Press Ombudsman system vs. ANC’s proposed Media Appeals Tribunal presented at Sanef Summit Aug 30,

Comparison of the Press Ombudsman system and the ANC’s proposed Media Appeals Tribunal

By Raymond Louw
Chairman of the SA Press Council

Let me preface my remarks by pointing out that the Press Council upholds the “basic principle that the freedom of the press is indivisible from and subject to the same rights and duties as that of the individual and rests on the public’s fundamental right to be informed and freely to receive and disseminate opinions ...’‘

This means that the press, indeed, the media generally, has no greater or lesser powers than that of the individual and are subject to the same laws. In several states in the United States, the press refuses to subject itself to what they regard as an additional restraining body and say people should take their complaints against the media to the courts.

In South Africa, however, after the arrival of democracy in 1994, the media decided to pursue an ombudsman system to enable the public to complain to an independent voluntary self-regulatory body about misdemeanours by newspapers and their journalists.

The Ombudsman system was instituted in 1996 after the previous Press Council which had been set up by the then Newspaper Press Union (now Newspaper Association of SA) to avoid the government imposing a statutory structure which would have incorporated the registration of journalists. The council was chaired by a retired judge or senior advocate and had the power to fine newspapers.

After 1994, the code of conduct applying to the Press Council was examined by a committee chaired by Professor Kobus van Rooyen and consisting of representatives of media organisations, including trade unions. Indeed, Mwasa (Media Workers Association of South Africa) was extremely vocal in the discussions.

The code was drastically overhauled clause by clause, those applying to apartheid policies being removed. The code was shaped to comply with South Africa’s constitution and, especially, the constitutional freedom of the media and freedom of expression clauses to ensure that no measure in the code could be construed as breaching those constitutional rights. The draft code that emerged from that process was referred to the organisations who had sent representatives and was accepted by them. All those bodies, acting for their publications, voluntarily signed to participate in the Ombudsman system, thus ensuring the legitimacy of that office and its practices.

One of the founding principles was self regulation, whereby the press took on the onus of setting up its own mechanism to adjudicate breaches of the code which emphasised the requirements of accuracy, fairness and ethical conduct. Another important decision was to base the structure on adjudication of complaints by an Ombudsman who would be subject to an Appeals Panel headed by a retired High Court judge.

The concept underlying the Ombudsman system were that it would speed up the process of adjudication, enabling complainants to achieve a speedier outcome than would have been possible if they had taken their complaints to the courts and to save money for all concerned. In fact, complainants would incur no costs apart from that of a postage stamp or a telephone call. In practice, the speeding up process has worked fitfully with some adjudications, especially when a hearing went to the Appeals Panel, being stretched out, diminishing the impact of the final adjudication.

But since 1996—a period of 14 years—the system has worked well. The administration was in the hands of the Ombudsman—then Ed Linington—with oversight by the Founding Bodies Committee which consisted of the representatives of Sanef, Mwasa, the newspaper and magazine divisions of NASA and until it collapsed, the SASJ. Later the Forum of Community Journalists and the Association of Independent Publishers were added to the committee. During this period discussions about the process and the code were held and certain changes effected.

The public were always involved in the adjudication process with public representatives being selected by an Appointments Panel. This process involves the Chief Justice being asked to appoint a judge to chair the panel and select the Ombudsman, the public representatives from which the Ombudsman will select one person to sit with him/her at a hearing together with a press representative. The panel also selects the judge to chair the Appeals selection committee. At least three members of the Council sit in on the Appointments Panel to assist the judge.

The most important change in the structure occurred in 2007 when the name was changed to the Press Council and public representatives were added to the Council.

The decision about public representation had a limitation on it; there was one more press representative than the public representatives to avoid any possibility of an outside organisation, members of the public, being seen to be setting the standards for the industry and to ensure that the process is indeed self-regulation. Hearings by the Ombudsman are conducted with one press and one public representative and a similar arrangement pertains to the Appeal Panel. However, with the chairman being a retired judge and a non-journalist, and a public representative sitting with him, it can be said that this aspect of the process could be dominated by outside interests—the judge and public representative on the one side and a sole press representative on the other.

We’ve surveyed the cases brought against newspapers by ANC cabinet ministers, their ministries and departments, by the ANC and ANCYL and by local government from August 2007 to July this year and tallied 43 complaints of a total of 356 from the public generally. Of the 20 cases that have been decided, 65% of the decisions upheld the complaints and 35% were rejected. Eight complaints came from the ANC and ANCYL and with one still pending. The result was three apologies from the newspapers and one newspaper was reprimanded. Government institutions (national and local) laid 33 complaints and with seven of these still pending and 19 closed or dismissed, the remaining nine drew one reprimand of a paper, six apologies and two corrections. Among the complainants were 16 ministers (three complaints were from the president and two from the deputy president) and senior ANC officials.

