Presentation by Reg Rumney at SANEF Summit August 30, 2010

All Men pretend the Licentiousness of the Press to be a publick Grievance, but it is much easier to say it is so, than to prove it, or prescribe a proper Remedy; nor is it the easiest Grievance to Cure.
– Daniel Defoe, 1704, Essay on the Regulation of the Press.
Reg Rumney

1. Introduction

The role of a researcher is to provide light, not heat: hence it is not the intention of this paper to provide fuel for an increasingly fiery public argument about the proposed introduction of a Media Appeals Tribunal. Most recently the Tribunal has been seen by news media organisations and commentators as part of a new aggressive attitude towards particularly Press freedom, the debate around it coinciding with public and news media concern about the Protection of Information Bill and the arrest in public in Rosebank, Johannesburg, of a journalist who had recently published an article alleging political influence on a property deal by the Commissioner of Police. The ANC for its part, has expressed surprise at the sharp reaction by the news media.

My view is that any debate about regulation and Press freedom needs to be:
a. Evidence-based, in the sense that policy prescriptions should not be based on perception and belief alone,
b. As dispassionate as possible to avoid rhetoric (in the popular sense of the word),
c. Seen in the context of the role the news media plays in promoting the aims of the constitution (as well as abiding by the constitution),
d. Take into account in the broadest possible way the effect on the country, including the economy, of any changes to the status quo.

In the process of examining the issue of a Media Appeals Tribunal (which in journalistic style I will refer to as “the Tribunal” rather than the abbreviation MAT), I will examine the history and status of the proposal for a statutory form of regulation, its source and its rationale; the status quo, that is the present self-regulatory system and its rationale; and the political, economic and legal issues that arise. Finally, I will respond with my own proposals, based on observations of the current system and criticism of that system.
Where possible I will adopt an Appreciative Inquiry approach, because it is more likely in my view to arrive at positive answers than the usual perhaps over-critical stance. Appreciative Inquiry normally is used in the context of organizational sustainability, but in my view this can be transferred to institutions. This approach “is deliberately called the appreciative approach, not the affirmative approach or the positive approach or the uncritical approach. [It]is about choosing the elements of a situation that we want to work with; it is not about a pollyannaish refusal to recognize the fact that good and not-so-good are mixed in unequal proportions in everything we experience”. In a sense, this approach is about recognizing different realities and negotiating a common reality.

2. Proposals and practicalities

i. Polokwane Resolutions
The proposal to institute a statutory Media Appeals Tribunal (MAT) arose at the 52nd African National Congress in Polokwane. The proposal needs restating to get an idea of the thoughts around the Tribunal.
The relevant section of the Polokwane resolutions, “The Communications and The Battle of Ideas”, (appendix 1), proposes that the principle and implementation of a tribunal be investigated. Repetition of the six points that make up the proposal is unnecessary. Suffice it to say that the document stresses the Tribunal should be seen in the context of “the need to balance the right to freedom of expression, freedom of the media, with the right to equality, to privacy and human dignity for all.”
Importantly, the document expressly states the print media is the target of such a tribunal, and that whether “such a MAT be a statutory institution, established through an open, public and transparent process, and be made accountable to Parliament” should be investigated.  “Remedial measures” to promote the human rights of all South Africans should be considered, but these are not spelled out.
The Communications and The Battle of Ideas section appears to advocate that the Tribunal adjudicate over complaints against the print media in the same way as the Complaints and Compliance Committee of ICASA does in broadcasting. It says Parliament should establish the Tribunal, and that the media and other stakeholders should be consulted.
Notably, the Polokwane resolutions are vague, and cite broad principles rather than any supporting research on the state of the news media that would justify changing the status quo or introducing new legislation.

