Media Freedom and the Public interest: between a rock and a hard place (March 2010)

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Published: 26 Mar 2010

Media Freedom and the Public interest: between a rock and a hard place (March 2010)

Muddling distinctions between the private and the public

While the public and the country's political journalists have been rightly offended by the ANCYL's disrespect of the letter and spirit of media freedom, it is worth asking whether the political journalists have responded appropriately to this mess. Upon reflection, it is clear that both the ANC Youth League and the journalists appear to muddle the distinction between public and private actions, and institutions. The Youth League's behavior remains politically and ethically indefensible to be sure, but there are important lessons from this saga about how the media ought to be responding to these kinds of threats. It is worth unpacking all of this.

It is now common cause that Floyd Shivambu and the ANCYL have no appetite to respect the tenets of our Constitution in general, and the principles of press freedom in particular. They also have no qualms in appearing to suggest that they own all of society and in doing so, send a not so subtle message that what are essentially public rights and duties, are for them a private privilege. Intolerable and unacceptable as it perhaps is, it is understandable that a political party will fight for its politics by any means necessary. In this pursuit, principle matters less than power. Otherwise, why else would the ANCYL feel that it is appropriate for it and its spokesperson to hold private information that it is not entitled to. After all no office bearer in the youth league holds a publically elected position. None are employed as officials in a public or government body. Thus they have no legitimate right to hold or use information that they currently seem to improperly do. Quite what are they doing with confidential information and how did they get it? If they have information of untoward, unethical or criminal behavior then their public duty is to take whatever information of criminal or other impropriety they have, to the relevant public authorities, standards bodies and professional guilds. It is as simple as that. Predictably though, they will use this information for their own purposes. This is to be expected.

But what are we to make of the revelation that the journalists who felt aggrieved that private information was being used to bully them, went only to complain to a series of private organisations? From the news, it appears that the journalists concerned have laid a complaint with Gwede Mantashe, The ANCYL, Zizi Kodwa, the FXI, and SANEF. Even the President was moved to suggest that the behavior of the ANCYL and the investigation of journalists was inappropriate. The striking thing about the interlocutors and institutions that the journalists complained to, is that in the realm of distinction between the private and the public, they are all private actors and organisations. Though politically and strategically appropriate, they remain without any legal or procedural power to curb the abuse of the ANCYL. They can act only through influence, not through rule, since none of these institutions exist with the publically defined statutory mandate to defend, advance or promote rights and duties, or curb the infringement of them.

It is thus astonishing that the offended journalists complained to the organisations they did, rather than to the police for harassment, the public protector for inappropriate and illegal access to private information and the human rights commission for the threat - and in the case of City Press journalist Dumisani Lubisi an actual - offense, of rights. What has essentially occurred in all of this is an erosion of the basic distinction between the public and private.

To it is added an attack on the principles of press freedom, and practically, the illegitimate hold and use of confidential information that private actors are not entitled to. That the journalists did not complain to the public protector to investigate how it is that actors holding no public office and who therefore have no right to have access to private confidential information, is a critical oversight. If the ANCYL is getting information from private citizens, or the staff of certain institutions then those people must be investigated and prosecuted for the improper release of it. The threatened, and in the case of City Press journalist Lubisi the actual, release of private information is a violation of rights that ought to be probed by the Human Rights Commission. Not going to any of these public institutions is a serious shortcoming.

If the onus is on Shivambu and others in the ANCYL to take information on criminal conduct to the police or other public authorities, then an equal onus rests on the offended journalists to raise their compliant with public authorities and not private actors. A democratic and free press culture is a product of the complex interplay between the cultural norms and values of the society, with the systemic process and procedural rules that govern South Africa's constitutionally defined distinction between the public and the private, and which mandate the institutions that protect and advance our rights. Dealing with the emergent anti democratic anomalies in our political culture require both cultural roots and institutional rules. In pursuing both, the distinction between the public and private is essential.

It is cause for great wonder why it is that the journalists did not lay their complaint with any public authority? It leads to the unpalatable conclusion that the failure to go to a public authority with the complaint is related to their own desire to keep fighting this strategically and politically rather than on the basis of defending a democratic public interest principle. Perhaps this may have absolutely nothing to do with the "public interest" at all, since it is the journalists in their private capacities that were threatened?

Such a interpretation is an essentially narrow and selfish one. Shivambu and the ANCYL's antics are offensive not only to the journalists concerned, but to the values of our society as whole. The Journalists frantics in complaint are self-edifying and self-preserving. In acting purely in their own interests the offended journalists and the ANCYL appear to be conspiring in the erosion of our constitutional values and holding back our attempts at fostering a democratic public culture.

The ANCYL deserves our approbation. The offended journalists deserve our sympathy and support. But they can only count on it if they act on behalf of all of us in preserving the principles of a free press and an open and democratic society, rather than simply act for themselves.

Written by: Ebrahim Fakir of the Electoral Institute of Southern Africa