/ 11 February 2008

A democracy of untouchables?

The debate about a proposed media appeal tribunal should not be reduced to a love and hate relationship between the media and politicians. Instead, it should continue to focus on the role of different societal actors, including the media, in defending their own and each others’ rights.

More specifically, it should raise questions about how different societal participants enjoy their human rights without trampling on the equally important rights enjoyed by others. I speak of the rights to privacy, dignity and equality. This selfish approach to human rights has a potential to undermine the hard-won liberation for which many sacrificed their lives.

Without derogating from the provision of section 36 of the Constitution, known as the limitation clause, which mandates the courts to adjudicate conflicts between rights, society has a responsibility and is within its right to engage on how best to engrave a new human rights culture that gives meaning to the text of the Constitution.

An ex-ante mechanism that encourages a proactive engagement between the media and society is preferred as an intermediary process to resolve issues before they reach the courts. Indeed, for it to be effective, such a mechanism should enjoy unlimited public confidence.

Society should evaluate the extent to which the media’s exercise of its rights to freedom of expression and that of the press impacts on the rights of other South Africans. In addition, the discussion should focus on the ability of the existing self-regulatory institutions to defend the rights of others in society.

In dealing with the first issue, we must frankly assess whether the media’s use of public interest, as the basis of publishing information about individuals, has potential to impinge on the rights of others.

This unfettered discretion has given rise to a view that certain citizens have no rights because of their public positions. In the name of promoting public interest, the media has a right to invade the privacy of individuals, even in areas which have nothing to do with responsibilities that make such individuals public figures.

Almost overnight, the notion of public interest has been elevated above other rights, which is a departure from the spirit and letter of section 36 of the Constitution, which holds that there is no right that is beyond reproach.

Over the years the print media, through the Press Council, has sought to alleviate public concerns by making transparent the appointment procedures of the Press Ombudsman and its appeal institutions, while leaving the development of codes of conduct and penalties a closed affair. Because of this, the Press Ombudsman is seen to operate with disregard for the rights of others, hence questions are raised about its suitability as a tool to protect human rights. The absence of substantive public consultation on the actual self-regulatory framework also gives rise to a notion of ”showcase”, where the public is only consulted to validate existing decisions of the Press Council.

Shouldn’t the print media take a page from the broadcast sector, where state-regulated and self-regulated systems coexist?

Since the early days of the Independent Broadcasting Authority, the industry-driven BCCSA has been allowed to exist side by side with the authority’s broadcasting monitoring and complaints committee, which was recently transformed into a tighter regime in the form of the complaints and compliance committee.

The existence of an industry self-regulatory mechanism did not diminish the continued significance of a public process under the Independent Communications Authority of South Africa, which replaced the IBA. In terms of the law governing broadcasting, the authority allows the BCCSA to hear and adjudicate cases without interference.

Public certainty and confidence in the broadcast self-regulatory institutions has also been enhanced by the synergy between the code of conduct of the BCCSA and the public code of conduct developed by the authority after consultation with the media and the rest of society, as set out in law.

Broadcasters are also required, as part of their licence conditions, to regularly inform the public, between programmes, about the BCCSA, including providing its contact details. This has allowed the public to seek corrections or redress through a simple, accessible mechanism.

Various options need to be considered to create a more transparent and effective self-regulatory system in the print media sector. One possibility could entail working through the existing institutions by allowing more public participation in the development of codes and penalties, in addition to the current transparent processes of appointing governance structures.

Should a statutory approach be preferred, a unique mechanism will be required to create a transparent arms-length relationship between government and the appeal institutions.

Print media, as a key player in the unfolding democratic discourse, should allow other societal actors to reflect on the role of the media, to avoid creating a one-sided democracy of untouchables. Debates around the role of the media should be encouraged and fought with reasoned arguments, as opposed to cartoons, spite and innuendo, which are hallmarks of some of the responses from the media to differing arguments.

Robert Nkuna is a councillor at the Independent Communications Authority of South Africa. He writes in his personal capacity