The struggle for press self-regulation in contemporary South Africa: charting a course between an industry charade and a government doormat.
By Guy Berger, August 2010.
(Revised version of Paper presented to conference “Communication and Media: Past, Present and Future”, Southern African Communication Association. Sept 2009).
Abstract:
Self-regulation is widely seen as a way to balance media freedom with restraint. In South African press history, this balance has been the subject of contestation under apartheid. While the first 12 years after democracy were relatively uncontentious, concerns were raised in 2007 by proposals for statutory regulation proposals by the ruling party. The performance of the Press Council was an important component in the subsequent power-play around these proposals. This article assesses how independent performance of the system helped persuade the rulers to temporarily suspend their proposals and utilise the existing channels. However, the persistence of a narrow reactive practice of self-regulation provided space for the resumption of contestation in July 2010.
1. Introduction
Press self-regulation has always been contested in South Africa, and controversy erupted again when the ruling African National Congress party (ANC) in mid-2007 raised major problems with the current system. Both the “Mbeki” and “Zuma” political camps in the ruling party had axes to grind with the press, and each side regarded the then-recently established Press Ombudsman and Press Council system as inadequate to address their interests. The ANC called for an enquiry into setting up a statutory “Media Appeals Tribunal” (MAT) to which the self-regulatory system would be subservient. To understand what was at stake for the future of press freedom in South Africa, it is useful to begin with a review of the issues around self-regulation that are salient to the South African experience. Thereafter, this article describes how the 2007-2009 contestation unfolded, and analyses how it developed up until July 2010 when the tribunal proposal was revived within the ANC.
2. Self-regulation
The terrain of self-regulation is generally seen to operate within broad legal parameters of a media freedom dispensation within a democratic political order. It is a creature particular to those systems characterised in normative theory as the social-responsibility model. It is accordingly often argued that in democracies there has to be a clear distinction between issues to be dealt with in legislation or case law, such as access to information or defamation, on the one hand, and on the other hand, journalistic ethics, such as accuracy or fairness, which are not legal matters to be regulated by statutory authority. Bertrand (2004, 2006) has identified at least 80 of what he called “media accountability systems” dealing with ethical issues, extending from self-critical evaluations to internal whistleblowers, etc. A number of newspapers in South Africa have ombudsmen or “public editors” in operation (for example, Mail & Guardian; Sunday Times; City Press; www.newsombudsmen.org). These are all self-regulatory ways in which individual journalists do not operate as free-floating agents, but within a context requiring them to justify their practices.
Self-regulation in this sense is portrayed as a system to ensure adherence to broadly guided codes of principles for the conduct of journalism, developed by the media professionals themselves, and in terms of which various mechanisms have evolved to secure implementation. It is when such mechanisms become institutionalised across a great many media houses, that self-regulatory systems become ways to ensure compliance with particular standards in journalism more broadly.
Self-regulation in an institutional sense differs from government-regulation in that it is voluntary system. At the same time, it involves media sectoral institutional authority that, by agreement of voluntary subscribers, has the power to impose certain sanctions on members if they violate an agreed code of conduct.
A major rationale for self-regulation is related to a principle which has been elaborated by O’Neill (2004). She describes “freedom of expression” as a self-regarding right, and “freedom of the press” as “other regarding”. In this view, free speech is not per se obliged to take account of ethics, whereas journalistic speech lays claim to being guided by the ideals of truth-telling, independence, public interest and consideration for the impact of a given communication. Especially when journalism (as “other-regarding speech”) impacts on the rights of others, the rationale for a self-regulatory dispensation becomes one where journalism is accountable for living up to its own standards (see White 2008). Democracy in this perspective requires the balancing of rights and responsibilities. The argument is thus made that self-regulation is the answer to the question: “if the media are the watchdogs of other centres of power in society, who will take on the job of keeping an eye on them?” (Krüger 2009:10)
When “other-regarding” speech depends on a public resource like scarce frequency spectrum, it has generally been the practice that a degree of statutory regulation of content is regarded as compatible with democratic rights to media freedom. Even here, however, a situation may prevail like in South Africa where the Independent Communications Authority of South Africa has delegated a large degree of content-regulatory authority to an industry-body which is recognised in statute, namely the Broadcasting Complaints Commission of South Africa (see http://bccsanew.co.za/). For the Hans Bredow Institut/EMR (2006:35), this is a situation of “co-regulation”, meaning that it combines “non-state regulation and state regulation in such a way that a non-state regulatory system links up with state regulation”. However, the real debate over self-regulation usually pertains to the press where the ‘scarcity’ rationale for government regulation does not come into play (although cyberspace and the blogosphere have also come under regulatory focus in recent years – See Berger 2007e).