This is an impressive record of ANC and government complaints and of outcomes where two-thirds went in favour of ANC ministers and government departments. In light of that question marks could be raised why the ANC complains that the Ombudsman system is not working and that his decisions favour the media.

Indeed, it is the lack of substance to that complaint in light of the findings made in favour of the ANC and the government that suggest there is an ulterior motive behind these attacks on the media. To my mind it means the ANC is using these spurious complaints to justify a plan to control the media and its access to information through the establishment of a statutory Media Appeals Tribunal.

While from an ANC perspective the results indicate that the system is effective, overall, too, the system is working well for the public at large with the 356 complaints from the public over three years. Roughly half the complaints go nowhere but satisfaction is given to many others. However, in viewing the press landscape as a whole and the totality of its operations, the small number of complaints compared to the thousands of stories published by newspapers indicates their ability to display a relatively high degree of accuracy in conveying information. The number of complaints overall certainly does not bear out ANC allegations of widespread publication of falsehoods, an ``astonishing degree of dishonesty’’ and ``malicious’’ reporting.

The ANC has demonstrated an astounding ability to throw out wild, inaccurate and unsubstantiated accusations against the press. The SA National Editors’ Forum was given a remarkable example of this attitude at one of its council meetings by Deputy President Kgalema Motlanthe when he was secretary general of the party.

He complained to a council meeting of Sanef in February 2009 that the Ombudsman had not responded to a number of complaints from the ANC. His statement followed similar accusations by other ANC spokespersons. When asked for details of these, he said he did not have them to hand.

The Ombudsman persisted and eventually a meeting was arranged with ANC officials when a list of such ignored complaints would be presented. At the meeting ANC spokesman Steyn Speed produced a document listing one case that he alleged had been ignored. He gave details of the complaint—but was promptly told that far from being ignored, the Ombudsman had dealt with the case and had indeed found in favour of the ANC. The newspaper concerned had been ordered to apologise.

What this story does show is the blatant inaccuracy of ANC accusations against the media. It also shows the hollowness of its claims against the Ombudsman system. It has never apologised despite it allegations having been published widely.

Against these spurious ANC complaints about the system, there is strong international support for the process that has evolved in South Africa.

The most striking protocol which supports self-regulation for the press was adopted by the African Union’s African Commission on Human and Peoples’ Rights in Banjul, Gambia, in October, 2002. It is the Declaration on Principles of Freedom of Expression in Africa—a detailed elaboration of the item in the African Union’s Charter dealing with freedom of expression (Clause 9).

The Declaration stresses the need for the press to be independent and free from interference from political and economic forces. It states specifically in regard to the treatment of complaints that

* “Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference. Its powers should be administrative in nature and it shall not seek to usurp the role of the courts; and

* Effective self-regulation is the best system for promoting high standards in the media.’‘

It adds under Promoting Professionalism that

* The right to express oneself through the media by practising journalism shall not be subject to undue legal restrictions.’‘

Under Protecting Reputations, it states that laws relating to defamation should conform to a number of standards, among which is

* Sanctions shall never be so severe as to inhibit the right to freedom of expression, including by others.

It is contended that South Africa’s Press Council conforms to these standards.

In addition, the Ombudsman system in relation to freedom of the media and freedom of expression accords with SA’s Constitution as well as Article 19 of the Universal Declaration of Human Rights.

It also conforms to the Declaration of Windhoek which declares

1. Consistent with Article 19 of the Universal Declaration of Human Rights, the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation and for economic development.

2. By an independent press, we mean a press independent from governmental, political or economic control or from control of materials and infrastructure essential for the production and dissemination of newspapers, magazines and periodicals.

Critics overlook the fact that the Ombudsman’s office has been given legislative recognition by the SA government. The Films and Publications Act exempts mainstream newspapers that subscribe to the Ombudsman Press Code from some of the provisions of that legislation.

Let’s deal with the accusations and complaints we have heard:

* The Ombudsman’s office is conducted solely by people from the media and it is the media that deal with complaints against it.

