Role of Councils of Complaints in Content Regulation

In Pakistan Electronic Media Regulatory Authority (PEMRA) vs. ARY Communications Private Limited (PLD 2023 SC 431), the Supreme Court of Pakistan addressed the regulatory authority of PEMRA concerning the broadcast of media content deemed "obscene," "vulgar," or "offensive to the commonly accepted standards of decency." The judgment emphasized the constitutional values of freedom of expression and the right to information, and clarified the procedural framework for content regulation under the PEMRA Ordinance.

Background:

The case arose when ARY Communications Private Limited (ARY) broadcasted a drama serial, "JALAN," on its channel, ARY Digital. Complaints from the public claimed the drama's content was immoral and against societal values. PEMRA, acting through its Chairman, issued a prohibition order under Section 27(a) of the PEMRA Ordinance, 2002, to halt the broadcast of the drama without first obtaining the opinion of the Council of Complaints. ARY challenged this order in the High Court of Sindh, which set aside the prohibition, ruling that PEMRA must first consult the Council of Complaints before taking such action.

PEMRA filed a petition for leave to appeal against the High Court’s decision, arguing that Section 27(a) of the PEMRA Ordinance allows PEMRA to act independently in prohibiting broadcasts without needing the Council’s opinion.

Key Issues:

Independence of Section 27(a) of the PEMRA Ordinance: Whether PEMRA can independently issue prohibition orders under Section 27(a) without consulting the Council of Complaints as required under Section 26(2) of the PEMRA Ordinance.

Role of the Council of Complaints: The necessity of obtaining the opinion of the Council of Complaints on content deemed obscene, vulgar, or offensive before PEMRA exercises its prohibition powers.

Constitutional Rights and Media Regulation: Balancing the regulation of media content with the constitutional rights to freedom of expression and access to information under Articles 19 and 19A of the Constitution.

Court's Analysis:

Requirement of Council's Opinion: The Supreme Court held that Section 27(a) of the PEMRA Ordinance is not an independent provision but requires PEMRA to seek the opinion of the Council of Complaints before issuing a prohibition order. The Court noted that the Councils of Complaints, composed of "citizens of eminence," serve as a public regulatory body to review complaints about media content, ensuring a diverse and representative review process. This requirement aligns with the PEMRA Ordinance’s intent to provide a two-tiered regulatory framework, balancing governmental oversight with public participation.

Interpretation of Statutory Provisions: The Court clarified that all actions taken under Section 27(a) must be read in conjunction with Section 26 of the PEMRA Ordinance. The Councils of Complaints must first review the content and provide their opinion, which PEMRA must consider before making a final decision on prohibiting any broadcast. This process ensures that decisions are made transparently and with public input, reflecting the broader social and cultural standards of decency and morality.

Constitutional Values and Media Regulation: The judgment emphasized that while PEMRA has a role in regulating content to protect public morals and order, such regulation must be carefully balanced against the fundamental rights of freedom of expression and access to information. The Court highlighted that these rights are essential in a democratic society and must not be unduly restricted without due process and justifiable reasons. The restrictions must be reasonable, proportionate, and based on a clear legal framework.

Court's Conclusion: The Supreme Court dismissed PEMRA’s petition for leave to appeal, upholding the High Court's decision. The Court reiterated that PEMRA must follow the procedural requirements set out in the PEMRA Ordinance, including consulting the Councils of Complaints before issuing any prohibition orders under Section 27(a).

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