Question
Dinesh Naidoo: We read often about media ethics, and that some journalist or other has “broken every rule in the book” on some or other story. Why doesn’t something get done about it? Why aren’t these people taken to court?
Answer
Anton Alberts: Dinesh, the profession of journalism is not a highly regulated one unlike like that of lawyers, accountants and engineers. No legislation currently exists that regulates the journalistic profession specifically. This means that any person may become a journalist, even without any formal training. However, this does not mean that a journalist can just write anything it wants to. Certain constraints do exist. The most salient are as follows:
Editorial policy
Most publications adhere to an editorial policy and some have even subjugated themselves to industry wide codes of conduct or editorial principles. Any journalist in breach of these policies may be dealt with by the editor, either in terms of the labour legislation in the case of an employee, or contractually if the person is a freelance journalist.
Ombudsman
In addition, some publications have appointed an in-house ombudsman to consider complaints or have subscribed to an industry-wide self-regulatory ombudsman (like the South African Press Ombudsman) that can respectively mete out appropriate sanctions where the in-house or industry code, as the case may be, has been violated.
Constitution
The Bill of Rights enshrines the right of the journalist to express herself by virtue of Section 16: the right to freedom of expression. However, this right can be curtailed by other rights as follows:
Bill of Rights:
All other rights in the Bill, like the right to privacy, the right to dignity etc are treated on an equal footing. The Constitutional Court has confirmed that no hierarchy of rights exist in the Bill of Rights. This means that when these rights come into conflict, they must be balanced off against each within the parameters of Section 36. This may result in the compromise of a right in certain circumstances.
Common Law:
The common law also provides support to the Bill of Rights by protecting interests, like privacy, integrity, reputation etc. This means a journalist can be sued if she transgressed the boundaries of journalistic space by making unfounded defamatory statements or invaded the privacy of a person without just cause.
However, as the rights enshrined in the Constitution are very new, they currently tend to have a vague character and the interpretation thereof is left to the courts. Certain cases have brought more certainty as to the boundaries of journalistic space. The most recent case was that of Tshabalala-Msimang v Sunday Times 2007, the court ruled as follows with regard to the journalistic space:
- A public figure, like a minister, shall enjoy less protection than a normal member of the public;
- However, one must draw a distinction between investigating a public figure’s activities as they pertain to her public office and her personal life that is not related to her position in the public eye. Jjust because one is a public figure does not mean that every aspect of one’s life is open to scrutiny.
Advocate Anton Alberts runs a certificate course in Entertainment Law at the University of Johannesburg. This is the only course of its kind in South Africa. Courses are run in Johannesburg in Cape Town twice annually. The next course in Jhb will every Wednesday evening from 3 October to 21 November. For more information, contact [email protected] or Ms Corrie Hasse at UJ on 011 559-2037; [email protected].