In ditching the Press Council, Independent Media listed as its main complaint the Press Council’s reluctance to reintroduce the highly contentious waiver as its reason for ditching the Press Council. In days gone by, persons who felt aggrieved about the contents of a press report were required to sign a waiver when laying a complaint with the Press Council, which meant that they agreed not to take their complaint to court if they felt unsatisfied with the Ombudsman’s eventual ruling. On the surface of it, it’s easy to see why media outlets would be in favour of the reintroduction of this little deal.

But here is the grind: instituting a waiver in the complaints procedure of any media regulatory mechanism is wrong.

The question of why it is wrong to include the waiver in the procedural mechanism of the Press Council, actually has little to do with the waiver itself. It has more to do with something called third party complaints. This is where any reader of a print publication can complain about a report directly to the Press Council, without having to necessarily be personally implicated in the content of the report. Prior to the Press Freedom Commission (2011-2012), the Press Council did not accept third party complaints, meaning that a reader could only object to a news story if they were personally mentioned, or had a personal interest in, the report in question.

That arrangement made little sense. Firstly, it was out-of-synch with similar media regulatory bodies, like the Advertising Standards Authority or the Broadcasting Complaints Commission of South Africa. At that time, the public could lodge a complaint (as a third party) with a regulatory body about anything they saw on television, heard on the radio or which was represented in an advertisement, but not about anything they read in a newspaper. This meant that viewers or listeners of radio and television, or persons opposed to the content of an advertisement, literally had more rights of initiating media accountability, than readers of newspapers did.

The refusal of the Press Council to allow third party complaints was debated at length during both the Press Council’s internal process of review (2010-2011) and the Press Freedom Commission. A strong lobby came from a group of academics at Unisa, who produced a set of research findings on the topic, assessing the inclusion of third party complaints in Press Council systems around the globe. After the Press Freedom Commission the system was amended, and for the first time third party complaints were permitted. Subsequent research* has revealed how the inclusion of third party complaints has in fact strengthened the Press Council as a regulatory system. It has raised the public profile of the Press Council, allowed for greater diversity within the regulatory framework, and because the ordinary reader is now permitted to take part in the system with agency and voice, it fosters a greater sense of a people-centred collective ownership of the Press Council.

Putting things simply, the continued exclusion of third party complaints was not morally or logically defensible. By not allowing for third-party complaints, the Press Council operated, in procedural terms at least, as an institution divorced from the (wo)man-on-the-street, unwilling to listen to the voices of ‘the people’, and elitist in its structural nature. The eventual provision for third party complaints democratised the nature of the Press Council in the participatory sense. That is a good thing.

But that meant the waiver had to go. The continued use of the waiver would have disallowed third party complaints. The two cannot co-exist within the same procedural framework. Simply, a third party could submit a complaint with the Press Council, while a first party complainant may approach the courts with the same complaint. In this instance, both the courts and the Press Council would be administering the same complaint, which would cause a number of legal hang-ups and complications. In light of having to choose one over the other, and knowing the democratic benefits of including third party complaints, the preservation of the waiver was/is not as valuable.

Of course, this was not the only reason for ditching the waiver. Placing massive political pressure on the Press Council, the ANC complained bitterly and often that the waiver denied the complainant their constitutional right to take matters to court, if they were unsatisfied with the outcome of the Ombudsman’s ruling. Here, the ANC made a reasonable point. But more importantly, the waiver received wide-ranging ridicule from various other quarters and from persons who had made use of the Ombudsman system. In 2012 Gloria Edwards, a researcher at the North-West University, found that by and large, complainants who approached the Press Council were ardently opposed to the requirement of waiving their rights to approach the courts. Both the Press Council’s review and the Press Freedom Commission involved open public participations: during these the waiver was routinely admonished, indicating again that there is little popular support within academia, political circles, civil society nor the general public and news-consuming audience, for the continued use of the waiver.

