Joe Thloloe, the Press Council’s venerable ombudsman, often points out that reforming the self-regulatory structure is not about appeasing the ANC.

He’s entirely right – we need to deal with the merits of ANC criticisms separately from any underlying political agendas.

Redressing internal weaknesses will undercut much of the external criticism. But sustainable self-regulation in the longer-term also depends on the system actually improving journalists’ adherence to ethics – and, through that, a strengthened press service to society. 

To this end, two important changes could help: Toughening Press Council sanctions on errant papers, and scrapping the requirement where complainants have to chose between going to the Council or going to court – a protocol known as the “waiver”.

On sanctions, the newspapers who are voluntary signatories to the Press Council accept that their system can order them to publish apologies and corrections when a complaint is upheld. But they could also agree to further powers, whereby serious or repeat offenders could face fines akin to the case in the voluntary broadcast regulator, the Broadcasting Complaints Commission of South Africa.

When violating newspapers have to shell out funds to the Council, even if there is a prior ceiling agreed, they are more likely to cut an editor’s annual bonus if he or she incurs such a penalty.

That would lead to greater care being taken in the editing process. You don’t need the ANC’s statutory tribunal for this to happen – contrary to angry tweets by YFM’s Kanthan Pillay over the weekend.

It risks painting self-regulation as self-serving if the Council maintains the “waiver” whereby complainants who voluntarily choose to sign up to Council arbitration have to agree to stick to this forum only.

The “waiver” supporters say that editors would take the Council less seriously then if a case could also end up in the court. But editors should recognise that a victory in the self-regulation arena would be a good omen for a subsequent court judgment – if, in fact, an unsuccessful complainant still decided to pursue a legal case.

Underpinning these two proposed changes – introducing fines, and scrapping the waiver – is a firm view of what the core business of the Council should be. It’s this: The self-regulation system should deal only with ethical issues – never legal ones.

Many ethics issues in the Council’s Press Code are not even covered by legislation – like making fact and opinion clearly distinguishable. But where confusion sets in is that the Code also covers some ethical issues, such as not publishing material that amounts to hate speech, for which there are also laws.

Despite the overlap, self-regulation is not about providing a parallel or paralegal institution—a kind of small-claims court that is an easy alternative to a mainstream court. Instead, inasmuch as some complaints are about matters that have both ethical and legal dimensions, the Council should pointedly highlight its exclusive focus on the former.

To do this, the Council also needs to expand its ethical code. At present, the Press Code refers only to Section 16 of the Constitution, not the entirety of the document. It, therefore, lacks direct references to the ethics that relate to citizens’ rights to reputation, dignity or privacy – issues which can sometimes outweigh press freedom to publish if the public interest is insufficient.

Outside the Code, there is a whole body of civil defamation law, the crimen injuria offence and various jurisprudence on privacy. The Council should end the imbalance and expand its Code to include these important issues, but again only from the ethical aspect.

If this happened, the Council could then, for example, hear complaints about defamation on the ethical level. In this illustration, the ethical standard would be that a person’s reputation can only be fairly impugned if the information is true and in the public interest. The Council would assess how editorial ethical choices were weighed up and exercised, and whether these were legitimate or not.  

A court, in contrast, would encompass, but also go beyond reportorial intentions and processes to establish whether the story concerned was in fact true and in the public interest. The law would deal with its own standard, which the Council would likely regard as a background minimum for journalistic conduct.

Making such a strict separation between ethics and law helps explain the rationale for introducing fines and scrapping the “waiver”:

If the Council did impose a fine, this would not be about awarding damages to the complainant. As in Denmark, the monies would go towards special projects by the Council itself (like funding research into ethical trends). A complainant who wanted compensation could only get this via a court of law.

Scrapping the “waiver” would make further sense because the issues considered by a court would not be the same as those dealt with by the Press Council. Of course, there could be a relationship between the two, but these are not identical spotlights being brought to bear. The distinct sides of a single coin would be handled by different bodies, akin to the Dutch self-regulatory system.

Restricting the Press Council to ruling purely on ethical dimensions, though with sharpened teeth, means proceedings could then safely be “de-lawyerised”. That would enhance accessibility to the institution and reduce costs.

That still leaves the matter of accessibility of the courts to persons aggrieved by press coverage. Yet, just as the newspaper industry’s self-regulation system should not be administering the law, so this matter should also lie outside of its purview.
Rather, it is the state legal aid apparatus that should help complainants in regard to judicial channels, just as happens for citizens who feel wronged in spheres outside of newspaper coverage.

By putting the focus on ethics alone, the Press Council would highlight the choices facing those who produce newspapers.  It could then go beyond upbraiding those who fall short of best ethical practices, and also praise cases of highly ethical standards in journalism. In this way, the emphasis would fall on incentivising improving journalism in general, rather than being confined to wielding a stick against poor practice.

If that kind of outcome is not something newspaper people and the civil society support, then we may as well stick with current arrangements – and the prospect of an impasse between press and the ANC.

But why would anyone want to settle for less than the first prize of a real kick-butt and seriously viable self-regulation system? DM