References: Constitution: Article 5.(1).(g), "Freedom of 'Expression" - [ LINK ]

Peer Review Comments: The Constitution does not refer to freedom of media, but the Article on Freedom of Expression is seen as covering this. A separate article guaranteeing media freedom would help to support media freedom. For while there is reference to freedom of expression, in practice, successive national governments have sought to limit media coverage of issues that are not favorable to government. As noted in other comments, the extent of this varies from government to government, but it has been a longstanding characteristic of government/media relationships.

References: Constitution, Article 5.(1).(g) - "Freedom of 'Expression" [ LINK ]

Peer Review Comments: The Constitution of Vanuatu provides for freedom of expression subject to a narrow range of exemptions, being the legitimate public interest in defense, safety, public order, welfare and health. No explicit reference is made to any right to communication nor to a right to information.

Peer Review Comments: Freedom of speech is restricted by libel laws on defamation and slander, but no more so than in neighboring common law countries such as Australia and New Zealand.

Peer Review Comments: In my experience regarding the print media, the people of Vanuatu are very free, frank and open with their comments (for example, in letters to the editor) about situations and other people.

References: Daily Post Chief Editor Kierry M. Tony Tarivonda from Transparency International

Peer Review Comments: The small size of the market limits the number of print media entities. Print media presence in rural areas where 70 percent of the population lives is limited to non-existent. The main barrier the government creates to forming a print media entity is that only Vanuatu citizens are allowed to own or publish a newspaper in Vanuatu without government approval. Non-citizens or expatriates require Ministerial Approval as per s. 2 of the Newspapers (Restriction on Publication) Act [Cap 156]., in order to own and publish a media entity.

References: Daily post chief editor

Peer Review Comments: The Vanuatu Newspapers (Restriction on Publication) Act (Cap 156) deals solely with the creation of the offense of a non-citizen owning or publishing a newspaper in Vanuatu. However the Minister may, under section 1(2), give approval for a non-citizen to publish or own a newspaper, so the restriction is not absolute.

Section 1. (1) Subject to the provisions of this Act a non-citizen shall not own or publish a newspaper in Vanuatu. (2) A non-citizen may publish or own a newspaper if he first obtains approval of the Minister responsible for newspaper production.

Peer Review Comments: A print media license is not required for citizens. Non-citizens require ministerial approval to own or publish a newspaper. Non-citizens have an extremely important role in Vanuatu's business, community, media and NGO sectors. If a print media license in the form of a ministerial approval is denied or revoked, the applicant has recourse to the courts as such an outcome would involve administrative law. Vanuatu is a common law jurisdiction and this would be covered. If an applicant believed that they were being treated unfairly by a Minister they could also make a complaint to the Ombudsman.

References: Daily Post Chief Editor Kierry M. Tony Tarivonda from Transparency International

Peer Review Comments: Print media licenses are not required for Vanuatu citizens. Only non-citizens require ministerial approval to own and or publish a newspaper in Vanuatu.

References: Daily Post Chief Editor Kierry Mannesah Tony Tarivonda from Transparency International

Peer Review Comments: Citizens do not need a print media license. The Broadcasting and Television Act 1992 (VBTC Act) only requires a license for television, radio, satelite and fiber optic transmission, not print media .

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: The main legislation is the Broadcasting and Television Act No. 3 of 1992, modified by Amendments No.13 of 2000 and No.11 of 2003. This legislation is referred to as the VBTC Act as it creates the Vanuatu Broadcasting and Television Corporation (VBTC) for the purpose of carrying on the services of broadcasting and television in Vanuatu. It also covers licensing for commercial media.

