Independent Interventions required in the media for balance in the battle of ideas

The "media", not a monolithic institution, during the dark days of apartheid was a battleground, as the former Justice Albie Sachs of the Constitutional Court, quoted in an article written by Maria Armoudian, (Truthout, 18 December 2013), put it, "overwhelmingly reflected the social situation".

The media under apartheid was, and under the constitutional democracy is, a powerful institution. It has tremendous power and influence – not just in South Africa, but on the world stage. It was, and is, part of an influential international community of institutions. The media has had a major influence on the thinking, attitude and behaviour of all who lived under apartheid rule in South Africa.

Having said so, we cannot blankly condemn the role of mass media, during and post-apartheid. We must accept upfront, that the media is not homogenous and that therefore varying degrees of complicity, as there are varying degrees of welcome investigative journalism, courage and commitment to expose corruption, wrongs, bad, rights, good, the truth, etc., through accurate, factual and fair reporting.

It is just regrettable, after reading a lot of revelations exposed in the last few weeks by two editors of national newspapers, The Citizen's Steve Motale and The New Age's Moegsien Williams; resignation letters of some journalists; confessions and apologies at different debates by among others Stephen Grootes; etc., to accept that large sectors of the media failed in their obligation to fully inform their readers, viewers and listeners.

"Speaking of my perspective as one who was disenfranchised ... the Afrikaans and electronic media ... supported apartheid ... largely [acted as] mouthpieces of the ruling elite, hardly ever [as] the watchdogs," remarked Archbishop Desmond Tutu at the Truth and Reconciliation Commission (TRC) media hearings.

On 30 September 1997, in its submission to the TRC, the ANC noted that:

“Those working in the media were denied certain rights as workers - they were prevented from collectively organising and mobilising. They were also affected as citizens - they were denied the right to freedom of association, freedom of movement and so on. However, they were particularly affected as gatherers and disseminators of information, as apartheid deprived them of a range of basic freedoms. Heavy censorship was applied to all publications and broadcasts throughout the period under review.

“The apartheid state imposed a complex web of legislation, designed to protect itself from exposure and control what people read, heard and saw. This legislation affected the activities of the police, the army, the prisons, the courts, parastatals, the public service and many other state institutions. It restricted the publication or broadcast of Information about the liberation movements; it threw a heavy blanket over entire communities and institutions; it prevented people from being quoted in the media; it gagged an entire nation, and subjected them to the views of a minority...

“During the states of emergency in the mid-80s, as the apartheid state came under increasing pressure from all sides, the regime stepped up its offensive against the media and imposed a virtual black-out on information. The impact of this repressive framework cannot be under-estimated. Control of the media was one of the most important tools in the apartheid arsenal, and a battery of censorship legislation undoubtedly played a role in helping to ensure the survival of the regime - in particular, in ensuring ongoing support from its key constituencies by keeping them in the dark. Individual media workers, and some media institutions, took great risks in their attempts to publish or broadcast the truth.

“Their untiring commitment to seeing that the truth came out played a vital role in bringing about the downfall of the apartheid system. Many media workers were jailed or detained in the course of their duties, and others left the country to escape repression. Several died on duty.

“The African National Congress pays tribute to their efforts, and to the part they played in bringing about democracy in our country. However, we also believe the South African media played other (broader) roles during the apartheid era, and we believe these roles need to be examined. This examination is vital if we are to understand our past, to bring about reconciliation, and to broaden our understanding of basic freedoms. It is also vital if we are to ensure true freedom of expression - including freedom of the media - in our new democracy.”

The ANC further noted that South Africa needs a watchdog media, not a lapdog media. The ANC in its submission believed the TRC can play a significant role in helping us to understand the role of the media in the past, which in turn can shape our understanding of the role of the media in the future.

A very important note to reflect on, as we receive (only) in 2015 an apology from the Naspers after 21 years of our democracy, the ANC in its TRC submission noted:

"Newspapers owned by Afrikaner capital Newspapers published by Afrikaner capital played a similar role to the SABC during the period under review. In particular, they represented the interests of their owners – Afrikaner capital – and played a part in ensuring the survival and growth of that sector of the economy. It championed the interests of a class who believed its very survival depended on apartheid.

“Like the national broadcaster, their agenda was set by the ruling party. Their primary functions was not to publish news and information but to advance the interests of the apartheid state among the core of its supporters – white Afrikaans-speaking people. Unashamedly pro-National Party, they functioned as party mouthpieces unaffected by notions of objectivity and balance. Managers and editors were almost exclusively drawn from the ranks of the Broederbond, with many working in close allegiance with senior National Party leaders. Titles such as Die Burger, Beeld, Rapport and Die Volksblad played a vital role in reinforcing the messages propagated by the SABC, and thereby advancing only the interests of the ruling party: justifying the actions of the, apartheid state (in particular the security establishment) and heatedly opposing the liberation movements.

