SUBMISSION TO THE PRESS FREEDOM COMMISSION BY THE CONGRESS OF SOUTH AFRICAN TRADE UNIONS

Introduction

1. COSATU is appreciative of the opportunity to participate in the public hearings of the Press Freedom Commission (PFC) on the regulation of print media in South Africa. We believe that the ANC opened up an important public debate on how to take forward its 2007 Polokwane Conference resolution on the media, in particular its decision to investigate the establishment of a Media Appeals Tribunal (MAT) and the numerous associated problems identified with the existing regulatory mechanisms.

2. Unfortunately our comments here are constrained by the fact that COSATU constitutional structures have not yet adopted a comprehensive response to the proposal to establish a MAT, particularly in relation to whether a future regulatory model should be based on self-regulation, independent regulation, co-regulation or statutory regulation.

The COSATU CEC (Central Executive Committee) of August 2010 decided that it could not support a MAT until it was made clearer as to how it would be constituted and how the independence of similar bodies had been safeguarded in other countries. In particular COSATU noted that we would "oppose any tribunal that could be used to intimidate the media into not exposing crime, corruption, incompetence or waste of public money".

3. Notwithstanding this the ANC discussion paper entitled "Media transformation, ownership and diversity" identifies numerous problems with the media, which we must agree with based on our own experience. Accordingly this submission will focus primarily on identifying issues of principle that we believe a future regulatory structure (regardless of the form) must address if it is to inspire confidence within organised civil society and the public.

The Case for More Stringent Regulation and Transformation Generally

4. COSATU shares the concerns expressed in the ANC discussion paper and the Polokwane resolution about "the increasing concentration of ownership, control and content within the international media environment", which is a particular problem in the South African print media, where 95% is owned by just three big, wealthy companies - Independent Newspapers, Avusa and Naspers. They all reflect the outlook and prejudices of the capitalist class that own them - pro-big business, the ‘free market' and private enterprise.

5. The ANC paper is correct when it argues that this level of concentration reinforces "a major ideological offensive, largely driven by the opposition and fractions in the mainstream media, whose key objective is the promotion of market fundamentalism, control of the media and the images it creates of a new democratic dispensation in order to retain old apartheid economic and social relations."

6. "Information is knowledge and it is power," says the discussion paper. "There can be no real media freedom without diversity in ownership of the media. Especially for the poor, media freedom should be understood to include their participation not merely as consumers, but also as producers of news and analysis... Media diversity supports, promotes, deepens, consolidates and strengthens democracy, nation building, social cohesion and good governance.

7. The paper hits the nail on the head when it says that "the Media is a contested terrain and therefore not neutral, but reflects the ideological battles and power relations based on race, class and gender in our society. It cannot claim that its role is merely to reflect interests - rather it helps to shape those interests."

8. Under the constitution the media has the right to publish and promote those interests, and we have to defend that right. "There is no question," says ANC discussion paper, "that the media, as an institution, deserves and should be afforded the space to flourish as a critical platform for freedom of expression.

9. "The ANC has always fought for media freedom, which it believes is a cornerstone for any democracy to flourish. All of us have a responsibility to defend media freedom and editorial independence from any forms of compulsion, whether it be political economic or commercial... Freedom of expression is in the self-interest of all those who believe in democracy."

10.That is why we share the concerns of the media over the Protection of State Information Bill, though we regret that it has sometimes been presented simply as an attack on media freedom, whereas in fact, in its present form, it is an attack on the rights of all South African citizens to access to information, and particularly to whistle-blowers who seek to expose crime and corruption, but could find that the documentary evidence has been classified as ‘secret'.

11. The critical problem that we have to confront is how to deal with the media when it goes beyond merely exercising their constitutional right to express a view, but resorts to using lies, defamation, distortion, selective reporting, unsubstantiated ‘facts' from anonymous ‘sources', deliberate omission of relevant facts, etc.

12. The ANC paper puts it bluntly: "A cursory scan on the print media reveals an astonishing degree of dishonesty, lack of professional integrity and lack of independence."

13. It mentions the phenomenon of ‘brown envelope' journalism, which "may run even deeper that meets the eye in what has now become like permanent briefing sessions between faceless leaders within the ranks of our Alliance and some journalists about discussions taking place in confidential meetings. These relationships are probably more than just ordinary media sources inside our organisations, but possibly involve payment arrangements.