While the minister, in this instance the prime minister, is responsible for issuing and revoking licenses, it would appear that some of this responsibility has been delegated to the VBTC. In addition to "providing television and sound broadcasting services within Vanuatu, for disseminating information, education and entertainment" per section 10(a) in the Broadcasting and Television Act, the rest of section 10 states that functions of the Corporation shall be: (b) To secure proper standards of television and sound broadcasting with regard to both programme content and technical performance and broadcasts; (c) To exercise licensing and regulatory functions in respect of the sale and use of television receivers and broadcasting receiving apparatus; (d) To act internationally as the national authority or representative of Vanuatu in respect of matters relating to broadcasting; (e) To advise the Minister in respect of matters relating to broadcasting. As a result, the VBTC, in addition to being the national public service broadcaster, also has responsibility for regulating radio and television. This is very unusual and potentially puts the VBTC in a position of conflict of interest, as it makes recommendations on licences for possible competitors. This is also a very small media market and the VBTC has had a broadcasting monopoly for some time.

Peer Review Comments: Cross-media ownership laws are standard in many countries and are aimed at restricting monopoly control over any one sector of the media.

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: An appeal could be tested in the courts or a complaint could be lodged with the Ombudsman. Also s. 48(2) of the Broadcasting and Television Act 1992 states that "The Minister shall before suspending or revoking any license under the provisions of subsection (1), give the licensee notice in writing of his intention to do so and calling upon the person concerned to show cause to him why such license should not be suspended or revoked, as the case may be," so there is some appeal mechanism already included in the Act.

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: The Broadcasting and Television Act 1992 sets out the requirements for licensing. Licensing may be delayed but it is possible as per the following sections of the act:

PART 3 LICENSING

LICENSING

43. (1) No person other than the Corporation established under this Act shall maintain a broadcasting station unless such person has obtained a licence from the Minister.

(2) The Minister may, with the approval of the Council of Ministers, issue any person a license for the establishment and maintenance of a private broadcasting station:

Provided that no licence shall be granted for the licensing of any broadcasting station on board any ship registered in Vanuatu for the purposes of carrying out transmission of broadcast matter outside the territorial waters of Vanuatu.

(3) No licence shall be issued by the Minister unless he is satisfied that the person applying for a licence has such technical, financial and professional qualifications as may reasonably be required for the purpose of establishing and maintaining a private broadcasting station.

MINISTER MAY DELEGATE HIS POWERS

44. The Minister may delegate all or any of his powers under this Part except the power to issue licences under section 43, the power to revoke or suspend a licence under section 48 and the power to make regulations under section 54, to such officer or officers as he thinks fit, and may appoint officers for the purpose of carrying into effect the provisions of this Act.

LICENSING OF BROADCASTING STATION

45. (1) No person shall establish any private broadcasting station in Vanuatu except under and in accordance with a licence granted under this Act.

(a) Every such licence shall be in such form and may contain such terms and conditions as the Minister may prescribe; (b) In addition to the terms and conditions as may be prescribed under this section the Minister may, impose further terms and conditions on the licence as the Minister considers necessary.

(2) In granting a licence under this Act, the Minister may require the licensee to pay a premium for the issue of the licence or such annual fee as the Minister may prescribe.

VALIDITY OF LICENCE

46. A licence granted under this Part shall, unless revoked or suspended, be valid for a period not exceeding one year from the date of the granting or issue of such licence.

POWER OF MINISTER TO VARY, REVOKE OR IMPOSE FURTHER CONDITIONS

47. (1) Subject to subsection (2), the Minister may, during the currency of the licence, by notice in writing to the licensee, vary or revoke any of the conditions upon which the licence is granted or impose further conditions.

(2) The Minister shall give not less than 14 days notice in writing of his intention to vary, or to impose a further condition and shall specify in the notice the variation proposed or the condition to be revoked or imposed.

REVOCATION OR SUSPENSION OF LICENCE

48. (1) Subject to subsection (2), the Minister may, by notice in writing to the licensee, suspend or revoke a licence granted under this Part where he is satisfied that one of the following grounds exists:

(a) the licensee has failed to pay the premium or the annual fee referred to in subsection (3) of section 45; (b) the licensee has failed to comply with the provisions of this Act; (c) the licensee is no longer a fit and proper person to hold the licence; (d) the licensee no longer has the financial, technical and management capabilities necessary to operate the broadcasting station; (e) the licensee has failed to comply with any direction given by the Minister; (f) the licensee has failed to comply with any conditions of the licence; or (g) it is advisable in the public interest for a special reason, to do so.

