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Address to the media: 23 October 2015, On the Issue of Press Regulation-by Judge B Ngoepe
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Address to the media: 23 October 2015, On the Issue of Press Regulation-by Judge B Ngoepe

Good morning
Welcome to the first briefing by our Appeals Panel – the timing of which is no coincidence.

Firstly, this week saw the commemoration of Black Wednesday – the 19th of October 1977, when the apartheid government, in its attempts to quell growing uprisings, outlawed three newspapers and 39 political organisations. This week has, correctly, seen a very sharp focus on the tensions that existed at the time between anti-apartheid organisations and the state, and in particular the role that the state saw the mass media playing in giving voice to those fighting against injustice.

As a result of the anniversary of Black Wednesday, this week has seen numerous commentators voicing an opinion on the relationship between the state and the media today, 38 years later, and 21 years into our democracy.

In particular, we have heard many voices warning of increasing criticism by government and ruling party of the role and character of the South African media – and suspicions that freedom of speech may be impinged upon.

These discussions have been useful and important; we must constantly be reminded of the space for freedom of expression that South Africans have fought for, and which is enshrined in our Constitution.

But Black Wednesday is but one of the reasons we are here. The other is the recent pronouncements by the ruling party – in particular, at its recent National General Council – on the need to review the current system of press regulation, which has sparked renewed interest in South Africa’s system of press regulation.

Thankfully, none of these pronouncements come close to any mention of the draconian measures adopted by the apartheid state. There is no suggestion that I am aware of about the need to licence journalists. There is no discussion around the need to licence newspapers.

But there is a lot of discussion around the regulatory system that governs newspaper content, and in particular the space that I operate in as chairperson of the Press Council Appeals Panel.

If I understand the governing party correctly, it has accepted the findings of the Press Freedom Commission that was chaired by my dear friend, the late Pius Langa in 2013. It has accepted the revisions that were proposed, and have been adopted, to the modalities of the Press Council, and in particular the steps that have been taken to increase public representation on the Council to ensure there is no perceived bias towards newspapers, through their own representatives outnumbering public representatives.

The governing party also appears to have accepted the new improved Appeals Panel that has been put in place, which consists of myself, one representative from the newspaper industry, and three representatives from the public – in other words, an appeals panel which has 25{2469049d4765708acc81cf9a9945e9ec8fb710558d9eddbbea6bd15c42014f67} newspaper representation and 75{2469049d4765708acc81cf9a9945e9ec8fb710558d9eddbbea6bd15c42014f67} public representation. Not to mention my own role as Chair.

Despite accepting these changes – and itself using the Press Council to challenge reporting – the governing party has now revived its appetite for a new structure, independent of the Press Council, to provide an appeal mechanism to the appeal mechanism that already exists. The opinion, it seems, is that there needs to be a more independent body than the independent body that already exists.

Allow me to make a few comments on this.

Firstly, I believe it is in the public interest that the governing party provides more detail about its intentions. Since 2007, its conference resolutions have referred to the need for a parliamentary investigation of the desirability of what it calls a Media Appeals Tribunal, or MAT. Yet no detail – no discussion paper, no framework, no motivation – has been provided. I would like to use this platform today to urge the ANC to publish a formal document that can then be used as the basis for public discussion. We need to understand more about the governing party’s intentions, so that we can begin the public conversation. This is not just a matter that affects the ANC or the newspaper industry: it affects all South Africans, and we need to know more about what is intended. Most importantly, it needs to be distributed well in advance of the proposed parliamentary hearings on the desirability or viability of a MAT, so that the conversation has the necessary depth and breadth of opinion.

Secondly, in the run up to that conversation, we need to hear from legal experts on the vision that has already been painted, however scanty it may be, by the governing party, ie. a media appeals tribunal that somehow does not impinge on the freedom of expression that is enshrined in the Constitution and in particular in the Bill of Rights. Is that possible? Will a Media Appeals Tribunal withstand a Constitutional Court challenge, or is it dead in the water? We need to understand this better, to avoid a lengthy, costly parliamentary exercise that could end up being thrown out of the Constitutional Court.

Thirdly, I would urge the ANC – and all stakeholders, for that matter – to know more about the workings of the current Press Council Appeals Panel. Our activities – and those of the Press Council itself – are available on the Press Council’s website, and give a fascinating insight into how the new Press Council and the Appeals Panel function. As chair of that panel, I am confident that a full understanding of the structure, its composition, its approach and its recent judgments will more than satisfy those who feel it does not provide an adequate form of recourse when newspapers make mistakes.

In terms of the Panel itself, we have adjudicated a number of cases. We found both in favour and against the newspapers concerned. The picture is a balanced one, and does not show bias in favour of any stakeholder. I believe that the Panel has operated, and will continue to operate, without fear or favour. There is significant public representation. Both myself and the chair of the selection panel which chooses public representatives are retired members of the judiciary, and we apply our judicial training, our sense of jurisprudence and our commitment to fairness and equality whenever we don our Press Council hats, and are totally committed to representing the public interest.

Fourthly, I would urge the newspaper industry and the journalistic profession to respect the Press Council and the appeals panel, and in particular to respect its judgments. It is not a pleasant experience to be corrected by the current self-regulatory system – but if journalists and newspapers do not respect its existence and its findings, they are effectively undermining the system – and indirectly supporting the cause of those who argue for a new system.

Finally, I would ask for us to reflect, as a nation, on the slippery path that a Media Appeals Tribunal might take us down. I believe we all respect the rights to freedom of expression – whether it be a journalist communicating news, views and opinion, or a political or other leader complaining about the way that news is communicated. We have heard the discontent among senior leaders of the governing party about the way in which current affairs are covered. In my view, tension between the media is healthy; what is important is to know how to deal with it. Political leaders have a right to complain about the way they are represented. But a Media Appeals Tribunal, in whatever way it is projected, feels like we are going one step too far.

My concluding message, therefore, is that we should understand and exhaust whatever channels are available before we reject or replace existing mechanisms. South Africa’s current system of self-regulation, with increased public participation, is working. We should make it work even better, in the interests of entrenching freedom of expression and holding journalists accountable.

Journalists and editors should take on board the criticism that comes their way. They should work constantly to ensure accuracy, fairness and adherence to the Press Code. They should focus – more than ever before – on training, fact-checking and improving the quality of journalism.

In the same vein, political leaders should accept that the media has a role to play in holding them accountable, and that a draconian intervention such as a Media Appeals Tribunal is not only undesirable and unnecessary, but has dangerous consequences further down the line for all of us.

Judge B M Ngoepe, Chairperson, Press Council Appeals Panel

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