ii. ANC NGC Document
A more recent document, ANC 2010 Discussion Document: Media Transformation, Ownership and Diversity , has a wide-ranging discussion of the news media, looking at among others, issues of media diversity, ownership, and control. This is worth detailed, critical discussion, not for the sake of fault-finding but for clarity.
The document has a long section on the Media Appeals Tribunal, though early on it mentions the self-regulatory process of the Ombudsman and the appeal panel of the SA Press Council only to apparently dismiss it as self-serving.
It has to be said that the document refers frequently to the aims of the Constitution, and professes to desire that policy is aligned with the constitution.  It also raises some interesting points, especially in its conclusions, and at times asks questions that deserve considered answers. There is discussion, for example, of the possibility of a charter for the print industry, and the possibility of mainstreaming a more serious, development journalism in journalism education. But the document is testimony to the fact that length does not equal depth. By way of illustration of the lack of research on the news media, one can mention points number 58 to 61.
58. Cursory scan on the print media reveals an astonishing degree of dishonesty, lack of professional integrity and lack of independence. Editorials distancing the paper from these acts and apologies which are never given due prominence and mostly which has to be forced through the press ombudsman are not sufficient in dealing with this ill.
59. As South Africans we know the full meaning of unregulated power and unbridled capitalism of the barons experienced by other societies through time. The abuse of positions of power, authority and public trust to promote narrow, selfish interests and political agendas inimical to our democracy. This points to the fact that the problem of what is called ‘brown envelope’ journalism. This type of rot is a much more serious problem than the media is willing to admit.
60. This phenomenon may run even deeper that meets the eye is what has now become like permanent briefing sessions between faceless leaders within the ranks of our Alliance and some journalists about discussions taking place in confidential meetings. These relationships are probably more than just ordinary media sources inside our organizations, but possibly involve payment arrangements.
61. The tendency of dismissing any criticism of the media as an attack on press freedom results in the media behaving like a protection racket and leaves no space for introspection. For its own credibility, and in order to be at the forefront of determining the agenda for change and not against change, we have a responsibility to assist the media need to shape up.
It is possible that the news media in general is sensitive to criticism and lacks introspection, though not even anecdotal evidence is advanced. The question must be asked whether a “cursory scan” of the extraordinarily wide range of print publications is sufficient to base public policy on; where the logic lies in the “abuse of positions of power, authority and public trust” automatically leading to widespread ” ‘brown envelope’ journalism”; and what kind of intellectual rigour phrases such as “possibly (my italics) involve payment arrangements” or the mystifying comparison of the media to a “protection racket” betoken.
“The ANC discussion document presents no evidence in support its call for a Media Appeals Tribunal (MAT). Instead it opts for assertion and rhetoric. The document unambiguously accuses the media of irresponsible and unfair reporting. However it could be accused of doing the very thing that it condemns, making unsubstantiated accusations.”

iii Commercial Realities
Unhappiness about the way that the news media operates should not be used as a means to condone control. “Commercial imperatives and sensationalism must not be at the expense of the public interest and a diversity of views.”
The document is symptomatic of much of the discussion of the Press in recent weeks and months in that it is fundamentally hostile to, and deliberately dismissive of, a market-based system of the Press and of audience. Seeking to increase readers is equated with unscrupulous sensationalism.
79. There can be no real media freedom if commercial imperatives start to impact directly on the content on a day-to-day basis. Where the bottom-line dictates content in the pervasive manner and editors are held on a leash, the consequence is that advertisers, marketers and some politicians determine news and analysis, and stories are sometimes spiked at their behest.”(ANC Discussion Document)
Indeed, editors and ordinary journalists are aware of the distorting effect of commercial pressures, as a book by Guardian journalist Nick Davies, Flat Earth News, illustrates . Davies writes extensively about the increasing harm to journalistic standards of money pressures. The ANC discussion document – and perhaps journalistic critics like Davies – go too far in contending that journalists have no power at all, and in painting a picture of the news that is unremittingly bleak. This is contradicted by the Deputy Minister of Transport and SACP member Jeremy Cronin, writing in Umsebenzi Online in support of the Tribunal:
“There are many positive features in our media. There are thoughtful commentators and plenty of professional journalists. There is much lively public phone-in participation on our radio stations and an impressive array of local community broadcasters.
Indeed, Cronin echoes conservative views: “Editors of most serious newspapers get regular letters complaining of declining standards and dumbing down. The letters hark back to a time when news was impartial, editorials independent, opinions judicious, and the world taken seriously.”
There never was a golden age and newspapers in the past were dull, obeisant and boring.  This illustrates not only the need to do research on the situation, but how contested and contestable issues of “quality” and “newsworthiness” are. The documents also go too far in believing that audiences have no power, either in choosing to buy a particular news product, or in making meaning of that news product. It has long been an accepted notion in media studies that audiences are active participants rather than passive recipients in the communication process.  While journalists may choose encode a message in a particular way, they cannot control the way that the message is later decoded in different social contexts. These days, thanks to new media technologies like the Internet and mobile phones, that line between producers and consumers of news is increasingly becoming blurred as “citizen journalists” contribute to the news production process.

