Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Contracts Expression
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The Supreme Court of Pakistan disposed contempt of court proceedings against Arshad Sharif, host of TV talk show ‘Power Play’, for comments made on-air about a case pending adjudication. The Court brought the proceedings on the grounds that his comments could potentially cause prejudice in the minds of the public. Mr. Sharif made an unconditional apology, which the Court accepted and reaffirmed that freedom of speech and expression must not negatively affect another person’s fundamental right to fair trial and due process. Further, the Court issued a writ of mandamus to Pakistan Electronic Media Regulatory Authority (PEMRA) directing the PEMRA to, inter alia, ensure that reporting of sub judice (pending adjudication) matters under the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 (Code of Conduct) is conducted only to the extent of disseminating objective information and not to the extent of expressing any opinions on the merits of the case.
On 28.08.2018, the anchor Mr. Arshad Sharif of a TV talk show ‘Power Play’ made ‘certain comments and raised queries about a matter pending adjudication’ [p.1] before the Supreme Court of Pakistan. Mr. Sharif insisted that the ‘Chief Justice of Pakistan should call him before the Court so he could point out the contradictions in the affidavit’ [p. 1] filed by Former President of Pakistan Mr. Asif Ali Zardari.
On 29.08.2018, the Supreme Court of Pakistan initiated Suo Moto (on its own) contempt proceedings against him for making comments that could potentially cause prejudice in the ‘minds of the public at large and also the Bench seized of the matter’ [p. 4]. The Court also issued a notice to the Pakistan Electronic Media Regulatory Authority (PEMRA) and the Pakistan Broadcasters Association (PBA).
Mr. Sharif ‘tendered an unconditional and unqualified apology before the Court’ [p. 4].
The comments made by Mr. Sharif on the TV show were allegedly violative of Clause 4(3) of the Code of Conduct that prohibited ‘airing of subjective commentary on sub judice (pending adjudication) matters by media licences’. Further, prejudicial comments on sub judice matters were made punishable with criminal contempt of court under Article 204 of the Constitution of Pakistan since they trampled upon the right to fair trial and due process enshrined in Art. 4 and Art. 10A of the Constitution.
C.J. Nisar delivered the unanimous judgment of the court on behalf of J. Bandial, J. Ahsan and himself.
The main issue before the Court was to examine whether there existed ‘any code of professional ethics for media’ [p. 4] and if it was not followed, what action must be initiated against Mr. Arshad Sharif. In doing so, the Court was to find a balance between the freedom of expression and the freedom of information with the fair administration of justice.
Mr. Sharif ‘tendered an unconditional and unqualified apology before the Court’ [p. 4]. The PEMRA and the PBA submitted that despite the punitive measures under Sec. 33 of the Code of Conduct that prohibited airing subjective commentary on sub judice matters by media licenses, sub judice matters were being ‘openly discussed in talk shows thereby acting as de facto courts’ [p. 5].
The Court held that media trials potentially ‘instilled bias and prejudice in the minds of judges’ [p. 28] and violated the fundamental right of fair trial and due process under Article 4 and 10A of the Constitution. It held the right to presumption of innocence and fair trial under Art. 14(2) of the ICCPR ‘trumped the right of expression’ [p. 8] under Art. 19 of the ICCPR since Pakistan ‘specifically made reservations to Art. 19’ [p. 8] to the extent that the ICCPR conflicted with the Constitution of Pakistan and Shariah laws. It clarified that the Code of Conduct allowed ‘the media to provide information about sub judice matters’ [p. 21] but prohibited subjective and prejudicial commentary on the merits of the case. The reasonable restriction imposed by Clause 4(3) of the Code of Conduct was that ‘programmes were aired in an informative manner, were handled objectively and that no content was aired which would tend to prejudice the determination of the Court’ [p. 25].
The Court disposed of the matter by accepting the unconditional apology tendered by Mr. Sharif and warning him to be ‘extremely careful in the future’ [p. 33]. The Court directed the PEMRA to, inter alia, ensure strict compliance of the provisions of the Code of Conduct and ‘penalize licensees on account of any violations’ [p. 31]; to ‘ensure that an effective delaying mechanism’ was put in place for discussions on sub judice cases [p.32]; and to ensure that ‘at least one practising lawyer with 5 years or above’ experience [p.32] was available to advise the licensee regarding any potential violations of the Code of Conduct.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by prohibiting subjective and opinion-oriented discussions on sub judice matters. Moreover, by prescribing measures such as enforcing a delaying mechanism for airing shows with legal discussions, and requiring licensees to engage experienced lawyers to advise on possible violations of the Code of Conduct restrict the licensees’ right of freedom of speech and expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Supreme Court of Pakistan, the decision establishes a binding precedent on all lower courts in Pakistan.
Let us know if you notice errors or if the case analysis needs revision.