The ferocious nature of the debate about the ANC’s decision to ask Parliament to investigate the possibility of a statutory media appeals tribunal should be welcomed as an unavoidable development in a maturing democracy.
The significance of this debate, however, is constrained by a heightened level of distrust between the tribunal’s supporters and those who are opposed to the idea.
Since the ANC national general council does not intend to repeal or amend the decision of the Polokwane conference, it becomes necessary to shift the debate to specific issues. Even in the absence of similar international precedents, South Africa can create a balanced remedial mechanism within the ambit of the Constitution.
All options presented thus far deserve further interrogation as a way to reach amicable consensus, possibly even before the mooted parliamentary investigation. Achieving consensus on this sensitive matter without resorting to the courts should be the goal of the ensuing public discourse. Any outcome short of that may be of great detriment to efforts to create a democratic and just society as set out in the Constitution.
Concerns with the current self-regulatory institutions largely revolve around their mandate, effectiveness and independence from Print Media South Africa (PMSA). First, the lack of public participation in the development of the code of conduct and other instruments used by the press council and the press ombudsman gives rise to perceptions of the media opting for lesser sanctions disproportionate to the reputational damage caused to individuals and entities.
Irrespective of the reasons behind the absence of public engagement on the code, more impetus will be required to legitimise the process of developing the press code.
In broadcasting the self-regulatory body also draws its legitimacy by submitting its code of conduct to the communications regulator to ensure it is aligned with the regulatory code of conduct, which is developed through a public process in terms of national law.
Even if the press council retains the function to develop the code of conduct, it will still be necessary to engage the public to address concerns. Public engagement also lends credibility to powerful private institutions, especially when it comes to balancing constitutional rights.
This intervention will undoubtedly also allay fears regarding the arm’s-length relationship between the press ombudsman and the mainstream media. At present the ombud is seen as an integral part of the PMSA, a view exacerbated by the co-location of the two institutions in the same premises, owned by the latter. Locating the press ombudsman outside the premises of the PMSA is one endeavour that could add value to the transformation effort.
Any public process to amend or develop the code of conduct will, unavoidably, also need to discuss the penalties imposed by the press ombudsman as well as its turnaround period of decision-making. The existing practice of imposing corrective actions only in the form of retractions in the less significant sections of the newspapers runs short of meeting the media’s fiduciary role to promote the rights of others. There is usually a big chasm between offending newspaper articles and the apologies issued by the media.
Empowering the press ombudsman to impose commensurate monetary fines will not only enhance its image and effectiveness, it will also ensure that those who are wronged receive proportionate remedies, thus striking the necessary balance between the rights of the media and those of other stakeholders. Furthermore, at the substantive level, there is a need to evaluate whether the ombudsman is best placed to deal with appeals related to its own decisions, another concern behind the call for a media appeals tribunal. A balanced human rights culture is at the centre of South Africa’s transition from apartheid to democracy.
And judging from the unfolding debate, it has become necessary for all stakeholders to consider a separate institution to deal with appeals, taking into account constitutional sensitivities that may arise as a result.
Such an appeals institution will need to work within the same framework that guides the self-regulatory institutions. It will be inconceivable for two institutions to deal with the same issue, yet work on different frames of reference. It is the lack of clarity on the complementary nature of this relationship that gives rise to the outright dismissal of the debate in the mainstream media. A single frame of reference will ensure consistency in decision-making, especially as it relates to imposing remedies, which should not include arresting journalists or the precensorship of articles.
This option becomes credible once the code of conduct underpinning the work of the ombudsman is subjected to public consultation, taking more or less the same approach used by the communications regulator to consult the industry and the public.
A reasonable period will be required to solicit public input, including, where necessary, public hearings to further lend credibility.
And given the new powers of the press ombudsman, the same appeal mechanism could also be used by the media to appeal against ombud rulings. More than being a detour from the existing establishment, a constitutionally sound appeal mechanism should be structured to coexist with the rejuvenated press ombudsman.
Parliament can largely make interventions related to appointing members of the appeal body; it can act to enhance public participation, which is currently tilted in favour of the established media houses. This limited role of Parliament is premised on tangible efforts being made to capacitate the press ombudsman to impose proportionate remedies.
Various options will also need to be considered to enhance the credibility of the institutional make-up of the appeal body; this may include setting aside some positions on the appeal structure for direct secondment by affected stakeholders.
A more lean but focused structure could help shorten the appeal process, ensuring that remedies are imposed within a reasonable period. In turn, this will allow the media and the affected citizens to seek further recourse through the courts if they are not satisfied with the rulings of the appeal institution.
Robert Nkuna is an Icasa councillor. He writes in his personal capacity