8 July 2008 by

Self-regulation rules, OK? A recent decision of the Press Ombudsman

In any aspiring democracy, the press has a powerful and important role to play, borne out of its capacity to frame political issues and, through advocacy, influence outcomes.

The power of the independent press to hold society, individuals and the state to account depends on it being afforded the widest possible scope to disseminate news and opinion without fear or favour. While press freedom is entrenched in the Constitution, indivisible from the right to freedom of expression, the debate does not end there. Ideally, the press should conduct itself with due regard for journalistic standards based on fairness and balance. Where these ethical norms are violated, such as where opinions are presented as facts, or where facts are selectively presented so as to distort reality, the value proposition of a free and critical press is undermined.

The difficulty lies in balancing the need for standards and ethics with the equally compelling need for unfettered press freedom. In South Africa, as with most democracies, the compromise has been to opt for a system of self-regulation rather than statutory or government oversight.

This necessarily relegates the state to a position alongside "Joe Public" in its interaction with the media, something that does not always sit comfortably with the ruling classes. Accordingly, the state and press will often be at odds in what the ANC has referred to as "the Battle of Ideas".

Recently, the ANC won a skirmish in that age-old battle. In a March 2008 decision, the Press Ombudsman's Panel upheld the ANC's complaint that a front page article in City Press headlined "Cracks in Zuma's NEC" was in breach of the South African Press Code. In effect, the decision censures City Press for failing to report truthfully, accurately and fairly and for failing to present news in a balanced manner. Moreover, the Panel clarified the objective nature of article 1.3 of the Code, which inter alia states that "only what may reasonably be true, having regard to the sources of the news, may be presented as fact". The Panel ruled that "it takes much more than "reasonable" belief that a story is true to elevate it to being true." The relevant question was whether City Press acted reasonably in assuming that the version from its confidential sources was true. Ultimately, there was no evidence that one or other of a number of conflicting versions of which City Press was aware was the correct one, and City Press should have said as much rather than present one such view as fact.

It is submitted that this case is something of a watershed, not so much on its own facts (or, as the Panel found, the lack thereof) but for what it means in the context of reassuring government that despite perceptions of an anti-government media, the Press Council provides a forum where even the State can get a fair shake.

It goes without saying that self-regulation should not primarily be about appeasing a hostile government. Nevertheless, the ANC resolved at Polokwane to "deepen the debate" on the role of the media in society, which many take as a euphemism for direct intervention. Indeed, the ANC has previously revealed a preference for a statute-backed "media tribunal" over self-regulation. On other occasions, the ruling party has threatened to withdraw advertising as "punishment" for perceived anti-government bias.

Certainly government has the ability to seriously curtail the independence of the press through political intervention, while rigorous self-regulation can ensure that the will to do so is kept at bay. The City Press decision indicates to the ruling party that the Press Council is capable of siding with the Fourth Estate's traditional nemesis, and that while it is rightly independent of government, it is equally independent of the press itself.

The challenge facing the Press Council, now revamped and repackaged from the end of last year, is to remain a credible and trustworthy arbiter in the inevitable Battle of Ideas.

Chris Charter, Director, Regulatory and Competition Practice, Cliffe Dekker Inc.

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