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Is the ANC right about press regulation? Research says ‘NO’

Dr Julie Reid is an academic and media analyst at the Department of Communication Science at the Unisa. She tweets about media issues regularly from @jbjreid and writes about media policy debates and the state of media freedom in South Africa. Julie is the Deputy President of the South African Communications Association (SACOMM), and an active member of the Right2Know campaign. She is involved in various media policy research projects, has published research in the field of media studies and edited a book on South African visual culture.

Two weeks ago the Media Policy and Democracy Project launched its most recent research report, this time tackling the now thorny issue of press regulation in South Africa. The aim of the report is to measure the main arguments of critics of the press regulatory system, most notably those of the ANC, against hard statistics, numbers and facts. What the report finds is that many of the ANC’s criticisms of the press council system cannot be substantiated against the stats. The report is all the more significant, since at its recent NGC conference the ANC, again voiced its commitment for establishing a Media Appeals Tribunal.

The administrative system of accountability for journalistic ethics in South Africa, the Press Council of South Africa (PCSA), has been the subject of scrutiny since 2007, but most especially since 2010. Throughout 2011 we witnessed the Press Council’s internal process of review, and in 2012, the Press Freedom Commission – both were attempts to strengthen the system, improve its functionality, make it more accessible to the reading public, and to find answers to the critics of the system who accused it of being “toothless”.

In 2007 the ANC resolved to investigate what it called a Media Appeals Tribunal for the regulation of the print media, reiterated this call again in 2010, and again most recently in 2015 after its NGC conference. So, the debate surrounding whether the Press Council is indeed the most effective body to regulate the print media is still very much on the table at present.

During the ongoing national conversation on press regulation, at various times and on various platforms, different engagers in this debate have posed several different questions about the functionality of the system, its efficacy and its appropriateness for South Africa. Little of this discourse is, however, based on empirical and/or scientific evidence, statistics, study or fact. Most of it is based on estimation, sometimes political interest, personal motivations, conjecture or even myth. At the Media Policy and Democracy Project, we set out to assess the Press Council’s performance over a period of five years, as well as interrogate the outcomes of the Press Freedom Commission, and measure our findings against the oft-repeated criticisms of the system. We did this, so that debates could henceforth be informed by statistical analysis, rather than by hear-say, personal opinion and political interest.

We inventoried, studied, categorised and scrutinised all of the rulings of the Press Ombudsman over a five year period. We combed through the Press Council’s archives, offices, records, and plagued its employees with probing questions. We did this for three years (Ja. I know. Research takes time). So what did we find out?

First, critics of the Press Council often say that the Ombudsman is biased in favour of the print media, and that when someone lays a complaint about an article published in a newspaper, the Ombud will most often rule in favour of the press, thus letting the newspaper off the hook. In fact, he does not. We found that the Ombud will rule in favour of a complainant 57.14% of the time. This figure does not really reveal any blatant bias on the part of the Ombudsman, because newspapers get told off more often than not.

Although most of the criticism for the Press Council stems from political parties, these don’t make up the bulk of the complainants. The largest majority of rulings (47.91%) emanate from complaints laid by the business and private sector. This is significant because it indicates three things. First, the business sector is far less tolerant of criticism by the press than the political sector. Second, the press is often criticised for publishing content that is critical of government/politicians, and comparatively too little content critical of corporates and the private sector – but these figures indicate that this assumption may not be accurate. Third, where the reputation of a company/prominent business person is involved (often a marketing or public relations concern), the business sector shows a remarkable level of trust in the current press regulatory system.

The ANC has laid more complaints than any other political party, 12 of which proceeded to a ruling. But this stands to reason with regard to its proportionality as by far the largest political party in South Africa. It does not necessarily indicate that the press is out to get the ANC. As the ruling/governing party, it supersedes other parties considerably with regard to newsworthiness (rightly or wrongly), and is therefore reported on in the press more frequently than other parties, thus increasing the statistical possibility of complaints emanating from the ANC and/or its members and representatives. That said, given the amount of press coverage allotted to the ANC party, that only 12 complaints proceeded to a ruling over a five-year period is a relatively small number, meaning that newspapers are not often found to have slipped up when reporting on the ANC.