Obviously, Independent Media does not care what people think. That Independent Media insists on the re-introduction of the waiver means that it is happy to dictatorially ignore, or it has forgotten, the democratic, open, public and participatory process of decision making which lead to the waiver’s demise. That’s pretty shameful.

Independent Media is also selecting to ignore the bigger picture with regard to international best practice. Research conducted by the Media Policy and Democracy Project in 2011 revealed that only 10% of the top 50 countries in the world, ranked according to their press freedom ratings according to a number of different indices, impose a waiver in their press regulatory mechanisms. It’s not terribly worthwhile to look at any of the countries ranked from 51 and below, since these places do not have what can be considered a free press, and therefore their regulatory environments should ideally not be exemplified by democracies such as ours. What we have to ask though is this: does 10% really indicate ‘best practice’, and why have the largest majority of free press countries opted to abandon a waiver?

The counter argument offered by Independent Media is high legal costs, in that it claims that the removal of the waiver has subjected Indy to “excessively high legal costs, which cannot be justified in the current economic climate in which media companies find themselves”. What this view fails to acknowledge is that even if this is true, it does not and cannot outweigh the public interest as described above. I also checked this line of reasoning with the Press Council. According to the knowledge of both the Director and the Public Advocate, there have not been any cases of complaint against Indy titles which have been taken to court after the Press Council’s process of adjudication, as Indy’s statement would have us believe. So if Independent Media is suffering “high legal costs” due to the absence of a waiver, then it ought to explain how, why and where this is happening.

Moreover, Independent Media’s argument about high legal costs rings hollow now that they have opted for divorce from the Press Council and plan to set up their own in-house Ombudsman’s office. By their own description, they have appointed a new in-house Ombud, will establish something called the Independent Media Press Appeal Tribunal, and will involve the services of a retired judge and/or senior advocate. Added to that, and I hope they know this, they are going to need some serious administrative capacity for this venture, archiving, specialised IT systems and dedicated support staff if they hope to run it well. They would also do well to employ the services of a Public Advocate (like the Press Council does) if they want their complaints mechanism to be as accessible to their readers as it ought to be – the reasons for this are too numerous to list here, but there are many and they are important.

Independent Media is also going to need all of the other trappings that accompany a credible regulatory body. This Independent Media Press Appeal Tribunal will need a Constitution, a code of ethics, and a complaints procedure, amongst other procedural documents, if it is going to have any credibility as a reliable, unbiased, fair and effective adjudicator of complaints against Independent’s press. These types of documents are not dreamt up overnight. If they are to have any legitimacy, then Constitutions, codes, and complaints procedures must be the product of a democratic and participatory process of engagement with all relevant stakeholders, including the reading public.

So, Independent Media will now need to pay for, wait, let’s think about it: an Ombudsman, a judge, a senior advocate, a Public Advocate, support staff, administrative capacity, relevant software and archiving systems, office space, hardware and, a country-wide public participation process. Wow. That’s all sure to cost a lot of money. By comparison, perhaps those “excessively high legal costs” now do not look so high after all. Oh, and let’s not forget that when Indy does conduct the necessary open public participation process, recent history tells us that its quite likely to hear that the largest majority of people in this country are opposed to a waiver.

All of this assumes that Independent Media is actually serious about setting up a credible, plausibly believable in its trustworthiness, in-house complaints system. What is inconvenient for Independent Media is that an Ombudsman system is only as valuable as far as its credibility extends. That is why it is no good to cut corners. It is no good to ignore any of the common characteristics or procedures of establishment of myriad Press Ombudsman offices all over the world as listed here, or, quite literally, the office will have little credibility and fail the test of public trust.

An additional, though arguably the most crucial factor, in establishing the credibility of a media complaints body is its independence. The independence of the Press Council of South Africa is currently beyond reproach. Empirical evidence and research statistics prove this. But the Independent Media Press Appeal Tribunal has already started off on the back foot in establishing a perception of its own independence – it has appointed someone who has a long career of editing Independent Media titles, as its Ombudsman. That is not a dig at Jovial Rantao, who may very well do a sterling job as Indy’s own Ombud. But his expertise and good intentions are of little consequence.

