The right of the public to a free media is indisputable. It is an essential component of South Africa’s democracy – which depends on informed citizens participating in all aspects of our society. There are many aspects to this so for the media to play its role, it needs to be trusted and seen as credible by the public. Independent regulation is crucial to this as it is intended to act in the public interest and provide a means for redress if any publication breaches the fundamental responsibility of journalism – to tell the truth.
It is now three years after the press committed to addressing flaws identified in the system of self-regulation in response to the findings of the Press Freedom Commission (PFC) headed by the late former Chief Justice Pius Langa. If the new system was working though, we should be seeing its effects on the pages of newspapers. We should be seeing a higher commitment and more effort put in to reporting the truth rather than distorting it for a sensational headline.
The problem is not that the self-regulatory system does not find the media at fault. It does. And papers are regularly ordered to say sorry for their blunders. But will a system that does not affect the bottom line of publishers or the performance bonuses of editors and journalists ever really ensure ethics are adhered to? The danger of not doing this is that the media will increasingly be viewed with skepticism (and the falling circulations of print publications might be due, in part, to their lack of credibility and relevance to readers).
Two recent cases illustrate this:
On 20 April 2015, the Press Ombudsman and a panel of adjudicators ruled that despite the efforts and good intentions to investigate corruption, the Daily Dispatch (owned by Times Media Group) failed to verify the link between the awarding of the “toilets tender” and the influence of the ANC leaders mentioned in that story and depicted in the pictures. This publication was found to be in breach of the following sections of the Press Code:
2.1: “The press shall take care to report news truthfully, accurately and fairly”;
2.4: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be stated in such report”; and
4.7: “The press shall exercise care and consideration in matters involving dignity and reputation…”
In its response, Daily Dispatch argued that it got comment from “Mpeluza” and tried to get hold of “Sambudla”. The Press Ombudsman concluded that Daily Dispatch failed to return to the ANC secretary general Gwede Mantashe, who was the subject matter of the story, to answer the concerns about his alleged influence over the tender, which was the nub of the story. Again, this was found to be in breach of Section 2.5 of the Press Code that states: “A publication shall seek the views of the subject of critical reportage in advance of publication…”
Worst of all was that the headline, according to the ombudsman, was based on information that could not be proved. The Press Ombudsman found that this was unfair and in breach of Section 2.1 of the Code. Section 8 of the Press Ombudsman Complaints Procedures and Hierarchy of sanctions, distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
While the Press Ombudsman acknowledged the seriousness of the breach by Daily Dispatch and the unnecessary harm that this story did to the reputation and dignity of President Jacob Zuma, Mantashe and Lindiwe Zulu, the sanction was that the Daily Dispatch must just say sorry. Yes, like in the Kasrils vs Sunday Times ruling, the requirement is that the apology should feature prominently on the front page, immediately underneath the masthead, and should include the words “apology” or “apologises”, and “ANC”, with a reference to the proper apology inside. Further, the sanction is that the apology must be on either page two or three, and it should encompass a proper summary of the panel’s finding.
On another matter of Lumko Mtimde vs Business Day on the 2 April 2015, the Press Ombudsman noted Section 2.6 of the Press Code which provides that “A publication shall make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation.”
The Press Ombudsman emphasised that Section 2.6 does not require that an apology should have exactly the same prominence as the report in question – it merely states it should be “appropriately” prominent. He noted the seriousness of the breach of the Press Code by both Business Day and City Press (in a similar complaint of Lumko Mtimde vs City Press) and stated that he had little doubt that the errors had caused Mtimde some serious, unnecessary harm.
But the Press Ombudsman simply noted that the apologies were printed promptly. In respect of the Business Day, the Press Ombudsman found that there were respectively two apologies, five days after the story, as required by the Press Code; and regarding City Press, he found that the City Press apology was clear and unambiguous fulfilling Section 2.6 of the Press Code.
Section 8.2 of the Complaints Procedures states: “Monetary fines will not be imposed as a penalty for the content of the press.” Accordingly, the Press Ombudsman noted that he did not have the jurisdiction to impose monetary fines for breaches of the Press Code.