iv Legal issues
The document has a separate section on the media appeals tribunal, which again makes some interesting points, but several points in favour of establishing a tribunal are illogical or wrong or do not necessarily support the establishment of a tribunal. So for instance, point 93 notes that “Many laws restrict what can be published but not the behaviour of journalists, and there are few legal remedies for inaccurate reporting.”
The law cannot solve every problem; ordinary citizens could respond that there are no legal remedies for inaccurate opinions or the behaviour of political researchers either. Point 94, while correctly highlighting a problem of a lack of legal aid for libel cases, falsely states: “There is no statutory regulation of the Press”. Establishing a publication does not require a licence , but “regulation” is another word for legal rules, and it should be stressed that the Press – and broadcasting for that matter – are regulated by a number of laws, both in the common law and in the statutes. The Press is also “subject to the scrutiny of Chapter 9 institutions such as the Human Rights Commission (SAHRC)”.
This is no small matter, for the introduction of a statutory tribunal will add a new set of laws governing the Press and quite possibly the broadcast media. The question to be posed is: Should a new set of laws be passed, or should efforts not be made to ensure the effective implementation of laws already on the statue books or in the common law? If aggrieved individual members of government of the ANC, for instance, are not suing for defamation, crimen injuria, or seeking protection in terms of privacy laws, why are they not doing so?
Noting the entirely voluntary system that obtains now, the document goes on to say, “There continue (sic) to be a need to strengthen self-regulation by the press.” This is a more logical prescription for a system of self-regulation than the introduction of a statutory add-on. However, elsewhere it is clear that statutory intervention is being looked at.
The document continues in its correct observation that the aggrieved party has to waive his or her rights to go to court for the complaint to be accepted by the Press Ombudsman. If the complainant disagrees with the Ombud’s verdict, there is no possibility of legal redress, the document asserts. The author or authors of the document believe this to be “untenable”. The document appears to advocate that the Tribunal then would supplement the present self-regulatory system, rather than replace it. However, the Tribunal’s authority would supersede that of the self-regulatory system.

v. Ombud criticism
The document judges the present self-regulatory system insufficient and desires a fair and just “balance” between the interests of the media and the aggrieved party, saying the media is often the aggressor. And it proposes that instead of the Press Ombud being a former journalist he or she should be “an independent person who looks at the media from the layman’s perspective”. The present situation it says, “… poses an inherent bias towards the media with all interpretations favourable to the institution and the other party just have (sic) to understand and accept the media way which is grossly unfair and unjust”.
The document says that Parliament should start and drive the process, through public hearings, and consider whether the Tribunal should be a statutory independent institution accountable to Parliament. Again, a comparison is made with rulings made through the Complaints and Compliance Committee of the the Independent Communications Agency of SA (ICASA).

vi Political pressures
While the Tribunal surfaced at the Polokwane ANC conference, it would be a mistake to think of it as a phenomenon of the administration of President Jacob Zuma and those associated with him. Former president Nelson Mandela as leader of the ANC expressed concerns about the role of the news media at the ANC’s 50th national congress in 1997.  However, Mandela also famously remarked that, “A bad free press is preferable to a technically good subservient press”.
The moves to establish statutory regulation were started under the previous administration and were closely associated with the succession battle. One spur for the early threats to bypass self-regulation seems to have been Sunday Times expose of the Health Minister in Thabo Mbeki’s Cabinet, Manto Tshabalala Msimang.
To acknowledge that some people have tangible disillusionment, and that even those of us close to the news media have reservations about some journalism, doesn’t necessarily mean that the news media is failing, in general or in particular. A sense of history may come to our aid here.

