In an article on a massive defamation claim made by Gold Reef City against M-Net's popular Carte Blanche magazine programme, journalist Kevin Bloom warns of the "chilling effect" such a lawsuit would have on the media. He says a legal victory for the casino and theme park operator would be a "dangerous precedent".
It logically follows that the ANC is entirely justified in setting up a media appeals tribunal answerable to parliament, and to impose even more far-reaching regulation such as licensing journalists and publications.
Don't believe this won't happen. As a team of Times reporters put it: "Journalists would have to be registered, the ANC would have its own radio station and the controversial media appeals tribunal would be operational within a year, if some of the ruling party's provinces have their way this week."
The situation for the South African media has gone well beyond classification of information and government oversight. It is now as dire as in Uganda, about which I wrote in April. The authoritarian laws mulled by the ANC would not only muzzle the traditional media, but it would throttle free speech online too. There is no reason to believe a blog, for example, would be able to report news, or comment on it, without formal permission from the government.
Given the gravity of the danger, the media has to fight and win this battle. South Africa's hard-won liberties are at stake in a way they have not been since the country's liberation from oppression in 1994.
In fighting this battle, it is one thing to fail to galvanise the broader public behind the cause of free expression. It is quite another to actually make the case for the opposition.
The purported basis for the ANC's claim is that the media is too often negligent or malicious, and there is insufficient recourse for those who are wronged as a result.
Even though actual examples to support this claim are thin on the ground, the rebuttal is quite simple.
First, there is a Press Ombudsman, who can rapidly and inexpensively deal with complaints and impose remedies. In cases in which that proves insufficient, there is an independent judiciary to which aggrieved parties can appeal.
The merits of Gold Reef City's case against Carte Blanche are not at issue here. It may win, or it may lose, depending on the evidence led in court. Its right to sue for defamation and commercial damages, however, should never be in dispute. It has the right to challenge reporting in the media, as does everyone else. If this right did not exist, a media appeals tribunal should.
ANC spokespeople have made the further claim that legal action is beyond the means of most South Africans, so that the availability of such recourse is insufficient grounds to oppose a Media Appeals Tribunal. This is far from the truth.
For a start, the media predominantly holds the rich and the powerful to account. The media exists to defend the interests of ordinary South African citizens against the abuses and negligence of elected officials and powerful corporate interest. This is the basis for its extraordinary Constitutional protection.
Most people who feel aggrieved by the media are well able to afford legal recourse. When you're suing for R47 million, as Gold Reef City is doing, spending a fraction of that on lawyer's fees is not really a big deal. When you spend R27,500 per person per month on office space, as the communications ministry is reportedly doing, you can afford senior counsel's hourly rates.
If you really cannot afford a lawyer, there are other options. There are many law clinics and NGOs that will take on public-interest cases. There are commercial entities, such as LegalWise, which provide inexpensive access to legal aid to its customers.
If even that isn't sufficient, many lawyers will take cases on a contingency basis. This means they will evaluate a case, and if they believe it to have merit, offer to take the case on condition that they only get paid if they win it for their client. There need be no legal cost at all to sue, if your case has merit.
If all this were not true, the call for a media appeals tribunal answerable to parliament would be justifiable.
If, on the other hand, you argue that those who feel wronged by the media do not have the right to sue, or that a legal defeat for a media outfit would set a dangerous precedent for media freedom, you grant the merit of all the ANC's claims in favour of a media appeals tribunal.
We hear often about the good intentions of the ANC's proposals. It does not intend to muzzle the media, it claims. I have quoted a simple counter-argument before, in the words of former US president Lyndon B Johnson:
"You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered."
The intent of a law does not matter. What matters is its potential effect. This point must be made often and loudly by everyone who is troubled by the notion of political oversight over South Africa's media. Even just the potential to restrict media freedom is enough cause to argue that it undermines the Constitutional right to free expression and a free press. Relying on the moral and ethical values of those who are bound (or in this case, unbound) by a law, as the ANC self-righteously says we should do, is likewise cold comfort. It is an even more dangerous claim in terms of political and legal philosophy.These arguments were valid against the Apartheid-era Steyn Commission and its "Press Council", and similar proposals to convince the press to be less negligent and more considerate of the government's political aims. The arguments would remain valid (and would probably be made by the ANC itself) against an identical proposal by a hypothetical Democratic Alliance government.
All this is more than enough reason to fight hard against the ANC's proposals involving the media.
Despite claims about its intent, the true basis for the ANC's claim may well be far more sinister. This is a politically unprofitable argument to make, but if the media starts by granting the justice of the ANC's stated motive for a media appeals tribunal, it has lost the battle before it has even begun.
Gold Reef City's case against Carte Blanche should be celebrated. It should be held up as a shining example of how a free media is supposed to be held accountable in a free society. Instead of condemning it, the media should thank Gold Reef City for its timely demonstration in support of the media's goal to remain free.
Bring on those lawyers! Honest, competent journalists have nothing to fear. DM
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