The point is that he works for Independent Media and has done so for a while. In the business of media regulation, independence is everything, as is the perception of independence. Unfortunately, because of his history with Independent Media, Rantao will not possibly be able to shake off a general suspicion that his office operates with less than adequate independence from the company in which it is housed. This extends beyond Rantao too. Even if an Indy-outsider were appointed to this Ombud post, the in-house nature of the complaints office and its mandate to adjudicate on complaints against the media titles owned by the very company to which it is beholden, makes the fostering of a perception of its independence impossible.

But, what Independent Media has done with this move goes beyond how it is damaging its own credibility. It is stuffing things up for the broader print media sector too. Indy’s chief of staff Zenariah Barends reportedly stated that Independent Media “is vehemently opposed to any state regulation of the media or a government Media Appeals Tribunal”. Well, that’s very nice. Various media activists and communications rights organisations, the Press Council, Sanef, academics and media outlets in South Africa have been tirelessly campaigning against the notion of a media appeals tribunal since 2007. It’s good to know that Indy is still on our side on this issue.

But it has taken a humungous lack of foresight and a dearth of political savvy for Independent Media not to realise how their sudden unceremonious abandonment of the Press Council has weakened the position of those of us who do not want to see the establishment of a government print regulator. Independent Media now joins the New Age, since the latter opted out of the Press Council last year. It would not be a far leap for detractors to argue that too many of our country’s newspapers are now unaccountable to a reliable regulatory body, and therefore there is an urgent necessity to establish a government print regulator. Let’s not forget that the ANC NGC resolved that a parliamentary inquiry be set up into the feasibility of a media appeals tribunal as recently as last year, amid some atrociously ill-informed animosity toward the print sector delivered by a variety of top ANC officials. So, thanks Independent Media. You probably just brought us all one step closer to a state-run media appeals tribunal. Thanks a lot.

Also, if Independent Media is really so “vehemently opposed to any state regulation of the media” then what it has just done is ludicrous. By opting out of the Press Council they will no longer enjoy the exemption from the Film and Publications Board’s classification regime for digital publications that Press Council members are entitled to. The Film and Publications Board (FPB) is a statutory body, and in the most basic sense, its activities amount to government regulation. So, while Indy claims it is against the idea of state regulation, it has effectively ditched a voluntary non-statutory regulator and willing opted into a statutory regime.

In order to keep running its digital news platforms, Independent Media will shortly have to pay a digital online distributer’s fee to the FPB, will have to pay periodic classifications fees and will also need to employ a team of digital classifiers. Add this to the costs involved in hosting an in-house Ombudsman’s office, and Independent’s arguments of citing “high legal costs” again rings hollow. In the long run, it will be far more expensive for Independent Media to opt out of the Press Council than it would be to remain within the voluntary system.

Absolutely nothing about Independent Media’s reasons for leaving the Press Council makes any logical sense. It’s so illogical that it cannot be believed. One can only assume then, that the weak justifications Indy has provided are a thin veil for their real reasons for leaving, which they have not publicly imparted. Citing the waiver and high legal costs as reasons for leaving the Press Council is so absurd that it borders on stupid. The question we should put to Independent Media is, what is this company’s real reason for abandoning the Press Council and irresponsibly weakening the overall press freedom environment? What are they not telling us? DM

*Some of the research referred to here was published in African Journalism Studies Volume 35(2) (formerly called Ecquid Novi), in 2014, as an article entitled Third-party complaints in the system of press regulation: Inviting the reader to take part in journalistic accountability and securing press freedom, authored by Dr Julie Reid (Unisa, Department of Communication Science). Further independent research on the performance of the Press Council of South Africa has been conducted by the Media Policy and Democracy Project, available at www.mediaanddemocracy.com