It is increasingly rare to have judges, party officials, members of Parliament and people on the street agree about anything, but here’s an emerging, and unsettling, conventional wisdom: when in doubt, blame it on the media.
Recently, the Constitutional Court in NM vs Smith considered the legal responsibility of the media for the disclosure of private individuals’ HIV/Aids status. While the majority of the court dodged the difficult issue of whether and how to extend the common law to deal with media defendants, the concurring and dissenting judgements signal that this issue is something the court will eventually have to decide.
In determining the balance of constitutional rights, Judges Kate O’Regan and Pius Langa argued, the judiciary needs to take into account the differential social power of the media. The media, O’Regan stated, are ”not only bearers of rights under our constitutional order, but also bearers of obligations”.
It should be noted that there is nothing in the Constitution to suggest that the media bears any constitutional (as opposed to statutory or even moral) obligations. The issue is whether it should be left up to judges, in the absence of any express constitutional allusion to the media as an independent agent, to decide the appropriate role of the media and to constrain its freedoms based on that changing evaluation.
Recent cases suggest that the judiciary is limiting the scope of free expression rights based on its perception that the media is not playing an appropriate role. In the SABC case, the public broadcaster proposed dedicating considerable resources to live, unedited coverage of Schabir Shaik’s appeal. The majority of the Constitutional Court, in its judgement last September, expressed an abiding fear of the media’s apparent tendency to ”distort” the character of judicial proceedings and ruled against the SABC.
Similarly, in Sandi Majali’s case, the Johannesburg High Court issued an interdict restraining the Mail & Guardian from publishing further information relating to R11-million of public money that was allegedly diverted to the ANC from PetroSA before the 2004 elections. As the paper refused to disclose its sources, the judge assumed that information had been gathered unlawfully and stated ”I’m not satisfied that [the M&G] acted as responsibly as the Constitution requires them to. Their conduct should be condemned”.
In its recent discussion document on media transformation, the ANC argued that media concentration has led to simplified analysis, a herd mentality and homogenised sound bites that reflect a narrow world view of elite-class interests. As a result, the authors suggest, the media is failing in its responsibility to support change. ÂÂ
The perceived failure of the press to fulfil a positive social role has also motivated legislative action and proposed regulation. The Film and Publications Amendment Bill would subject the press to pre-publication screening to protect children from any ”harmful, disturbing or inappropriate” material. The Bill’s statutory limitations on press freedom are necessary, so the argument goes, because the media is currently unaccountable to the government for ethical breaches and inappropriate conduct.
Uniting the ANC, the legislature and the various judicial decisions sketched here is za conception of the media as a powerful force whose freedom should be constrained by its obligation to support the transformational goals of the Constitution. Though apparently innocuous, such an insistence on formulating constitutional obligations for the media can lead to the pernicious notion that press freedom should be dependent on whether reporters and editors are perceived as fulfilling their duties.
But this turns things on their head. The Constitution protects ”freedom of the press and other media”, not ”freedom of a responsible and purely civic-minded press and other media”.
In a competitive media environment in open societies, it is inevitable that the quality of coverage will range from perceptive and responsible to inadequate and irresponsible. In a democracy, the constitutional rights of the media should be protected regardless of governmental approval of the media’s performance at any given time.
Paradoxically, the imposition of constitutional obligations may lead to worse, rather than improved, news coverage. When judges argue that the media should be liable for damages unless it can establish that it acted ”in an objectively appropriate fashion” in furthering constitutional goals (NM), rejecting efforts to extend comprehensive coverage of court proceedings (SABC), and inhibiting the ability of journalists to expose dubious political practices (Majali), the net effect, because of the costs of responsible reporting and the burden of litigation and potential damages, will be to drive out important news in place of more dependably profitable and less enterprising coverage.
In this sense, the fear of a socially irresponsible press could well become a self-fulfilling prophecy.
Jacob Foster is a law clerk to Justice Edwin Cameron, Supreme Court of Appeal. A longer version of this article appears in Vol 22 No 4 of the South African Journal of Human Rights