These are about a few examples of how the print media, in its rush to print and be first to break a story, breach the Press Code, harm a number of innocent citizens and damage their integrity and reputation, with very little consequence. On the scan of their website, there is a number of such apologies, including the one of Prince Buthelezi vs City Press (13 March 2015), this in addition to voluntary daily apologies in a small corner/box found in newspapers countrywide. Similarly, on Google, you will find a number of South African media apologies like the one of News24 to Mtimde, etc. The danger is that when you Google somebody, the most popular articles appear first and therefore, if the apology does not appear on the first page of Google results, wrong perceptions are unduly created about people. Readers generally read the initial article and subsequent reports on the same matter may not get the same readership as the initial damaging article.
In March 2012, the late former Chief Justice Pius Langa and his team of nine persons, who were appointed by Print and Digital Media SA (PDMSA) and South African National Editors Forum (Sanef), submitted the PFC Report, which supported the need for independent regulation. It recommended independent co-regulation as a compromise, a number of governance changes, waiving of the illegal waiver of the complainants right to pursue a legal route on lodging a complaint with the Press Ombudsman, media transformation, content diversification, skills development, a media charter, a number of amendments to the Press Code including that, “Revise the regime of sanctions based on a hierarchy of infractions and their corresponding sanctions, with a scale of “space fines” and “monetary fines”…
This PFC report attempted to bring public interest into the regime of self-regulation. It also recommended ways of discouraging the practice of unethical and gutter journalism that compromises the profession. The question is, to what extent were its recommendations taken seriously?
The ANC in its 52nd and 53rd conferences (Polokwane and Mangaung) decided that an inquiry/public hearings be held by the Parliament portfolio committee on communications, reflecting on the PFC Report and investigating the desirability of establishing an independent appeals mechanism, as one way of promoting media accountability mechanism, having regard to the Constitution Act of 1996. The fourth Parliament could not conduct this inquiry; it is hoped that the fifth Parliament will manage to process this important matter, so clearly in the public interest. The issue, as I understand it, was not about the wording like whether it is called Media Appeals Tribunal (MAT) as other people reacted to the word ‘tribunal’. Also, the issue was never about state control or state regulation or pre-publication censorship. On the contrary, it has always been about independent media regulation, acknowledgement of other rights like right to human dignity, right to privacy, etc. and compliance with the Constitution Act, the law and the Press Code. A statutory created system does not mean state control. In South Africa, there are a number of independent bodies created by statutes, such as IEC, Public Protector, Icasa, and IBA,
As part of the above-mentioned parliamentary process and noting the recommendations of the PFC, how do we discourage the compromising the integrity of the journalism profession? How do we discourage breaching and noncompliance with the Constitution Act, other laws and the Press Code? How do we strengthen self-regulation? How do we ensure that human dignity and rights of the affected are protected by the regulatory system; how do we ensure appeal is through an independent regulatory body? Do we impose fines guided by the different tiers in the Press Council Complaints Procedures and how much? Do we fire editors and sub-editors who preside over the breaching of the Press Code? And generally, what needs to be done to protect media freedom FOR ALL, and transformation and promotion of media diversity. Of further consideration is whether South Africa should amend the defamation laws for effective regulation in the public interest? The defamatory route could be a quick fix that could impose effective remedies including fines. What else can be done to strengthen print media independent regulation, of course within the framework of the Constitution Act of 1996 (as amended)?
As the citizenry and the media industry, we need to dispassionately have a conversation on these matters in the public interest and prescribe a system that promotes trust in the media – and therefore reinforces and protects freedom of expression, media freedom but also respect all other rights enshrined in our Constitution. Our media must be free, independent, diverse, be vibrant, investigate and report on wrongs and corruption, but all must be done within the law. DM
Lumko Mtimde is an ICT, media and broadcasting policy and regulatory expert and former CEO of Media Development and Diversity Agency (MDDA)