/ 5 March 2008

The wrong page for the media

I am shocked to learn from ”A democracy of untouchables” (February 8) that Independent Communications Authority of South Africa (Icasa) councillor Robert Nkuna was involved in drafting the African National Congress’s (ANC) proposal for a print-media tribunal.

The very fact of his involvement in writing policy for the ruling party (as ”a deployed cadre”!) is unacceptable when he is supposed to be an impartial member of a Chapter 9 constitutional body sworn to free speech and independence from the government. I don’t accept that he can be ”deployed” in his ”personal capacity” and simultaneously maintain an appropriately detached state of mind as a councillor.

His work for the ruling party is all the more problematic when it betrays an inability to understand the terms of Icasa’s constitutional mandate or the misapplication of that mandate. If an Icasa councillor cannot see the explicitly defined constitutional difference between the section 192 regulation of broadcasting and the free-speech rights of the private media under Section 16, he can hardly understand his job — or he is using Icasa’s standing to advance an unconstitutional proposition.

He asks: ”Shouldn’t the print media take a page from the broadcast sector, where state-regulated and self-regulated systems co-exist?” The answer is no, absolutely not.

Broadcasters are licensed and regulated for diversity because there is not enough frequency for every entrepreneur to set up a radio or TV station. Those who do get a licence are required to feature diverse voices and views, and to follow fairness rules in the interests of democracy and pluralism. That is the constitutional justification for regulation. Now that we are digitising, frequency will be less scarce, and Nkuna should be applying his mind to diminishing regulation in broadcasting — not introducing it for print, where there is no constitutional or practical justification!

This has been pointed out before, when the ANC released the September version of its new media proposals. And the ANC in fact stopped citing diversity as a justification for the media appeals tribunal after its initial, often near-comical casting about for respectable reasons for the creation of a body it actually wants simply in order to control newspapers. (It tried last year, remember, to introduce pre-publication censorship through the Film and Publications Board, but had to back down in respect of newspapers.)

The argument has now narrowed to the proposition that print is abusing media freedom to infringe rights of dignity, privacy and equality. But the courts are the appropriate and properly qualified place to weigh these rights. Defamation law exists to resolve conflicts between free speech and dignity, which encompasses reputation and personality.

It is nonsense to say, as Nkuna does, that ”almost overnight the notion of public interest has been elevated above other rights”. Truth and public benefit have always been a defence in defamation cases and our courts have astutely developed the law of defamation under the Constitution. The health minister never sued the Sunday Times for defamation. She never denied the truth of its reports. She did not even sue for damages. She had no case. Judge Mohammed Jajbay was not ”overnight” inventing the notion of public interest when he ruled that it was relevant in this case, while cautioning against invasion of privacy.

Nor is defamation action the only mechanism in place. Injuria, whether civil or criminal, is available. And as for equality, we already have media tribunals: the two provisions of the Equality Act of 2000, which deal with publication, turn these quick-fix courts into arbiters of a hopelessly diluted version of hate speech — which now amounts to little more than injuria.

But the systematic erosion of free speech under Acts like these is not enough for the ANC. It is not enough that the Supreme Court of Appeal decided that politicians do not have to sacrifice their personality rights when entering public life, but that they do have to be more resilient than private citizens.

The ANC wants to write the print code of conduct to give Manto Tshabalala-Msimang a case, and Tony Yengeni a case, and Jacob Zuma all the cases he might ever need. No doubt the code will follow the Dali Mpofu doctrine: the South African Broadcasting Corporation CEO claims a constitutional basis (dignity) for avoiding disrespectful stories.

As in broadcasting, the ANC wants to be able to impose remedies, to take the place of the courts. It sketches a scenario in which the statutory complaints body’s independence will be secured, and now suggests the tribunal would take complaints from the public, as in broadcasting.

But the power to lodge complaints will be widened to the government in less time than it took the ANC to amend the original Film and Publications Act of 1996. And as for a parliamentary appointment process to secure independent ”official ombuds” — Nkuna turns out to be a party deployee, doesn’t he?

Dene Smuts is a Democratic Alliance MP and the party’s spokesperson on communications