Leave the press alone

2010-08-12 00:00

1979: Minister of the Interior Alwyn Schlebusch calls for a statutory press council with the power to fine and ban journalists. This would have subjected them to state sanction over and above the requirements of the law. The subsequent Steyn Commission II demanded that the press should collectively present to the world “a true and authoritative story” about South Africa. This followed persistent reports about apartheid human rights violations.

2010: ANC and South African Communist Party politicians threaten to impose a statutory press council with the power to fine and jail journalists. Julius Malema claims that the press regards itself as untouchable and says it has too much freedom. Jackson Mthembu, presidential spokesperson, criticises journalists “who do not contribute to the South Africa we want”. This follows endless revelations in the press about fraud and corruption at every level of government.

The apartheid regime did not take the statutory route. Instead, it achieved through a barrage of legislation and a state of emergency what was its preferred option — a corrosive state of self-censorship. Today, in a constitutional democracy, the wheel has possibly turned full circle. The reasons for this are at one level difficult to understand since aggrieved members of the public have a number of options for redress. The most obvious is to engage with the newspaper, write a letter to the editor or request a right of reply. If the complainant does not receive satisfaction, an appeal to the Press Ombudsman is the next step.

Over the past three years, the ombudsman has reported on more than 50 cases. There is plentiful evidence that the system works in the interests of justice and that the press is by no means untouchable. Take, for example, the recent complaint by the KwaZulu-Natal Premier Zweli Mkhize about the Sunday Tribune. In February, the newspaper carried a report accusing Mkhize of nepotism, alleging preferential tendering that favoured his wife and daughter. Mkhize felt this was lacking in truth and therefore defamatory. The ombudsman agreed, finding that the Tribune had failed to investigate fully, check for accuracy and place its report in context. The paper offered space for a rebuttal and was obliged to publish a summary of the ruling and apologise, with wording and placement to the satisfaction of the ombudsman.

This was by no means exceptional and other complaints have had very similar outcomes. In December 2007, Business Day reported that Frank Chikane, then in the Office of the President, had been gagged by the ANC for his comments on tensions within the party. He denied that this was the case. The paper’s defence was that the article in question was a matter of interpretation and not directly about Chikane, but the ombudsman disagreed. He ruled the report unfair comment unsupported by fact; and that Chikane had not been given an opportunity to correct the paper’s misinterpretation. For untrue and distorted reporting the paper was required to apologise.

Most cases before the ombudsman result in criticism of the professionalism of the press over what are generally minor lapses. The Mail & Guardian was reprimanded for failing to seek comment from the ANC Youth League over a true story about the targeting of Gwede Mantashe. The Sunday Times was cautioned and required to apologise about coverage of Leonard Chuene’s inappropriate behaviour. According to the ombudsman, there was insufficient context and a lack of balance caused by omissions. And the Eastern Province Herald was sanctioned for a report claiming Mkhuseli Jack was involved in building shoddy houses. This turned out to be untrue. Where newspapers are found to err it is generally over lack of balance, failure to investigate fully and crucial omissions.

Finally, there is recourse to the courts and defamation law. Though such cases can be expensive and sometimes personally damaging, South African courts tend to have a conservative approach to libel that favours the plaintiff. Mkhize provides another salutary case. He took City Press to court for a March 2007 report claiming that during the murder trial that arose from the January 1999 assassination of Sifiso Nkabinde at Richmond, a witness linked Mkhize to the killing. But this evidence was discounted as hearsay. The Witness, having drawn on this story, immediately apologised and nothing further was heard. But City Press persisted in arguing that what it had published was fair comment and in the public interest. By the time it had changed its mind, offering an out-of-court settlement, it was too late. The judge found that while Mkhize’s reputation had indeed been unjustly impaired, this had not involved malice. He awarded relatively high damages of R150 000 plus costs, and a prominently displayed apology.

A far more controversial case is currently en route to the Constitutional Court. Robert McBride was also awarded R150 000 damages plus costs in a case he brought against The Citizen for describing him as a murderer and criminal unfit for public office. McBride claimed that his Truth and Reconciliation Commission amnesty for the Magoo’s Bar bombing that killed three people meant there was no murder. The paper argued, reasonably enough, that its report reflected historical fact. The Appeal Court made the contorted finding in favour of McBride that an undeniable historical event can be rendered untrue by an amnesty committee. This is highly ironic as the TRC was set up to establish truth, but in this case there is no doubt that the interests of an aggrieved individual were considered paramount.

An alert and strict ombudsman and unimaginative interpretations of defamation law keep the press on its toes. As was the case during the apartheid era, pressure to rein in the press has no popular basis. Almost all the current enthusiasm for a media tribunal comes not from the general public, but the politically powerful or connected. They are best placed and well able to use all the methods outlined above to best advantage. These various mechanisms are designed to maintain fairness and limit damage in the pursuit of truth. What the supporters of the proposed tribunal are seeking is punishment in the interests of elite power.

THE self-regulating Press Council’s code is firmly rooted in the Constitution and the rights and obligations of citizens in a democratic society. It places on the media the responsibility to report with truth, accuracy, fairness and balance; and in context. Fact must be distinguished from opinion; rumour and unverified reports clearly indicated; and distortion and misrepresentation avoided. Sources should be legitimate. The code emphasises the avoidance of harm and respect for privacy, except where there is demonstrable public interest.

The ombudsman works under the aegis of the Press Council and accepts complaints about media coverage. It arbitrates between the two parties and bases its findings on the simple question — did the press get the story right in terms of the requirements of the code? It has the power to demand written apologies. There is also an appeal mechanism.

The Press Council consists of six media and six public representatives. The latter are Bewyn Petersen (a financial services manager and deputy chair), Kenneth Mubu (Unisa), Siboniso Nyatikazi (teacher), Lindsay Clowes (University of the Western Cape), Ina du Bruyn (business consultant) and Clyde Broster (retired teacher). The media are represented by Raymond Louw (chair) and Amina Frense (both of the National Editors’ Forum), Moegsien Williams (editor, The Star), Karin Espag (Forum for Community Journalists), Silke Friedrich (Magazine Publishers’ Association) and Justin Arenstein (Association of Independent Publishers).

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