(2) The Minister shall before suspending or revoking any licence under the provisions of subsection (1), give the licensee notice in writing of his intention to do so and calling upon the person concerned to show cause to him why such licence should not be suspended or revoked, as the case may be.

PENALTIES

49. Any person who establishes a broadcasting station without a licence shall be guilty of an offence under this Part and made liable on conviction to a fine not exceeding five million vatu (VT5,000,000) or to imprisonment for a term not exceeding 5 years.

SEARCH WARRANTS

50. If any officer, appointed under section 44 has reason to believe that any provisions of this Part are being violated, such officer may apply to a Magistrates' Court for a search warrant to enter and inspect any place, ship or aircraft.

NON-COMPLIANCE WITH THIS PART

51. Every omission or neglect to comply with, and every act done or attempted to be done contrary to this Part or the regulations made under this Part, or in breach of the conditions and restrictions subject to or upon which any licence has been issued, shall be deemed to be an offence under this Part and for every such offence not otherwise specially provided for, the offender shall, in addition to the forfeiture of any articles seized, be liable on conviction to a fine not exceeding VT500,000.

TRIAL OF OFFENCES

52. All offences under this Part or regulations thereunder shall be cognizable by the Supreme Court.

COMPOUNDING OF OFFENCES

53. (1) Any officer, being authorized in writing in that behalf by the Minister, may compound any offence under this Part or regulations thereunder by accepting from a person reasonably suspected of having committed such offence a sum of money not exceeding VT250,000.

(2) On payment of such sum of money, no further proceedings shall be taken against such person in respect of such offence.

REGULATIONS

54. The Minister may make regulations in respect of all or any of the following matters:

(a) the procedure to be followed in respect of applications for licences to be made under this Part, and the hearing of inquiries into such applications, for the issue of licences; (b) the terms and conditions on which licences are granted under this Part and the duties of the licensees; (c) the fees payable on the grant of such licences; (d) the control and supervision by the Minister of programmes broadcast from private broadcasting station; (e) the furnishing or disclosure by any body of persons applying for a licence under this Part of information relating to such body and of its members; (f) the prohibition, regulation or control of the ownership of private broadcasting stations by prescribed persons or classes of persons; (g) the regulation or control of the transfer of shares in companies which hold licences for private broadcasting stations, and the transfer of interests on such stations; (h) the form of application for a licence under this Part and the form of such licence.

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: This is very difficult to score because this is a developing economy, and cost will always be a factor. Ongoing operational costs would be a much more significant issue and barrier to the establishment of media. In a country of 200,000, it is also unlikely that a second national TV service would be viable.

Peer Review Comments: Fees would not be considered reasonable by most Ni-Vanuatu - term for Indigenous Vanuatu Citizens - and are set by Ministerial determination under Broadcasting and Television Act 1992 s. 54 "The Minister may make regulations in respect of all or any of the following matters c he fees payable on the grant of such licences."

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: Agree with score, but Internet usage is limited by cost, access and lack of computer literacy.

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: To date, the Government has not been a major Internet user. Other Pacific governments, e.g., the current military government in Fiji, have attempted to restrict bloggers. If Internet usage becomes more widespread in Vanuatu, it will be interesting to see how the Government responds to online material that is critical of government.

References: Constitution, Article 5.(g) - www.paclii.org/vu/legis/consol_act/cotrov406/ - Freedom of Speech

Peer Review Comments: Apart from inheriting the English Defamation Act 1952 at Independence, defamation legislation as such does not exist in Vanuatu and common law applies. This can be Australian or English common law, and truth is an absolute defense. There has only been one defamation decision since 1980. The Daily Post, the major newspaper, has said it is aware of defamation and is very careful what it prints. It also has a policy of apologizing for any mistakes.

Peer Review Comments: The threat of defamation and occasional threats of violence (Transparency International National Integrity Systems Vanuatu 2004) do lead to a certain degree of self-censorship.

