

This is the transmission, by wire or wireless means, of sounds or images or both or the representations thereof, in such a manner as to cause such images or sounds to be received by the public and includes transmission by satellite[1]. A broadcast service means any service which consists of the broadcasting of television or sound broadcasting programs to the public, sections of the public or subscribers to such a service[2] It excludes internal transmissions; Broadcast coverage, Digital, Analogue Terrestrial and satellite transmissions

.Broadcasting services can be classified into the following categories;[3]

• Public broadcasting: The Kenya Broadcasting Corporation established under section 3 of the Kenya Broadcasting Corporation Act is hereby designated as the public broadcaster and shall provide public broadcasting services.[4]
• Private broadcasting: The Commission may grant a license to any person to provide private broadcasting services.[5]
• Community broadcasting: the Commission may subject to certain conditions grant a license for the provision of community broadcast services.[6]

Community radio stations: Community radio is a radio service offering a third model of radio broadcasting in addition to commercial and public broadcasting. Community stations serve geographic communities and communities of interest. They broadcast content that is popular and relevant to a local, specific audience but is often overlooked by commercial or mass-media broadcasters. Community radio stations are operated, owned, and influenced by the communities they serve. They are generally nonprofit and provide a mechanism for enabling individuals, groups, and communities to tell their own stories, to share experiences and, in a media-rich world, to become creators and contributors of media.

On behalf of Open Society Institute for East Africa (OSIEA), DRP conducted research into the status of community radio in Kenya.  The research found that there is widespread confusion in Kenya about what constitutes community radio. There are a host of small, commercial private stations broadcasting in regional and local languages that are widely referred to as “community radio”. However, a closer looks shows that there are only about 12 community radio stations in Kenya – that is, stations owned by communities rather than individuals or companies, and holding community radio licenses.[7]

Media and Broadcast Rights

Every citizen is granted the right to access information of whatever kind they might desire,[8] these rights are protected as fundamental rights and freedoms in the constitution. These are important for the establishment of a proper social order where the views and values of all citizens are protected and respected without which would result anarchy and chaos.

The Freedom and independence of electronic, print and all other types of media is guaranteed in the Constitution as long as it is not an incitement to violence or a threat to security[9]. It further protects the right to hold an opinion or view or the content of any broadcast and not controlling or interfering with persons engaged in broadcast or dissemination of information by any medium.[10] Just like all rights have limitations so do broadcast rights have exceptions as limited by law[11]. These laws which parliament has enacted so far include;

• The Constitution, 2010,
• The Industrial Property Act,
• The Trademarks Act, Cap 506,
• The Copyright Act No. 12 of 2001,
• The Kenya Information and Communications Act, Cap 411A,
• The Media Act, Cap 411B.

Some of the rights a broadcaster is entitled to include;[12]

• The responsibility for the production and distribution of the programming he chooses. This may include live coverage and edited highlights.
• The right to Copyright protection[13]
• the fixation and the rebroadcasting of the whole or a substantial part of the broadcast and the communication to the public of the whole or a substantial part of a television broadcast either in its original form or in any form recognizably derived from the original,[14]
• In a television broadcast it shall include the right to control the taking of still photographs therefrom[15]
• The distribution to the public of copies by way of sale, rental, lease, hire, loan or such arrangement.

Who gets these rights? Ordinarily we do not think of sound recording, typographical arrangement or a broadcast as having an author.

What is the importance of rights?

• It enumerates Kenyans most cherished rights
• They allow for one to gain from their toil without undue copying.

Author is:

An artificial construct, legal fiction based to allocate rights.

In a broadcast, the author is that one who made the work possible distinct from the creator. For sound and TV broadcasts, the author is the one who makes the broadcast.  That one who records and re-transmits immediately, the author is the maker of the original broadcast, rather than the person who relays it.

In literacy, dramatic musical or artistic work, computer generated, the author is the person by whom the arrangements for the creation of the works are undertaken.

In common law systems e.g. UK the copyright law focuses on the person who made the arrangement necessary for the making of the work – i.e. Entrepreneur while continental system focuses the person(s) who make creative contribution to the works.  This gives room to directors and producers of such creative work a stake in the pie.  In common law, it is gaining momentum in Kenya, producers and directors do not have such opportunity yet but won’t be long before it happens.

