What's behind the media tribunal proposal?

Dave Steward asks whether it's about accountability or power


The ANC is intent on pushing for the establishment of a Media Appeals Tribunal (MAT) in the run-up to its National General Council (NGC) next month.  The proposal has its roots in a resolution adopted at the 2007 National Conference on Polokwane on the establishment of a tribunal that would "balance the right to freedom of expression, freedom of the media, with the right to equality, to privacy and human dignity for all."

The MAT would adjudicate public complaints against print media, "in terms of decisions and rulings made by the existing self-regulatory institutions".  According to ANC spokesman Jackson Mthembu "there is no targeting of newspapers.  We will still use the same journalistic codes (but) if you go against those codes, then we should impose some punitive measures (including imprisonment)."  The MAT would be accountable to Parliament, which "would guarantee the principles of independence, transparency, accountability and fairness".

The ANC believes that the MAT is necessary because the Press's own system of self-regulation has failed.  Numerous ANC and SACP leaders have supported the campaign, including President Zuma, who says that the media "need to be governed themselves because at times they go overboard on the rights."  The President added that the media claimed to be " the watchdog of the people",  but  " they were never elected".   He added that the media was not the only body which understood rights: "We at the ANC, we believe we do.  We fought for the rights".

Is the ANC right about the ineffectiveness of press self-regulation?  The Organisation for Security and Cooperation in Europe (OSCE) has produced a Guidebook on Media Self-Regulation that should be required reading for everyone participating in our own debate.  According to the Guidebook "Media self regulation is a joint endeavour by media professionals to set up voluntary guidelines and abide by them in a learning process open to the public.  By doing so the independent media accept their share of responsibility for the quality of public discourse in the nation, while fully preserving their editorial autonomy in shaping it."

The OSCE warns that "time and again, the road to unnecessary legal interference (by the State) is paved with good will, and prompted by the public's real need for standards in journalism.  Many undue limitations are intended to "help" enhance ethics and quality, or "balance" freedom of the press against other important values, like state security, social peace, or personal rights".   However "such laws tend to merely impose the tastes of the ruling parliamentary majority." Accordingly, most functioning democracies practise some form of media self regulation - and hardly any permit state regulation of the press.

This does not mean that press self-regulation is above reproach.  In 2007 the British House of Commons held hearings on the persistent press harassment of Kate Middleton - Prince William's girlfriend; on News of the World journalist Clive Goodman's conviction for the illegal interception of communications; and on the widespread use by journalists of a private investigator who obtained personal data by illegal means.

In considering the role of the British Press Complaints Commission the Parliamentary Committee reached a number of critical conclusions: It noted that the PCC did not command absolute confidence that it was fair; there was debate about whether the PCC should be more willing to accept third-party complaints; and there were criticisms that the PCC applied its own press code with "far too light a touch."

However, the Parliamentary Committee's main finding was unambiguous and is of central relevance to the South African debate.  "We do not believe that there is a case for a statutory regulator for the press, which would represent a very dangerous interference with the freedom of the press. We continue to believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy. We recommend that self-regulation should be retained for the press, while recognising that it must be seen to be effective if calls for statutory intervention are to be resisted."

The same considerations apply to South Africa where the press has accepted that its system of self-regulation needs to be strengthened.

However, is the current media debate really about press fairness and accountability  - or is it about power? According to the ANC's pre-NGC discussion papers the press is "a repository of immense ideological, economic, social and political power."  The ANC believes that "on the battlefield of ideas" it is faced with a major ideological offensive, largely driven by the opposition and fractions in the mainstream media."  It states that "in our National Democratic Revolution, the media should contribute to the transformation of our country."  However, instead of supporting the ANC's outlook and values, the mainstream media's ideological outlook was one of "neo-liberalism, a weak and passive state, and over-emphasis on individual rights, market fundamentalism."  

The ANC also believes that transformation of the media will assist it on the battlefield of ideas.  It is calling for more representative ownership of the media and for the introduction of a Media Charter.    The idea is, no doubt, that media ownership and control should fall into line with the ANC's ideology of racial demographic representivity. However, there is no place for racial considerations when it comes to freedom of expression and freedom of the media.  Everyone has the right to express their views - and to own media - regardless of their race.   People also have a right to receive the information or ideas of their choice whatever its source

According to the pre-NGC discussion paper, the ANC is determined to "... take charge to ensure that (its "noble ideas") dominate the national discourse" and that its voice "is heard above the rest."  That, in the final instance is what the Media Tribunal, the Protection of Information Bill and proposals to address current patterns of media ownership are all about.  Those involved should think again: further prosecution of the campaign against the media will do enormous damage not only to South Africa, but to the ANC's own image on the eve of its 100th anniversary.  It will wipe out the benefit South Africa derived from the World Cup; it will tarnish our image as a constitutional democracy; it will certainly lead to divisive litigation; and it will seriously polarize our people.

Dave Steward is executive director of the FW de Klerk Foundation

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