Franz Krüger
Along with the rest of the world, South Africa’s media have faced enormous economic and technological pressures, but what sets them apart is the overriding influence of political pressure, which has shaped the media landscape and the form of media regulation in particular.
The coming of democracy to South Africa 20 years ago placed the media on the agenda for transformation. Broadcasting was extensively restructured, with attempts made to turn the SA Broadcasting Corporation (SABC) from a mouthpiece of the apartheid state into a genuine public broadcaster. At the same time, space opened up for private commercial and community broadcasters, which have become important players with growing audiences.
Calls for the transformation of the private print media focused on demands to make the community of owners and editors more demographically representative of the population, and to eradicate all vestiges of racism in the news.
Addressing editors in 1997, Nelson Mandela said: “Whatever measures have been taken, the truth is that the media is still in the control of the whites, and in many cases conservative whites, who are unable to reflect the aspirations of the majority.”
This kind of criticism was seen as generally legitimate and newspaper companies made efforts to change. A majority of title editors are now black, although the gender balance has not shifted much.
As the honeymoon atmosphere of the Mandela years faded newspapers adopted an increasingly critical attitude to the new elite, and relations between the media and the ruling African National Congress have worsened. The party accuses the press of hostility, a lack of patriotism, and sometimes claims that racism lies behind the growth in reporting of corruption or government failures. It even accuses journalists of operating like an opposition party.
These kinds of attacks are really directed specifically at the private print media, even though their audience is dwarfed by that of the SABC. Nevertheless, the tension has led to a range of other steps, including threats of legal action for defamation; new legislative measures; a move by groups friendly to government to invest in the media; talk of withdrawing government advertising from media seen as hostile; and support for alternative voices such as community media.
The Press: A case for treatment?
A strong focus has been a campaign to forge a new self-regulatory system for print. The ANC criticised the self-regulatory system as compromised; it was “a toothless dog”, party spokesperson Jackson Mthembu told a delegation from the Committee to Protect Journalists (CPJ) in 2011. It was ineffective as newspapers continued to print false stories about ANC members, he said.
A series of party conferences adopted recommendations calling for the creation of a Media Appeals Tribunal (MAT), answerable to Parliament and with disciplinary powers over media.
The party cast this initiative as an attempt to restore balance in the weighing of media rights against those of individual citizens: “This discourse….relates to the need to balance the right to freedom of expression, freedom of the media, with the right to equality, to privacy and human dignity for all,” read a resolution from the 2007 Polokwane conference.
The media saw things differently. The proposal for a MAT was, they said, an attack on media freedom, and they resisted it strenuously. Thabo Leshilo, then chair of the Media Freedom sub-committee of the SA National Editors Forum (Sanef), said the plan, together with other measures, “eat away” at media freedom and created an atmosphere of fear. It would weaken scrutiny of politics and the exercise of power.”
Media responded by launching a review of the self-regulatory regime and hammered out significant changes, first through a committee set up by the Press Council of South Africa (PCSA), then through a Press Freedom Commission chaired by retired Chief Justice Pius Langa.
The revamped PCSA has been in operation since the start of 2013, and remains voluntary and independent, and is funded entirely by publishers, but other changes have been made:
- The system is now described as “independent co-regulation” rather than self-regulation, and according to its constitution “involving exclusively representatives of the press and representatives of the public”. In other words, state involvement is explicitly excluded, and individuals with political links are barred from serving. The 12-member council is evenly split between public and media representatives, but the chair, who is required to be a retired judge, is the 13th member and pushes the media into the minority. This change abolished the previous media majority.
- There is a new working process led by principal functionaries. At the head is the Director, responsible for the council’s administration and its public face. He is charged with raising awareness of the council, its code and ethical issues generally, both in newsrooms and in the public arena. There is an Ombudsman who adjudicates complaints, as before, while a new position of Public Advocate has been created, who is meant to be “the champion of the complainant throughout the process”, as PCSA director Joe Thloloe puts it. She is a complainant’s first point of contact who attempts to deal with issues through mediation. Only if this fails is the matter passed on to the Ombudsman.