A main complaint of critics of the Press Council system was that when newspapers are ordered by the Ombudsman to publish an apology or retraction for having breached the press code, that this is not published with the same degree of prominence as the original article. It is believed that this does little to rectify the reputational damage done to the aggrieved party. This argument persists at the current time.

We recorded a growing trend over a five-year period for the stipulation of the prominence of the publication of the sanction by the Ombudsman, which now takes place in almost all relevant cases. While the stipulation of the prominence of the sanction was not standard practice at the Press Council in 2009, this is not the case at the present time, in 2015. The Press Council has paid attention to this point of concern raised by its critics, and has adjusted its procedures accordingly. What is more, we found that print media publications adhere to the stipulation of prominence of the sanction 100% of the time.

So, while the argument that newspapers “get away with publishing small apologies” may have indeed been relevant in 2009, in 2015 it can no longer be substantiated since this has been rectified by the Ombudsman and Press Council. Some critics of the Press Council have argued that the system’s tardiness in dealing with complaints is reason enough to explore alternative regulatory systems for the printed press, such as a Media Appeals Tribunal. We discovered that over a five-year period, while the number of complaints received by the Ombudsman increased drastically, the time taken to resolve individual complaints reduced substantially. In 2009 it took an average of 233 days to resolve a complaint. In 2013 the Press Council achieved an average of 59 days to reach complaint resolution. (The Public Advocate assures us that this figure is even lower in 2015). It is difficult to see how any other institution, whether the courts, or an alternative regulatory mechanism, would be able to meaningfully improve on the time taken to complete the administration of complaints than what is currently achieved by the Press Council.

Critics of the print media sector have argued that the print news media in South Africa display a continuing decline in the quality of journalism, especially with regard to ethics. But our findings do not validate that argument, and indeed indicate the contrary. Overall, when it comes to adhering to the articles of the press code of ethics, the South African print media are performing well. We know this because we measured the number of times each offending publication was found to be in breach of a particular article of the press code by the Ombudsman. We also determined which articles of the press code are most commonly breached by print publications, and we analysed “repeat offenders” – newspapers who commit the same mistake more than once.

Admittedly, these findings are not without their limitations because they are based on an extremely narrow understanding of “quality” journalism. They do not measure the quality of news reporting according to any indicator outside of measurable infringements of the press code of ethics. They do not measure, for example, diversity of content. Obviously, quality news reporting must also be understood more broadly. But our findings do at least indicate that newspapers in South Africa are found to be in breach of the press code in a remarkably small number of instances, relative to the amount of content published by the print sector. Critics of the Press Council have oft maintained that the system is “toothless”, most of all because it does not impose monetary fines on publications which are found to have breached the press code. The argument here is that the sanctions of the Press Council do little to discourage errand journalism, are not a sufficient deterrent, and consequently print publications commit the same offenses repeatedly.

Our report tested this assumption, and found it to be unsubstantiated. We assessed the number of “repeat offenders”, or publications which had committed a breach of the same article of the press code more than once. We found the number of repeat offenses to be significantly low. Since the instances of repeat offences are so low, there is no substantial evidence to suggest that the sanctioning mechanisms currently employed by the Press Council are ineffective in acting as a deterrent to print news publications from breaching the press code. Once a publication has been sanctioned for breaching a particular article of the press code, the publication does not commit the same breach again, in the largest majority – and I mean a huge majority – of cases. Seems the Press Council is not so “toothless” after all.

Turning our attention to the Press Freedom Commission, we also uncovered some interesting stuff. The Press Freedom Commission made numerous recommendations in its final report, after which a number of significant changes were adopted by the Press Council. These changes appear to have improved the functionality of regulatory system significantly. That’s a good thing. But, we found that there was quite a bit of important substance missing from the final report published by the Press Freedom Commission – things that the Commission could and should have said, but did not.

Again we delved into the archives, and performed a detailed content analysis of the all of the public submissions to the Press Freedom Commission, in order to assess the contribution of the “public voice”. We found that much of the content which was contained in the public submissions, was not reported on in the Press Freedom Commission final report. The Media Policy and Democracy Project adopts a principled approach of public participation, and so we felt that it would be a great loss to the discourse on press regulation, if the “public voice” remained excluded. Since the Press Freedom Commission Report left this bit out, we decided to include it in our report, in order to reinsert the public voice into the debate.