vii News media quality
Certainly in terms of freedom of expression, the news media is in a much better situation right now than it was for hundreds of years. One has to agree with Kobus van Rooyen, who chaired the Publications Appeal Board in the 1980s, when he writes, “We live within a new constitutional paradigm of freedom of choice.”(Van Rooyen, 2007) On this score, one has then to ask, in the light of the criticisms voiced by the ANC discussion document, whether this freedom is abused. An appreciative inquiry approach, and a closer inspection of the news media may well come to different conclusions from the grim picture often painted of the South African Press. Scathing references to tabloids, for a start, do not show any awareness that the domestic variety may differ from their foreign counterparts, or that tabloids – despite the criticism they often deserve – may resonate more closely with the everyday lived experiences of the majority of this country than do the broadsheets.
How good or bad is the news media in terms of competence or social responsibility? Is individual experience being generalised to the entire news media? The ANC discussion document, and much of the debate so far, has implicitly centered on the “social responsibility” function of the role of news media, which is normative. While this is a dominant view, it is not the only one. Views of the role of the news media range from the liberal or libertarian through to the authoritarian (Kruger, 2009).
With libertarian dispensations such as in the USA enormous formal leeway exists for the expression of all manner of views and claims. These allow for situations of entirely voluntary individual adherence to general normative frameworks. As prevails in the USA, publications are free to follow or ignore the canon of facticity, objectivity, etc. that characterises the ideology of most news practice in that country. Thus, the New York Times “self-regulates” in terms of ethical standards widely found in the industry, while the National Enquirer is pretty much free to follow its own standards and definitions of journalism. The idea is that the free market indirectly “regulates”, with consumer choice and advertising dollars determining what prevails. In such dispensations, it is only the courts (or in broadcasting, the licensing authority) which can apply sanctions (post-publication) to media houses or individual journalists concerning content which exceeds boundaries like defamation or vulgarity.

viii Confusion of issues
Discussion of the Tribunal and its rationale should not confuse issues. In the discussion document referred to earlier, much ado is made about ownership and diversity. Whatever the problems here, real and perceived, it is a complex issue, and the Tribunal will not solve them. A tribunal may work to achieve some things, but it cannot solve issues of diversity of voice and opinion, news media ownership, and a host of other issues. Regulation, to work, has to be designed to achieve specific effects, surely? Or is it symbolic in this case?
“… the question of media ownership as such is not a matter for a tribunal. The democratisation of the media and the fostering of a diversity of voices is a battle to be fought on other terrains.”

ix Need for research
A major problem is the lack of information about the possible model for a tribunal. It is hard to criticize what seems to be at this stage the skeleton of an idea that has not been properly fleshed out, though a central feature that can be discerned. This is that a body would be appointed by, and accountable, to Parliament.
The casual use of the word “media” in almost all of the debates is of concern, though it is popular shorthand for the “news media”. It underlines the link between freedom of expression and regulation of the Press. “Media” is all-embracing. I raised some of the problems that this could lead to in a column for the Media Online.
According to [Comrade Blade Nzimande’s] prepared speech at the SACP’s 89th Congress (reported in Abdul Milazi’s blog), he is annoyed by the constant stream of news about ANC Youth League president Comrade Julius Malema.
“It is news in which the clowning of a single demagogue fills pages and pages, while real issues that affect workers are left unreported.”
Well, who else could he be talking about but Comrade Julius?
And this illustrates a point about the Media Tribunal. Isn’t calling someone a clown the kind of smear that could get a journalist pulled before the media tribunal? And if the newspaper simply reported the fact that Comrade Nzimande called Comrade Malema a clown, wouldn’t they, rather than Comrade Nzimande, still be liable? After all, it’s a Media Tribunal, aimed at the media, not at individuals.
How would a media tribunal work unless it targeted individuals as well as news organisations?
If I wrote a blog alleging all sorts of things about Comrade Nzimande would I be liable for prosecution? A media tribunal could go after the Internet Service Provider, but what if the service provider was in the US? Would censorship of the Internet be on the cards?
And how would foreign news media be treated? Would the Media Tribunal expect to prosecute, say, The Economist Magazine?
Again, appropriately enough the writer of a blog has satirically opined that a media tribunal should not stop at newspapers but go after plays, hip hop lyrics, academic essays, etc.

