Final BICMA Act Draft goes to Cabinet

Proposed amendments include new chapters pertaining to broadcasting, cyber security and data protection

The Bhutan Information Communications and Media Amendment Bill 2012, after certain major consultations and amendments was submitted to the Cabinet Secretariat by the ministry of information and communication (MOIC) recently this month.

The converged ICM Act was enacted by the National Assembly in 2006 and deals with all the regulatory aspects related to ICT sector and media. While certain provisions which were conflicting with other laws, or were either too elaborative and not in keeping with the current situation had to be deleted while some vital provisions  were introduced.

Department of information and media’s (DOIM) head of media relations division, Dawa Penjor, said “the converged Act had a lot of grey areas especially cyber security in 2006 and today is totally different with the evolution of technology”. He also stressed on revising clauses relating to broadcasting, cross media ownership and deletion of some obsolete clauses.

According to MOIC’s amendment proposal, with rapid development of Information Communication Technology (ICT) over the recent years, the provisions under the existing Act required changes and more stringent provisions needed to be incorporated especially dealing with arbitration, broadcasting, spectrum management, and communication during emergency/ disaster, data security and privacy issues.

It is of vital importance to adequately address provisions related to cyber security, data protection and privacy especially to build investors’ confidence in Bhutan and attract FDIs in the IT and Information Technology Enabled Service (ITES) industries.

The final draft also draws a line between ICT and media in an attempt to effectively take care of all emerging issues for the efficient growth of both. A new provision under chapter two of the amended bill states that the ministry may establish a Media Council which shall function as per a Charter approved by the Cabinet.

The power to establish advisory bodies is now vested upon the ministry which in the present Act lies with Bhutan InfoComm and Media Authority (BICMA) while the existing advisory committee is separated into two bodies.

The proposed change under chapter two states that the ministry shall establish a Media Advisory Committee and ICT Advisory Committee to advise the ministry on developments of Media and ICT Sectors. The terms of reference of the committees established under this section shall be formulated by the Ministry and approved by the Cabinet.

A section under the chapter states, ‘objectives of public service broadcasting’ shall include “to ensure that, where state funding of broadcasting and related activities is involved, the highest norms of public accountability and transparency are followed and that the editorial independence of broadcasters from government control or direction is guaranteed at all times”.

Another fresh chapter is ‘provisions relating to cyber security‘. A part of this chapter includes establishment of an agency or department of the government to be ‘Bhutan Computer Incidence Response Team’ which will serve as the national agency for performing all cyber security related functions.A clause from the new chapter, ‘provisions relating to data protection’ states that “where any legal entity possessing, dealing or handling any personal data, including sensitive personal data or information in a computer, computer network, data, computer database or software which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such legal entity shall be liable to pay damages by way of compensation to the person so affected.”

The amended Act also equips BICMA with ‘immunity against suit for violation of intellectual property rights’ which means no action for violation of copyright or other intellectual property or related rights, whether under civil law or criminal law, may be brought against BICMA or any member, officer or employee of the authority in respect of any act carried out by a third party merely on the ground that the authority has granted a license, permit or other authorization under this Act to such party. It also clarifies the confusion of who has the power to issue license for ICT and media services. It says, the authority (BICMA) ‘having regard to the necessity of serving the public interest, ensuring competition and preventing of the emergence of monopolies in the provision of ICT facilities and ICT services may grant licenses in accordance with the provisions of this Act’. Despite concerns from stakeholders, there haven’t been many changes made to the clauses pertaining to cross-media ownership. The present Act (ICM Act 2006) needed to be re-organized and consolidated to make the reference simpler and more focused. This amendment is seen as instrumental in streamlining the development, regulating and in creating an enabling environment for progressive growth of ICT and media. The final Draft Amended ICM Act is now available for reference on the DOIM website which is likely to be tabled in the upcoming parliament on May 2012.