It is vital that they do gain or attain the status of some rights of authorship especially if we adopt a hybrid system or position as happened in the US with the promulgation of the copyright, Designs and Patents Act, 1988.

The hybrid system focuses the authorial and entrepreneurial works.

 

How to demonstrate authorship:

One must show the labour, skill and effort he/she contributed is the type that is projected by copyright i.e. it is sufficient to confer originality on the relevant work.  This excludes stenographers or persons who merely photocopies or traces a work.

• They cannot qualify as authors. Why? The nature of the work they do fails to bring about a (material) change in the resulting work.

 

However, if such persons exercise a degree of creative labour in pursuing the work, even if for a very similar amount they may be treated as authors.

See Cummins Vs Bond (1927) 1 Ch.167 also Leah Vs Two Worlds Publishing (1951) 1 Ch.393 Vaisey J.

One must demonstrate exercise of skill, labour and effort to justify being treated as an author.

See also Walter Vs Lane (1900) AC 539

• a reporter who took a shorthand report of a speech was found by the House of Lords to have exercised sufficient skill to be treated as author of the resulting report.

 

Joint Authorship:

Joint authorship is recognized by copyright collaborative research and creation is jointful and productive work for authors to work.  Joint authorship more so in literary, dramatic, musical and artistic works, but is also possible in other works.  It extends to broadcasting where more than one person is taken to be making a broadcast.

e.g.      (i)        those who provide or take responsibility for the contents of the programme.

• those making arrangements necessary for its transmission.

 

Licensing

The only restriction that may be imposed may be those pertaining to licensing procedures that are necessary to regulate signal distribution and is independent of state control or political interests.[16] These licensing procedures are provided Kenya Information Communications Act, Cap 411A. this act establishes the Communications Commission of Kenya (CCK), which is responsible for creating a licensing guideline framework. Under the new procedure for licensing of broadcasting service providers, licensing of broadcast services shall commence in two fold;[17]

1. The principle of first come first served shall apply to all broadcast service licenses which do nor require assignment of the frequency resource (such as cable TV, subscription management, landing rights e.t.c)
2. Broadcasting services requiring frequency spectrum resource shall require the required frequencies to be first identified by the Commission; and then advertised publicly for interested parties to apply.
3. For frequency based broadcasting services, the Commission shall publish the list of available channels in at least one print media in Kenya and on their website informing interested applicants to apply for the provision of the identified service.
4. The notice published shall provide the following information;

• Type of frequency
• The category of license
• The required power level
• Closing date for receiving applications

1. The Commission shall publish a list of frequencies depending on its assessment  in line                 with its objectives of diversity in electronic media.

Process of Licensing

The new regulatory procedure provides the licensing procedure as follows;[18]

1. Application for a service license shall be done in the prescribed for with adherence to the guidelines for application of commercial and community broadcasting service issued by the Commission.
2. Upon receipt of applications, the Commission shall maintain the register of all applications that have been scrutinized and seem to comply with the requirements.
3. The requisite application fees shall thence be paid and this shall be reflected in the register.
4. The receiving officer shall forward the application to the next officer for further scrutiny of compliance.
5. The evaluation team shall evaluate the applications and prepare a report that shall be forwarded to the Commissions Licensing Committee (CLC) for further consideration.
6. The CLC shall deliberate on the applications based on the evaluation report and recommend or not recommend the application for award of a license.
7. Following the recommendations of the CLC, the Commission shall depending on the outcome decide to noitify the applicant of the reasons for refusal if not granted or initiate the process of gazetting the application where the license is issued.
8. Where applications are approved, the Commission shall prepare a notification for publication the intent to license in the Kenya gazette. This will run for 30 days.
9. The Commission shall communicate to the applicant notifying him of the publication in the gazette and its expiry.
10. Any objective present in the gazette shall be monitored by the Commission and communicated to the applicant.
11. Upon expiry of the gazette period, the Commission shall forward to the board the applications for further consideration where the applicant may be called for clarification.
12. Following the Board outcome, the Commission shall officially communicate with the application informing them of the decision; if approved, prepare official communication regarding license offer informing the applicant of the conditions of offer, prerequisite fees and validity period and where rejected, the same to be communicated to the applicant.
13. Once applicant makes recommended payments within validity period, the Commission shall issue a draft license stipulating the terms and conditions of the license.
14. The Commission shall issue a construction permit allowing the applicant set-up necessary infrastructure for the intended broadcast service.
15. Once completed, the Commission shall inspect the structures and if satisfied with the facility recommend issuance of a license; where dissatisfied, it shall make recommendations for changes.
16. Upon successful inspection, the Commission shall issue the broadcasting services.

