The ANC’s thrust to create a Media Appeals Tribunal has met with considerable opposition across the board. I would like to focus on two issues in the debate on press freedom that received little attention. Depending on the perspective, the one could be described as the flipside of the other.
State regulation and non-state self-regulation
In a previous contribution, I set out a number of constitutional constraints with regard to creating such a tribunal as statutory watchdog of the press in the manner envisaged by the government. I contrasted the media tribunal with the self-regulation system of the press. Whereas the former would fall in the domain of public law, the latter operates within the scope of freedom of association on a voluntary basis. The self-regulation system of the press offers inexpensive out-of-court mediation to address complaints about print media reports.
Such mediation procedures should be clearly distinguished from adjudication by the courts. Whereas the emphasis of mediation is on dispute resolution in the non-state civil-society domain, lawsuits focus on dispute adjudication. An important distinction is therefore that the Press Council’s procedures focus on whether standards laid down by the South African Press Code have been abided to by journalists. They do not invoke statutory law or common law like the courts in defamation suits or crimen iniuria trials but offer mediation procedures where press reports fall short of the standards set out by the Press Code.
It is not clear whether ANC members, who support the creation of a media tribunal, paid attention to these differences. At the ANC’s national general council meeting, it was argued that the existing self-regulatory system with the press ombudsman and press council “is ineffective and needs to be strengthened”. The creation of a media tribunal is seen as a mechanism “to punish unscrupulous reporting”. Thus the party proposed that the media appeals tribunal should “hear complaints against the press and have authority to impose legal penalties on journalists”.
This implies two things: neither self-regulation by the press nor judicial scrutiny into whether the limits of press freedom have been transgressed satisfies the ruling party. The ANC does not envisage the media tribunal to be part of the judiciary but to function as an administrative body with adjudicating and sentencing powers to punish journalists. This, however, is not possible within the framework of the Constitution because the legislature cannot bypass the courts and confer adjudicating and sentencing powers on an administrative body. It is also not clear how such complaints would be delineated from private-law defamation suits or criminal-law crimen iniuria trials.
The rationale behind bypassing the courts with a media tribunal seems to be inspired by the notion that a special category of offences, viz “unscrupulous” media reports, should be created which would fall under the exclusive jurisdiction of the media tribunal. The problem is that subjective perceptions of moral scruples do not translate into legal norms. The boundaries of press freedom have been specified in section 16(2) of the Bill of Rights. In terms thereof, the press may not engage in propaganda for war, incite imminent violence, or advocate hatred based on race, ethnicity, gender or religion. These are legitimate grounds for limiting press freedom but none of these issues is at stake in the current debate.
The crux of the matter is that the ruling party indicated that the real motivation for the press tribunal is that the ANC is upset because the press reports about corruption of political office bearers and the abuse of state power by the executive branch. That, however, is not a legitimate basis for putting constraints upon press freedom. In fact, one of the cornerstones of constitutionalism specified by section 1(d) of the Constitution is openness and accountability of government. Muzzling the press therefore infringes upon the tenor of constitutionalism as such.
One of central tenets of a constitutional state is the curbing of excesses of state power. The exercise of state power must therefore always be in proportion to the object pursued. Thus legislation which confers such powers upon the executive must bear that in mind. However, if one compares the penalties of up to 25 years imprisonment envisaged by the Protection of Information Bill that are foreseen for accessing information classified as top secret, with the criteria that would allow such a classification, the penalties are clearly disproportionate. Furthermore, secret “state information” is conceived of in a manner reminiscent of bad James Bond movies during the Cold War and not the way one would expect of an open democracy.
If one compares this bill with the Independent Police Investigative Directorate Bill that is also in the pipeline, there is a gross discrepancy between the envisaged penalties in relation to the seriousness of the offences concerned. The latter bill is about policing the police. If adopted, the new directorate will replace the Independent Complaints Directorate and will not be formally part of the SAPS any more but still be controlled by the minister of police. The new police watchdog thus remains part of the executive branch.
Yet, whereas police criminality and an abuse of power is immediately investigated and prosecuted by state prosecutors in other constitutional states, this bill tries to keep the matter under the control of the executive branch. Not a single paragraph in the whole bill provides for the prosecution of police who committed crime or abused their powers. How they should be dealt with is to be regulated by the minister of police. Suppose the police commissioner or police under investigation would hinder or block the directorate’s investigations — then a maximum sentence upon conviction would be a period not exceeding two years.
Compared to the Protection of Information Bill, which foresees up to the 25 years imprisonment for investigative journalists or whistle blowers for accessing “state secrets”, this bill provides for a maximum sentence of two years if anybody hinders the investigations of the directorate. However, the police minister would be able to control whether the directorate could hand the matter over to the prosecutors. Along this route it is not only possible to cover up police criminality in secret documents not accessible to the public but also to treat it as a matter of mere internal departmental disciplinary action, which is not prosecuted at all. All that is needed is to classify such investigations as “top secret”. Moreover, the suitability of the members of the directorate depends on a security clearance by the intelligence service and being tested with truth potions. Documents relating to that are, of course, confidential and could be classified as secret.
