WHAT is going on at the Pakistan Electronic Media Regulatory Authority? In a manner reminiscent of the judiciary under Iftikhar Chaudhry, Pemra under its incumbent chairman is quickly adopting populist and activist overtones.

In May this year, it first banned Udaari — a popular drama on Hum TV for airing ‘immoral’ scenes related to child abuse. Then it went on to ban ‘undesired’ commercials related to family planning products — only to retract it a day later. In its most recent decision, however, Pemra banned Hamza Ali Abbasi from hosting a show for discussing Pakistan’s treatment of Ahmadis.

Pemra’s response is deplorable and wrong not just from a purely legal perspective that protects Hamza Ali Abbasi’s right to free speech, but also from the perspective of law and economics. Consider, for instance, the following.

Information is a public good. So is knowledge and information when disseminated and obtained through electronic media: I may be paying my cable operator each month for access to broadcast television but I cannot compel guests visiting my house to do the same when they consume information from the television.

In an economic sense, Pemra, thus, appears to be regulating a public good produced by the broadcasters and consumed by the public.

In other words, there are three players in this ‘market of ideas’. First, the producer (the television channel and broadcaster) that disseminates information and knowledge. Second, the citizen who consumes that information. Third, Pemra, a body that regulates this market of demand and supply for dissemination of information through electronic media.

Pemra should reassess its role as regulator.

Most economists would advocate a laissez-faire approach in regulating such a market. Free market forces should determine what goods are produced, the kind of programmes that go on air and the information eventually broadcast. Pemra seems to think otherwise.

From an economic standpoint, Pemra perceives the production of programmes that highlight some of our country’s most divisive social issues such as child abuse, family planning and minority rights as negative externalities imposing unnecessary social costs. Pemra deems the alleged harm caused to third parties — innocent children whose curiosity is magically stimulated by watching contraceptive commercials or the clergy that takes offence when anyone attempts to discuss the rights of Ahmadis — as sufficient grounds for imposing outright bans.

But does the dissemination of information regarding contraceptives really generate harmful external costs for a society struggling to control its population? Does creating awareness regarding child sexual abuse through art form qualify as an externality that harms society? Does an informed discussion regarding the rights of a minority group with a history of persecution in our country really impose social costs on third parties?

Is free exchange of information on controversial, schismatic socio-legal issues not important for shaping public discourse? Should ideas not compete and then either gain or lose traction based on their own merit?

In the instant case, Pemra shot itself in the foot as its intervention has inevitably led to market failure.

Behavioral economics suggests the ban will not affect that one programme or individual which the action seeks to control. Instead, it will affect the entire market. By issuing notices, calling for explanations and banning programmes, Pemra is directing how the scare resource of ‘limited air-time’ should be allocated. Such actions send a signal to the market that resources should not be spent on programmes that encourage critical, rational thought in religion or that question the constitutional foundations of our treatment of minorities.

Hence, more and more producers in the market will end up allocating resources for the production of substandard programmes where controversial but important socio-legal issues are shunned. More resources will be allocated to programmes with little substance where Ramazan is commercialised and public displays of religiosity are rewarded with worldly gifts.

Having said that, one must not forget an equally important dimension of the issue. Pemra’s conduct was prompted by more than 1,133 complaints it received. It was, thus, constrained by populist factors. One may question if it should act like a populist body responsive to consumer demand. Should it sit in judgment of what it thinks the consumers want? Or should this be left to the free market?

Writing in 1919, Justice Oliver W. Holmes argued that in this ‘marketplace of ideas’ governmental intervention should be minimal allowing ideas and theories (except hate speech) to compete amongst one another on their own merits, and thereby allowing people to sift through this free and fair exchange of ideas using their rational faculties to realise the truth. Pemra should do the same. It should protect — not infringe on — free speech.

The writer is a lawyer.

Published in Dawn, June 28th, 2016