The first year of the new Press Council in South Africa: Utopia and Hard Lessons
When I'm alone and imagine my ideal society, I see a world where every individual is free to express himself or herself without any fear. In this way society will get the best ideas and implement them for the good of all. The bad ideas, the wrong ideas, will naturally sink to the bottom, while the best will float to the top.
We will not fear the thoughts of individuals, whatever they may be; society will be mature enough to sift the good from the bad, the right from the wrong, the excellent from the foul. The Hitlers, the Terreblanches and the Verwoerds in that world will find that their rants fall on hostile ground that rejects them. We will not need to artificially shield society from them.
Complete freedom of expression will be the foundation of our democracy.
Hey, what would this world have been like if men, women and children didn't dream...and change it? And that is why many of us will continue to chip away at limitations placed on freedom of expression.
Yes, we do understand that mobs can still be swayed by the unscrupulous to loot, to maim and to kill and we do understand that our behaviour still needs to be regulated by the law. We do understand that it is still a long way before we reach our Utopia.
In the meantime...
The South African constitution protects freedom of expression in Section 16 of the Bill of Rights in the following terms:
"1. Everyone has the right to freedom of expression, which includes:
a) Freedom of the press and other media;
b) Freedom to receive and impart information or ideas;
c) Freedom of artistic creativity; and
d) Academic freedom and freedom of scientific research.
"2. "The right in subsection (1) does not extend to
a) Propaganda for war;
b) Incitement of imminent violence; or
c) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."
This formulation is particularly interesting in its emphases: everyone has the right, and that right includes freedom of the press and other media. And it is apt for these days when every man, woman and child with a cell phone is his or her own reporter, copy taster, editor and publisher. The role of the intermediary is diminishing.
The limits to this right are spelled out: no propaganda for war, no incitement of imminent violence and no advocacy of violence that is based on race, ethnicity...and that constitutes incitement to cause harm.
There are other laws that limit this right, but these can be summed up in a sentence – as you enjoy your free speech, don't violate the rights of another.
If you cross these boundaries, the police and the lawyers will be knocking at your door with criminal charges or defamation suits. We are still far from Utopia. Our courts - all the way from the magistrates' courts to the Constitutional Court - rule in such cases.
The media – broadcast, online and print – are bound by the decisions of the courts. They have, however, developed their own codes of ethical journalism and these codes complement the law. Print, for example, has developed the South African Press Code and over 1 000 publications have voluntarily adopted it. This code touches areas that would be considered beyond the jurisdiction of the legislature.
For example: the opening sentence of the preamble of the code says the press exists to serve society. It says this when there is no legal obligation for the press to serve society. The publications that have adopted the code have voluntarily agreed that they will serve society. In this preamble they also commit themselves in a way that is not prescribed by any law: "As journalists, we commit ourselves to the highest standards of excellence, to maintain credibility and keep the trust of our readers. This means always striving for truth, avoiding unnecessary harm, reflecting a multiplicity of voices in our coverage of events, showing special concern for children and other vulnerable groups, and acting independently."
Journalists' right to freedom of expression remain in tact because this code was not imposed on them – they adopted it voluntarily. They have freely chosen it.
The journey to get to this point has been bumpy and the press and society have had to learn some hard lessons.
We may start our tale from the 2007 Polokwane conference of the African National Congress (ANC) where it resolved that Parliament would be asked to investigate the possibility of creating a statutory Media Appeals Tribunal. By its 2010 National General Council, the organisation's mid-term review, the Polokwane resolution was softened to: asking Parliament to investigate media accountability systems in the public interest, including self-regulation, co-regulation and independent regulation.
This was an important shift from the narrowly focused investigation mooted at Polokwane to a much wider one that acknowledged self-regulation.
The media and the public were quite loud in their opposition to the suggestion of a Media Appeals Tribunal and that opposition contributed to shifting the ANC.
The press, on the other hand, was pushed by the public debate, among other things to review its self-regulation, culminating in the creation of the Press Freedom Commission headed by retired Chief Justice, the late Pius Langa. A revamped Press Council launched on February 1, 2013, took into account many of the criticisms from the ANC and others:
• The Press Council is now described as a system of co-regulation, with the two parties being the press and the public. There is no role for government, except to the extent that the Press Code reflects the laws of the country.
• The press has six representatives and the public six too in the Press Council, but the non-press voice is amplified by the presence of a retired judge as chair. The current chairperson of the Press Council is Judge Phillip Levinsohn, former Deputy Judge President of the KwaZulu-Natal High Court.
• The Chair of Appeals is Judge President Bernard Ngoepe, formerly of the North and South Gauteng High Court and his panel of adjudicators is made up of eight public representatives and six press representatives.
• The public representatives in the system are appointed by a panel headed by a retired judge, this time Judge Yvonne Mokgoro, formerly of the Constitutional Court.
It's been a time of hard lessons. To this day the press is grappling with some of the issues that emerged.
But now, at the beginning of 2015, we sit holding our breath, wondering what the ANC's fourth National General Council in June will pull out of its hat. In the run-up to the council and the 2016 local government elections, will some people remember that Parliament still hasn't investigated "media accountability systems in the public interest, including self-regulation, co-regulation and independent regulation" and thus start the drama afresh? Will the media again be whipped to solicit voter support in 2016?
I hope the ANC will heed some statistics from academic researchers who have been studying the Press Council and its work: the Media and Democracy Project - a collaboration among the University of South Africa, Rhodes University, the Nelson Mandela Metropolitan University and the University of Johannesburg – will report later this year that of the 235 written submissions from the public to the Press Freedom Commission, self-regulation, coming in at 51 percent, was the most preferred system.
The press has certain benefitted from the debate and I hope South Africa has benefitted too.
Joe Thloloe is the director of the Press Council South Africa