“These newspapers played a major role in building morale among those white Afrikaners who supported apartheid - for example, by glorifying cross-border raids, and downplaying the successes of sanctions campaigns. These newspapers also assisted in the dangerous ‘demonisation’ of the liberation movements and their leadership, as well as less-effective political formations such as the liberal establishment. This led to increasing polarisation and hatred for people from other race groups. Apart from spreading disinformation, the newspapers of Afrikaner capital also denied South Africans access to other non-official sources of information and opinions. Large chunks of South African life went unreported in these newspapers, leading to increased ignorance and reinforcing the so-called ‘laager mentality’. This denial of information was one of the most important shortcomings of the Afrikaans-language press.

“There are examples of principled media workers who left the Afrikaans press because of dissatisfaction with its approach, or who waged their own struggle for the truth within these institutions; the African National Congress pays tribute to their commitment and resolve. Although this sector has become a process of self-transformation, and has separated itself somewhat from the interests of the National Party, we believe it still has much to answer for because of the role it played in reinforcing apartheid ideology and in shaping the mindset of Afrikaans speaking South Africans…

“Newspapers owned by English capital Owned and controlled by English capital more specifically by the mining magnates, the English-language press advanced the interests of this sector and championed its commitment to these interests.mTo understand this sector, it is worth referring to the recent submission to the TRC by the former Argus Company (now Independent Newspapers), in which the company concedes ‘shortcomings’ in its behaviour during the apartheid era. It makes several concessions, which the African National Congress believes can also be applied to the rest of the English-language press then owned by the mining companies:

- Insufficient effort was made to circumvent restrictions imposed by apartheid and other legislation.

- White perceptions monopolised judgements on the newsworthiness of particular information.

- The contribution of black editorial staff was not recognised.

- A ‘gradualist’ anti-apartheid policy was adopted, leaving the impression that English-language newspapers were colluding with the regime.”

The ANC also noted that the apartheid climate was that of intensive state propaganda and there was insufficient contact with the liberation movements. It then called on these newspapers to reflect honestly on the role they played during the apartheid era, for the sake of themselves and their readers. It noted that one of the greatest shortcomings of the apartheid state-owned and commercial media was its gullible acceptance of “dirty tricks” - its uncritical publication of lies spread by agents of the state.

In 1994, South Africa adopted a democratic legislative framework based on the constitution, protecting freedom of expression including media freedom, promotes access to information, right to communicate, independent regulation, media development and media diversity. Accordingly, a number of institutions were established to realize this, including Independent Communications Authority of SA (ICASA), Media Development and Diversity Agency (MDDA), NEMISA (IKAMVA), SENTECH, MICTSETA, ICT Charter, MAC Charter, etc.

A lot of work has been done by these institutions. In the 21 years of our democracy, the media environment has changed significantly, more so in the broadcasting industry with public, community and commercial/private services, all overseen and regulated by an independent regulator, ICASA over and above the self-regulation by Broadcasting Complaints Committee of SA (BCCSA).

Sadly, little has transformed in the print media across the entire value chain (newsroom, publishing, printing, distribution, research and advertising). This has been confirmed not only by independent research reports, two by the MDDA, one in 2009 and another in 2014, but also by reviews conducted by the industry itself – the Press Freedom Commission, PFC headed by the late former Chief Justice Pius Langa, the Print and Digital Media Transformation Task Team (PDMTTT).

Whilst there is community and small commercial media supported by MDDA, the environment they operate under is not enabling. Largely they rely on the dominant, concentrated media houses for printing, distribution and proving their existence and circulation through Audit Bureau of Circulation (ABC). The ABC is a company established by the concentrated media owners and its board not only is white dominated but is dominated by representatives from the very concentrated media owners.

Worse, regulation of this media is by structures set up and funded by the same concentrated media owners through their body Print Digital Media Southern Africa (PDMSA). Very interestingly, even against the acknowledgement of best practice and globally accepted principle of independent regulation by the PFC, this untransformed print media industry resists independent regulation.

Unbelievably, respected and seasoned editors like recently at the TNA/SABC Breakfast Show (The Big Media debate, Aug 2015), Ms Ferial Haffajee argued you cannot have independent and free media then regulation. This is baseless and cannot be supported by any evidence. I have already proved that in broadcasting, South Africa has independent regulation prescribed by Section 192 of the constitution and we have independent and free broadcasting services licensed by an independent regulator, ICASA.

