Freedom is freedom of speech

As expected, the African National Congress (ANC) has now decided that Parliament should investigate the proposal for a media appeals tribunal.

Among other things, it is being asked to look at “best international practice”.

It will find that self-regulatory systems of the kind currently in place in South Africa are the international standard and they sit squarely in the middle of the spectrum of possible arrangements. They are not, as some seem to think, on the liberal edge.

On the one extreme, there is the kind of strict state control that exists in Zimbabwe, where journalists need a licence and can be barred from working, or jailed, if their work displeases the authorities.

On the other end of the spectrum, there are countries like France and the United States, where much more fundamentalist views of media freedom reign supreme.

In the US a self-regulatory National News Council was established in 19 73 in the teeth of strong opposition from major sectors of the media.

These included such pillars of the media establishment as the Washington Post and New York Times, the then editor of which, Abe Rosenthal, declared: “I am against regulation of the press, including selfregulation, except within each individual newspaper or broadcast station.”

The council struggled on for some years, but ultimately shut up shop in 19 84, defeated by the lack of support from the media themselves.

Most of the world lives with arrangements that fall somewhere between those of the US and Zimbabwe.

According to a review conducted for the New Zealand Press Council in 20 07 press councils are found in 87 countries.

Of these 86% are self-regulatory, meaning they are voluntary bodies set up and run by the media without any state involvement.

In Southern Africa, Namibia recently joined the club of countries with such structures. Others include Uganda, Botswana, Tanzania and Malawi.

The existing arrangements in South Africa are neatly in line with the international mainstream, both in principle and in the details of their workings. That includes the much criticised feature that limits their authority to that of ordering corrections, apologies and so on.

None of this is to say that the existing arrangements cannot be improved, as is acknowledged by the council’s own decision to conduct a review.

The international consensus is that self-regulation represents the best way to ensure accountability in the media without infringing a right that is fundamental to any country with democratic pretensions — freedom of speech. It finds the golden mean between two principles that may pull in different directions.

Freedom of speech is a right that belongs to everybody and one difficulty in any attempt to regulate the media is how to define a journalist.

All kinds of people write: they include not only political correspondents for major newspapers but columnists, writers of letters to the editor, shipping correspondents, editors of church newsletters, pamphleteers and many, many others.

And then there is the new frontier, the internet, where anybody can be a publisher and which is even harder to police.

Self-regulation is meant to ensure high ethical standards but these can’t be legislated. Hungarian Miklos Haraszti writes in a booklet on self-regulation produced by the Organisation for Security Cooperation in Europe for new democracies in Eastern Europe: “Whether passed in good will or not, any attempt to impose standards on journalists by law will result in arbitrary limitation of their legitimate freedoms and restriction of the free flow of information in society.”

It’s not just journalists who self-regulate. It is usual among professions like medicine and law, although admittedly there are significant differences in the ways they do so. In South Africa the Advertising Standards Authority, the Motor Industry Ombudsman and institutions in the financial services industry are examples of successful self-regulation.

In all cases self-regulatory arrangements are additional mechanisms for accountability, not the only ones. The ordinary law of the land applies to journalists everywhere and a defamation suit remains an avenue for people who feel aggrieved.

Of course, going to court is expensive and slow, which is why an arbitration mechanism like a press council is a cheap, quicker alternative.

The view of self-regulation as a gold standard is entrenched in various international instruments. Among others, the African Union’s “Statement of Principles on Freedom of Expression”, which was accepted in Banjul in 20 02, says: “Effective self-regulation is the best system for promoting high standards in the media.”

It is seen as a key indicator of the state of a country’s media freedom and this is reflected in the international reaction to the ANC’s plan for a media tribunal.

The editors of four of the world’s leading news agencies — Reuters, AP, AFP and Bloomberg — have written to President Jacob Zuma to oppose the move, as has the International Press Institute, a grouping of editors, publishers and leading journalists from around the world.

At the same time, the number of major international titles editorialising on the subject grows and grows.

A key factor in South Africa’s ability to command attention on the crowded global stage has been its history and emphasis on human rights, as encapsulated in its widely admired Constitution. But the mere suggestion of a media tribunal, with other threats to media freedoms, has already changed the kind of leadership South Africa is able to offer the rest of the continent.

In Zambia the government has long opposed the establishment of a self-regulatory body, the Zambia Media Ethics Council (Zamec), even though that country’s high court ruled in 19 97 that the government has no role to play in regulating the media.

Just a few weeks ago Ronnie Shikapwasha, Zambia’s minister of information and broadcasting services, used the South African debate once again to dismiss media self-regulation. He told the Post newspaper: “It’s important for Zamec to learn why South Africa is taking it back to Parliament instead of insisting on an issue that is going to fail here just like it is failing in South Africa.”

In other words, the ANC proposal is being used elsewhere to buttress opposition to media freedom — a tragic unintended consequence.

The almost complete absence of any reference to the international context in the ANC’s discussion of the plan for a tribunal reflects the fact that more than anything else it is driven by internal considerations — internal even to the party itself. As others have said, the issue is a useful rallying point in a situation where there is so much conflict around other issues.

But the costs of the plan will not merely be measured inside South Africa. There are significant implications to a step that would take the country so sharply away from the international standard.

The Mail & Guardian’s ombud provides an independent view of the paper’s journalism. If you have any complaints, contact Franz Krüger at [email protected] or phone the paper on 011 250 73 00 and leave a message. He is also a member of the South African Press Appeals Panel