Cosatu discussion document: Media transformation, ownership and diversity and Media Appeals Tribunal

A copy of the labour federation's discussion document by Prakashnee Govender and Patrick Craven.

1. The ANC has opened up an important public debate on how to take forward
its 2007 Polokwane Conference resolution on the media, in particular its
decision to investigate the establishment of a Media Appeals Tribunal (MAT).
It will be one of the main items on the agenda of the National General Council,
around a discussion paper entitled "Media transformation, ownership and
diversity".

2. COSATU shares the concerns expressed in the discussion paper and the
Polokwane resolution about "the increasing concentration of ownership,
control and content within the international media environment", which is a
particular problem in the South African print media, where 95% is owned by
just three big, wealthy companies – lndependent Newspapers, Avusa and
Naspers. They all reflect the outlook and prejudices of the capitalist class that
own them – pro-big business, the 'free market' and private enterprise.

3. The ANC are right to argue that this level of concentration re-enforces "a
major ideological offensive, largely driven by the opposition and fractions in
the mainstream media, whose key objective is the promotion of market
fundamentalism, control of the media and the images it creates of a new
democratic dispensation in order to retain old apartheid economic and social
relations."

4. "Information is knowledge and it is power," says the discussion paper. "There
can be no real media freedom without diversity in ownership of the media.
Especially for the poor, media freedom should be understood to include their
participation not merely as consumers, but also as producers of news and
analysis... Media diversity supports, promotes, deepens, consolidates and
strengthens democracy, nation building, social cohesion and good
governance.

5. The paper hits the nail on the head when it says that "the Media is a
contested terrain and therefore not neutral, but reflects the ideological battles
and power relations based on race, class and gender in our society. It cannot
claim that its role is merely to reflect interests – rather it helps to shape those
interests."

6. Under the constitution the media has the right to publish and promote those
interests, and we have to defend that right. "There is no question," says ANC
discussion paper, "that the media, as an institution, deserves and should be
afforded the space to flourish as a critical platform for freedom of expression.

7. "The ANC has always fought for media freedom, which it believes is a
cornerstone for any democracy to flourish. All of us have a responsibility to
defend media freedom and editorial independence from any form of
compulsion, whether it be political economic or commercial... Freedom of
expression is in the self-interest of all those who believe in democracy."
It is a legitimate criticism of the alliance partners that we have still not
ourselves taken advantage of that freedom by implementing our respective
resolutions to publish alternative, progressive newspapers which will redress
the present imbalances. We must continue to pursue this and in the meantime
will be monitoring The New Age (see separate report) to see if it helps redress
the imbalance.

9. In the meantime the critical problem that the ANC is confronting is how to deal
with the media when it goes beyond merely exercising their constitutional right
to express a view, but resorts to using lies, defamation, distortion, selective
reporting, unsubstantiated 'facts' from anonymous 'sources', deliberate
omission of relevant facts, etc.

10. The ANC paper puts it bluntly: "A cursory scan on the print media reveals an
astonishing degree of dishonesty, lack of professional integrity and lack of
independence."

11. It mentions the phenomenon of 'brown envelope' journalism, which "may run
even deeper that meets the eye in what has now become like permanent
briefing sessions between faceless leaders within the ranks of our Alliance
and some journalists about discussions taking place in confidential meetings.
These relationships are probably more than just ordinary media sources
inside our organisations, but possibly involve payment arrangements.

12."The tendency of dismissing any criticism of the media as an attack on press
freedom results in the media behaving like a protection racket and leaves no
space for introspection. For its own credibility, and in order to be at the
forefront of determining the agenda for change and not against change, we
have a responsibility to assist the media need to shape up."

13. Media misconduct is supposed to be dealt with at present by the Press
Council of South Africa, the Press Ombudsman and the Press Appeals Panel,
which, in their own words, is "a self-regulatory mechanism set up by the print
media to provide impartial, expeditious and cost-effective adjudication to settle
disputes between newspapers and magazines, on the one hand, and
members of the public on the other, over the editorial content of publications.
(Our emphasis)

14. "The mechanism is based on two pillars: a commitment to freedom of
expression, including freedom of the press, and to excellence in journalistic
practice and ethics... The industry believes in self-regulation because it is the
only way that the rights of freedom of expression and freedom of the press
and other media guaranteed in the Constitution of the Republic can be truly
exercised. Any other form of regulation would threaten the independence of
the press and freedom of expression."

15. This sounds good in theory but it has not worked in practice. The
Ombudsman is under-funded and under-staffed. He takes too long to make
rulings and insists on an unfair, and probably unconstitutional, requirement
that anyone who lodges a complaint must sign away their right to take further
action through the courts.

