DOCUMENTS

How the press should be regulated - Thuli Madonsela

Public Protector says press council and press ombudsman should be separated

PUBLIC PROTECTOR'S SUBMISSION TO THE PRESS FREEDOM COMMISSION ON PRESS FREEDOM AND THE REGULATION OF PRINT MEDIA IN SOUTH AFRICA AND THE REVIEW OF THE PRESS COUNCIL OF SOUTH AFRICA PUBLISHED IN AUGUST 2011

1. INTRODUCTION

1.1 This submission is in response to an invitation from the Press Freedom Commission to members of the public and readers of newspapers, online publications and magazines, to voice their opinion about press freedom and the regulation of print media. The dialogue on press freedom and the regulation of print media specifically centres around the types of regulatory systems (namely Independent Regulation, Co-regulation, Self-regulation and Statutory Regulation) people would like to see in South Africa and the reasons for their preference.

1.2 Views were also invited on the print media's existing regulatory system, incorporating the Press Council of SA, the Ombudsman's Office and its Constitution, Press Code and Complaints Procedures. The invitation comes on the back release of a Press Freedom Report by the Press Council of South Africa in August 2011 and the establishment of the Press Freedom Commission under the Chairmanship of former Chief Justice Pius Langa.

1.3 In August 2010, the Press Council set up a Task Team to review press regulation in South Africa and to report back with recommendations. The Task Team reported regularly to the Council and consequently this report sets out the Press Council's proposals for changes in its systems.

1.4 For a large part, the review has moved from the premise that there is national and international consensus that the right to freedom of expression and press freedom is a fundamental part of a constitutional democracy, particularly contemporary democracies.

1.4.1 The set of events that has triggered the introspection by the Press Council and the review of the current regulatory model and its effectiveness, in a young democracy where the emphasis is very much on rights and freedoms, have in fact brought the attention to the question of how these rights and freedoms could be balanced with other constitutional imperatives such as the right to human dignity and the rights of vulnerable groups including children and young people.

1.4.2 In a world where the media plays such a powerful role as a watchdog, guardian and disseminator of information, that not only influences public opinion but in essence shapes our morality, it is essential that the individuals and groups who are affected, be assured that this role is performed with utmost integrity and full accountability.

1.4.3 Perhaps the most important focus area of the review is on the issues of whether or not in the South African context, the Constitutional dictates can effectively be balanced and integrity and accountability be sufficiently preserved and exerted in a self-regulatory model. A related question is whether or not the model should be tightened or improved. If the model cannot be enhanced, should we be look for alternatives?

1.4.4 In essence therefore, the question before us is whether or not the self-regulation model for the print media adequately enables the balancing of the right to freedom of expression, which incorporates freedom of the press and the media, with the protection of other fundamental rights, freedoms and constitutional imperatives.

2. WHY SHOULD THE PUBLIC PROTECTOR BE CONCERNED?

2.1 As the fundamental role of the media in respect of freedom of expression and information (and hence to democracy and the development of civil society) directly impacts on the constitutional mandate and role of the Public Protector, the current debate around the role and regulation of the press in South Africa has been closely followed by this office.

2.2 Section 7 of the Constitution states that the Bill of Rights, which includes the right to freedom of expression, inclusive of media freedom, is a cornerstone of democracy in South Africa. "It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom." It places an obligation on the state to respect, protect, promote and fulfil the rights in the Bill of Rights

2.3 There is general consensus that a free and independent media is of fundamental significance for freedom of expression. There's also general consensus that the proper functioning of democracy and civil society would be impossible without a free media and free flow of information. Indeed it is regarded as "emblematic of a truly functioning democratic political system at work." Such statements are based on the contributions that the media makes to the functioning of a democratic society by offering scope for the pluralistic expression of outlooks, opinions and cultures. These contributions include-

2.3.1 serving democracy at local, regional and national level by being a reference point for all members of society;

2.3.2 representing civil society vis-à-vis the authorities;

2.3.3 providing a forum for public debate and a means of promoting broader democratic participation of individuals;

2.3.4 being a factor in the social cohesion and integration of individuals and communities;

2.3.5 being a source of impartial, independent and diverse information; and

2.3.6 serving as the watchdog for the Government.

2.4 The Public Protector is an Ombudsman Office. The Ombudsman is part of a layer of oversight bodies that have been added to the modern democracy architecture. His/her role (it is a personalised jurisdiction) is to reinforce the checks and balances that seek to curb excesses in the exercise of state power and to protect the Rule of Law. The Ombudsman is a fundamentally important part of the network of accountability agencies that play a vital role in maintaining and promoting the integrity of Government and the public service.

