There are three moves afoot that add up to a reduced role for autonomous institutions in the communications arena. Should we be worried?
- A proposed change to the Film and Publications Act downgrades the role of two self-regulatory media bodies as well as the Independent Communications Authority of South Africa (Icasa).
- Icasa councillors are now being appointed and managed in a way that diminishes their extant independence.
- The imminent liberalising effect of the Electronic Communications Act will radically shrink Icasa’s role in relation to the marketplace.
As regards the Film and Publications Act, the changes seek to scrap an existing provision that has exempted the news media from censorship.
The targeted clause explicitly frees up both the print news industry and Icasa-licensed broadcasters, so that they can communicate without needing either advance or retrospective clearance.
For print media, the exemption is on the basis of industry self-regulation through the press ombudsman. For their part, broadcasters have had their self-regulatory body — the Broadcasting Complaints Commission of South Africa (BCCSA). Plus, as part of their licence conditions, they have also fallen under a code of conduct from Icasa — which body would be marginalised by the amendment.
The government will argue that the changed law would still allow for exemptions, which would be applied to the news media.
Indeed, it is not the case that the relevant media are trafficking in child pornography, so it’s unlikely that the proposed amendment (if it withstands constitutional challenge), would be used against news media in the short term.
But there will be much less protection against possible political censorship at some future point. The point is that instead of exempted names being fixed in law, it will be an administrative decision as to who is eligible.
The total effect is to render tenuous the existing regulatory role of non-governmental institutions, putting them under the shadow of the government-appointed Film and Publications Board.
Councillors
The second development reducing the power of a non-governmental institution concerns the councillors who run the regulator. The Icasa Amendment Act that came into effect last month increases government power in this area.
Accordingly, Parliament in the next few weeks must now put forward not just five names for the current five vacancies, as would have been the case previously, but one-and-a-half times that number. Thus, while the government previously could only veto or accept, now it can pick and choose.
What’s also new is that the minister of communications — distinct from the president, previously — is the office that makes the choice. This means that the Department of Communications — a stakeholder with direct interests in ”players” like Telkom — now picks the people who will constitute the licensing ”referee”.
In contrast, the Presidency (qua-office) has less of a direct conflict of interest. This principle is why in some other countries, a ministry different to that of communications is appointed as line authority over the regulator.
Also, the Presidency has also shown that it brings different considerations to those of the department — such as keeping sight of constitutionalism. It is exactly on this basis that earlier this year President Thabo Mbeki directed Parliament to revise the Icasa Amendment Act. (The problematic version of the law originated with the department and was probably unconstitutional.)
With the president’s role now gone, there is one less check-and-balance in the system. Meanwhile, the law introduces the power of the minister to ”performance manage” the councillors. Add it up: there is a reduction in the autonomy of Icasa vis-à-vis the government.
The third area of concern is the prospect of cut-back power of Icasa in relation to the marketplace. This comes from the Electronic Communications Act, which removes the ability of the regulator to set priorities proactively.
Until now, the regulator could put its stamp on the broadcast landscape as a whole. For example, last year it initiated a new round of commercial radio licences and competition in subscription TV. In the early days, it prioritised community radio over commercial.
Under the Electronic Communications Act, Icasa now has to respond — within 60 days — to whomever comes knocking with a proposal for a local class licence. Many of the mobilised industry players will be happy with this.
But for the public, it means curtailing Icasa’s ability to decide strategic priorities independently on the basis of government policy and its own analysis of social needs and economic sustainability.
In all three cases, there is, in effect, a vote of no confidence in existing institutions. The new developments diminish their functioning. In turn, that dispenses with the full wisdom and autonomous contributions made to date by the press ombudsman, the BCCSA and Icasa. Can the government and the market, working alone, do a better job? I don’t think so.