The ANC has again brought up its perennial idea of a “media tribunal”, a proposal to regulate the media somehow using the power of the government. All the country’s media outlets are, quite rightly, up in arms. It is surely unconstitutional to have government, no matter which agency is used, regulate the media in a way that would see pre-publication censorship. This country is based on the anvil of freedom, and quite frankly, it’s not going to give it up easily. Yet, that doesn’t mean there isn’t a problem that needs fixing.

The fact is it’s very easy for any publication to get away with metaphorical murder in this country. How often do we see newspapers, radio stations, websites and, of course, television stations, getting something wrong? Quite often, actually. Sometimes they can be very badly wrong, actually having a negative impact on future events. And when someone’s reputation is harmed, the media’s response is a rather laconic: “Oh, just sue us.” Knowing full well that it’s simply too expensive and too risky for someone who has been harmed to actually pursue that route.

Then there’s the press ombudsman. Joe Thloloe is an honest and hard-working man, the perfect choice for the job. But to pursue that route, you first have to give up your right to sue. And his findings are almost never published in the same size type in which the original damaging headline first saw the light of day.

A change is called for. But quite frankly, government, by which we can mean the ANC, who is doing the complaining here, cannot be trusted to do it. That’s not a comment on the ANC, (oh, really? – Ed) just an observation that politicians cannot be trusted to decide what should and should not be published. Whatever solution is proposed has to be able to deal with situations in which politicians are lying, or journalists are lying, or where journalists have been lied to. It needs to be sophisticated enough to deal with a president angry that someone has engaged in a conspiracy to convince a reporter that he made a much younger woman pregnant. It also has to cope with a Judge who spoke to a journalist after a liquid dinner, a journalist who swops reality for a couple of lunches or a spokesperson sending hate-fuelled press releases.

France has a solution. There, the tension between the media and politicians has been a feature of society for a very long time. Of course, the French realise that to muzzle the media simply damages a society below the waterline and there is no pre-publication censorship. But they do have courts that are much cheaper to access and operate quicker than they do here. So if a magazine (and there are plenty of them) publishes naughty pictures, or the wrong facts, or is simply malicious towards a public figure, that public figure goes to court.

But there’s a twist. If the court finds the media outlet was wrong, it says so publicly, forces the media organisation to apologise, publicly, and awards damages – though they’re are not very high. So if you as a journalist do get something wrong, you are not ruined. Your reputation as a reporter, the sense of trust people invest in reading your work and in giving you information may take a hit, but you can still function.

The outcome of this means there are publications which regularly pay damages, but have very bad reputations. If you continue to be fined, people stop reading you because it’s obvious you’re just making up stories. But if you or one reporter merely make a mistake, you pay your fine and move on. So long as you don’t repeat the error, your publication will survive.

The most important thing, is that there is no pre-publication censorship. The decision about what to publish is still left to each media outlet’s editors.

I would like to propose a similar solution for the problems here. It cannot be via our court system at the moment because that simply takes too long and is way too expensive. In South Africa, you don’t have to be middle-class to sue, you need to be super-wealthy. The solution is probably some kind of beefed up ombudsman, with real power. Where people can safely go to that office knowing a reporter will be punished if they’ve been maliciously incorrect. But the reporter will also know that he or she will be listened to. Where they know the newspaper (or whatever media organisation) will actually be forced to apologise properly, but the newspaper will also know that its right to press freedom will be fully appreciated.

The cost of such a court could be kept to a minimum, making it concentrate on the issue at stake and not on whose cheque book is bigger, which is mostly the case today. In the end, the court itself would become an important institution where freedom of expression would be discussed and where the nation would be afforded a better look at the importance of media’s role.

This solution would have the benefit of being able to provide the aggrieved with some affordable redress (the fewer lawyers involved, the cheaper) without leaving good journalists vulnerable to malicious politicians. The question now would be who should run the thing. It would have to be someone trusted by both sides, someone with a great legal mind, but who also understands the media intimately.

What’s Albie Sachs up to nowadays?

By Stephen Grootes

(Grootes is an Eyewitness News reporter)