In March 2012, the late, former Chief Justice Pius Langa and his team of nine persons, who were appointed by Print Media SA and SA National Editors Forum (SANEF) submitted the PFC Report, which supported the principle and need for independent regulation but recommended independent co-regulation as a compromise, a number of governance changes, waiving of the illegal waiver of the complainants right to pursue a legal route on lodging a complaint with the Press Ombudsman, media transformation, content diversification, skills development, media charter, a number of amendments to the Press Code, including:

"Revise the regime of sanctions based on a hierarchy of infractions and their corresponding sanctions, with a scale of ‘space fines’ and ‘monetary fines’.

The PFC report described Independent Co-Regulation as a system involving press and the public in majority. Presenting the PFC report, Chief Justice Langa said:

"To be an effective and responsible regulatory system, this mechanism must manifest administrative fairness and institutional independence from the industry it is to regulate."

Further, PFC recommended a revision of the regime of sanctions and that it must be based on a hierarchy of infractions and their corresponding sanctions. PFC recommended a scale of "space fines" for offenses pertaining to content of the press and "monetary fines" for guilty publications that flout the summons and rulings of the Ombudsman. Recommendations from both the PDMTTT and the PFC have not being fully implemented.

Editors are organised under the SANEF umbrella, a very important organ of the profession, whose representativity is questionable. Not all editors from the biggest broadcaster in the continent, the SABC, and from the fast growing community broadcasting sector are proportionally represented in the Forum. Even with respect to print media, not all editors from some of the new players like The New Age are participating in the Forum. This does not suggest I am questioning its role, I am simply saying our challenge in South Africa, is to ensure we represent fairly our diversity.

Whenever, very important questions are asked in respect to transformation of the media, the hysteric tendency and reaction is to cry a threat to media freedom. Media transformation is not a threat to media freedom, instead the opposite, concentration of media ownership and control in few hands is a real threat to our democracy.

We need a free and diverse media, representative of diverse views and opinions, including class, gender, rural and other perspectives.

The right of the public to a free media is indisputable. It is an essential component of South Africa’s democracy – which depends on informed citizens participating in all aspects of our society. There are many aspects to this – and for the media to play its role, it needs to be trusted and seen as credible by the public. Independent regulation is crucial to this – intended to act in the public interest and provide a means for redress if any publication breaches the fundamental responsibility of journalism – to tell the truth and give all sides of, an equal opportunity to tell their, story.

It is now three years after the press committed to addressing flaws identified in the system of self-regulation in response to the findings of the PFC. If the new system worked, we should be seeing its effects on the pages of newspapers – with a higher commitment and more effort put in to reporting the truth rather than distorting this for a “sensational” headline. The problem is not that the self-regulatory system does not find the media at fault. It does. And papers are regularly ordered to say sorry for their “blunders”.

The PFC, as well as a number of international protocols including the Declaration of Principles on Freedom of Expression in Africa (2002), acknowledge independent regulation mechanism as appropriate for the regulation of journalistic content.  It is also accepted by a number of constitutional dispensations that protect media freedom that regulation ought to be performed through the post-publication administration of complaints and no pre-publication censorship is allowed.

But will a system, that does not affect the bottom line of publishers or the performance bonuses of editors and journalists, ever really ensure that ethics are adhered to?

The danger of not doing this is that the media will increasingly be viewed with scepticism (and the falling circulations of print publications) might be due, in part, at least to their lack of credibility and relevance to readers.

The argument by some in the media, when we talk about ineffectiveness of self- or co-regulation as opposed to independent regulation, is that readers have an option to not buy a newspaper when it loses its credibility, is flawed.

Which newspaper, in our context, will you buy if you decide not to buy our daily or Sunday newspapers?

That argument could work if we had media diversity. Besides, we are saying media must be accountable like everyone and this requirement of accountability was confirmed by the PFC.

Print media though declining, remains powerful. Whilst some readership (except that of TNA Media, community and small commercial media which is reasonable growing) is declining, some broadcasting newsrooms use the newspapers in their diary rooms and in talk shows, as basis of information. Therefore, print media remains powerful and must exercise its freedom and rights responsibly.

Digitisation has led to growing online, mobile and digital media. Business models of our media houses have to adapt and change their business strategies and plan. There remains a market for print media, there are areas in our country (mostly rural) that still do not have access to any newspaper and rely exclusively on radio. People in these areas also do need access to diverse information. Even though some of these areas, at least those with connectivity, have access to social media but their access is limited because of the cost of communication. They have to decide between buying data bundles and bread.