Response: Indeed, the ombudsman is a former senior journalist. It is an essential requirement for a person adjudicating on the conduct of the media and journalists to be well versed in the methods and practice of journalism.
But when he conducts a hearing, he sits with another journalist and a person drawn from the public. Indeed, there are six public representatives and six journalists available for hearings by the Ombudsman and the Appeals Panel.

The Appeals Panel—which is engaged when either the complainant or the defending newspaper appeals against the ombudsman’s finding—is chaired by a non-journalist. He is a retired judge of the Supreme Court of Appeal and if he holds a hearing he sits with one public and one press representative. Thus to suggest that the office and proceedings are conducted solely by ``people from the media’’ is false and is being propagated mischievously.

* The ombudsman’s office is ``inadequate’’ and ``doesn’t work’’ without explaining what is meant.

Response: I have already shown that the ANC, its ministers, officials and members have made considerable use of the Ombudsman with quite remarkable success showing that the office does not support press interests to the exclusion of those of others organisations. Indeed, the survey I referred to also disclosed the fact that in 2007-8, government and ANC complaints totalled six of the 94 complaints received. The following year they comprised 13 of the 127 complaints and in the year 2009/10 there were 24 complaints from the government and the ANC out of the total of 135.

* The press is not accountable and the Ombudsman does not have the power to impose punishment.

Response: As pointed out above, the media is accountable to the law in the same way as everyone else. It should also be borne in mind that oversight of the media—who guards the guardians? is the cry—is the reading public, the people who buy and read papers. If the public believes papers are not serving their interests and informing them about what is happening in the country and elsewhere or if it is inaccurate and is forced to publish corrections and apologies, the paper’s credibility suffers and readers lose trust in it and stop buying it.

In regard to the Ombudsman’s inability to impose `serious’ penalties, the ombudsman indeed imposes what is regarded by the media as a very serious sanction. If found to have offended the press code, a paper can be called upon to publish a correction and an apology and may even be reprimanded. These strictures have to be published prominently under the orders of the Ombudsman or Appeals Panel judge. Punishment as damning as this strikes at the heart of a newspaper’s operation. It tells the public that the newspaper was not only inaccurate but that it behaved unprofessionally or even dishonestly. Nothing damages a newspaper more punitively than a finding against its credibility and trustworthiness which, as stated above, could result in readers withdrawing support and circulation falling which can have an affect on advertising sales with the ultimate sanction being the closure of the business.

Answering the question why it does not impose fines, the British Press Complaints Commission says: In order to do this, the PCC would probably have to have statutory powers of enforcement, which would fundamentally change the nature of the system it oversees. Many of the existing benefits would be removed or reduced—it would become more legalistic, more confrontational and less flexible. But in any case, evidence from other countries suggests that where fines do exist (for example in France) editors risk publishing intrusive stories—and then paying the damages—because the increase in sales more than compensates for the cost of the fine. The system of critical adjudications available to the PCC is actually a much more powerful sanction as it acts effectively as a powerful `name and shame’ sanction.

A survey conducted by the New Zealand Press Council in 2007 found that of the 87 press councils it identified in the democratic world, 75 adopted this punishment procedure because they regarded it as the most effective way of dealing with breaches of the code.

* Why should I sign away my right to take my complaint to the courts. Before accepting a complaint for adjudication, the Press Council requires a complainant to sign a waiver of his/her right to take the issue to the courts. The ANC complains that it is unfair to impose such a condition.

Response: The Press Council imposes a simple choice: take your case to the courts and contend with the costs, delays and potential risk or take the complaint to the Ombudsman where it will be dealt more speedily. If the waiver was not required, there is a danger that the Ombudsman system will collapse because newspapers will say they will be exposed to double jeopardy—once before the Ombudsman and the second before the courts. Also a complainant could use the Ombudsman system as a fishing expedition to gain information from the paper and so phrase his court action accordingly. This prospect could lead newspapers withdrawing from the council and dealing with the issues before court. But in any event, the complainant still has a final appeal to the High Court. If he/she is dissatisfied with the findings in turn of the Ombudsman and the Appeals Panel the case can be taken on review before a High Court judge.


ANC’s Media Appeals Tribunal

The ANC’s proposed Media Appeals Tribunal is far removed from a self-regulatory system and in my opinion if implemented in the manner suggested by its proponents would breach the country’s constitution in more than one respect as well as the other protocols referred to above and to which the South African government as a member of the United Nations and the African Union subscribes.

It is planned to be a statutory body—one established by parliament and to be accountable to parliament. That would indeed contravene the freedom of expression clause in the constitution because such a body would constitute an extraneous organisation imposing its standards and those of parliament on the media thus imposing restrictions on freedom of the media and freedom of expression. It is also a political organisation.