 

A person shall not be eligible for the award of a license if; he is a political party, is adjudged bankrupt, is of unsound mind or does not fulfill the conditions meted out in the act.[19]

Broadcast service licenses can be categorized into the following;[20]

• Free-to-air radio
• Free-to-air TV
• Subscription radio
• Subscription TV e.g. DSTV, Zuku, I-way Africa
• Subscription management

Signal piracy

Section 46N Kenya Information Communications Act – no person shall provide signal distribution services within Kenya or from Kenya to other countries except in accordance with a licence. Contravention incurs a fine not exceeding Sh. 1 million or a term not exceeding three years.

Section 46O – a license granted for signal distribution is possible. Section 46P provides that the CCK may revoke a license for distribution if it is in breach of the provisions of the act and license.

Section 46Q intimates that providing broadcasting services without a license is an offence. A licensed broadcaster contravenes the act when services are offered and not provided.

 

 

 

 

Modern day developments

Modern communication can be divided into two kinds: the stand-alone technology such as film, VCR, and computers and the like. The second kind represents those that require an infrastructure before it can be operated such as the telegraph, telephones radio and TV station, and cable television. The new communication technology has caused an integration of media that we have conventionally considered to be completely separate.

Satellite was never intended for home reception when it was first developed in the sixties. The “open skies policy” approved by the FCC in 1972 encouraged many satellite operators to distribute TV programs between television stations. By 1980’s the world of Direct –To-Home Satellite DHS had evolved.[21]

This phenomenon has allowed individuals with a small dish and a receiver to watch TV channel from other countries. This means that among other things local TV, as a mass medium cannot be controlled any more by national government especially developing countries. And local TV stations have to adjust themselves to the new situation.

 

Cable networks and Satellite networks

Technically, digital Cable TV and Satellite Television have a lot in common; they are both capable of the same high quality picture performance, and in most instances, they both deliver the same popular TV channels in HD. Digital Cable TV and Digital Satellite Television are the two biggest competitors in the field of TV entertainment. The advent of ‘digital’ cable TV did change the whole situation. These systems use digital compressions technology in a similar manner to that used by digital satellite TV systems to deliver even more high definition content.

Digital satellite and digital cable television services are very similar in nature in that both make use of the same digital technology to deliver hundreds of channels, including a whole assortment of movie channels, pay-per-view events, and a variety of informative and entertainment content.[22]

Satellite television is more universal in that it is accessible in both rural or urban areas as long as you are within the satellite footprint. This means that residences that are not in large cities or towns are capable of receiving satellite TV, thus explaining why satellite has become such an extremely popular choice.

Cable television is generally limited to towns and cities, and they typically do not offer service to rural or remote areas. Unless you are ‘passed’ by a cable, you will not be able to get cable TV.

Despite the many similarities, there are a few important differences between these two TV services worth looking into;

• Equipment: Like its satellite television counterpart, digital cable TV requires a set-top box per TV set; this has to be HD-capable to receive high definition programming. Apart from the set-top box, you do not need anything else. Satellite is at a disadvantage here in that you would also need to set up your satellite dish antenna; the latter requires an unobstructed view of the southern sky to receive satellite TV signals.
• Pricing: Usually, Satellite TV has a higher upfront cost than Cable since this has to cover the satellite dish antenna. On the other hand, cable TV companies have to invest in massive maintenance efforts to keep up their cable networks. These additional expenses are eventually reflected in the pricing structure adopted by cable TV companies for their services.
• HD Programming: Both cable and satellite are capable of delivering an ever increasing array of channels and both offer very similar programming packages; both are now approaching the 500 channel lineup. Yet, there are a few differences and each has an advantage over the other.