14. "The tendency of dismissing any criticism of the media as an attack on press freedom results in the media behaving like a protection racket and leaves no space for introspection. For its own credibility, and in order to be at the forefront of determining the agenda for change and not against change, we have a responsibility to assist the media need to shape up."

15. Media misconduct is supposed to be dealt with at present by the Press Council of South Africa, the Press Ombudsman and the Press Appeals Panel, which, in their own words, is "a self-regulatory mechanism set up by the print media to provide impartial, expeditious and cost-effective adjudication to settle disputes between newspapers and magazines, on the one hand, and members of the public on the other, over the editorial content of publications. (Our emphasis)

16. "The mechanism is based on two pillars: a commitment to freedom of expression, including freedom of the press, and to excellence in journalistic practice and ethics... The industry believes in self-regulation because it is the only way that the rights of freedom of expression and freedom of the press and other media guaranteed in the Constitution of the Republic can be truly exercised. Any other form of regulation would threaten the independence of the press and freedom of expression."

17. This sounds good in theory but it has not worked in practice. The Ombudsman is under-funded and under-staffed. He takes too long to make rulings and insists on an unfair, and probably unconstitutional, requirement that anyone who lodges a complaint must sign away their right to take further action through the courts.

18. While the Ombudsman has occasionally condemned some of the most blatant malpractices, its powers are limited to verbal reprimands and demands for corrections and apologies to be published by the guilty newspapers. These are often hidden away at the bottom of a page and do not erase the false impression caused by the original article. The damage has already been done to somebody's reputation. As the old saying goes, "if you throw enough mud at the wall, some of it will stick".

19. There is therefore a strong case motivating the introduction of more stringent regulatory mechanisms (irrespective of the model) with more independence and more teeth. A number of competing principles must be taken into account in this respect, most of which find either direct or indirect expression in the Constitution, including:

a) Freedom of expression, which includes freedom of the press

b) Public access to information, and the role played by the media in its dissemination 

c) A State and society based on openness, transparency and accountability 

d) Media that is independent, balanced, pluralistic and diverse in nature

20. The right of the public to access to information is however undermined by media that distorts or misrepresents information, whether negligently or maliciously. Rewarding journalists with impunity when they disregard basic ethical principles raises serious questions as to whether the principle of accountability should not be applied to the media.

21. The notion that this would undermine the independence of the media (rather than complement it) disregards the extent to which ownership and control of commercial media vests in large corporations. The general dependence on commercial advertising revenue raises serious questions about the overall orientation and commercial bias of the print and on-line media. Further the concept of ‘independence' would commonly be construed to mean free from bias and influence of the State, political parties and economic interests. Against this background the media cannot be described as strictly independent in every sense.

Potential Risks to Guard Against When Deciding on an Appropriate Model

22. The form and content of the regulatory model eventually adopted must not allow for any potential for it to be used as a government censorship tribunal. Editors could feel intimidated into suppressing stories making allegations against ministers, even if they are true.

23. This would not only be a problem for mainstream newspapers, which in any event would have plenty of money to fight the case through the courts if they disagree with a decision. Union journals and NGO newsletters, without such financial clout, could be similarly forced to be cautious in publishing reports by, for example, whistle-blowers.

24. This could lead to similar problems as those that civil society and the media will face under the Protection of State Information Bill (POSIB) as currently drafted, under which a minister of official could classify information as secret in order to cover up criminal activity, and thus make it an offence to publish such information.

25. The biggest concern with both the POSIB and the MAT is that they could be misused to suppress the publication of matters of legitimate public concern, and to protect those guilty of unethical or criminal acts.

26. it is therefore essential to strike the right balance between the right to publish potentially damaging but true allegations, and the right for individuals and organisations to be protected from false allegations.

Conclusion

27. Notwithstanding the present constraints in expressing a view as to which model of regulation we believe should be adopted, it should be evident that COSATU is at least in support of more stringent and increased regulation. We have noted the SA Press Council Review Report that was released in August 2011. While admittedly it does make some positive recommendations, such as the creation of a position for a public advocate, it does not go far enough to instil public confidence.

Further it is easy to be discouraged by incidents such as the suppression of the 2008 Sunday Times Review Panel Report that exposed serious ethical problems as well as intentionally sensationalist and inaccurate reporting, and which was only released publicly in 2011 by the Business Day, another newspaper. If proposals by the media are expected to be taken seriously by civil society organisations more emphasis needs to be placed on meaningfully addressing the problems identified and must reflect the requisite imposition of accountability for maintaining appropriate journalistic standards.

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