Proper self-regulation of the Press
There is a sharp difference of opinion between Wim Trengove SC, who has suggested judicial regulation of the press, and Raymond Louw, doyen of the South African press, who feels that self regulation is the correct and preferred path to follow.A via media between the positions of both highly respected men ought to be found in the interests of both preserving press freedom and of limiting the abuse of that freedom. This compromise would involve revamping the mechanisms at present in use to somewhat flaccidly regulate the press. Back in September 2010, IFAISA made representations to a task team reviewing the role of the press ombudsman, with a view to beefing up the way in which the press regulates itself. An edited version of the submissions made follows and is offered (again) in the hope of reducing the heat and enhancing the light in this most perennial, fundamental and ticklish of debates.
"Freedom of expression, via the press, is one of the best ways to facilitate access to information to all who can read, including the just over 4 million newspaper readers in South Africa. The knowledge gained from information disseminated in this way is a source of great power. Hence there exists the pre-occupation of those who wield political power, with the power of the press.
In order to head off the introduction of the Media Appeals Tribunal proposed by the majority of the delegates who attended the ANC policy making conference in Polokwane in December 2007, it will be necessary to revamp the self-regulatory complaints machinery and adjudication processes at present in place. The overall objectives are to ensure an economically viable form of self regulation, as set out in the constitution of the Press Council in greater detail, one that encompasses an institutionally and personally independent press ombud office which is able to function impartially, efficiently and effectively.
- Institutional independence.
- Personal independence and impartiality
- Efficiency
- Effectiveness
This is achieved via giving those who conduct the adjudication of complaints security of tenure of office and by appointing them for a fixed term through an open and transparent process in which a balanced spectrum of interested parties plays an active role.
The General Council of the Bar has made it compulsory for all practising advocates who are members of the Bars around the country to do a fixed amount of pro bono work each year. Senior advocates may be interested in joining a panel of pro bono adjudicators and junior advocates interested in the field could also do pro bono work for complainants who do not have the means to consult lawyers of their own in regard to the cause of their complaints. The beauty of harnessing this resource is that personal independence is guaranteed, a large and geographically scattered pool of highly professional people - all suitably qualified to act and all interested in upholding the constitutional right to freedom of expression, as well as the rights to dignity and privacy upon which complainants regularly rely - is made available to strengthen the existing system considerably and at no cost. The professional impartiality of the advocates will counter the oft voiced criticism that the ombudsman is less than impartial. This is a matter of perception, the track record of the ombudsman is indicative of impartiality, but in politics perception is all important because people act on their perceptions, however inaccurate they may be.
It takes far too long for a complaint to be processed in the existing system. The genuine complainant is usually looking for a quick solution to the perceived wrong contained in the publication of the material which is the subject matter of the complaint. A fast track system for this kind of complaint is not beyond the wit of the Press Council, especially if a large pool of pro bono lawyers is available as adjudicators or to represent complainants who can not afford legal counsel. The existence of a complaint should be published (as prominently as the material concerned) in the next edition of the publication against which the complaint is laid, and the outcome as soon as an outcome is known. Very fast turn-around times are possible if the complaints mechanism is perceived to be a means of improving the standard of journalism and a way of holding those who err, or slip from the high standards demanded, to account. An apology and correction six months down the track is worthless to a complainant, an identical step a day or two after publication, is vindication.
The punitive jurisdiction of the ombudsman is somewhat puny. The system of waiver of claims for civil damages is also suspect. If the relief offered by the ombud office does not include damages, why cut off the complainant from a damages claim? Far rather offer a complainant the choice of the fast track apology, retraction/correction route (with no claim for damages) or the ombud's attention to a claim for damages, if a damages claim is what the claimant would prefer. Alternatively, offer both remedies - the courts have more than enough other work and are not geared to quickly adjudicating defamation and injuria claims. An ombud who can fine errant publications and journalists, award damages to the injured and act with expedition is an ombud who will be far easier to defend than the one we have at present.
The Constitutional Court will inevitably be called upon to determine whether any government sponsored Media Appeals Tribunal (MAT) system, as envisaged in Polokwane, passes constitutional muster. If the reform of the current system is put in place timeously, it will be far easier to defend the system of self-regulation than is at present the case. The existing appeal process would appear to be in order; it does not seem to be the source of any criticism."
It remains true that time is of the essence insofar as the transformation of self regulation of the press is concerned. The longer the press delays the implementation of the changes that suggest themselves to those in authority within the press, the stronger the case for a government sponsored Media Appeals Tribunal (MAT) becomes. A MAT is newspeak for a censorship board. Censorship is not what life in the dignified liberation of the new SA is about, nor should circumstances which encourage the introduction of a MAT be allowed to obtain for a moment longer than is absolutely necessary.
Paul Hoffman SC
6th January 2012