Digital terrestrial television (DTTV or DTT) is the technological evolution of broadcast television and an advancement of analog television. DTTV broadcasts land-based (terrestrial) signals. The purposes of digital terrestrial television, similar to digital versus analog in other platforms such as cable, satellite, and telecommunications, are to reduced use of spectrum and to provide more capacity than analog, provide better-quality picture, and to lower operating costs for broadcast and transmission after the initial upgrade costs. A terrestrial implementation of digital television (DTV) technology uses aerial broadcasts to a conventional television antenna (or aerial) instead of a satellite dish or cable television connections.

 

The Internet

Computer-Generated Works:

The creator is that one who the arrangement necessary for the creation of the work are undertaken e.g. Computer operator and the programmer. See Express Newspapers Vs Liverpool Daily Post (1985) FSR 306, Whitfor J. held that the author of computer generated bingo sheets was the programmer of the computer.

The internet development is going too fast, making it hard to evaluate its cultural and societal effects. One thing we defiantly know now is the world is truly a Global Village, and state national boundaries are only a mark on the ground. The phenomena of the internet and the Web left no choices to countries around the world but to connect to it.

The Internet is a complex concept especially when it comes to infringement and who bears the liability. It is a subject of debate by those who provide;

• Hardware and Infrastructure, including cables of communication;
• Those who provide access to website through local services;
• Who run bulletin boards and websites;
• Who provide temporary access to the net at internet cafes;
• Entertainment households should be liable for infringements in their processes.

 

The convergence produced by digital technologies has made broadcasting, telecommunications and the internet come closer because it has become possible for any given medium to deliver any type of content. Consequently, and although full convergence has yet to take effect in Kenya, there is a tendency to combine the diverse functions of several regulators in one as envisaged in the Act. Though the Act does not mention internet protocol television (IPTV) and online radio streaming, they are expected to be regulated by the CCK under the Act, presumably because they will fall under broadcast services. However, the Act seems as if it has been written for legacy systems of broadcast without regard for the present convergence of the industry and media. For instance, what will happen with the entry of optical fibre? Fibre optic cable will allow Kenyans to access cheap bandwidth that will redefine media coverage. People who feel that the media is not giving them adequate coverage can stream online, whether radio or TV. The internet will become the new frontier.

The rationale is that, like traditional telecommunications carriers, ISPs are merely conduits that passively transmit data and therefore are not responsible for the nature or character of that data. In this argument, it would be unjust, unreasonable and impractical to expect an ISP to monitor content in order to safeguard against illegal use or criminal activity.

 

Streaming through the Internet:

The internet has brought great changes to major broadcasting companies. Internal broadcasting raises difficult copyright issues that may ironically bring the end to free-to-air conventional broadcasting. Internet broadcasting distributes programs using streaming media software such as Real One, Windows Media Player and QuickTime as opposed to traditional broadcast which is through conversion into electrical signals, packaging them into radio waves and then beaming the radio waves through the air.

Internet broadcasting can be defined as the publication or dissemination of copyrighted or non-copyrighted content over the web through

This has become the new arena for the communication and dissemination of information as it is mostly without distortion or the filtering that occurs in mainstream media houses. Websites that offer online access to content such as video or rebroadcasted TV programmes (such as sports events). In this way, the whole or part of a copyrighted digital product such as a broadcasted TV programme can be uploaded to an online sharing service for public access. This method also includes the capturing and unauthorized retransmission of broadcast signals via so called Unicast Technology (retransmission to a single user as opposed to broadcast-to multiple user) which occurs mostly in the context of pirated transmission of live sports events.

Publicity and image rights

Cloete in his book, Introduction to Sports Law in South Africa (2005) defines image rights as, “The ability of an individual to exclusively control the commercial use of his name, physical/pictorial image, reputation, identity, voice, personality, signature, initials or nickname in advertisements, marketing and all other forms of media…The sportsperson…often earns substantial license fee or royalties that is paid for the privilege of allowing his name to be used for promotional purposes”.