- Several changes were made to the code. There is stronger protection for children and a new preamble was written, which included a new definition of public interest, while provisions on independence and conflicts of interest were included for the first time. Issues of privacy, reputation and dignity were given greater focus, while some guidance was added on use of anonymous sources.
- On the thorny question of sanctions on offending media, the council rejected calls for tougher penalties such as fines. The mainstay of the council’s armoury remains moral pressures: orders for apology, retraction and the publication of adverse findings, arranged in a newly developed “hierarchy of sanctions”. Monetary fines can be imposed, but only for cases where a newspaper fails to co-operate with the system. In extreme cases, it can be expelled from the council, thereby losing a degree of protection.
- The council has the right to determine how much space should be devoted to the publication of an apology or adverse finding — so-called “space fines” — and the council makes more extensive use of the right to determine prominence, in reaction to criticism that newspapers tend to hide their apologies.
An important development in this process of reform has been the strong debate over the use of a waiver, a statement complainants have been required to sign in which they declare they are using the council’s offices instead of seeking legal remedies, and promising not to take the matter to court. Critics seized on this as evidence that the media were expecting the public to give up a fundamental constitutional right.
But others pointed out that the waiver prevents forum shopping, and could expose the media to double jeopardy, where complainants “test” their case at the Press Council and then launch a lawsuit in order to secure monetary damages. The issue remains controversial, and, in the end, the council decided to drop the requirement of a waiver on a trial basis and may review the issue later.
On other matters, the council’s appeals mechanism remains substantially unchanged. If either party is unhappy with a ruling, they have the right of appeal, and this is considered by the chair of the Appeals Panel, a retired judge. If he accepts the appeal, a small panel looks at the matter again. This is the end point of the process available through the council, although a court might well consider a review of a PCSA decision if it was approached.
On other issues the council opened itself up to third-party complaints from people not directly affected by a particular report, confirmed the procedure of hearings conducted without legal representation and introduced new deadlines to make the system faster.
So far so good, but the reform process is still ongoing. The council continues to focus mainly on print, although its jurisdiction was extended to the online versions of its member publications and discussions have begun with online publishers to explore ways of covering independent online publications as well. Broadcasters, and the journalists who work for them, continue to fall under the Broadcasting Complaints Commission of SA (BCCSA), an entirely separate body.
Press self-regulation facing its own credibility test
The major question now facing the council and its supporters is whether or not they have done enough to fend off the unwelcome attention of the government and ANC critics.
There are positive indications the new arrangements are working. For one thing, it is well used. The number of complaints lodged has seen a steady increase. According to figures presented by the current Press Ombudsman, Johan Retief, to a seminar at Wits University there has been a steady increase during the years that the controversy around self-regulation raged, which itself raised the council’s profile. There is a particularly sharp increase in 2013, the first year of operation of the new arrangements.
The council has become more efficient and reduced the time it takes to resolve complaints. According to Retief in 2010, it took an average of just under 137 days between the submission of a complaint until a formal finding was reached. By 2013, that figure had dropped to 67, and figures for the early months of 2014 showed a further drop to 51 days. This improvement is significant since one of the advantages of self-regulation over the courts is that it is faster and more accessible.
The introduction of the public editor is another winner. Mpumelelo Mkhabela, chair of Sanef, says: “The Public Advocate system works well for us as editors, and it means we have to publish fewer apologies. Often as editor you have already noticed that a mistake has been made and it is easy to comply and correct it.”
Mediation has always been the first and preferred way to resolve an issue, but it is now in the hands of the new public editor. She acts as the complainant’s champion and can even initiate complaints. As a result, the number of complaints dealt with without a formal finding has increased from 69% in 2010 to 79% in the early months of 2014, according to Retief.