x Punitive measures
The counter argument is that the Tribunal is not aimed at individual free speech or even individual journalists, but at the owners of news organisations. It has been explicitly suggested that news organizations be fined rather than individual journalists. I have pointed out that the organization would have the right to discipline the individual journalist if it was fined, so that while the journalist would not have to incur an immediate loss of income, they would in a sense be punished. However, ANC spokesperson Jackson Mthembu’s view is that individual journalists could be fined or even jailed .
A larger question is how punitive measures would be instituted and against which publications, which throws into relief the difference between a purely statutory body and a self-regulatory body. The ambit of the Press Ombud established by the Press Council is those print publications who are members of Print Media South Africa. A statutory body that is an add-on would presumably be confined to adjudicating on those. Could a statutory body “shadow” the self-regulatory body? What would be the point of this? Would the existence of a statutory body not make self-regulation pointless? Perhaps one should look at broadcasting regulation, since this seems to have inspired the idea of a tribunal. The ambit of the CCC is the statutory, broadcasting equivalent of the Press Council, but its ambit is broader. It can entertain complaints directly, especially when against a broadcaster, such as a radio station, that is not a member of the National Association of Broadcasters (the equivalent of Print Media South Africa) and therefore does not come under the BCCSA.
It has been observed that self-regulation in Southern Africa has generally been instituted in reaction to threats of statutory regulation (Bussiek 2008). If self-regulation is seen as an insufficient defence, should it not be disbanded rather than co-opted into a statutory system? The position of at least one editor is that of non-co-operation with a statutory body: “I just don’t want to be a part of any meetings whose object is to make my country less of a democracy. If I go, and if other editors go, it will merely legitimise what the ANC wants to do anyway — they’ll be able to say they “consulted” the media. But not, at least, with me. This is not Vichy.”  An ex-editor opposes “collaboration,” drawing on history to suggest that this will not help fend off censorship .

xi Unintended consequences
There are issues of regulatory impact and unintended consequence, both on the news media as a part of a functioning democracy, and as an industry. A lot depends on how the Tribunal operates. A tribunal that is perceived to be censoring news could have the unintended consequence of boosting the credibility of alternative media forms. Unintended consequences are by definition unknowable in advance, but proper research would identify some of the possible problems and pitfalls. Again, proper, extensive research into the news media environment, including the role of the Ombud and the Ombud system, could establish whether more than self-regulation is needed, or look into ways of strengthening the system of self-regulation.

xii Further legal issues
The arguments around the difficulties of accessing justice either through the Ombud or through the law also need to be weighed. The Ombud exists to bypass the legal system for speedy redress. It is by its nature not a legal process, though the head of the Press Council appeal panel is a retired judge. Suggestions are that complainants would, it seems, would be able to go to the Tribunal if they are dissatisfied with the ruling of the Press Council appeal process. However, the reason for the waiver is to prevent complainants using the Ombud and appeal process as a form of discovery (Brand, P 97). No news organization would want to submit to the informal hearing if it served to strengthen a legal case.
The perception that civil action against defamation is “costly, prolonged and often inconclusive,” as advanced by Cronin , needs to be examined. It is certainly not true that civial actions by those in government or the ANC are never successful. Robert McBride, former Ekurhuleni police chief, won R150 000 in damages, plus most of his legal costs, from the Citizen newspaper for allegations relating to his actions during apartheid.  The argument that access to the law is difficult for the poor, and that legal aid is non-existent, can be countered in the same way at that relating to the deficiencies of self-regulation. Just as the answer to those deficiencies is improving self-regulation, not supplanting it, so legal problems must have legal solutions. If access to legal aid needs to be improved for reasons of justice, then so be it. Sidestepping the law is vigilantism. However, as is clear, again from Cronin’s defence of the Tribunal and complaints by those in power, that not only the poor but also high-profile individuals would be able to use the Tribunal if they felt aggrieved.

