Oral submission to PCSA

Guy Berger, Rhodes UniversityPort Elizabeth, 21 February 2011

Coming up

1. Problematising “best practice”2. Replacing logic of power and bargaining with

engagement3. Some pecific recommendations4. Conclusion

1. Problematising best practice

• Pitfalls of selective borrowings and ad hoc transplants.

• Find a way between:– Un-systematic and/or expedient borrowing, &– Adopting an entirely relativistic position in which

no system is better than another.

• There is no ‘one-fits-all’ model for a self-regulating body or a journalistic code – Koene

1. Problematising “Statutory”

• Germany – non-statutory, but co-financed by government.

• Denmark – statutory, but board is nominated by industry and other stakeholders (incl Supreme), appointed by Minister of Justice, but financed by the media.

• Denmark: no damages, no (direct) fines - only a publication decision (fines if this ignored).

1. International experience = nuance

• So, you can dis-articulate the different elements of “statutory” (which are often integrated together):1. Arm of government (or Ch 9?)2. State involvement in appointments

(parliament/president?)3. Public funding (eg. Germany’s non-statutory

council)4. Official recognition (eg. of Code of Conduct)5. Power (conditionally devolved or delegated)

1. A MAD 3-way test for borrowing

• Match purpose & fit-for-purpose in original context.– Does the purpose match our purpose? – Eg. Great Britain: purpose is to handle complaints based

on the editorial Code of Practice; In Germany it is to stand up for freedom of the press, including by dealing with complaints.

• Abstract from the specific case, find generalizable rules: – Is there a logical & coherent (and aspirational) checklist

embedded? • Destination analysis – are there convivial transplant

conditions, i.e. will it fit?– Points us not just to adopting, but adapting!

2. History of where we are• Logics of political power vs press self-interest =

polarisation logic• History: prior to 2008, ANC tolerated press

freedom because:– Each faction was exploiting it– No faction could gain singular control.– There was a logic of paralysis of power

• Subsequently: ANC ‘unity’, press a scapegoat?• Now emerging: deliberative logic: engagement.• But talking, rather than negotiating/bargaining.

2. ANC criticisms

1. System is slow, non-responsive, 2. decides its own code, 3. is self-serving in its structure and appointments, 4. has a former journalist as ombudsman, 5. is co-located with industry,6. lacks teeth regarding apologies and fines,7. violates rights through the waiver requirement8. ignores Chaskalson point that dignity is the most

NB right.

3. My recommendations:

1. Changes in names and structure, 2. New positions – that of Public Advocate to assist

complainants, and that of an Advocacy Officer to drive public awareness.

3. Expansion of the scope of the Code. 4. Removal of lawyers from the process5. Empowered to make stronger sanctions• Together, these could strengthen the self-

regulation system as a critical component of press freedom in South Africa’s democracy

3.1 Nomenclature & structure• The total entity should be called “Press Accountability

South Africa” (hereafter referred to as PASA). • The Press Appeals Panel is confusingly named.

“Appeals”, which implies that it hears appeals against the Ombudsman’s rulings.

• Rather, there should be a separate designation for an Adjudication Panel on the one hand, and an Appeals Panel on the other.

• Better governance if these had different members• The Adjudication Panel would be chaired by the

Ombudsman, and the Appeals Panel by a (by convention) retired judge.

3.1 Appointments

• The Appointments Panel can also be reformed in terms of clarifying its composition & own appointment.

• And it should be made more transparent through providing more elaborated criteria about it and its work.

• For*self*-regulation (rather than co-regulation with the public), in PASA the press needs to continue hold balance of power as regards appointment.

• [Compare Council composition with: UK has majority of public members; Germany has none; Denmark has a mix (half-half)].

3.2 Funding and efficiency

• It should be made clear that funds come from the two industry bodies that are represented on the Council (as is appropriate with industry *self*-regulation).

• It should also be clear whether the Council can seek and accept other funding, and under what condition.

• Look at Netherlands Press Council which has a fast-track procedure for urgent cases? What criteria?

3.3 Independence

• The system’s independence from industry does not require it to relocate away from the offices of the industry,

• Nor does it require a non-ex-journalist to be ombudsman.

• Instead, part of *self*-regulation is exactly this.

• Independence resides in transparent appointments, finances and code of conduct.

3.4 Removing lawyers

• PASA supposed to be an accessible and quick mechanism (as compared to the courts).

• To that end, PASA’s rules need to explicitly hold the structures accountable for responsiveness and turn-around times.

• Allowing lawyers in, defeats the objective of remaining cheap. Accordingly, this provision should be removed.

• PASA should create an additional position of Public Advocate to assist lay complainants in preparing where they request such help.

• This would even-the-playing fields.

3.5 Scrap the waiver

• There is an argument that claims that the waiver prevents “fishing expeditions” for subsequent legal action.

• But this implies that the press may have something to hide that would damage its interests in a court case – which thereby begins to construct the PASA as an ignoble initiative to dodge judicial scrutiny.

• Also, it is unlikely that a complainant who loses at PASA would have odds in his or her favour to win at a subsequent forum. (Link to ethics vs law, below)

The alternative is worse

• While the waiver can be justified as a voluntary agreement to a binding arbitration, but…

• Its existence does ease the ANC’s case for there to be not just a superior forum, but specifically a dedicated statutory Appeals Tribunal.

• Yet, it is clearly much more in the interests of press freedom for a PASA ruling to be superceded (should that so be) by a court, than by a new statutory body which would be likely controlled by MPs. (Again, cf ethics & law distinction below)

3.6 Remit: separating ethics and law

• PASA is a mechanism to resolve disputes without having to go to courts and prove a point of law.