Together the oversight bodies are often referred to as an integrity system. The concept of integrity systems supports the notion that there is no single institution or oversight body that would be able to take the responsibility to instil the principles of integrity in public administration. As reflected in Pope's "Greek temple" there are a great many agencies, including Auditor-General, the judiciary, civil society and the media, that perform an important accountability and integrity function.

2.5 Free flow of information is essential for the functionality of the integrity system. To this extent, institutions such as the Public Protector rely extensively on the media and whistleblowers to report issues of fraud, corruption, service delivery failures and other forms of maladministration within organs of state.

2.6 Free flow of information includes information within the state. Government information is a national resource. Its availability and dissemination are important for the economic and social well-being of society generally. Issues brought into the public sphere do not only serve as accountability mechanisms, but also serve as an early warning system to alert the state and its stakeholders about matters that have the potential to impact on its promises to the people or about matters that might derail its drive to fulfil its constitutional obligations.

2.7 Any unreasonable or disproportionate restriction or limitation of access or dissemination of information on the wrongdoings of organs of state would have a serious impact on the ability of the Public Protector to achieve her mandate of strengthening constitutional democracy.

3. IS MEDIA SELF- REGULATION EFFECTIVE?

3.1 The question, more pertinently, is whether or not media self-regulation is the most appropriate and effective model for balancing freedom of expression and the need for and the right to the communication of information with the full spectrum of constitutional values and imperatives that it is bound to respect and uphold, with integrity and accountability.

3.2 Balancing human rights

3.2.1 In essence media self-regulation is understood as a joint endeavour by media professionals to set up voluntary editorial guidelines and abide by them in processes open to the public . Media self-regulation preserves editorial freedom; helps to minimize state interference; promotes media quality; is evidence of media accountability; and helps readers to access the media.

3.2.2 The fundamental reason for freedom of the press, securing freedom of press institutions in international agreements and documents is essentially to protect - and ensure the responsibility that personal opinion may be formulated and expressed. In a recent decision, the Hungarian Constitutional Court emphasised that the individual right of subjective freedom of expression results from "the conditions of formation and functioning of democratic public opinion to ensure the maintenance of their (the citizen's) public duties." The Court further confirmed that the right to press freedom is not exclusive to professional journalists and media magnates but is very much an individual right belonging to every citizen.

3.2.3 Media self-regulation therefore implies that the media is entrusted with the primary responsibility to ensure its effective contribution to democracy and more importantly that certain standards are met in the performance of these democratic functions , which include-

3.2.3.1 surveillance of socio political developments,

3.2.3.2 identifying the most relevant issues,

3.2.3.3 providing a platform for debate across a diverse range of views,

3.2.3.4 holding officials to account for the way they exercise power,

3.2.3.5 provide incentives for citizens to learn, choose, and become involved in the political process, and

3.2.3.6 resist efforts of forces outside the media to subvert their independence.

3.2.4 The European Court of Human Rights has repeatedly highlighted the importance of ensuring the editorial independence of broadcasters. According to European judges, the state's positive obligation to guarantee pluralism must be fulfilled through domestic law and practice which should ensure public broadcasters' independence from political interference and control. Editorial independence means the right of public service broadcasting organisations to determine the content of their programmes freely and without interference from any external authority, "within the limits prescribed by law or other rules in order to safeguard legitimate rights and interests". It is important that individuals be protected from unwarranted suffering as a result of media publicity.

3.2.5 This raises the next issue of whether or not the media self-regulation model sufficiently accommodates concerns that imply restrictions on the right to freedom of expression in order to protect prevalent public and private interests for example hate speech, defamation, and offensive and harmful content relating to children and young people.

3.2.6 Most systems of law, international and national, including the Constitution , recognize certain restrictions on the right to freedom of expression. Such restrictions, however, must be subject to certain limits if the guarantee of freedom of expression is to be effective. Under international law , restrictions must meet a stringent 3-part test which requires the any limitation -

3.2.6.1 to be explicitly provided by law,

3.2.6.2 to pursue a legitimate aim and

3.2.6.3 to be no more restrictive than necessary to protect that aim.

3.2.7 For the legislature to "impair the development of harmful media content published in print and online media products, subject to certain limitations, does not constitute a disproportionate interference. "

3.2.8 There is however, national and international consensus that the state's obligation to safeguard certain human rights, such as the right to dignity and the rights of a child, would not provide a proportionate basis for a general limitation that would subject the media to the authority of the state. In exercising its duty to ensure the protection of human rights, the state does not decide moral rights, but is entitled to determine that measures exist to ensure that the individual programs, themes, characters, and point of view do not impinge upon human rights values:

"The right to restrict press freedom, exceptionally, only a narrow circle, can take place in a proportionate manner when it is to protect other fundamental rights, or "public opinion in democratic conditions for the development and operation of the maintenance required to ensure the duty of the State"

3.2.9 As reflected in the Press Freedom Report, the Constitutional imperatives must be evaluated against the protection - whether relating to content or institutional rights - that are provided for in the legal framework for the personal protection of the community in order to be able to take action against the "infringer" in terms of private and criminal law. If the rights and the dignity of the victim are sufficiently protected by the criminal law and civil law, and he/she may institute proceedings under these rules. The protection of values and rights such as human dignity cannot serve as a basis for the restriction of freedom of the press.