xiii International comparisons
It is tempting to look overseas to find examples for and against statutory regulations, but while global indices of media freedom are numerous, international comparisons of regulatory systems are hard to come by.
Some commonalities have been observed where self-regulation is present.
“Rarely are either ombudsmen or press councils universally loved. Journalists and media organizations chafe at findings they believe restrict their absolute independence or second-guess their professional work. Governments send out warning signals against what they see as too much independence, and sometimes set up their own councils masquerading as independent bodies. Complainants from the public protest and even go to court when findings against the media do not lead to punitive enforcement.”
“Some see them as part of the permanent plot of governments against press freedom; some see it as a PR ploy of owners to avoid State regulation; and a few look upon it as a fantasy of utopians

xv Repression concerns
The arguments against the replacement of self-regulation with statutory regulation are that self-regulation is like the canary in the coal mine. If its life is snuffed out it is a sign of moves to control news media.
“Where there has been state regulation of the media we have seen that this has been the beginning of a slippery slide towards repression of the media.” Parliament cannot provide adequate safeguards against state control of the tribunal, given the dominance of the ANC.
“We should be looking at regulations not with ourselves as incumbent governments in mind but looking at worst-case scenarios – what if your worst enemy were in government and were to use the laws that you have put in place against you?”
Ironically, this position is supported by Cronin, who says the ruling party can abuse its majority in Parliament to appoint “a bunch of lapdogs”.
The best arguments for self-regulation rest perhaps not so much on how it can defend against regulation but how it is part of an accountability process that gives the news media credibility by improving the quality of journalism.

Politics and Counter-proposals
The problem with the situation at present is that there is a hardening of attitudes and a climate of no compromise. The perception may have arisen among editors that the news media cannot be expected to help fashion a rod for their own backs, or whatever idiom may serve, by “collaborating” on a statutory media tribunal, and that resistance, passive or otherwise, is the only path away form censorship. On the other hand, the media tribunal is now not only on the political assembly line, it has become part of key players’ political credibility. ANC Youth League leader Julius Malema has declared it will happen and SACP secretary general Blade Nzimande has defended it vigorously, with his deputy defending it too, though perhaps less vigorously. President Jacob Zuma has come out in support of the Tribunal.
The ANC has been surprised by the reaction of the domestic news media to the proposal, but the reaction of the international news media to the idea of tribunal and the Protection of Information Bill should be sobering. The publicity surrounding the proposals and the perceptions of threats to Press freedom is tarnishing South Africa’s international brand, so carefully burnished by the World Cup. This will have unpleasant economic implications.

i ANC Solutions
What is the way out of this impasse?
From the ANC’s side, Guy Berger has recommended practical steps, in that the ANC should, according to his Converse column :
a) Foreground the stated problems that the Tribunal was intended to address, and discuss these – not the tribunal “solution”
b) Publicly remind those ANC members who treat the tribunal as already decided upon, that it is an old resolution calling for an investigation which is also now up for revision
c) Decide at the coming ANC conference to drop the idea of parliament as the appropriate body to investigate the ills that for which a tribunal was presented as the prescription. A probe by any state body will only perpetuate the suspicion and the controversy. Instead, the ANC conference should resolve for the party to conduct the study itself.
d) Ensure that any such investigation is rigorous and empirical in identifying what the ANC existing discussion document sees as “problems”. This needs to go beyond the generalisations and unsubstantiated rhetoric currently in the document.
e) Acknowledge openly when the ANC’s own investigation reveals – as it must – that there are many non-tribunal ways to improve the quality of journalism,
f) Acknowledge openly when the study reveals – as it must – that introducing a statutory tribunal for the press would require nothing less than changing the Constitution
g) Recall that the party has consistently committed itself to the constitutional clauses on free speech and media freedom
h) Conclude that the tribunal proposal will not fly, and invite the press to engage in talks about other issues like ownership, ethics and improved self-regulation. They will find a willing partner.