Therefore, they do not have the same access to new media as some of us in Sandton, Eastgate, Tshwane, Cape Town, Ethekwini, Nelson Mandela Metro, etc. So, we should not romanticise the revolution on the internet. We need access to affordable fast speed broadband for all South Africans and the meantime the traditional media remains powerful and must be accountable. Currently, there is no Free Wi-fi everywhere in our country.

The PFC report attempted to bring public interest into the regime of self-regulation. It also recommended ways of discouraging the practice of unethical and gutter journalism which compromises the journalistic profession.

The question is to what extent were its recommendations taken seriously? 

The ANC in its 52nd and 53rd conferences, Polokwane and Mangaung decided that an inquiry/public hearings must be held by the Parliament Portfolio Committee on Communications, reflecting on the PFC Report and investigate the desirability of establishing an independent appeals mechanism, as one way of promoting media accountability mechanism, having regard to the constitution.

The 4th Parliament could not conduct this inquiry but initiated the process and held hearing on media transformation. There has been enough opportunity given to the market (print media sector) to transform. As a historical reality, the market has failed. There is now all the reports and recommendations to guide discussions in Parliament.

The issue for discussion was not about the wording like whether it is called Media Appeals Tribunal (MAT) as other people reacted to the word “tribunal”. Also, the issue was never about state or government control or state regulation or pre-publication censorship or registration of journalists. On the contrary, it has always been about media accountability mechanisms including independent regulation, acknowledgement of other rights like the right to human dignity, privacy, etc., and compliance with the constitution, the law and the Press Code. 

Contrary to misleading information perpetrated by the press, a statutory created system does not mean state or government control. Besides international examples, even here in at home, there is a number of independent bodies created by statutes, like Independent Electoral Commission (IEC), Public Protector, ICASA, IBA, etc.

As part of the above-mentioned parliamentary process and noting the recommendations of the PFC, regard has to be taken as to how do we discourage the compromise of the integrity of the journalism profession; how do we discourage breaching and non-compliance with the constitution, other laws and the Press Code; how do we strengthen self-regulation; how do we ensure that human dignity and rights of the affected are protected by the regulatory system; how do we ensure appeal is through an independent regulatory body, do we impose fines guided by the different tiers in the Press Council Complaints Procedures and how much; do we fire editors and subeditors who preside over the breaching of the Press Code; and generally what needs to be done to protect media freedom FOR ALL, transformation and promotion of media diversity.

Selective implementation of the PFC’s recommendation and the reasons used by the Press Ombudsman in their recent judgements against acting harsh in sanctioning the media including its refusal to prominently mainstream apologies, what should be amended on the Press Code to strengthen its effectiveness?  Of further consideration is whether South Africa should amend the defamation laws for effective regulation in the public interest? The defamatory route could be a quick fix that could impose effective remedies including fines. What else can be done to strengthen print media independent regulation, of cause within the framework of the constitution?

Yes, and no doubt, we need freedom of expression and we must protect it, but this right is for all South Africans, not a few. Diverse media is critical and transformation of our media landscape is non-negotiable.

As the citizenry and the media industry, we need to have a dialogue and a conversation on these matters in the public interest and prescribe a system that promotes trust in the media – and therefore reinforces and protects freedom of expression, media freedom but also respect all other rights enshrined in our constitution. Our media must be free, independent, diverse, be vibrant, investigate and report wrongs and corruption, but all must be done within the four corners of the law. We need factual, accurate, correct and truthful reporting.

The media should recognise the importance of dispassionately reflecting on and evaluating their actions. As individual media workers and other employees come forward with their own testimony, we must welcome these and start mapping a way forward for a future of free, independent and accountable media overseen by strong independent regulator, with acceptable consequences for non-compliance with the Press Code and the applicable Code of Conduct.

There is now, more than ever before, an urgent need for all South African media institutions to probe their past and to come forward to establish the truth, promote reconciliation and nation building, consider all recommendations from the COMTASK, PFC, PDMTTT, MDDA, GCIS-Media Landscape, etc., towards the strengthening of the basic media freedoms for all and bring back the integrity of the profession.

Arising out of Parliament’s expected inquiry, should be clear interventions in respect of media accountability mechanisms and transformation.

Mr Lumko Mtimde is ICT, media and broadcasting policy and regulatory expert

This article first appeared in Umsebenzi Online, the online journal of the SACP.