SUBMISSION BY THE DEMOCRATIC ALLIANCE TO THE PRESS FREEDOM COMMISSION PUBLIC HEARINGS ON THE REGULATION OF THE MEDIA IN SOUTH AFRICA

January 30 2012

Introduction

The Democratic Alliance (DA) appreciates the opportunity to present to the Press Freedom Commission on the regulation of the media in South Africa.

These hearings take place in the context of a sustained assault on media freedom by the ruling party over the period of the last few years, beginning with a resolution passed at the African National Congress' 2007 national conference in Polokwane calling for the establishment of a statutory Media Appeals Tribunal.

Most recently, and more ominously, the executive's efforts to undermine the free flow of information in an open democracy have been revealed in the Protection of State Information Bill, which is now before Parliament.

Government spokesperson Jimmy Manyi has tried to intimidate media proprietors by threatening to withdraw government advertising from those publications that report in such a way as to upset the executive. It is encouraging that such intimidatory sabre rattling, along with the Appeals Tribunal and Information Bill, has been largely rejected out of hand by the public.

However, the heightened sense of tension has also had the effect of escalating the debate to a point where the government and the media are engaged in something of a ‘Cold War', where any criticism of the government is seen as all-out hostility, and any thoughtful criticism of the media is seen as an attack on the freedom of the media.

The irony is that government hostility towards the free media is absolutely no basis on which to begin a discussion on how to better regulate that media. Indeed, it would seem that the South African media needs not more control, but more freedom - freedom to criticise and analyse without the threat of recrimination. The Press Council must defend this freedom, not by offering unquestioning support to all publications, but by upholding the highest professional standards and industry integrity so as to protect the public's confidence in the media.

The DA has always been, and will always remain, an ardent defender of press freedom and the principle of self-regulation. We do not support more intrusive regulatory models like the one proposed by the ANC.

Self-regulation is the best means of ensuring that the media is held to the professional standards it sets for itself, and which mirror the values of our Constitution.

It is the only system based on the principle of peer review, which recognises that journalists themselves are the best placed to judge other journalists' professional standards. 

A free, self-regulated media is of great benefit to an open, constitutional democracy. Statutory controls would undermine this freedom, and would do nothing to raise standards. Secrecy laws, like the one currently under consideration, also constitute an unacceptable infringement on the freedom of the press. Such laws benefit only the powerful in society, and will be misused by the corrupt to stop investigative reporting which is in the public interest.

Self-regulation provides a system whereby editors are committed to the highest ethical standards as well as the highest standards of reporting.

However, it is clear that if self-regulation is to survive in the climate of hostility that now prevails, then it must be a form of self-regulation that works effectively. Self-regulation must work to buttress the media from meddling by the state, and it must protect the public at large from declining professional standards of journalistic practice.

In many instances, the current self-regulatory framework does not adequately address legitimate concerns about serious journalistic lapses, even when they may be often repeated.

The proposals we make in this submission should not in any way be interpreted as undermining the absolute freedom of the media in a democracy to analyse, report, criticise and investigate. It is an attempt to offer constructive comments for a more effective self-regulatory system.

The establishment of this Commission, the enthusiastic participation in its work, and thorough debate on this topic taking place on the editorial pages of our newspapers, are indicative of an industry that is willing to be introspective about its shortcomings. We hope this submission will be considered in that spirit.

Specific proposals

1. Setting and monitoring standards

The South African Press Council should play a proactive role in monitoring journalism standards in the country and acting as a catalyst in encouraging media organisations to improve their own internal standards.

The Council should require all media outlets to train their junior journalists, and should monitor that such training occurs. While there are many excellent journalists in South Africa, there are also many who have not yet grasped the basic tenets of journalism - collecting the facts, checking them with more than one source, or the principle of right of reply.

Many journalists in our experience, for example, do not have the ability to accurately record a statement verbatim. This means comment must always be given in writing, over email or SMS, otherwise the risk of being misquoted is too high.

The second benefit of the Council playing a proactive monitoring role is that it would be able to spot repeat problems and trends. Where several separate complaints have been lodged against one publication, or indeed involve one specific journalist, there should be scope for the Council to act to address the problem in general, as opposed to only specific complaints.

2. Statutory support

There is a danger that by strengthening the regulatory framework, publications will simply withdraw from a self-regulatory system. Parliament should act to strengthen press freedom by passing legislation which would make the rulings of the Press Ombudsman legally binding. This would remove the often unspoken but well understood danger of a voluntary self-regulation system, namely that publications can simply ignore rulings of the Ombudsman.