ii News media solutions
One has to ask then, what is the equivalent position for the news media?
Firstly, a start could be made on improving the functioning and image of the Press Council itself, building on what it already does well. It must be recognized, and has apparently been already, that efforts to beef up the functioning of the existing self-regulatory system are not an admission of defeat, but strategic. In the US there is evidence that pressure from government commissions of inquiry into the news media did lead to improvements in responsibility.
There is nothing wrong with the Ombud lobbying for self-regulation, as he already has done, and it might be better to present the arguments for self-regulation to the public rather than the attack attempts to regulate externally, which seems defensive.

iii Self-regulation models
Frans Kruger and Hendriek Bussiek have, separately, surveyed self-regulation in the region and internationally. Bussiek (2008, P 2) finds “self-regulation now seems to be very much part of the furniture of the media set-up in the region)”. Kruger quotes Wakeham (1998) in advancing the practical benefits of self-regulation. Aside from being “flexible and accessible”, self-regulation it is argued, contrary to what might be imagined, is more effective than external sanctions .
A core argument Wakeham used was that self-imposed rules have greater moral authority than any that could be imposed from outside. The code used by the PCC was “imbued with all the moral authority of a document written by editors themselves for editors”, he said, and covered issues like accuracy that could not be dealt with in law.  He described the code as a set of responsibilities that applied over and above an editor’s legal duties. “I suspect that laws – or a statutory Code – would inevitably be seen not a baseline from which to make editorial judgements (which is what a voluntary Code is) but as a straightjacket to try and get out of,” he argued.  A judgment by an editor’s peers would have more weight than a damages award. This could become a marketing tool, he argued, pointing to France, where newspapers wore fines imposed on them as a “badge of honour”. They were feeding on the assumption that the fines were only imposed because the newspaper had some interesting material, he said. An adverse judgment, by contrast, “is an admission by an editor that he or she has broken the rules which he or she frames and agreed to abide by.”  (Wakeham, 1998). (Kruger, 2009, P 14).
Neither Kruger nor Bussiek pronounce any one model superior, and it would be a mistake to do so. Similarly, in looking at the international situation, it is a mistake to “cherry-pick”. The history of each country and region makes a “one-size-fits-all” strategy an impossibility. As is discussed previously, international comparisons are anyway not easily found.

iv Non-starters
Some actions should be ruled out. Punitive actions, such as fines, rather than corrections could be considered, but editors are unlikely to agree to this, and there are severe practical problems, such as the procedure for deciding on the quantum of the fine and the likelihood of publications not paying if the amount is regarded as excessive with the inevitable necessity of resort to the law. For reasons already mentioned, non-exclusive access to the complaints resolution process, i.e. if you don’t like Ombud’s ruling you can go to court, is unlikely to be accepted.
vi Practical steps
There are, by contrast, practical steps that can be taken”
a) If the Ombud office is to do its job well, justice must not only be done but be seen to be done. The Ombud now has a website, but more can be done to “market” the services of his or her office to the public. This could include public meetings, and the equivalent of paid ads with the full Press code, as well as a more prominent display of information about how to contact the Ombud. A communication strategy needs to be devised,
b) Do journalists themselves know the content of the Press code? Workshops in newsrooms to educate practitioners about the Code would be an option,
c) An analysis of the effect of the Codes and the Ombud system so far, and regular updates of this research, should be widely publicized so that the public can see what the system is doing,
d) Easier access to the Ombud and speedier resolution of complaints seem an unexceptional goal, and
e) There is no reason, other than convenience, for the Press code to be a static document. The Press Council can and should regularly invite recommendations from the public for its improvement, and incorporate such recommendations.
All the above will probably entail greater capacity in the Ombud’s office, and the members of Print Media SA will have to acknowledge responsibility for this.
Over and above the office of the Ombud, the Press council could consider some measures to increase credibility in the council.
At present an equal number of Press and public members are appointed, but more transparent way of choosing the public members is probably necessary. Seats could be set aside for the SA Council of Churches, a union movement representative, a representative of the committee of university principles, of the Law Society, and of civil society, for example, as well as individual members.

