Almost unnoticed amid the sound and fury of the leadership fight at the ANC’s Polokwane conference, the party ÂÂfleshed out its proposal for a media tribunal to keep journalists in check.
A policy conference last June first raised the idea in a brief reference calling for an investigation into media self-regulation and the desirability of establishing a tribunal.
The December resolution adds ÂÂsignificant detail. The proposed body has been given a name, the Media Appeals Tribunal (MAT); it would be statutory and answerable to Parliament, and seems intended to act as a channel for appeals against decisions by the Press Ombudsman.
Possibly in response to widespread criticism of the idea, the resolution says ”the creation of a MAT would strengthen, complement and support the current self-regulatory institutions (Press Ombudsman/Press Council) in the public interest”.
The resolution makes these proposals after a ritual affirmation of support for media freedom — but defines this in a very particular way. It says: ”The right to freedom of expression should not be elevated above other equally important rights such as the right to privacy and, more important, rights and values such as human dignity.”
In some other jurisdictions, such as the United States, freedom of speech is seen as a pre-eminent right. Our Constitutional Court has taken a different view, arguing that it needs to be balanced against other rights on a case-by-case basis.
The ANC is now proposing that freedom of speech would drop below other rights — a view clearly at odds with the Constitution.
The party can’t have it both ways: media freedom is incompatible with a statutory body that has authority over what journalists write. If an organ of state can sit in judgement over the media, they are no longer free. A tribunal would not ”complement and support” self-regulation; it would kill the principle.
Internationally, self-regulation is the ”gold standard” of media regimes. Not just a European concept, it is supported by the African Union’s commission on human rights. It’s one of those touchstone issues that determine whether a country can call itself democratic.
Rhodes University professor Guy Berger recently called it a sweet spot between ”the extremes of state-ÂÂregulation at one pole and a free-for-all at the other”.
There are practical advantages too: systems like the one operated by the SA Press Council and its ombudsman deal with complaints without lawyers, and their emphasis on finding solutions through mediation makes them far quicker, cheaper — and therefore more accessible — than the courts, for instance.
A series of journalistic scandals in Britain last year led to the House of Commons investigating the system of self-regulation. The incidents included the conviction of the royal editor of the News of the World, Clive Goodman, for tapping into voicemail messages left for members of the royal family, as well as the hounding of a girlfriend of Prince William.
The incidents brought forth calls for statutory control. Then prime minister Tony Blair said the media could sometimes act like a ”feral beast”. Intense competition in a fragmented market was causing the media to value impact above all else. The existing regulatory regime might need review, he said.
But the Commons commission came down against the idea: ”We continue to believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy.”
It did, however, have some harsh words for editors who it felt were complacent about excesses committed by their staff, and said the Press Complaints Commission could have been more proactive. To survive, self-regulation has to be shown to work effectively, the MPs argued.
The ANC’s argument is that an institution hired and paid by the media can’t be expected to act against them. Of course, there may be a temptation to be soft on colleagues, and certainly the South African institution’s history is one where it was used by the media to fend off control by the apartheid state.
But that temptation should be resisted. Public support must be earned through an unflinching ÂÂwillingness to act when journalists get it wrong.
The Press Ombudsman’s office has recently been restructured, and has a new incumbent in the person of widely respected veteran Joe Thloloe. There may be arguments for further reforms: ideas mooted include introducing the power to fine, and allowing the Press Ombudsman to take steps proactively, without a formal complaint being laid.
But the ANC idea of a statutory appeals tribunal is simply a bad one. The quicker it is laid to rest, the better.
The Mail & Guardian’s ombud provides an independent view of the paper’s journalism. If you have any complaints you would like addressed, you can contact Krüger at [email protected] or call 011 250 7300 and leave a message. Krüger is also a member of the appeals panel of the industry-wide press ombudsman