Accountability to parliament suggests that newspapers can be summoned to parliament to answer questions about their conduct and, in particular, about the stories they publish. Parliament has the power to demand that an editor disclose the confidential source of a story and if he/she fails to do so, he or she can be punished with a prison sentence. In any event it would be unacceptable interference by a political party to subject an editor and his/her staff to such questioning. In fact it would destroy media freedom.

While the ANC and the SA Communist Party, which supports the plan, both insist that the panel will be composed of independent persons chosen by an as yet unnamed procedure, there can be no guarantee of that independence because the selection of members of the tribunal will be by political parties who would favour choices supportive of their policies. The country’s experience of similar ``independent’’ selections in the past where political sympathies became evident is an indication of the political complexion of the tribunal that is likely to emerge.

Statements from protagonists of the proposal and those made in discussion documents and in a Letter from the President show that the plan to set up the Media Appeals Tribunal has purposes other than ``strengthening media freedom and accountability’‘.

The discussion paper to be presented by the ANC at the party’s National General Council meeting in September states, ``Our objectives therefore are to vigorously communicate the ANC’s outlook and values (developmental state, collective rights, values of caring and sharing community, solidarity, ubuntu, non sexism, working together) versus the current mainstream media’s ideological outlook (neo-liberalism, a weak and passive state and overemphasis on individual rights, market fundamentalism, etc).’’ There is nothing wrong about the ANC being desirous of propagating its views. It is the word ``versus’’ that implies that there is an obstacle to be tackled—and overcome. In the context of a media tribunal this sets the scene for controlling the media’s output.

Incidentally, that concept of the media is certainly not in accord with the media’s view of itself.

In his recent Letter from the President, President Jacob Zuma asked, ``What is the ideological outlook of the media? Are we on the same wavelength regarding where South Africa should go politically, socially and economically? Does the media understand this well enough to articulate it to South Africans, to enable (them) to accurately judge government action and performance?’‘

These statements suggest that the ANC wants the media to publish news as it wants it expressed which is not how an independent media would see it. Indeed, it is a clear call by the ANC to the media to be its mouthpiece ``on the same wavelength’‘.

In addition to those directions, ANC spokesman Jackson Mthembu has said that the intention is to give the appeals panel powers to imposes prison sentences on offending journalists and heavy fines on their newspapers.

This is where the ANC plan enters the domain of ``insult law’‘, which has closed up the flow of information in the media in many countries in Africa, though not South Africa. These laws are ostensibly intended to protect the reputation and dignity of kings, presidents, prime ministers and, depending on the country, other state officials such as the heads of the police and army. But in reality they criminalise the publication of certain news as ``false news’’ and punish it with fines and jail terms. The kind of information that falls into the government’s version of ``false news’’—because it is the government that decided that the information is ``false’’—is mostly material critical of government, or its ministers and officials.

The main thrust of the government complaints against newspapers in recent months has been about stories about lavish life-styles affronting the ``dignity’’ of senior ANC government leaders. These stories fall into the ambit of ``insult law’‘.

The ANC has not given any information about the structure it envisages but there are plenty of examples where statutory councils have been set up to pursue a demand that the media please the government. To ensure that it does so, there are prison sentences, fines and registers from which journalists can be removed and prevented from carrying out their jobs and telling the public what is really going on.

It has suggested that the tribunal will not supplant the Press Council but aid it in some way. It is quite clear that editors will not subject themselves to the findings of the Press Council only to find themselves subject further to a tribunal. The council will disappear and the prospect of a council with such punitive powers holding sway over what newspapers publish will have a series of serious consequences, ranging from self-censorship for fear of a staff member going to jail, reduced coverage of the news and possible, though unlikely, compliance with propagandist demands. It will certainly destroy a free press.

Harking back to the African Commission on Human and Peoples’ rights and its Declaration on Principles of Freedom of Expression in Africa, which the SA Government has accepted, it is clear that the ANC’s concepts of a Media Appeals Tribunal will breach these.

The Declaration makes the points that effective self-regulation is the best system and that media regulatory bodies must be free from government interference’‘.

So, summing up we have an effective, working self-regulatory system in accord with press freedom principles of international protocols and other press councils in democratic countries and face a prospect of a mechanism that plans to break the international protocols and impose a system that will destroy press freedom and seek to control the flow of information to the public. And it will be the public that suffers because press freedom is no more than the public’s freedom to access to information.