vii Beyond the Ombud
Finally, the Press Council could look at strengthening what academic Claude-Jean Bertrand calls Media Accountability Systems or M*A*S, of which an Ombud system is only one part.
Bertrand believes that the purpose of the M*A*S is threefold:
1. To help journalists serve the public better,
2. To help journalists form a profession, feel solidarity among themselves,
3. To help them recover public trust and thus public support to resist political and economic pressure.
M*A*S could include a range of measures, including workshops and education for journalists about news media ethics.

Conclusion

The ANC is driving the introduction of a media tribunal, but has not provided sufficient detail of why it should be introduced, how it will work, or how it will operate. This makes either appreciation of what is intended difficult, and fuels suspicion of a political agenda to create an environment for a news media more sympathetic to the party. That the Press should be regulated in the same way as broadcasting is unnecessary and illogical, because the two industries are different in several respects, not the least that broadcasting is a public resource that is subject to government license.
Parliamentary regulation in a Parliament dominated by one party is not auspicious for independence of a statutory body controlling Press freedom.  In any case, the perception is that the Tribunal could be the part of the environment of hostility to the Press and harm freedom of expression by replacing self-regulation with statutory regulation which may be benign now but could in future serve malign interests. Such perceptions are unnecessarily damaging to South Africa’s international image and “brand”. Moreover, the cost, in commercial and political terms, of introducing another layer of regulation to those already governing the news media, instead of using existing law and self-regulation, should be examined.
Self-regulation is not perfect and can be improved, but it will never satisfy anyone, just as a free Press will never make everyone happy. Self-regulation can be seen as the canary in the coal mine of news media freedom. Moreover, the point must be stressed that South Africa’s history shows that it is not journalists who should fear regulation and crimping of the news media’s ability to report, but citizens, whose right to know is impeded. The business and normative case for self-regulation, along with other media accountability systems, is so persuasive that the Press should consider spending more on a range of initiatives to make the Press Council and the Ombud both more visible and more effective. It may be that this crisis could have a positive effect of making the news media, certain the Press, more sustainable, through enhancing the credibility and quality of South African news organizations through better self-regulation. The worst-case scenario would be the replacement of self-regulation through statutory regulation.

 

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Appendix

Excerpt from the resolutions of the ANC 52nd national conference 2007: COMMUNICATIONS AND THE BATTLE OF IDEAS.

ON THE ESTABLISHMENT OF A MEDIA APPEALS TRIBUNAL (MAT)

1. Conference adopts the recommendation of the Policy conference that the establishment of a MAT be investigated. It accordingly endorses that such investigation be directed at examining the principle of a MAT and the associated modalities for implementation. Conference notes that the creation of a MAT would strengthen, complement and support the current self-regulatory institutions (Press Ombudsman/Press Council) in the public interest.

2. This discourse on the need for a MAT should be located within a proper context. It has to be understood as an initiative to strengthen the human rights culture embodied in the principles of our constitution (Constitution Act of 1996) and an effort to guarantee the equal enjoyment of human rights by all citizens.

3. It particularly relates to the balancing of human rights in line with section 36 of the Constitution of the Republic. This especially relates to the need to balance the right to freedom of expression, freedom of the media, with the right to equality, to privacy and human dignity for all.

4. The investigation should consider the desirability that such a MAT be a statutory institution, established through an open, public and transparent process, and be made accountable to Parliament. The investigation should further consider the mandate of the Tribunal and its powers to adjudicate over matters or complaints expressed by citizens against print media, in terms of decisions and rulings made by the existing self-regulatory institutions, in the same way as it happens in the case of broadcasting through the Complaints and Compliance Committee of ICASA.

5. The investigation should further consider remedial measures which will safeguard and promote the human rights of all South Africans.

6. The Media and other stakeholders, including civil society, shall be consulted to ensure that the process is open, transparent and public. Parliament will be charged with this mandate to establish this MAT, in order to guarantee the principle independence, transparency, accountability and fairness.