3.2.10 Another consideration focuses on the fact that harmful or intrusive media products may often constitute "subjective infringements of individuals that allow legal action for individual enforcement". A blanket limitation on the freedom of the press would amount to a "disproportionate restriction" and is therefore unconstitutional.

3.3 Providing credible oversight

3.3.1 There is general consensus that effective protection of human rights, particularly of individuals with grievances against media products, do not mean journalists and editors remain answerable only to the law. In this regard, a victim of a breach would be compelled to sue for damages or lodge a criminal complaint. In the majority of media self-regulations systems that are in place, the regulation model includes oversight on issues of compliance and governance. It is in the context of this oversight that the effectiveness of any regulatory system to regulate media intrusions into privacy, dignity and the interests of vulnerable groups such as children, would be scrutinised.

3.3.2 However, it should be noted that there is growing concern that the mass media is not fulfilling their functions properly and these perceptions are undermining the credibility of media self-regulation. Media critics claim that commercial mass media controlled by a few multinational conglomerates has become" an antidemocratic force supporting the status quo" . Some of the criticism include concerns that:

3.3.2.1 The news are more entertaining than informing, supplying mostly gossip, scandals, sex, and violence.

3.3.3.2 Political news are more about personalities than about their ideologies.

3.3.3.3 In the absence of serious debate, voters are left with paid political propaganda containing only meaningless slogans making them disinterested and cynical about politics (Bagdikian 1983; Fallows 1996; Capella and Jamieson 1997; Bennett and Entman 2001; Barnett 2002).

3.3.3.4 It is also claimed that the watchdogs are barking at the wrong things. The media hunt for scandals in the private lives of politicians and their families, but ignore much more serious consequences of their policies. They go after wounded politicians like sharks in a feeding frenzy (Sabato 1991).

3.3.4 The criticism that has been levelled against the shortcomings in print media's self-regulatory system and that have led to calls for stronger press regulation, relate to similar concerns that are affecting the credibility of the system internationally. Recent events in the UK around enquiries into phone hacking at News of the World have not served to improve the reputation of the media, and notably of the UK Press Complaint Commission.

The major concerns that are emanating from these events and the subsequent appointment of Lord Justice Leveson to conduct an inquiry, relate to the issues of active monitoring of the press code by the oversight body, the status of the Code itself, the lack of powers of enforcement, and the lack of serious sanctions in the case of adverse adjudications.

3.3.5 It is, nevertheless, encouraging to note that perceptions of the South African print media and more particularly the Press Council and the Press Ombudsman have not encountered such critical challenges to their credibility as their international counterparts. To the contrary, the rising number of complaints would suggest increasing confidence in the system that can only be improved by the critical introspection and envisaged adjustments to the system.

3.3.6 However, those who are criticising the effectiveness of the existing self-regulatory system, are concerned about the independence of the mechanisms intended to ensure compliance with the standards of journalism and the powers to act against those that do not practise journalism according to those standards.

4. CAN/ SHOULD THE EXISTING SELF-REGULATORY SYSTEM BE ENHANCED?

4. 1 Improving the independence of the Press Ombudsman

4.1.1 One of the main objectives of the Press Council is to "promote the interests of its members", which is different from the purported mandate of the Press Ombudsman. This presents challenges regarding the independence and impartiality of the Press Ombud as it is currently linked to the Press Council.

4.1.2 The proposals relating to the improved marketing of the Press Ombudsman are noted. While there is a difference between a classical ombudsman such as the Public Protector, and organisational ombudsmen such as the Press Ombudsman and the Ombudsman for Long Term Insurance, there is a common expectation that an ombudsman should be an individual who is skilled in dealing with reported complaints and operates in a neutral and confidential role, to help achieve equitable solutions.

The perception of impartiality is assisted when there's a visible arms length relationship between the Ombudsman and entities within his or her oversight jurisdiction. Increasingly, the role of the Ombudsman extends beyond complaint handling to education, and proactively addressing fairness and governance challenges.

4.1.3 It is therefore proposed that the Press Ombudsman establishes its own identity separate from the Press Council, with its own website, access to its complaints mechanisms and own reports, including an annual report. The Press Ombudsman of Namibia and its website is a very good example of the steps that could be taken to improve issues or concerns around the credibility and independence of the South African Press Ombudsman.