Such legislation would not constitute co-regulation, and it would not give the state or political parties any influence over the Council.

3. Investigations into abuse of power

Currently the Ombudsman is only empowered to investigate individual complaints about editorial content. However, there has been at least one exposed example in recent years, and there are surely many others, of 'brown envelope' journalism, where corrupt journalists have abused their power by consistently slanting their copy in return for money. Where there is prime facie evidence of this taking place, the Ombudsman should be empowered to launch a full investigation, to call witnesses, to subpoena documents, and to make rulings against journalists or the publications they work for. This could form the basis for criminal investigations.

4. New funding model

A new funding model for the Ombudsman should be investigated, to ensure it has the resources to properly and independently fulfill its mandate. One possible proposal could be to base contributions from media outlets on their advertised distribution numbers, which would introduce a system of proportional contributions. The bigger media outlets, with millions of distributed copies, would pay more than smaller outlets.

5. Guide the industry

Rulings of the Ombudsman should be distributed to all editors, to act as guidelines for newsroom practice across the industry.

This will allow editors to be well informed on how the Code is being interpreted and applied, and so enable them to stay on the right side of the rules.

6. Wider power of sanction

At present the Ombudsman has a very limited power of sanction, basically restricted to ordering publications to print apologies and retractions. Publications often show disrespect for the ruling, printing apologies at the bottom of an inside page where they are less likely to be read. We propose that as a rule, all apologies and retractions as ordered by the Ombudsman should be printed prominently on the front page, and that the text of such apologies should be agreed mutually by the complainant and the Ombudsman.

Importantly, the apology must appear in all editions of a particular publication for that day. Most publications print various editions, and often undermine the rulings of the Ombudsman by printing the apology in the least popular edition.

While we are aware that the Press Council's review report, released in August 2011, rejected the idea of levying fines as a sanction, we believe this should be reconsidered. 

7. Inclusion of new media

The continuing rise of e-media and social media means that most publications now have websites and e-editions. In addition, many of these sites now include non-print media like video and sound clips. Insofar as a story reflected on one of these mediums also breaches the Code, the Ombudsman's rulings must apply to all of these new mediums as well.

8. Remove ambiguities from the Press Code

The presence of a code gives complainants a framework for assessing whether their complaint will be successful or not. It also lays out something of a code of conduct for media outlets, a common standard to which they know they must adhere.

However, this is made difficult when complainants, media outlets and indeed the Ombudsman must interpret vague and imprecise statements such as those contained in the current South African Press Code. For example, Section 3.1 of the Code requires the media to "avoid any practice or arrangement" which may impugn their editorial integrity. Such an expression is open to wide interpretation, and might be better regarded as a statement of broad principle. The DA has in the past tried to lay a complaint under this clause, and in that particular case the Ombudsman chose to interpret it very narrowly. It would be beneficial for all parties if that clause, and several other clauses which are equally vague, were properly and fully defined.

9. A clear definition of editorial and advertorial content

The Code should define in clear terms the difference between editorial and advertorial content. When media companies, proprietors and newspapers themselves advertise in their own newspapers, on websites and social media, this should be included in the scope of the Press Code, and should be open to complaint. Such advertorial content clearly impacts on the editorial stance of the newspaper as a whole. When internal advertorial content takes an obviously partisan and unbalanced slant, it obviously cannot be argued that the publication in question still maintains editorial balance and integrity.

Where newspapers want to advertise themselves, they must be careful that such advertising does not undermine their editorial integrity in the mind of the public.

10. Acceptance of third party complaints

The Press Council must ultimately act in the public interest, not only the interests of complainants. This means that, by definition, the Press Council should accept third party complaints.

Conclusion

We are pleased to have had the opportunity to present our suggestions to this Commission today, and to have played our part in the important work of this Commission in formulating a more effective system of regulation for the print media in South Africa. We have, in this brief presentation, reaffirmed our support for a system of self-regulation, and we reject the other more invasive forms of regulation that have been proposed.

Further, we have made ten specific proposals for how the current self-regulatory framework can be made to work better. We believe these ten proposals, if enacted, would go some way toward strengthening the public trust in the media and staving off the attempts by the executive to exercise undue control over the media.

Thank you for the crucial work you are doing and thank you for your consideration.

On behalf of the Democratic Alliance,

Mmusi Maimane

National Spokesperson, Democratic Alliance

Issued by the DA, January 30 2012

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