16. While the Ombudsman has occasionally condemned some of the most blatant
malpractices, as with the City Press recently, its powers are limited to verbal
reprimands and demands for corrections and apologies to be published by the
guilty newspapers.

17. These are often hidden away at the bottom of a page and do not erase the
false impression caused by the original article. The damage has already been
done to somebody's reputation. As the old saying goes, "if you throw enough
mud at the wall, some of it will stick".

18. But the main problem is that the Council and the ombudsman are dominated
by people from within the media. As the ANC paper says: "The mere fact that
the press ombudsman is from the media ranks, a former journalist, and is not
an independent person who looks at the media from the layman's perspective
poses an inherent bias towards the media with all interpretations favourable to
the institution and the other party just have to understand and accept the
media way which is grossly unfair and unjust."

19. There is therefore a strong case for a new body with more independence and
more teeth. Hence the idea of a Media Appeals Tribunal (MAT). The ANC
resolution proposed that "a MAT should be a statutory institution, established
through an open, public and transparent process, and be made accountable
to Parliament."

20. The MAT should have "powers to adjudicate over matters or complaints
expressed by citizens against print media, in terms of decisions and rulings
made by the existing self-regulatory institutions, in the same way as it
happens in the case of broadcasting through the Complaints and Compliance
Committee of ICASA".

21. MAT is meant to provide a platform for citizens to be fairly treated through an
independent process supported by public funds and accountable to the
people through parliament."

22. COSATU would not disagree with that, provided that certain conditions are
embodied in the legislation to ensure that the MAT did not become, as many
allege, a government censorship body.

23. The reference to ICASA is interesting, as it is currently at the centre of
another debate which raises some of the same issues.

24. ICASA is established under Chapter Nine of the Constitution, like such bodies
as the Public Protector and the Independent Electoral Commission. It has
many functions but one of the most important is to monitor broadcasters'
compliance with their contractual obligations on such matters as language
policy, political impartiality and access to the media for all South Africans.

25.There is a widespread view that ICASA has failed to play this role and that it is
an incompetent and toothless body. In response to this criticism the
government has tabled the ICASA Amendment Bill, which seeks to make it
more accountable to Parliament and government. But critics of the Bill say
that in effect ICAS would become nothing but a sub-department of the
Department of Communications. Parliament will have to debate this bill and
COSATU will no doubt be making its submission.

26. A number of competing principles must be taken into account when
considering the MAT, most of which find either direct or indirect expression in
the Constitution, including:

a) Freedom of expression, which includes freedom of the press
b) Public access to information, and the role played by the media in its
dissemination
c) A State and society based on openness, transparency and
accountability
d) Independent media

27. The right of the public to access to information is however undermined by
media that distorts or misrepresents information, whether negligently or
maliciously, Rewarding journalists with impunity when they disregard basic
ethical principles raises serious questions as to whether the principle of
accountability should not be applied to the media.

28. The notion that this would undermine the independence of the media (rather
than complement it) disregards the extent to which ownership and control of
commercial media vests in large corporations. The general dependence on
commercial advertising revenue raises serious questions about the overall
orientation and commercial bias of the print and on-line media.

29. Further the concept of independence' would commonly be construed to mean
free from bias and influence of the State, political parties and economic
interests" Against this background the media cannot be described as strictly
independent in every sense.

30. Its dependence on self-regulatory mechanisms, in the form of the Press
Ombudsman and the Press Appeals Panel, do not provide an objective or
impartial mechanism to counter this.

31. On the basis of these concerns it is clear that self-regulation is inappropriate.
At the same time establishing a State Regulator would mean moving towards
the other extreme. A MAT would therefore have to prioritise the public interest
over that of the State and private commercial interests, especially with
regards to its composition and structure.

32. We should propose a co-regulatory model, which should be established in
terms of statute and should preferably be located within Chapter 9 of the
Constitution. Any reporting or accountability to the State and public should be
implemented in a similar manner as required by Chapter 9 institutions in
reporting to Parliament.

