I have nothing but respect for retired Chief Justice Pius Langa, so the fact he has lent his name to the report and recommendations of the Press Freedom Commission is a puzzle to me.
The way the report peddles fuzzy opinion as proper analysis comes across as the work of a bad journalist, not a gifted lawyer.
The law and journalism have a lot in common.
Executed properly, both seek to mount and test arguments against a matrix of established facts, principles and logic.
But this report, the product of a panel of people from outside the media, is almost devoid of facts and its conclusions are based almost entirely on the opaque feelings and views of its members.
Key among these conclusions is the decision to abandon the principle of press self-regulation in favour of something called independent co-regulation.
Nowhere does the report discuss the reality that regulation beyond what is already contained in our law impinges on freedom of speech.
Nowhere does it engage with the argument that when additional limits to free speech are not self-imposed and self-regulated, they risk crossing over into censorship.
Nowhere does the report provide any detail on the reasons why the existing self-regulation regime can be said to have failed, other than through “perceptions” that it lacks independence, despite the report’s own conclusion that these perceptions are unfounded.
It is worth remembering that our Constitution describes press freedom as a subset of the general right to free expression.
What this means has been set out by the Supreme Court of Appeal in the Midi Television case in which the court noted: “The constitutional promise of a free press is not one that is made for the protection of the special interests of the press … The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press.
To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself.”
Thus, a decision to impose extra limits on the press affects everyone’s rights.
The report sets out a number of new limits or restrictions, some of which appear to be arbitrary:
- The public, whatever that means, will now enjoy a majority over media representatives on the appointment and adjudicating structures.
Only one out of five members of the appeals panel at any given complaint hearing will be a press representative and no press employee should serve on either the adjudicating or appeals panels.
In practice, this tilts the system from professional self-regulation to external monitoring by lay people.
The greater powers granted to these structures, such as space and money fines, will open those “public” positions up to potential political contestation and capture.
The report said its proposed system was in accord with the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression in Africa, ignoring the fact that the charter states: “Effective self-regulation is the best system for promoting high standards in the media.”
- It removes the requirement that those who wish to raise a complaint with the press ombudsman waive their right to legal action.
Complainants in most legal systems are not allowed to shop around adjudication avenues — they have to choose one and stick to it.
The fact that a complainant can still go to court after a press council hearing will make the process a legal minefield for the media, made worse by the exclusion of lawyers from the hearing.
Concessions that publications might previously have been willing to make will now carry potential legal consequences.
- The acceptance of complaints by third parties not directly involved as the subject of a press report but ”acting in the public interest” will also open the system to political pressure.
- The proposals to do with reporting on children highlight the potential for Mother Grundy-tinged interference.
The report said the publication of explicit sexual material should not be permitted at all, thus removing the exemption based on public interest.
Even Zapiro’s famous “embedded journalism” image might fall foul of this prohibition, never mind the average edition of Cosmopolitan magazine.
The report also expresses concern about the depiction of violence and crime in this regard.
It notes: “Children are not the main ‘consumers’ of print media, but in a country where efforts are made to increase the level of literacy, most children are encouraged by their schools to read newspapers … Excessive coverage of violent crime could result in unintended consequences of emotional trauma as opposed to developing an interest in reading.
“The commissioners agreed that a clause be included to the effect that the press should refrain from sensational reporting of violence and crime.”
- Perhaps most worrying is the proposal to strengthen the right of reply in proposed changes to the press code of conduct.
Those who suffer “impairment” of their dignity, privacy or reputation are afforded an automatic right to reply in the same publication.
The same even applies to comment that includes “serious criticism of a person”.
It remains to be seen how this might work in practice..
All in all, the recommendations have the texture of a political compromise that pays lip service to the principle and practical issues at stake.
I would rather take my chances with the prospect of a legislated media tribunal.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.