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… also challenges authority’s interpretation of the BICMA Act

In the preliminary hearing conducted on March 3, the Bhutan Broadcasting Service (BBS) requested the court to dismiss the case filed against them by the Bhutan InfoComm and Media Authority (BICMA) for airing a story on the barred film, Hema Hema.

BBS contended that there is no legal standing (Locus Standi) for BICMA to take BBS to court.

It cited section 31 (2) of the Civil and Criminal Procedure Code, 2001, which states that a petitioner must have a legal standing and the petition must involve a concrete case or controversy.

BBS also requested the court to issue an order to BICMA to refrain from unnecessarily impeding BBS from carrying out its duty and responsibility of providing news and information, reasoning that BICMA is being biased by imposing fines only on BBS when other media houses, particularly newspapers, also covered the film extensively as news and interviews.

BBS requested the court to make BICMA pay necessary compensation to them for harassment, obstruction of its duty and for causing damage to its reputation.

This was in response to BICMA’s accusation against BBS that while airing the news on BICMA barring the screening of the film Hema Hema on December 21 last year, BBS just presented a one-sided view by not consulting the authority and also broadcasting clippings of the film which they did not certify and thereby disseminated incorrect information, and misinformed and misled the public.

The media regulator took BBS to court on January 21 this year.

BBS also claimed that BICMA, by being both the complainant and arbitrator itself violates the principle of natural justice, as no man can be a judge in his own cause.

BBS, in their written submission, stated that they have submitted a need for an independent authority to review the case on January 19 this year. “BICMA ignored it and imposed fines on BBS.”

BBS refuted the allegation of airing one-sided news, claiming that their reporter tried to contact BICMA officials for comments over two days and even visited the BICMA office. “But both the media chief and media spokesperson were on leave and the reporter’s request for the mobile number was turned down,” BBS submitted to the court. “The reporter was told that the two officers would join only on December 26 and the story’s essence would be affected if BBS held the story for that long.”

BBS contended that the guiding regulatory principles of the authority in the BICMA Act, 2006, states that one of the principles of BICMA is that it shall ensure that there is increasing access to information for greater empowerment of citizens and to promote economic, socio and cultural development but BICMA, by not being accessible to a reporter’s query, failed to live up to the principles.

BBS also contended that it was aired that BICMA officials were not available for comments. “So the lack of BICMA’s view in the story is neither intentional nor a lapse on our part.”

The defendant also challenged BICMA’s accusation of broadcasting clippings of an uncertified film by submitting that BBS is a television broadcaster and it has to show visuals on screen for clarity of news. “It is an international practice and the BBS has been very responsible in broadcasting the visuals,” it submitted. “Broadcasting of few seconds of visuals through moving pictures cannot be considered as broadcasting the whole film.”

BBS also challenged BICMA’s charge of misinforming and instigating the general public by providing incorrect information stating that the film was scheduled to be screened on December 19 last year and that it could not be because BICMA did not allow it. “BBS did not put its opinion or appeal to any authority on the movie and thereby did not incite the public,” it stated. “BBS, in using the headline and broadcasting the news, has only fulfilled its core responsibility of informing the general public.”

The defendant then contended that section 111 (1) of BICMA Act that empowers the authority to fine BBS is only applicable to filmmakers and not the broadcaster.

BBS also stated that advertising, according to the Black’s Law dictionary means the action of drawing the public’s attention to something to promote it’s sale but they neither rated the film to promote it nor appealed to the public to view it. “It is a policy of the BBS not to give free advertisements to commercial projects and there is no account of BBS having received payments in any form in relation to the film. The whole intention and the purpose of the news was information to the public.”

BBS accused BICMA of abusing its power by summoning BBS, reasoning that BICMA is the authority to regulate and arbitrate Information, Communication and Technology (ICT) and the media industry as defined under section 29(1.a.1) of the Act. “The provision of the Act does not imply to disputes between the authority and other ICT and media service providers,” it stated.

BBS also accused BICMA of obstructing the right to information and claimed that BICMA is restricted in the use of its powers for the development and efficient functioning of the media industry. “In applying its authority over BBS for broadcasting the news, BICMA is rather obstructing BBS from fulfilling its mandate of informing the public and impeding the efficient functioning.”

BBS stated that they respect the important role and responsibilities of BICMA.

The next hearing of the case, where BICMA will rebut the accusations, is scheduled for March 20.

Tashi Dema

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