The announcement from the African National Congress (ANC) national general council on media, and in particular the revival of the request for parliament to host hearings on the desirability of a Media Appeals Tribunal (MAT), shouldn’t come as a surprise. Its revival speaks to unresolved concerns with the print media that the ANC in particular have been expressing since 2007, and earlier but without mention of the MAT. Many in the media thought the idea had been put to bed after the Press Freedom Commission had completed its work and the Press Council saw a significant overhaul. I know some will think back to the whiskey fuelled meetings in the one-on-one lobbying and wonder where they went wrong, or maybe they just can’t recall how the meeting ended. As we celebrate Media Freedom Day and Black Wednesday, it’s important to consider where we might be headed.

To be clear, an MAT is bad because, aside from the potential limitations to freedom of expression, it simply won’t address the core concerns over the quality of news content, diversity, transformation and what some perceive as overly negative coverage. At the same time, we need to acknowledge concerns about the effectiveness of the Press Council, in particular the issue of monetary fines, the scale and form of redress and enforceability. There is a strong view that publishers will only respect ethics if they are made to pay. While companies tend to listen when it costs them money, the model is by no means flawless and certainly unless it imposes huge amounts it’s unlikely to have any material impact.

None of these arguments are new, and there are valid counters to each of them. Yet again we are likely to see big stand-offs, positional politics and little movement or listening and even less hearing on all sides.

We are also likely to see sweeping generalisations, “the media portray the ANC negatively” or the “the ANC is out to crush media freedom”, and in the middle citizens, audiences and voters get the short end of the stick. Such positional arguments beg the question, who to believe – the ANC or the media?

In addition, and perhaps more importantly, they stop us from having real and more difficult discussions about transformation. What do we actually mean when we use the term in relation to media? How can we deal with racism and sexism in and outside the media? How can or should we deal with the current economic challenges facing our media? How do we encourage diversity? How can we ensure improved quality and reporting on some of our key challenges, like gender-based violence, poverty, environmental issues and child abuse? Each of these requires genuine, hard discussions. I’m not suggesting that media and government and/or the ANC or indeed any other political party will all sit down and be friends. There should be a healthy distance and caution between them. At the same time it requires all of them to act in accordance with our Constitution, and not so willfully seek to discredit the other.

A few weeks ago, the Mail & Guardian (M&G) carried a story about rape and child sexual abuse in Diepsloot. It was a long and challenging read. It was brutal and horrific but was a great piece of journalism, it gave a voice to people in the community and it touched on critical issues that affect the majority of people in our country every day. It did so in a manner that gave dignity and respect to those involved. It was multi-sourced, it had clearly been written over a long period, and it dealt with complexity and context about living conditions in a way most stories do not. It was even hot on the heels of the release of the crime statistics, so it was relevant and newsworthy. Another in the Daily Maverick also sought to unpack and contextualise the crime figures. One of the central issues – and obvious to those in the children’s sector – is the importance of getting early childhood development right and taking care of our children.

A review of the ANC, Democratic Alliance, Economic Freedom Fighters and South African Communist Party websites from when the stories were released to the present shows that, based on their media statements, they said exactly nothing about these stories. Now maybe some individuals did say something about it in their own capacity and on social media, but where was the formal and high-level response? Maybe the piece was only in the M&G, but no, it was picked up by different media, and there was even a follow-up by the journalist to the piece this last week. So where was the reaction? What makes the omission startling was that the M&G story did not only raise one issue. The issues of unemployment, of empathy, of policing of social services, of gender dynamics were all raised in the story, not to mention the central issues of child abuse, rape and gender-based violence. Maybe it wasn’t a priority story and I am expecting too much from political parties when they already have their hands full, and why should they respond to a story carried in one media house? Except that it is or should have been a priority story.

Now here’s the link to the re-ignition of the MAT idea. A newspaper can produce a crappy story that will wrongly and/or unfairly cover a politician and suddenly they will be up in arms, calling for regulation and transformation of the entire sector. This is fair enough on some levels and I would encourage them to hold the media accountable but many politicians only need a handful of stories to assert that our entire media system is broken and corrupt and against them. Talk about self-interest!

So maybe in the case of the Diepsloot story it is because the people who are the central focus are poor and black that our parties don’t care. Maybe our parties don’t care about rape or child abuse. Surely if they did they would have responded? In any event, the media can be forgiven then for responding to the MAT reprisal with a good dash of derision.

The other major problem with focusing on the MAT is that it prevents us from seeing what’s happening in the media. So let’s consider a scenario briefly.

Currently, while significantly more effective than in the past, the Press Council is facing a crisis. The New Age has already pulled out and the Independent Media Group is threatening to pull out over the waiver. (In essence the waiver clause they refer to prevents complainants from “forum shopping” – a practice whereby complainants can look for the place where they feel they are likely to get the best outcome. Without the waiver clause if one isn’t happy with the outcome of a case one could then take the media to court. Effectively, in their view, the media would have to face two separate processes or be tried twice.) With both of these media houses gone from the Press Council, its legitimacy would be called into question in terms of representivity. To make matters worse the Print and Digital Media South Africa (PDMSA) is rumoured to be closing up shop at the end of the year, and as key funders of the Press Council this could precipitate a critical funding crisis. But wait there’s more …

The most recent iteration of the Press Code has seen it expand its jurisdiction more comprehensively to online publications. With this we are seeing a bigger role of the IAB, but not as yet, the matching financial commitment for the Press Council. The move was necessitated by convergence and the fact that previously if people had complaints about online publications, aside from raising them with the media concerned there would be nowhere else to go really. The move is logical and in line with international practice. But hold on just a minute as we are forgetting the new kid on the block, the Film and Publication Board (FPB) which in draft regulations sees itself becoming a regulatory authority and online content regulator. You might recall the FPB has its roots in the old apartheid Censorship Board which has been brushed up and cleaned – but their vision it seems is to broadly expand their role and mandate.

Currently, and in a much heralded ‘concession’ from the FPB, in the new draft online regulations, news media, print and online publications and broadcasters are exempt from some of the more problematic clauses of the Film and Publications Act because they subscribe to the Broadcasters Code of Conduct and/or the Press Council. Leaving broadcasters aside for the time being (and there are big challenges there), is it that hard to imagine a scenario where, due to the reasons outlined, the Press Council ceases to exist and suddenly, without the commonality of the Press Code, media find themselves subjected to the FPB processes?

After all, if there is no self-regulatory or co-regulatory body to which the overwhelming majority of players subscribe, how could media justify not falling under the provisions of the FPB? We know the government would then find it a far easier argument to say, “sorry comrades, but your own system doesn’t have the support of all the big players or majority of them, the funding is not secured … and it just so happens the FPB have recently expanded their role and mandate, we don’t need MAT any longer as we now have the FPB?” Wink, wink, say no more.

As we celebrate our media freedom – and to be clear we still have much to celebrate, for while, our media and government and political parties have their faults our media freedom to a very large degree remains intact – what we all need to ponder is just how far fetched the scenario I have just outlined really is. While I fully support the value of the FPB as an entity that informs and applies classifications regimes in line with international best practice, to programmes, games, films and certain publications, we have to ask how comfortable would we be with the FPB taking on the role of the Press Council? Rather than focus on a Media Appeals Tribunal , if we are to protect our precious media freedom let’s rather have the difficult discussions around media quality, transformation and diversity and as part of those, how we can ensure a strong independent co-regulatory Press Council – one that adjudicates without fear or favour. DM