That the largest majority of the content and commentary of the public written submissions was not contained in the final published report is significant because ever since the conclusion of the Press Freedom Commission, this investigation has been positively mythologised in tones of reverence, especially by critics of the Press Council, as a type of authoritative and final voice on press regulation. That is not to say that the Press Freedom Commission was not an important process. It was. But it was not without its omissions and arguably, its failings.

For example: we discovered that the majority of public-written submissions received by the Press Freedom Commission were in favour of the system of self-regulation (51%). In spite of this majority view, the Press Freedom Commission recommended that a system of independent co-regulation be instituted, which was summarily adopted. The final PFC report does not explain why this majority view was not adhered to. We also found that many public submissions expressed a serious concern for the status of press freedom within South Africa, indicative of a public sentiment which was not reflected in the final report.

Perhaps most significantly, we discovered that that the public submissions revealed evidence of a significant public sentiment of distrust of government(s) and the ruling ANC party. A perception exists among a significant portion of the public that the ANC ruling party’s commentary, criticisms and suggestions for the regulation of the press is motivated by political interests rather than what can be determined to be best practice in press regulation appropriate for South African conditions. Whether or not this is in reality the case, it is nonetheless the perception which appears to have developed amongst a significant portion of the participatory public. For its part, the Press Freedom Commission offered a “gift” to the ANC, by omitting to mention this in its final report, and sparing the ruling party embarrassment.

Nonetheless, in real terms, the ANC’s messaging on its position with regard to press regulation in South Africa appears to have somewhat backfired for the ruling party. Although the ANC has publicly restated its discontent for the press regulatory system, in 2015 after its NGC conference, the ANC’s position on this particular matter may be doing more harm than good with regard to public opinion toward the ruling party. The implications of our research findings are made evident when viewed within the broader context of the debate on press regulation.

In our report we refer to a number of instances, including official conference resolutions, where the ANC incorrectly calls the Press Council a “self-regulatory” system. But strictly speaking, is not one of self-regulation now, nor was it before the Press Freedom Commission. The Press Council has never really been a self-regulatory system. However, prominent critics of the Press Council, most notably those from the ANC or its alliance partners and allies, often do not seem to understand this distinction. Such critics repeatedly publically refer to the Press Council as a “self-regulatory” system, which is incorrect. This may indeed be a semantic matter of discussants ‘talking past’ each other, but it is important because it promotes misinformation about the system.

Arguing that the Press Council is a “toothless” mechanism, many critics have suggested the introduction of monetary fines for publications found to be in breach of the press code, as a more severe and appropriate form of sanction. Proponents of the ‘monetary fines’ system have stated that the Press Freedom Commission recommended monetary fines, but that the Press Council did not implement this recommendation. So, we scrutinised the recommendations of the Press Freedom Commission on monetary fines, and we found this argument to be incorrect. The procedural institution of monetary fines by the Press Council are in actual fact, currently more severe and harsh in their nature, than those recommended by the Press Freedom Commission.

With regard to the long-dreaded Media Appeals Tribunal, and to be fair to the ANC, we scrutinised all of its conference resolutions and public submissions. Let’s be clear: the ANC has never asked for statutory regulation which will involve direct state control over the content of the press. Critics of the Media Appeals Tribunal have operated largely according to the assumption that “statutory regulation” is equivalent with state regulation, which in reality is not necessarily the case. There are many different forms of statutory regulation, but these have never been publically debated. There are a number of contextual factors which contributed to a popularised misunderstanding of what the ANC actually wants from a Media Appeals Tribunal, which include a steady decline in press freedom, owing to increasing instances of wrongful arrest, intimidation, harassment and surveillance of journalists in South Africa. Also, there’s the Secrecy Bill; the threat which this piece of legislation poses to investigative journalism can’t be stated enough.

Given that context, the ANC was always going to experience difficulty in convincing opponents of the Media Appeals Tribunal that its idea of a new regulatory mechanism for the press was not untoward in some way. It may very well be untoward, but not in the way that it has been popularly misunderstood. The ANC also did not do itself any favours with regard to redressing the popular misunderstandings of the Media Appeals Tribunal due to its consistent and decidedly adversarial interactions with the media. All of this did very little to foster an impression that the ruling party was not interested in direct control over print media content through the institution of a Media Appeals Tribunal.