The right to exploit the economic value of the name and fame of an individual is termed as publicity right. To claim this right it is necessary to establish that fame is a form of merchandise i.e an act intended to promote the sale/ popularity of a commodity or an activity. Hence, if someone uses the fame of a celebrity to promote his goods it would be termed as an unfair trade practice, misappropriation of the intellectual property of the celebrity, an act of passing off etc.

Nimmer recognized that although the well known personality does not wish to hide his light under a bushel of privacy, neither does he wish to have his name, photograph, and likeness reproduced and publicized without his consent or without remuneration to him.[23] In order to recognize this value and provide appropriate legal protection, Nimmer concludes that “the right of publicity must be recognized as a property (not a personal) right”[24]

In a world rapidly changing itself into a consumer driven global market where consumers are bombarded with information and “inspiration” at an unprecedented level through the audio-visual media. In the process, publicity has a very high value and a famous person has the potential to earn big bucks by exploiting his image and publicity. Therefore, globally the concept of publicity rights has emerged in different jurisdictions through a gradual process of evolution. Where accepted, so-called “publicity rights” allow for the exclusive commercial use of a persona’s publicity values. A tradable worth can be found in many personal characteristics such as voice, signature or pseudonym.

The US response to publicity evolved over a century with high points in that development being “The Right to Privacy”. In 1890[25], Haelan Laboratories Vs Topps Chewing Gum(1953) The plaintiff, a distributor of Fredericksburg DUI lawyer chewing gum had signed a contract with base-ball players for an exclusive right to use their picture on advertising international portfolio inc for the chewing gum. The defendant, a competitor, aware of the exclusive right in the contract, nonetheless induced the players to authorise him to use their image for the advertising of Villa in Phuket the defendant’s chewing gum.

Publicity rights in the UK were based on the law of breach of confidence and contract. English law has strongly resisted the creation of a concept of publicity rights. This is mostly because of the importance placed on freedom of speech and expression. It was considered that publicity rights lead to private benefits with little tangible benefits to the public.

However, there has been a gradual evolution of the concept of publicity rights. In the case of performing artists, English law was compelled to develop by international treaty. This was because of the European Convention on human rights. In a series of cases the Court at Strasbourg has recognized that the taking of photos without consent was an interference with Art 8 rights under the ECHR. This was held to be so, even if the photographs were taken for police purposes, or for journalistic purposes.

Further judicial developments took place after 2000. By a decision made in June 2000 in the case of Sports Club plc vs Inspector of Taxes, the UK tax court, decided that the money paid under contracts for the promotion of image rights of international footballers should be recognized as reflecting their image rights and not as salaries. Next, the possibility for a claim for substantial compensation was recognized when photographs taken of the wedding of Michael Douglas and Catherine Zeta-Jones, were published by Hello! magazine without their consent. In a recent decision award of compensation of £3,500 was made under the Data Protection Act to Naomi Campbell for a publication of her photograph in a story about her drug therapy.

Finally, the concept of publicity rights may he considered to be settled in U.K. in the case of Irvine v Talksport.[26] In the case a successful Formula I driver, Edmund Irvine, saw his image used without his consent in an advertisement for a radio station. The court held that he had a property right in the goodwill attached to his image, and he was entitled to compensation on the basis of a reasonable endorsement fee. However, there is no statute to regulate the celebrity rights in U.K.

Protecting image rights

Image rights are fast becoming valuable commercial assets of well-known athletes and celebrities, but like any asset of value, it is always subject to some form of risk and in the case of the image rights of sports stars, the threat usually comes from the misappropriation of the star’s image or image rights by both unscrupulous entrepreneurs and big business.

Protection and the ongoing management of a star’s image and image rights has become so important that stars and /or sports agents and/or commercial rights holders are turning to the law in search of protective mechanisms to safeguard the lawful exploitation of such image and image rights. In certain circumstances, the image of a sports star may be recognised and protected as a trademark.

Numerous sports stars and celebrity personalities have sought protection from the statutory laws governing trademarks. Several well-known personalities have registered their names, initials, signatures, images and slogans as commercial trademarks.

