The state should only use public funds to put its view across if the media fails to do so, says Jacques du Preez.
Does the media publish incomplete government communications because the information contained therein is inaccurate or misleading, or because the media is too subjective in its reporting?
In the case of the former, the government has no right to present inaccurate or twisted facts by means of advertisements, using taxpayer money. In the case of the latter, the media has the obligation to publish honest and accurate communications from the government without selective editing. This will ensure that the government has no excuse to use taxpayer money to buy advertising space for a message that could have been communicated through a media statement.
A clear example of this issue was illustrated by an advertisement placed by the department of basic education in response to what became known as the Limpopo textbook scandal – the department's failure to deliver textbooks to pupils for the 2012 academic year. Despite many claims by the department and its minister, Angie Motshekga, a governmental investigation of the matter, culminating in the Metcalfe report, found that the department had delivered only 15% of the books by July 3 2012 – halfway into the academic year. But the department consistently claimed that 98% had been delivered.
When the full extent of the problem was exposed by the media, the education lobby group, Section27, challenged the department in court for failing to deliver textbooks and, as such, for failing to give effect to the constitutional right to education. After the department failed to comply with the ruling, Section27 took it back to court again in September 2012. The North Gauteng High Court then ordered the department to file an affidavit on October 31 2012, which it did, detailing the steps taken to ensure the proper delivery of textbooks.
On October 5 2012, the department published an advertisement in response to the court order, titled "Facts about the Limpopo textbooks high court ruling: Don't be misled", in several Sunday newspapers. The advertisements were in full colour and cost the department an estimated R900 000.
Perhaps the cost, and the manner in which the department put forward the advertisement, was aggravated by the fact that the auditor general found that the provincial education departments wasted R167-million in the 2011 financial year, despite failing dismally to achieve set targets. The auditor general also found that, of all the departments, Limpopo accounted for most of the total wasted expenditure.
Perceived non-delivery of grade 10 textbooks
The placing of this advertisement raises two important points:
First, the advertisement may have breached two provisions of the Advertising Standards Authority's advertising code, namely section 2.2 (honesty) and section 220.127.116.11 (misleading claims).
These sections make it clear that "advertisements should not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge or his credulity" and "advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer".
The advertisement read: "The department of education wishes to state that the decision by Section27 to litigate on the perceived non-delivery of grade 10 textbooks, which were reported as shortages by schools in Limpopo, was unnecessary and a waste of valuable time and resources."
It was argued by several commentators that, when the department referred to the "perceived non-delivery of grade 10 textbooks" and the "so-called failure of the department to meet the delivery targets", it was misleading the public. The reason for this was that the department not only implied that the failure of the department to deliver and meet targets was merely a perception but it also seriously contradicted itself by stating in the same advertisement that it "conceded to the court that a percentage of grade 10 textbooks was still to be delivered to schools and that the department would complete these outstanding deliveries by October 12 2012".
In the advertisement, the department maintained that the court did not find that it was at fault. "In fact, the court did not attribute fault to the department for the incomplete nature of the delivery of books to Limpopo. The court indeed accepted that it was not the fault of the department."
But the court never stated that there was no fault on the part of the department. Rather it made no finding as to fault. The nondelivery of textbooks by the department and consequent failure to meet deadlines is precisely why the court granted the third order to impose the new deadline for delivery.
Secondly, the department ought to have considered the consequences of placing an advertisement rather than issuing a press release. If the media is providing an objective and unbiased platform, it is unacceptable for the government to place misleading advertisements containing inaccurate facts, as was done by the department. And it is unacceptable for the government to use taxpayer money to pay for an advertisement when the information could have been conveyed by a media statement.
Conversely, if the media is subjective or piecemeal in its approach, it could be argued that it would then be understandable for government to choose alternative channels, such as advertisements, to air its views: but then the facts contained therein must be true and accurate.
This raises the question: if the government communicates, why doesn't the media publish its press releases? Is it because the media is biased, or because the facts provided by government are wrong or misleading? If the media is biased, the government is probably justified in advertising. But, if the facts are incorrect or misleading, using taxpayer money to place advertisements is not acceptable.
Jacques du Preez is an advocate at the Centre for Constitutional Rights, a unit of the FW de Klerk Foundation