Even in regard to the press, however, there are nuances around the meaning of “self”-regulation. It is a tautology that self-regulation should mean that a body such as a press council needs to be subject to exclusively or predominantly media people such as journalists, media owners and publishers (although for editorial independence to be respected, owners and publishers should not be the dominant parties). Accordingly, as Zlatev (2008) argues, if members of the public or state are represented, their participation should be limited and defined in agreement with the media stakeholders. The same author observes, however, that having representatives of the public involved gives the body greater credibility, secures its transparency and accountability, and serves as a voice of media consumers. In Puddephatt’s view (2008), self-regulation is most successful where it properly engages the media industry – publishers and owners, editors and journalists – and also involves the broader public. However, such arrangements can begin to blur into press-stakeholder co-regulation. If press freedom and autonomy is essential to democracy, then regulation by a majority of non-media stakeholders, even if non-governmental, could compromise the character of self-regulation.
Another argument in favour of self-regulation systems is based upon the public’s right to information. As Matsuura (2005:8) argues, freedom of the press is strongly correlated with the public’s right of access to knowledge and information. In this light, there are societal claims on media to deliver professional and ethical reporting. Again, self-regulation is seen as an institutional mechanism to help meet this functional need, because it avoids opening the door to control by extra-media forces who might well bring their own interests to bear in terms of undermining the public right to know.
What all this means is that systems of self-regulation cannot prevail unless there is media freedom, as correctly noted by the International Federation of Journalism (IFJ 1999; See also Dennis et al 1989). In this perspective, self-regulation avoids the dangers of political control, leaving media ethics largely to media professionals both as individuals and as a community. Significantly, for the South African debate, the IFJ position is that not only governments, but also parliaments, should refrain from regulating media content. The argument is therefore made that as a fundamental condition for self-regulation to work, and not to turn into political control of media content or self-censorship, press freedom (from both state and government) has to be respected. It is against this backdrop that Zlatev’s primer on self-regulation includes amongst the main duties of a press council being to defend press freedom (2008:46). On the other hand, if political authorities resent even ethically-compliant journalism and if they decide pursue limits on press freedom regardless, this removes the autonomy that is essential to self-regulation. It is the extent to which the broader public cherishes press freedom, and self-regulation as integral to this, that provides the ultimate guarantee against political control. In turn, and as elaborated further below, a system of self-regulation needs broad public awareness and support as a condition of its success.
The assumption therefore is that self-regulation is a recognition of the relative independence of journalists and the media. This is expressed by the African Union’s Commission on Human and People’s Rights, in its 2002 Declaration on Principles of Freedom of Expression in Africa. The Declaration reads: “Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference.”
It is this paradigm that seeks to find a “sweet spot” of self-regulation between the extremes of governmental regulation via the state (which also carries dangers of pre-publication censorship) and an unregulated free-for-all. However, self-regulation is not primarily a way to “keep the government off the media’s back”, to utilise a colloquial expression. This is a significant point, given the observation by Bussiek (2008:1) that in Southern Africa, “self-regulatory systems were put in place only after governments threatened to introduce statutory regulation”. As this author has written (Berger 2009b): “If it functions effectively, a press council can keep government control out of media. But that is, ultimately, a valuable by-product of doing the right thing in terms of upholding quality standards and requiring editors to publish apologies and corrections when found wrong. Acting as a sop to a predatory government should never constitute the motive force or raison d’etre of self-regulation.” Self-regulation for primarily political reasons risks becoming a synonym for self-censorship.