Latiefa Mobara, the current Public Editor, gives a telling example in the story of a complaint from somebody whose son was electrocuted at an electrical substation in Vanderbylpark, south of Johannesburg. A local newspaper reported that the incident occurred while he was stealing copper wire. “After the funeral, the complainant submitted proof to the newspaper that her son was in fact homeless, and not a thief, and provided them with police case files,” she says.
The newspaper failed to correct the mistake, and the complaint found its way to the council. Mobara says: “When I contacted the editor, we agreed that they would do a follow-up human interest story, as it was too late to publish a correction for a story published last November. Last week I received a letter from the complainant thanking me for honouring her son’s memory.”
She says the majority of complainants are “people who have never accessed the Press Council before; who are not sure whether they have a right to complain, and are often scared to complain to the newspapers for fear that they would be victimised.”
Of the criticism that the system has been that it is biased in favour of media, Retief’s figures show an even split between rulings going for and against the media. Although only 11% of complaints in 2013 were fully upheld, just over 40% achieved partial satisfaction. The rest were dismissed.
In most cases, editors co-operate when findings go against them. A study by academic Julie Reid found no instance of publications failing to comply with a ruling. The issue of the waiver, however, caused an investigative weekly, Noseweek, to withdraw from the system. There is concern that others may follow.
The issue Retief sees as far away the biggest cause for complaint is that newspapers fail to approach the subjects of unfavourable reportage for a response, or ask too late. He says about 90 percent of complaints are on this alone.
Other concerns of readers are the use of single anonymous sources; headlines that present allegations as fact; and what Retief calls the “007 syndrome: license to kill”. This is where allegations of corruption are made “but stories are not followed through to say whether the person was cleared or not.”
According to Ferial Haffajee, Editor of City Press, the revamped system has forced journalists and editors to think carefully before taking editorial decisions.
Previously, she says, “the locus of ethical practice or decision-making was in the newsroom. This is one place where it should be, but in my experience it was editor-dependent and so it was uneven and did not always make for journalism of a higher conscience.”
Haffajee says the system has created work for her and her team. “I feel like I am always extending rights to reply, negotiating with Latiefa, working out how to place apologies properly or discussing in Sanef how we are to deal with space fines or other elements of the system.”
Even so, she admits that the benefits are enormous. “Truth be told, I am a better journalist and editor for the new system. A more ethically conscious one. I am a pain in the butt to my colleagues with constant requests for source declaration, multiple sourcing or spiking their copy because it has too much opinion in it. The system works. I dislike it intensely.”
Nevertheless, there are still concerns about the work of the Press Council. Haffajee sees a tendency to want to place limitations on opinion, and an excessive respect for authority figures that sometimes comes through in rulings. She also says that the ombudsman sometimes embarks on information gathering, whereas he should make findings based on information reported, and that rights to reply are being pushed further than is the norm in journalism.
Mkhabela echoes some of this concern: “The rulings from the ombudsman and the appeals panel need to be readable by journalists so they can reasonably predict what sort of stories will be a problem. They must show consistency in how the code is applied to different complaints.”He also says the system could be more proactive in raising its public profile. Although journalists understand it, “the public could understand better how it works.”
Other elements of media self-regulation
As in other countries, broadcasting is subject to greater regulation than print, and broadcasters operate under licence. The Electronic Communications Act requires broadcasters to respect a code of conduct developed by the Independent Communications Authority of SA (Icasa), but allows exemption where broadcasters operate through a code enforced by an independent body that is accepted by Icasa.
This legal technicality allows radio and television stations to operate under a self-regulatory body, the Broadcasting Complaints Commission of SA (BCCSA), established in 1993. Almost all broadcasters are part of this system, including the SABC and most community broadcasters. Icasa deals with issues of compliance to licence conditions, but rarely with complaints about journalism.
The recognition from Icasa does give the BCCSA a slightly stronger link to statute than the entirely voluntary Press Council. But it is “light touch” legislation, much in the mould of the Royal Charter proposals being developed for press regulation in the United Kingdom.