33. The composition and structure of the MAT should entail the following
components:

a) Representatives of the print and online media industry. This would
include representatives of publishing houses and journalists.

b) Representatives of the State. This requires further discussion as to
where representatives are drawn from. However, the initial view is that
this component should not be drawn from the Executive. Any State
representatives would be expected to recuse themselves in the event
that the MAT would have to consider a matter affecting a State
institution or official.

c) Representatives of the public and organised civil society. This
component is fundamental to the efficacy of this model and should not
be numerically outweighed by representatives of either the State or the
Industry. Further, interests should be defined carefully to ensure that
this component is not overly weighted towards freedom of
expression/media/civil society organisations, Rather it would be
important to ensure the participation of a diverse and broader range of
interest groups. For example, noting concerns about the portrayal of
women and gender in the media, it would make sense that women's
rights organisations would be included. Further the question of
representivity of public interest should be based on including
representatives of larger mass-based organisations, those of organised
labour in this structure being paramount.

NB. We have deliberately excluded the representation of organised Business in the
above structure, as we believe that they would be catered for in terms of
representatives of the media industry.

34. Under the circumstances we do not believe that a regulatory mechanism is
capable of being independent in true sense especially in relation to its
composition. T6erefore our approach has been to call for a balanced
composition that truly takes into account that it is ultimately the public interest
that must outweigh other considerations.

35. This, combined with other mechanisms aimed at protecting the objective
nature of the decision-making process (such as requiring state
representatives to recuse themselves when considering a complaint affecting
the State), would effectively ensure a regulatory mechanism that is truly
independent in its implementation.

36. Government can argue that as the elected representatives of the voters they
have a mandate to i-egislate and govern on the basis of their manifesto. This
applies to media andiommunicaiions policy in the same ways as it would to
education, health, transport or anything else'

37. Even Chapter Nine institutions have to operate within the government's policy
framework. In a democracy they can never be totally 'independent' but must
operate within policies voted for by the electorate'

38. The problem arises when a regulatory body like either ICASA or a MAT has to
deal with complaints when the government itself is a party to a dispute. An example was allegations made by COSATU and others of factional political interference in the editorial policy of the SABC in the Mbeki era, allegations which ICASA should have investigated but scandalously did not.

39. Similar situations could well arise with the print media. Notwithstanding the
ANC's legitimate criticisms of the media in general, some of their complaints
are against publications, like the City Press and Mail & Guardian, when they
print stories alleging corruption or waste of public money by government
ministers or departments.

40. Such stories may or may not be true, but clearly the government itself cannot
be the judge of their truth or falseness, in cases where ministers or senior civil
servants are the either the accused or the accuser'

41. The MAT must have the same powers as other Chapter Nine institutions to
refute government complaints when they are groundless and to confirm
allegations against government when they are true, without fear or favour. Their members must be people with integrity and courage, who are prepared
to stick to their guns, no matter what pressure may be exerted from powerful
institutions or individuals.

42. Otherwise it could create a serious danger of becoming a government
censorship tribunal. Editors could feel intimidated into suppressing stories making allegations against ministers, even if they are true, for fear of being hauled before a MAT which was biased towards the government’s view.

43. This would not only be a problem for mainstream newspapers, who anyway '
have plenty of money to fight the case through the courts if they disagree with
the MAT. Union journals and NGO newsletters, without such financial clout,
could be similarly forced to be cautious in publishing reports by, for example,
whistle-blowers.

44. This could lead to similar problems as those that civil society and the media
will face under the Protection of Information Bill (PlB) as currently drafted,
under which a minister of official could classify information as secret in order
to cover up criminal activity, a

45. The biggest concern with both the PIB and the MAT is that they could be
misused to suppress the publication of matters of legitimate public concern,
and to protect those guilty of unethical or criminal acts

46. lt is therefore essential to strike the right balance between the right to publish
potentially damaging but true allegations, and the right for individuals and
organisations to be protected from false allegations.

47 .The MAT must be scrupulous when investigating such complaints to ensure
that they are not swayed by pressure from any of the parties concerned. That
is where 'independence' is vital. Subject to that very crucial condition,
COSATU is broadly in support of the idea of the MAT but will scrutinise the
legislation to set it up very thoroughly.


ISSUES REQUIRING FURTHER DISCUSSION

a) Further discussion is required in order to expand on the above MAT model.
These include the question of sanctions:
b) What types of sanctions or penalties should the MAT have? (le. Nature and
severity?)
c) Tribunals generally do not have the power to impose criminal sanctions and it
would not be advisable to afford the power here. However, should it have the
power to make recommendations to a court of law in this regard?
Against whom would any sanctions or penalties lie? Who should be held
ultimately or jointly responsible? The editor, the publication or the journalist?
What would be the relationship to the existing Press Ombud? Should the
Press Ombud be replaced by the MAT, which would act in the first instance in
response to complaints or appeals from an in-house media ombud? Or will
the MAT instead only consider appeals from the Press Ombud.

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