The ANC has often reignited its criticism of the system of journalistic accountability adopted in South Africa. Curiously, it has not done the same for any of the other plenitude of media regulatory bodies or institutions within the country. Think of the ASA, the BCCSA, the MDDA, Icasa, the IABSA, or the FPB. It is only the Press Council which has received such a significant degree of scrutiny and sustained reproach from the ANC party, while the other media bodies have escaped such criticism. Why then, this fixation on the Press Council? Why not address other regulatory bodies too?

Related to this, one of the main criticisms which the ANC has oft repeated, is that the press accountability system ought to be more independent, therefore in closer symmetry to other regulatory bodies within the country, and more like the Broadcasting Complaints Commission (BCCSA). So, we studied the governing documents and structures of the BCCSA, and compared this with those of the Press Council. We were looking for what it is about the structures of the BCCSA which make it so much more remarkably independent than the Press Council. We found that it is, probably almost nothing, and more likely, nothing.

Worryingly, the fixation on the Press Council appears to have resulted in a stagnation of the debate. There are very many, very real things wrong with the South African media landscape. But, the Press Council is simply not responsible for dealing with them. Debates surrounding the Press Council as an effective accountability mechanism are often framed within the broader discussion of media diversity and media transformation. The issues of media diversity and transformation, including questions of access and accessibility to a variety of media content for more (all) peoples, are absolutely crucial with regard to the meaningful democratisation of South Africa’s communications landscape. But, positioning the question of the effectiveness of the Press Council into this broader discussion serves to somewhat misplace the issue. Often, these two very different and separate (though intersecting) topics are conflated, confused and blurred, and this serves to detract from more constructive discussion on both topics.

Furthermore, the term “media” is often conflated with the term “print media”. The media is not a homogenous body, so this is also problematic and serves to empty discussions of the necessary recognitions of the complexities of the media sector, and all of its constituent parts. It becomes problematic when the role of the Press Council is conflated with the lack of content diversity available to audiences especially with regard to the print media sector, because this implies that the Press Council is responsible for rectifying this lack of diversity, which it is not. I don’t know of a single country anywhere in the world, which successfully addressed a lack of diversity in its media landscape by reconfiguring its Press Council.

The Press Council is not responsible, nor is it equipped to rectify, the highly monopolised nature of the media sector, including but not exclusive to the print sector. Nor is the Press Council responsible for the economic and market challenges currently faced by newspapers and how these impact on print news reporting. Such ills, while important, fall outside of the mandate of the Press Council, because it functions only as a post-publication accountability mechanism. Effective solutions to factors relevant to media diversity and transformation, fall within the realm of pre-publication news production.

The Press Council is not fit-for-purpose to enact the transformation of the industry, nor address the diversity of content offered by the press, meaning that the site for much of such criticism is fundamentally misplaced. For its own part, the Press Council does what it says it will do within its own governing documents, and it does this well. But a continual return to the topic of the press regulatory mechanism, despite that this system functions remarkably better now than it did in 2009, has resulted in a stagnation of national debate. Necessary discussions on how to more meaningfully democratise South Africa’s media and communications landscapes are vital, but a preoccupation with press regulation expends time, energy and discussion on something which will not assist in addressing our most urgent problems.

At the current time, it is clear that parliamentary discussions of a Media Appeals Tribunal or an alternative regulatory system for accountability in the print media sector may be initiated in the near future. The purpose of our research report is not to argue that a parliamentary investigation of a Media Appeals Tribunal should not take place, but only that if it does, then all involved in such discussions ought to have the relevant correct and empirical evidence available to them during their deliberations, rather than relying solely on conjecture, misinformation and myth. Our report interrogates a number of arguments made by the ANC, its representatives/members and its alliance partners/allies, where these are relevant to the topic of the system of press accountability in South Africa. Our report does not offer a criticism or interrogation of the ANC party, but interrogates only the arguments of the ANC with regard to press regulation. DM

*The Media Policy and Democracy Project (MPDP) is an inter-university collaborative research project between the Department of Communication Science at UNISA, and the Department of Journalism, Film and Television at the University of Johannesburg which was launched in 2012, and aims to promote participatory media and communications policymaking in the public interest. Dr Julie Reid is a project leader for the MPDP. The full MPDP research report referred to in this piece is available for free download here.


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