Given the context, it is more than ironic that Dr Nzimande espoused the view that a free press is dangerous and that the proposed Media Appeals Tribunal was necessary “to protect the future of socialism in South Africa”. The political intent expressed here by a serving minister in the government clearly transgresses the Constitution and proposes a threat to freedom of expression.
Press Council mediation procedures and the waiver requirement
If one shifts the focus to the Press Council’s mediation procedures, there are also scope for improvement. Two aspects deserve attention. The first point concerns the blending of non-state mediation procedures with judicial review, and the second concerns the required waiver of legal rights by a complainant to access the courts.
To start with the first point: the Press Council’s procedures do not clearly demarcate the scope of its mediation powers as a non-state civil-society body from the domain of legal powers conferred upon the courts by the Constitution. The Press Council’s mediation procedures are made up of three components viz conciliation, arbitration and judicial review.
After a complaint is laid, the Ombudsman first endeavours to achieve a settlement through conciliation. This involves informal discussions with the object to achieve a speedy settlement of the complaint. It would be interesting to know the statistical breakdown of how many complaints are actually resolved at this level. The British Press Complaints Commission functions in a similar way to the South African Press Council, and roughly 90% of all press complaints can already be resolved at this stage.
If conciliation fails, the next step to settle the complaint is arbitration. The Ombudsman may then appoint two members of the Press Appeals Panel (one public and one press member) to hear the matter with him. If any of the parties is not satisfied with the ruling, they may apply for leave to appeal the decision to the Chairman of the Press Appeals Panel within seven days. The latter is a retired judge, who acts in a private capacity and not as part of the judiciary.
Although not spelled out explicitly in the complaints procedures, the self-regulatory system apparently allows for a review of Press Council findings by a high court. If a complainant is not satisfied after a matter was considered by the Chairman of the Press Appeals Panel, he can take the matter on review to a high court.
In the previous contribution I pointed out that the envisaged statutory Media Appeals Tribunal could not function as an organ to appeal mediation rulings of the Press Council because it would blur the civil-society domain with the exercise of state powers in the public-law domain. The same rules of state organisation which proscribe the blurring of functions exercised by state organs in a public-law setting with that of civil-society institutions, obviously also apply to the self-regulatory system of the press. Review powers of the high courts, however, relate to judgments of lower courts, and are based on the applicable law in a specific case.
The Press Council’s primary function is not to adjudicate in matters that would qualify for civil-law suits for libel or criminal cases where crimen iniuria is prosecuted. It deals with breaches of the Press Code. One must therefore clearly distinguish the basis of jurisdiction in each of these instances. The Press Code has been created as a guideline for journalists how they should exercise the fundamental right of press freedom under section 16 of the Bill of Rights. The primary purpose of gathering and distributing news and opinion is to serve society by informing citizens and enabling them to make informed judgements on the issues of the time. In other words, it is restricted to the civil-society domain. A high court forms part of the judiciary, who is responsible for enforcing law through adjudication and sentencing. Such a court cannot enforce the Press Code because it does not qualify as legislation. Consequently, a high court also cannot review rulings of the Press Council, which relates to the Press Code. This component of the mediation procedures therefore ought to be scrapped.
I specifically refer to the hearings of the Press Council and Press Appeals Panel as an arbitration procedure to make a clear distinction from adjudication in court proceedings. The latter concerns complaints of a more serious nature involving defamation or crimen iniuria. In these instances the courts invoke law and act as adjudicating state organs in terms of the powers conferred upon them under section 165 of the Constitution.
Although the Press Code has constituted the Press Council to “provide impartial, expeditious and cost-effective arbitration to settle complaints”, the complaints procedures refer to the arbitration rulings as a form of “adjudication”. This may cause confusion and might be misleading as people may think that such arbitration procedures have a similar standing to court proceedings. The impression might even be reinforced because the chairperson of the Appeals Panel is a retired judge and review by a high court has been foreseen. The self-regulating system of the press, however, falls within the scope of freedom of association where a complainant voluntary participates in mediation procedures.
The second issue that deserves attention is the required waiver of rights to institute court proceedings when a complainant opts for mediation.
The Press Council takes the stance that a complainant can decide before taking his complaint anywhere, where he wants to go. Accordingly the complainant can go to court and submit to the jurisdiction of the court or otherwise he can choose the Ombudsman route, in which case it is required that the complainant should sign a waiver of his rights to access the courts in this matter.
This creates the impression as if the two routes are two options to settle a complaint at law. However, the self-regulating system complaints procedure does not focus on transgressions of the law but of the Press Code. An important consideration is therefore whether the self-regulating system of the press may indefinitely block lawsuits in a way that may infringe upon a person’s fundamental right to have access to the courts.
Fundamental rights are obviously not without limits. Let me explain this with the following example: personal freedom and the right to take decisions about one’s physical integrity (section 12 of the Bill of Rights), for example, do not go as far as empowering a person to allow another to kill him in an assisted suicide. That would invalidate the right to life (section 11 of the Bill of Rights).
