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Print media cannot be regulated in same manner as broadcast media
No constitutional justification for regulating print media
Those with grievances against unfair reporting already have legal avenues protecting them





It would be a sorry day if COSATU were to follow the SACP during its executive deliberations today in supporting the ANC's proposal (Discussion Document on Media) for an independent body to regulate the print media. COSATU, like the SACP, has been a staunch defender of free speech over the years.

COSATU is reported in the Beeld to be considering an independent body based on the Chapter Nine Constitutional independent institutions, as the Discussion Document does, and as Jeremy Cronin has tentatively done. But there is no constitutional justification for regulating print.

WHY PRINT IS NOT COMPARABLE TO BROADCASTING, AND CANNOT BE REGULATED BY THE STATE

This debate keeps coming around, and the new Discussion Document revives the conceptual deceit. "The necessity for an independent broadcasting authority" was NOT based on "the need for broadcasting to serve the public in such a way that the ideas of a democratic, non-racial, non-sexist and prosperous society are advanced", as the document claims at point 15. Quite the contrary: the regulation of broadcasting rests on the scarcity doctrine and the fact that any licensee must give air not to one set of ideas but to the range of ideas in society. There is not enough frequency for any and every entrepreneur to set up a radio or TV station. Those who do get a licence to use some of our frequency are required by the regulator under s192 of the Constitution to air a diversity of views and to practice fairness and pluralism in the public interest. That is the constitutional justification for licensing and regulation, which finds no comparable justification in print.

The ANC has also revived the diversity argument (at point 20) with the liberalisation of the broadcasting sector parading as the proof of the argument. We have had the argument before - the answer is the same as above - and by early 2008 the ANC seemed to abandon diversity in favour of the argument that the abuse of print to infringe dignity, privacy and equality had to be addressed by a tribunal.

WE ALREADY HAVE MEDIA TRIBUNALS

It should be acknowledged that the new ANC Discussion Document is at its heart honest and sincere about the real problem. Once you have a true diagnosis, you can set about curing the problem.

The real problem is (point 60) "what has become like permanent briefing sessions between faceless leaders within the ranks of our Alliance and some journalists about discussions taking place in confidential meetings...and (which) possibly involve payment arrangements.''

At point 136: the ANC is "undermined by continuous leaks even in the highest structures of the ANC/NEC/NWC. Before even the meeting resolutions are formally communicated through a statement or a press briefing, in most instances the media already has one or other aspect of the NEC/NWC discussions presented as resolutions.''

If the problem is factionalism and contestation in the ANC, then organisational discipline is the answer, not killing the messenger. But the likely truth is that rival factions are leaking more than resolutions and discussions - they are leaking personal information. Again the remedy is organisational - but there is also a problem when newspapers use such information without checking it and do so for sensationalism rather than the public interest.

Let us accept that there is also sincerity in the document's desire to locate the remedy it seeks in the human rights context because it sees infringement of equality, dignity and privacy. As Michael Spicer and Bobby Godsell wrote in Business Day last week, "newspapers seem unaware of the personal damage and pain that inaccurate reporting can cause" and "reporting standards are often poor and the print media's capacity for introspection is unsatisfactory."

The answer, still, is not a media appeals tribunal. Content is constitutionally sacrosanct and even broadcasting content complaints go to the self-regulating body, the Broadcasting Complaints Commission of SA (BCCSA). Further, the point has been well made that if the idea is to impose penalties such as fines then a tribunal would have to establish procedure and allow legal representation, and you might as well go to court. The common law has well-developed remedies for dignity which includes reputation, and for privacy. Defamation law exists to resolve the conflict between free speech and dignity, and there is also injuria. Public figures have in fact been slow to take newspapers on in defamation actions, and perhaps it is time that they do so in egregious cases.

As for equality, complainants have sections 10 and 12 of the Equality Act available which to all intents and purposes turn the Equality courts into media tribunals. The two sections are almost certainly unconstitutional for the way they water hate speech down to nothing more than injuria and put discrimination in the eye of the beholder, but they are available and persons who feel racial motivation played a role in reportage could use them.

Jeremy Cronin has pointed out that expose after expose of corruption involving black people looks like racism to a lot of ordinary people. The same perception gave rise in 1999-2000 to the South African Human Rights Commission's inquisition into media racism, a witch hunt that damaged the media and resulted in self-censorship. We do not need an institutionalised version of that inquiry. The answer is firstly to deal with corruption itself and secondly, where racist reporting can be proven, to use the Equality Courts, which offer a quicker avenue to justice than the formal courts.