Four lessons on the media tribunal

If the African National Congress should have learnt anything from the dampening of debate during the Thabo Mbeki era, it is this: South Africa needs a free media.

Everyone, each ANC tendency included, needs a space where news that is officially out-of-favour is free to try its luck within the arena of public opinion.

Yet with some ANC people resurrecting the idea of a statutory media tribunal to control the press, it seems this lesson is not yet internalised.

So, let’s put it baldly: whichever political tendency rules will use a tribunal to halt bad publicity about it—including anything that benefits rival tendencies within the same party. You’d be naïve to think that politics doesn’t work like that.

Now, the current rulers don’t like the news about their official cars and their hotel stays. But start suppressing this news, and the silencing won’t stop there. In this way, the controls could come back to haunt the people who are currently unhappy about coverage.

So the first lesson for those in power is: think about a future where you could be shut out of public discourse by a tribunal - which you yourselves erected but which falls into the hands of a different tendency. Don’t create this Frankenstein.

A second lesson stands out in regard to the misconception that the tribunal is a legitimate weapon against “counter-revolutionary forces” which purportedly include the press.

The position wilfully ignores that there’s massive ideological contestation within the ANC—which benefits from vibrant public outlets. Even more, falls short of the democratic principle of winning popular support through persuasion, rather than wielding state power to circumscribe public dialogue. Simply, a democracy means you don’t counter ideology with force.

A third lesson lies in the mistaken ANC claim that, as things stand, the public has little redress in the event of unfair treatment by the press.

This position views the existing Press Ombudsman and Press Council as stacked in favour of the press, and as disadvantageous to complainants who can’t afford a lawyer.

It errs by missing the facts that final say in this system is by a retired judge, not a press person, and that half the members of the council are from the public, not the press.

If the Press Council was indeed compromised, the ANC and government would never have won a number of cases that they themselves took to the council over the past year, and where offending publications have had to publish corrections.

The same council is indeed supposed to work as a low-cost alternative to expensive recourse to the courts, and usually it does operate without armies of lawyers.

If anyone would like to have a lawyer at the council, or at a court case if they chose to go that route rather than use the council, then the solution is not a statutory tribunal. It is simply expanded access to the Legal Aid Board.

There’s a fourth lesson, particularly apposite to the Minister of Higher Education Blade Nzimande. He says the tribunal is needed because the press as a powerful social institution needs to be accountable.

Supporting his view, some ANC people argue that if broadcasters are subject to the statutory power of the Independent Communications Authority of South Africa (Icasa), why shouldn’t newspapers have a similar system?

This is a false comparison because it ignores that broadcasters use a finite public resource—namely, the airwaves. Precisely because there are limited frequencies available, democracies worldwide are generally agreed that it is fair to impose conditions on radio and TV stations.

There’s no such finite limit with regard to printing, nor with regard to the Internet. So worldwide the laws that apply to them are not prescriptive, as in broadcasting. For instance, broadcasters have strict rules for fair coverage during elections; newspapers are free to be partisan towards a party of their choice.

Meantime the press is accountable to the general law. For example, it may not publish hate speech and nor may it defame or diminish anyone’s dignity unless the information is true and in the public interest. Most newspapers also subscribe to the Press Code of Conduct, and are therefore accountable to the Press Council system which uses this yardstick to ensure ethical journalism.

The Nzimande position overlooks these accountabilities. But more seriously it misunderstands that, as regards the rights to free speech and media freedom, a democracy always puts freedom first, and accountability second.

As in the South African constitution, these rights are the norm. Limitations (such as hate speech) are the exceptions.

In other words, within the parameters of the law, the Press Council and the Press Code of Conduct, neither the citizenry nor the media have to account to anyone for what they choose to make public. We’re completely free within these limits— until a statutory tribunal intrudes.

These four lessons rest on a fundamental premise: you can’t increase state power over what may be published and still argue that your country has media freedom.

* This column is made possible by support from fesmedia Africa, the Media Project of the Friedrich-Ebert-Stiftung in Africa, www.fesmedia.org. The views expressed in it are those of the author.

Disclosure: the author is head of the School of Journalism and Media Studies at Rhodes University which hosted the WJEC.

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