 

 

 

Political influence and other challenges

Given the nature of broadcasting rights, it is paramount that such mechanisms are free from political or government manipulation to gain an advantage over competitors or oppossers; this is guaranteed by the constitution.[27]

 

Broadcasting control and monopoly

In Kenya, there are 4 main media houses which are responsible for editorial content and setting the news agenda. These media houses own 10 television stations between them, 46 radio stations and 15 newspaper publications. This enhances the possibility of manipulating the news or reporting on what they deem preferable even if the content may be of public interest. Most of these media outlets are laced with political undertones and if this makes it difficult for there to be 100% fair reporting without the threat of inconveniencing the oligarichs.

 

The Regulation of Media

Media regulation has been a subject of much debate. Christopher Mulei et al (2003) among other things, trace the origins and philosophy behind western notions of free speech, justifications of free speech, censorship, colonial legacy of repressive laws, the legal environment for freedom of  press in Kenya, the international perspectives on media law and practice.

Thomas Gibbons (1998) analyses the concept of media regulation arguing that a study of regulation will be concerned with examining the various normative sources that are available to constitute or constrain action and to note where effective control of the practice appears to be located. A general outline of what should constitute a regulatory agency is given with the guiding frameworks of independence from government and direct political influence and greater public participation.[28] Thomas postulates that in order to safeguard free speech in the context of  broadcasting, some regulation is actually necessary to ensure that the interests both of those who communicate through the medium and their audiences are secured´. Granted, broadcasting needs some regulation, however, the book just mentions in passing regulation of the electronic media which is not exhaustive for the Kenyan broadcast media.

Peter Oriare Mbeke and Tom Mshindi (2008) assess the media sector and provide a summary of the key issues and constraints that affect the media in Kenya. They looked into the issues of categories of Kenyan media systems, investigative journalism, working conditions of journalists, the status of journalism training in Kenya, among other things. According to them, the electronic media has developed very sophisticated platforms for enhancing citizen participation in media since both radio and TV stations have live interviews during news bulletins, live discussion shows, live guest forums, live breakfast shows and debates, phone-ins and sms during live talk shows. Because of this, therefore, the need for the regulation of broadcast media arises

According to Peter Oriare Mbeke, the mass media and communication sector in Kenya remains vulnerable to system-wide pressures. Tracing media law from colonial era (1895-1962) through post-independence Kenyatta era (1962-1978), Moi era (1978-2002) and Kibaki era (2002-2008), Peter Oriare notes that the causes of the recent post-election violence and the resulting ban on live broadcasting were due to ³weak, irresolute and inadequate legal, regulatory and policy framework inherited from the colonial era´. Arguing that the legal, regulatory and policy environment is still hostile to media.

In Reconciling Red Lion and Tornillo , Abbot B. Lispky, Jr. (1976) under part I discusses the leading cases on the constitutionality of media regulation. These cases generally involve disputes concerning the allocation of editorial power, the power of the publisher or broadcaster to determine the contents of the message which he conveys. Part II argues that the existing constitutional rationale for broadcast regulation is based on inadequate distinctions between the print and electronic media, and examines the sources and consequences of editorial power in each medium. Part III proposes a test for the constitutionality of media regulation which would shift the focus of the courts approach from a concern with the allocation of editorial power to the equally important issue of how editorial power arises. The test is then applied to current and proposed regulatory schemes for several media institutions.

 

Regulation has three components: legislation, that is, defining appropriate rules; enforcement,such as initiating actions against violators and adjudication, that is, deciding whether a violationhas taken place and imposing an appropriate sanction.[29] The key media regulators are theMinistry of Information and ICT, Communication Commission of Kenya, Media Council of Kenya, Kenya Film Commission and many others. The Media Act (Cap 411B) provides for the formation of a Media Council, its functions and operations.[30] A complaints and dispute resolution committee shall be formed to determine any matter before it;[31] this is to be done through mediation and arbitration panels.[32]

 

Conclusion

The relevance and importance of the media and broasdcast regimes has been underlined and established. However, much more needs to be done to ensure the mechanisms installed to ensure responsible media freedom is maintained. It is to this purpose that I make the following recommendations;

Strengthening the Ethics and Public Information Committee:

Save for its mention under the Media Act, the Ethics and Public Information Committees functions have not been publicized. It is from sensitization of the public of the Committees roles and relevance that media sanity, prejudices, misconceptions and mechanisms for recourse could be shaped, improved, corrected and restored

 

Demystifying the Complaints mechanism:

Although the mechanism and procedure for lodging complaints are clearly provided in the Media Act, the general public remains almost totally oblivious of such mechanism. Further, the procedure for lodging complaints electronically should be strengthened in the Media Council website and made consumer-friendly. On a different note, too, the website needs to be spruced up and updated regularly so that it keeps tab with the progress and challenges in media. This should also be done in the Kiswahili language for which the common consumer is well-accustomed to.