What is also important to record is that self-regulation is also not a system in the interests of the media as such. This is because, as Nelson Mandela (1996:8) has articulated, “Freedom of expression is not a monopoly of the press; it is a right of us all”. The point of self-regulation therefore is to promote journalistic standards in the interests of “all”. In turn, that means that a system which is independent of not only government, but also the media itself. A press council has to be above the “us” and “them” when it comes to complaints by a given party against a given medium. Accordingly, a press council should not be a token or charade that beneath the rhetoric actually serves to defend ethical violations. “Its credibility rests wholly in its being an authentic independent process of redress to citizens when, as too easily happens, media ethics go awry and people’s rights are infringed” (Berger 2009b).
If self-regulation is seen as a sincere, rather than expedient practice, it follows – as argued by the International Federation of Journalists (IFJ 1999) – that journalists and their organisations should promote public confidence in the media by establishing systems of self-regulation. Breit (2005) takes this issue further by criticising how journalistic self-regulation in Australia has tended to treat the public as passive recipients of information, rather than as integral parties to the process. She observes that this situation relies heavily on complaint-driven processes, rather than engaging with media literacy issues and with recognising that audiences’ consumption of news is not a passive activity. This observation thus implies not just an autonomous role for a press council, but a highly pro-active one. One debate here has been the issue of whether a council should behave like a “media observatory” which combines research, advocacy and pro-activity roles along with the conventional and narrower role of receiving and adjudicating complaints. There has been some debate in South Africa around this, as will be discussed below.
To operate as per paradigm and promote high standards, a press council has to be effective.
To this end, as Zlatev (2008) notes, a press council needs to oversee (and amend if necessary) a code of conduct in such a way as to realise standards in an independent way and through actual practice of enforcement. However, one of the biggest debates around self-regulation is the extent to which mechanisms such as councils should have statutory recognition, and further on this, whether there should be powers that are backed by the force of the state to ensure actual compliance.
In many countries outside of Africa, press councils are generally non-statutory (Denmark being an exception, OSCE 2008, see also www.media-accountability.org; www.wanewscouncil.org). Within Africa, however, Kenya and Botswana have recently introduced statutory systems. The argument for non-statutory regulation is on the grounds that introducing the compulsive power of the state to back up self-regulation compromises the very character of self-regulation, and also that it opens the door to government intrusion. A similar argument extends to press councils avoiding adopting to powers for which they have little real enforcement authority. In this vein, Zlatev (2008) notes that “a self-regulatory body would have grave difficulty introducing fines or compensation unless it had a statutory basis – and that, of course, would conflict with the notion of the system being self-regulatory”. The same applies to why a self-regulatory body should not have the power to award monetary compensation to successful complainants. Even more so is any notion that self-regulatory bodies should have the power to prevent journalists or newspapers from operating – which kind of licensing would only be possible with statutory sanctions. A further argument against statutory powers is inscribed in the provision of the African Union’s Declaration of Principles that self-regulatory powers “shall be administrative in nature” and that a council “shall not seek to usurp the role of the courts”. This particular point has been a source of some tension in the South African situation, concerning a “waiver” clause, as discussed below.
A non-statutory regime, which by definition entails voluntary subscription and compliance, contrasts with state-sanctioned bodies which may be able to conscript membership and which can thus discipline journalists, even if the majority of their membership consists of non-state actors (as in Kenya). In contrast, the non-statutory system means that “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” (Haraszti 2008). However, one of the most common causes of failure of non-statutory self-regulation is disregard by editors of the system. Referring to the British Press Complaints Commission in regard to that body’s shortcomings, Robertson (2002) has written: “It has designed an ethical code which it declines to monitor, and its decisions are accorded a degree of cynicism, bordering on contempt, by editors." (See also Gore 2008). The failure of members to take responsibility and to abide by the system strengthens those who wish to see a self-regulatory body provided with statutory “teeth”. In this way, a weakness in non-statutory self-regulation can pave the way for statutory self-regulation, which in turn creates the further potential for governmental regulation via the exercise of state power.