• At other times, it is propounded that PASA deals with ethical disputes which are not really legal matters.

• The system covers both roles to an extent. • But it could be very helpful for all concerned to

distinguish the two realms.

Focus in on ethics

• The Code sets out general press ethics for which there are no laws,

• …excepting as regards discrimination and hate speech (which are indeed criminal offences).

• In other words, there is not much in alleged violations of the Code’s current provisions that could be ruled upon by a court in any case.

PASA and laws

• Especially, the Code does not explicitly deal with Constitutional rights to dignity and privacy (and which in the case of dignity, also has a specific legal character in the form of crimen injuria).

• Code also does not cover the civil law right to reputation (and the converse issue of defamation).

• Yet, much of the ANC criticism of PASA is exactly this: that the system does not adequately balance free expression against these other three rights.

Contracting or expanding the Code?

• So, should PASA expand the remit of its Code to cover these three issues (dignity, privacy, reputation) and thereby provide an alternative to the courts –

• Or should it, as a matter of course, refuse to entertain cases that have legal dimensions and could be heard by courts?

Ans: broaden, but highlight ethics…

• Journalists who transgress a legal issue (such as by committing unjustifiable defamation) have also committed an ethical violation.

• This means that the Code could cover this, but still remain concerned with only ethics,

• As is already the case with hate speech – it could now be broadened to include those ethical characteristics of law as regards the matters of dignity, privacy and reputation.

At present, inconsistency

• Right now, PASA has to direct complaints about dignity, privacy and reputation to the courts, as these are not in the Code.

• On the other hand, PASA does include clauses on hate speech (which are equally legal and ethical issues).

• So, expand the code – but highlight that legal dimensions should go to court, that PASA only pronounces on ethics.

+ Expand remit to online• Denmark, Netherlands: council covers print,

broadcast, registered Net• Sweden, Britain, Germany: print, limited Internet.• PASA should develop guidelines for press content

online in the code, including UGC responsibility; • And also cover online information gathering.• (cf the PCC: “The ‘public domain’ is not a

straightforward excuse for publishing delicate material”) - applies to a journalist using Facebook.

3.7 Financial sanctions?

• “Any system involving fines becomes more legalistic and confrontational, with lawyers arguing over the size of penalties to be levied” – William Gore

• Financial penalties are not an effective punishment.

• A self-regulatory body would have grave difficulty enforcing fines or compensation unless it had a statutory basis.

In favour of financial sanctions

• BCCSA successfully levies fines based on the consensus of members that this is a sanction.

• If PASA members already agree to publishing corrections, they could also agree to pay fines.

• If kept to strict parameters and ceilings, with monies going to support PASA activities (i.e. not damages!), lawyers could still be kept out.

• Complainants wanting damages should go to court – i.e. the law (not ethics) is appropriate.

More specific non-financial sanctions

• Positing and size of apologies - PASA should have the authority to give far more detailed directives as to the placing and format of redress.

• Denmark: the chief editor is obliged to comply with a publication order and is not allowed to add a comment, although the press council does not have the option of specifying in detail in which manner the publication is to be made

3.8 Outreach and comms

• PASA must debunk common misunderstandings (most critics do not know there are public representatives involved, and that the Appeal Panel has a casting vote by the Chair who is a non-press member)

• Though the press controls the appointments and finances of what would otherwise be a co-regulatory system (press and public), it is NB to explain how the system is independent of its press principals.

• Hence the need to highlight that the press does not choose the judge who chairs the Appointments Panel.

Advocacy Officer

• PASA should create a specific Advocacy Officer who can do justice to functions like public speaking, taking part in discussions, holding workshops, being interviewed, writing leader articles, etc. rulings.

3.9 Understanding violations

• PASA is less about upbraiding and deterring bad practice, than about getting to root causes fuelling such practice in the first place.

• Success is not in successful resolutions of cases, but in reducing the number thereof over time.

• So ongoing research should be undertaken about the extent and causes of Code violations.

• Recommendations can address the root problems.• So, enable PASA to go beyond the role of only responding

to symptoms, and instead also initiate pre-emptive actions.

Summing up1. ‘Best practice’ methods2. History: how we got here, where to now.3. Change names & structure; clarify funding,

independence 4. Public Advocate to assist complainants, and Advocacy

Officer to drive public awareness. 5. Scrap the waiver6. Expand scope of Code, but keep ethics & law separate7. Remove lawyers from the process8. Empowered PASA to make stronger sanctions9. Research roots of violations, take pre-emptive action.

Sources• Berger, G. 2010a. Submission to the Task Team set up by the Press Council

of SA, for its review of the Council’s constitution, the SA Press Code and its Complaints Procedures. 12 October 2010

• Berger, G. 2010b. Best practice in media self-regulation: a three-way test to avoid selective borrowing and ad hoc transplants. Paper presented to colloquium “Media, democracy and transformation since 1994: an assessment”, Rhodes University, Grahamstown. 15-16 October, 2010

• Berger, G. 2010c. Looking for logics in the challenges to press independence in post-apartheid South Africa. Presentation to conference 'Media, Politics and the Public', organised by the Axess Programme on Journalism and Democracy. Stockholm, 22 October 2010.

• Berger, G. 2010. “The struggle for press self-regulation in contemporary South Africa: charting a course between an industry charade and a government doormat.” Communicatio, 36 (3), 289–308

• Koene, D C. 2009. Press Councils in Western Europe. Studies for the Netherlands Press Fund – s22, Dieman, The Netherlands: AMB Press