4.2 Restructuring of the Press Council and proposals to beef up the complaint system and the Office of the Press Ombudsman

4.2.1 Being Proactive:

4.2.1.1 The proposed review of the structure of the Press Council and proposals to improve access to its complaints mechanisms by means of the position of Public Advocate should serve to improve issues of compliance and governance. The only concern is that the advocacy system should not serve as a filtering system to eliminate legitimate complaints from reaching the Press Ombudsman and should therefore be a voluntary service.

4.2.1.2 There is also a definite view amongst some commentators that an effective regulatory body should actively monitor its code of conduct and act against breaches without awaiting complaints. This possibility is supported as it is line with global trends in the Ombudsman institution. The position of Public Advocate might present the opportunity for some hybrid system that could detect systemic issues or concerns that should be addressed by the Ombudsman.

4.2 .2 More effective sanctions

4.2.1.3 It is proposed that any review of the Press Code should include thorough research and consideration of sanctions apart from offering an apology, such as the Swedish system. The Public Protector has repeatedly reiterated the importance of redress in an ombudsman context - which would otherwise serve as a gate to nowhere. Remedial action or redress is an important part of healing and the mending of relations. Sanctions need not be the only way. Compensation could also be considered as part of restorative justice. Its also important that decisions of the Press Ombudsman are binding. This would improve the office's credibility as an alternative to the courts or a state regulated oversight body.

4.2.3 Finding an alternative to the voluntary compliance with the Press Code, including contractual agreement or even statutory force

4.2.2 Geoffrey Robertson QC, who has acted as counsel in many landmark cases in constitutional, criminal and media law in the courts of Britain and the Commonwealth, predicted that the PPC - "will undoubtedly fight its self-regulation corner, begging not to be vouchsafed the statutory powers without which it cannot work effectively. It's most sensible pitch would be to revive the Shawcross proposal and offer to make contractual arrangements whereby newspapers would agree to implement its decisions, including orders for compensation. But its past record, and the fact that it cannot promise to bring all newspapers into its disciplinary fold, are obvious objections to its continuance as a voluntary body."

4.2.2 Consideration should be given to a system that ensures that all press entities are brought into the self-regulatory environment. If this does not happen, the state may have to step in to deal with those falling through the cracks.

5. CONCLUSION

5.1 In conclusion, it must be noted that it is not really a choice between self-regulation and state regulation. Already there is state regulation of information, which limits freedom of expression with a view to accommodating other constitutional and societal imperatives. Such regulation is given effect through generic avenues such as the criminal justice system, the civil justice system and information regulation laws and systems. 

5.2 If the proposed Protection of Personal Information Act is successfully passed, that will usher in an additional state regulated regime. Perhaps, what we are talking about is possible additional and specific regulation of the press on account of current measures being inadequate.

5.3 The Public Protector view is that it is true that there are gaps in the current regulatory framework. Many of these are candidly admitted in the report that forms the basis of this week's dialogue. The question we are all trying to answer is: should we jettison self regulation or is there room for strengthening this model in addition to the other checks and balances? Ensuring a balanced protection of all human rights and freedoms is equally important.

5.4. The view arrived at after reviewing the Press Council's report is that the integrity and credibility of the self-regulation model is capable of being strengthened primarily through a strengthened Press Ombudsman. A Press Ombudsman empowered through greater autonomy, proactive powers, inclusive jurisdiction and effective remedial action, can play an effective role in balancing press freedom with other fundamental human rights, constitutional imperatives and societal concerns.

5.5. From the perspective of the Public Protector's mandate of strengthening and supporting Constitutional Democracy in South Africa, the need for a free and independent but accountable and responsible media, is not negotiable. Free flow of information is one of the guarantors of an inclusive society where public power and resources are always handled in a democratic with public interest informing every government decision or action and overriding everything. Free flow of information is also a guarantor of a public sector that is accountable, and operates with integrity at all times while being responsive to all regardless of difference.

5.6 The freedom of communication of information, be it good news or the exposure of corruption or maladministration, informs our actions and reactions as a society. It enables us to celebrate where we can, but also to take measures to safeguard ourselves and our country where matters that have the potential to derail us on our continuous road to freedom, are brewing.

5.7 As the Public Protector Team, we commend the Press Council and the Press Freedom Commission for their candid and honest efforts to improve their role as intermediaries in the public sphere. We wish you success.

ADV T N MADONSELA

PUBLIC PROTECTOR

OF THE REPUBLIC OF SOUTH AFRICA

DATE: 01 February 2012

Issued by the Public Protector, February 1 2012

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