Peer Review Comments: The defamation laws may act as some deterrent. However, in my experience the print media in Vanuatu is willing to print letters and articles that contain personal opinions that have not necessarily been substantiated.

References: Daily Post Chief Editor Kierry Mannesah

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: There are no censorship laws, but there can be censorship through political interference from either the government-appointed members of the VBTC Board or the Office of the Prime Minister, the minister responsible for the VBTC. However, it has been noted that threats of violence and other forms of disruption have persuaded some parts of the media to self-censor their stories, "even in the absence of legal grounds for censorship."

Peer Review Comments: Illiteracy is relatively high in rural and island areas of Vanuatu and due to the government's control of television and radio broadcasts, the government allows free print press but subtly censors broadcast media.

References: Interview with Daily Post Chief Editor Kierry Mannesah Interview with a representative of the Independent newspaper

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: The VBTC is the main broadcaster and it is state-owned.

References: Daily Post Chief Editor Kierry Mannesah

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: The national broadcaster may feel constrained when covering when covering opposition parties/politicians. It is also difficult to claim that media cover all the interests of the electorate; there may, for example, be little media coverage of electoral issues of relevance to rural and remote communities.

Peer Review Comments: It is very difficult for independent candidates to receive fair coverage in the media. Not necessarily because the media does not want to provide coverage, but because these candidates do not have the backing of a party machine to help give them exposure. In practice, the candidates from the main political parties are the ones that get media coverage. This is a particular issue for independent women candidates.

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: This is difficult to generalize because it depends on which government is in power. News on the the VBTC, the state owned media, can be constrained by direct interference and/or self-censorship. The VBTC Act created an independent body with a board composed of five to seven members. The legislation allows the VBTC to operate separately from government within certain limits, but the Minister has the right to intervene directly to influence the VBTC with some limitations that are not respected if the Prime Minister wishes to control the VBTC. The VBTC has to comply with government policy with respect to broadcasting (section 35 of the VBTC Act). The Prime Minister can give general or special directions in writing on the performance of duties and the exercise of the powers of the VBTC. There is a requirement for the VBTC to comply with the directions given. There are limitations to the powers of the Prime Minister. He cannot influence a particular program, or the gathering or presentation of news, or the preparation or presentation of current affairs programs, or the contracts for the provision of programs. In August 2004 the Vohor government dismissed the VBTC Board allegedly without any valid reason, and the Prime Minister's Public Relations Officer (PRO) was reportedly instructing the VBTC on content during this period. There was also some discussion about the VBTC reverting to a government department. This is not the first government that has attempted to control the VBTC politically and prevent the expression of points of views. According to the former Chair of VBTC, this type of intervention was frequent under Prime Minister Maxine Korman and his Private Secretary 1991-97. The government used to control everyday programs broadcast on the radio. This level of control stopped for a few years and was reestablished under the prime ministership of Serge Vohor in 2004.

Peer Review Comments: The government in power at the time of elections tends to use state-owned media outlets to favor its own parties (assuming coalitions) and candidates. While this does not cause problems in the print media due to privately-owned print media coverage, it does cause problems in television and radio broadcasting, as the state has a virtual monopoly in the broadcasting sector (the few private broadcasters there are focus on entertainment and tend to have limited political coverage). Due to the lack of available print media in rural areas and the outer islands where most of the voting population lives, most of the population only has the state run radio broadcaster to rely on for coverage of national elections.

Peer Review Comments: Candidates may have equal access in theory, but in practice, some of the political big noises (such as Serge Vahor, Barak Sope, Willy Jimmy ) are the ones who get a lot of media attention.

References: Daily Post Chief Editor Kierry Mannesah

References: Daily Post Chief Editor Kierry Mannesah

Peer Review Comments: While not directly related to this year, but for 2002 to 2004, Transparency International (2004: 24) has reported that "The threat of violence or other sorts of disruption persuades some parts of the media to self-censor their stories even in the absence of legal grounds for censorship." Even though this Transparency International report was published three years ago, these general observations remain valid, as demonstrated by the assault on journalist Len Garae by Minister Serge Vohor.

References: Daily Post Chief Editor Kierry Mannesah