These arrangements have sometimes been held up by the ANC as the model for its proposed MAT. In fact, the commission is in most respects very similar to the Press Council. It is set up and financed by the National Association of Broadcasters (NAB), and refers to itself as an “independent judicial tribunal”. The BCCSA’s website emphasises that “it is entirely independent from (the broadcasting industry) and it would be in conflict with its corporate independence to be called an ‘industry body’.”
Like its counterpart in print, the commission sanctions largely involve apologies, retractions and the like. It does have the power to impose fines up to R60 000 but rarely does so. It also makes attempts to resolve complaints amicably before conducting a formal hearing.
According to the July 2013 review, the most recent available on its website, 1616 complaints were received over the previous 12 months, although more than a third were held to fall outside the BCCSA’s jurisdiction. A minority were dealt with formally, and there were 62 adjudications and 55 rulings, the report says.
Long-serving chair Kobus van Rooyen writes: “The main concerns, as in previous years, have been the protection of dignity, privacy and reputation, balance and the right to reply in programmes which deal with matters of public importance, court reporting, the matter of sufficient information regarding content and appropriate age restrictions and advisories relating to films that are broadcast.”
In-house ombudsmen or public editors are not prominent features of the landscape, and this mechanism has waxed and waned over the past few years. The Mail & Guardian, an independent weekly, has had a part-time ombud for many years, while the Times Media Group appointed a public editor to serve all its titles, including the giant Sunday Times, the Sowetan and others. However, the post was scrapped early in 2013 when the last incumbent left and wasn’t replaced.
More recently, Primedia, an important operator of talk and other radio stations, appointed prominent advocate George Bizos as public editor. Titles belonging to the largely Afrikaans group Media24 tend to have public editors on staff. But they are senior editors whose list of functions include dealing with reader complaints when they arise.
In addition there are media self-monitoring a peer review processes at work. With the intensity of debate around the media and its transformation, regular critiques come from academics and other commentators in various forms.
The lobby group Media Monitoring Africa (MMA) is specifically dedicated to monitoring media issues and conducts research on media work including coverage of electoral politics, treatment of children’s issues, and race and xenophobia. A feature of its website are short pieces of commentary on media performance that are labelled either “get mad” when the media get it wrong, or “get glad” when they get it right.
The question of effectiveness
South Africa’s mechanisms for media accountability are well used, and work smoothly. Ultimately, the test of success must be the quality of journalism and the media’s credibility among the general public. And these are very hard to measure.
In terms of quality, South African journalism has a strong tradition of investigative journalism, and several media support investigative teams who produce work of high quality and social impact. At the same time, there are tabloids with a steady diet of sleaze, scandal and gossip.
And these are troubled times for journalism. As elsewhere, newspapers have been cutting costs in the face of the changing media landscape — Wits University’s State of the Newsroom report for 2014 counted almost 600 media job losses. As staffing levels and editorial investment shrinks, mistakes increase and quality is compromised.According to Anton Harber, head of journalism at Wits University, problems of conflicts of interest – both political and other – and payment for stories are issues that must be tackled. The latter has come to greater prominence with the trial of paralympian Oscar Pistorius, during which the family of Reeva Steenkamp, who he was convicted of killing, charged substantial sums for giving interviews to the media.
The media’s standing with the public is mixed. On the one hand, they continue to come in for a great deal of criticism with much general but unsubstantiated grumbling about “declining media standards.” Criticism is often politically motivated, and it is difficult to distinguish what is legitimate and what is simply expedient.
Major exposes such as those on the enormous amounts of public money spent on the Nkandla home of President Zuma have struck a chord with the public. Journalism’s role in bringing this kind of information to the fore is widely appreciated. But the future remains unclear.
The ANC’s campaign for a statutory body to discipline the press has gone quiet. The party declared itself satisfied with the reforms instituted in 2013, and has been concerned to emphasise its commitment to media freedom. Nevertheless, as the Wits State of the Newsroom report puts it, the MAT proposal “still exists as a threatening resolution of the ruling party.”