The freedom of expression, which forms the basis for press freedom (section 16 of the Bill of Rights), also does not stretch that far that it would allow scope for hate speech or defamation impairing the human dignity of another (section 10 of the Bill of Rights). Similarly, voluntary participation in mediation procedures of the self-regulatory system of the press, which falls within the ambit of freedom of association (section 18 of the Bill of Rights) does not extend so far that it would invalidate access to the courts (section 34 of the Bill of Rights). These boundaries are referred to as internal qualifiers or the immanent limits of a right.
The Press Council’s requirement that a complainant signs a waiver of rights to take a matter to a court should therefore be considered against this backdrop.
Unfortunately, the passages dealing with the waiver in the complaints procedures have been formulated in a rather ambivalent manner. That makes it difficult to determine whether the waiver just applies for the duration of the mediation procedures or whether it is intended to apply indefinitely.
Paragraph 1.5.2 stipulates that the Ombudsman shall not accept a complaint where at “any stage of the proceedings” legal action is threatened or “is considered by the Ombudsman to be a possibility” unless the complainant in writing waives any right to claim civil relief of whatsoever nature directly or indirectly related to or arising out of the complaint.
This provision appears to restrict the waiver of the right to access the courts only for the duration of the mediation proceedings. However, further down is a pre-formulated waiver of rights that a complainant is required to sign, which is not that clear regarding the scope of the waiver. It reads as follows:
- “I, (name of complainant), the undersigned, hereby agree to submit my complaint and any dispute arising from my complaint for adjudication to the SA Press Ombudsman (“the Ombudsman”) subject to the SA Press Code and Complaints and Procedures of the SA Press Council.
I accept the decision of the Ombudsman, or in the event of an appeal, the decision of the Press Appeals Panel as final and binding.
Furthermore, by submitting my complaint for adjudication to the Ombudsman I waive my right to approach a court of law or any other tribunal to adjudicate upon my complaint or any dispute arising from my complaint submitted to the Ombudsman.”
Depending on whether a restrictive or expansive interpretation is attached to the waiver, the outcome could be very different and affect the legality of such a waiver.
If one attaches a restrictive interpretation to par 1.5.2, one could make out a case that the waiver is restricted to the mediation procedures as such. Such a waiver of rights with a time limit could be justified insofar as the parties to the mediation procedures should not endanger an amicable settlement of the dispute by threatening with lawsuits or instituting civil proceeding simultaneously. That might serve the sole purpose of manipulating the outcome of the mediation procedures.
However, to require that the claimant should refrain from instituting legal proceedings after the mediation proceedings were concluded would certainly go beyond the scope of the right of freedom of association and impinge on the right guaranteeing access to courts.
That would imply that if the Press Appeals Panel should make a ruling that a specific report was in breach of article 2 of the Press Code due to a denigratory reference, the claimant would be barred to institute civil proceedings to claim compensation even if the nature of the remarks would meet the legal criteria to qualify as defamation. In effect, this would boil down to shielding journalists and the press from defamation lawsuits.
The above pre-formulated waiver has been cast in very broad terms, which go beyond the more limited scope of the objective specified in par 1.5.2. The latter refers only to civil proceedings and creates the impression that the waiver is only for the duration of mediation proceedings. The waiver, however, refers in very general terms to “a court of law”. Does this, for instance, include criminal courts as well? If so, it would imply that a complainant who approaches the Press Council in order to have a libellous report retracted and an apology published, might later be barred from laying criminal charges even if a case of crimen iniuria would be justified.
The ambiguity of the scope of the waiver therefore had to be clarified. The Press Council confirmed that in practice they indeed attach the broader meaning to the waiver. Apparently, the rationale behind the waiver is that if there is no waiver, the complainant could use the press ombudsman system as a dry run to find out what a newspaper’s defence is.
However, one should bear in mind that in everyday legal practice criminal cases pertaining to crimen iniuria often also function as a “dry run” for defamation cases. Lawyers usually await the outcome of the criminal trial because in case of a criminal conviction the chances that their client could win a civil lawsuit for defamation are very good due to the lower onus of proof. Why this should not be possible in relation to arbitration procedures is therefore not clear.
A typical feature and great advantage of Press Council mediation procedure is that it also covers a broad spectrum of minor complaints that would otherwise not be able to be addressed in lawsuits. The “dry run” could therefore also have advantages insofar as an arbitration ruling could be indicative of the possible success of a defamation suit.
If one compares this practice with international standards it is clear that such a waiver could not be justified — especially not in a constitutional state since it may lead to overriding other fundamental rights. A New Zealand Press Council investigation examined the operation of press councils and ombudsman systems of 87 institutions in 2007. Only 56% of these institutions had a waiver.
Interestingly the New Zealand report did not recommend such a waiver. The report found a justification of a waiver on the grounds that it made the newspapers more cooperative towards a press council inquiry and that the failure to have such a waiver could inhibit free exchange between the press council and the publication unconvincing. It therefore recommended that a waiver from bringing lawsuits against a publication should not be required of complainants.
In the light of the above discussion it might be worthwhile for the South African Press Council to reconsider the requirement that a waiver of rights should be signed by a complainant.