 

Promotion of judicial activism:

There has been a general feeling that the judiciary has been lethargic if not unnecessarily hard in advancing freedom of expression in Kenya. This has taken the form of its approach and punishment meted out in defamation suits. While this stance has the benefit of upholding professionalism, decency and recourse for injury suffered by a victim, the long term effect of this is subjugation of media freedom and creativity. Whereas provisions of law could be interpreted in such a way as to capture the spirit of the law, this ought to be done in such a way as to strike a balance between the need to uphold freedom of expression and serving private and public interest. There is need for the judiciary to break away from constricting and limited interpretation of freedom of expression and adopt a broad-based, wide-ranging and germane approach tomedia issues.

Publicization of the Commissions activities:

The Commission should be made relevant to the ordinary person. This will entail conduction of awareness campaigns in the media, updating its website regularly and making it simple for an ordinary Kenyan to understand its composition and roles.

 

Need for collaboration with the Commission:

The Commission is normally regarded by the media as a tight-fisted government machinery ready to clamp down on media freedom. Such a perception, whether real or imagined, will greatly be assuaged by mutual collaboration and assistance between the two bodies. The Council could do well in improving the media by fostering good relations with the Commission in legal and policy guidelines and seeking ways in which errant journalists cannot further dent the image of  journalism.

Other than regulation, journalists are required to adhere to the code of conduct for the practice of journalism contained in the Second Schedule.[33]

[1] Section 2, The Copyright Act 2001 (Cap 130)

[2] Section 2, The Kenya Information Communications Act (Cap 411A)

[3] Section 46B, (Cap 411A)

[4] Section 46E (Cap 411A)

[5] Section 46G ibid

[6] Section 46F ibid

[7] http://developingradio.org/kenya.html

[8] Article 35 The Constitution, 2010

[9] Article 34 (1) Constitution, 2010

[10] Article 34(2) (a), (b), ibid

[11] Article 24

[12] Section 26(1) Copyright Act, Cap 130

[13] Section 22(f)(2) ibid

[14] Section 29, ibid

[15] Section 29(b) ibid

[16] Article 34 ibid

[17] Communications Commission of Kenya: Procedure  for licensing of broadcasting service providers under the new regulatory framework, April 2012

[18] ca.go.ke

[19] Section 46D (Cap 411A)

[20] Section 46B, (Cap 411A)

[21] Carlin, Ted. (1998). Direct Broadcast Satellites, In Grant, August E., and Meadows, Jennifer Harman (Ed.). Communication Technology Update, 6^th ed. Boston: Focal Press.

 

[22] L-I. Lundström, “Understanding Digital Television: An Introduction to DVB Systems with Satellite, Cable, Broadband and Terrestrial TV Distribution,” Taylor & Francis Ltd, 2006

 

[23] The Right to Publicity(1954) 19 Law & Contemp Probs 203

[24] Ibid. at 216

[25] Warren and Brandeis, “The Right to Privacy”, (1890) 4 Harvard Law Review 193

[26] Irvine v Talksport Ltd [2003] EWCA Civ 423

 

[27] Article 34(2), (3) Constitution, 2010

[28] Gibbons, T., (1998).  Regulating the Media. London: Sweet and Maxwell.

 

[29] Irving, L. Collection of papers analyzing the prospects of self-regulation for protecting privacy on the internethttp://www.law.indiana.edu(accessed 14 June 2012).

[30] Section 3, 4, and 5, The Media Act (Cap 411B)

[31] Section 23 ibid

[32] Section 24 ibid

[33] ibid[/vc_column_text]

Far far away, behind the word mountains, far from the countries Vokalia and Consonantia, there live the blind texts.

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