A couple of weeks back I went along to a public hearing held by the website Press Council of South Africa (under which the ombusdman falls) to make a submission on the role of the ombudsman. (Click here to read an earlier column upon which my submission was based.) When asked by two council members, deputy ombudsman Dr Johan Retief and the Mail & Guardian ombudsman Franz Kruger, if I thought any changes should be made to the ombudsman's processes, I said I was happy to be guided by the council itself on this issue.
The council is made up of members of experience and integrity, both from journalism and outside the industry, while all the rulings I have ever read appear to very thorough, thoughtful and fair.
No doubt it's a good thing
There is no doubt that it is a good thing that the Press Council is canvassing journalists and the public for input on its processes so that it can tell the ANC to... well... nut off when the times comes - and that would be in Parliament when the ANC goes that route. But why not just tell the Agents of the Revolutionary House to nut off now? What does the ANC actually know about journalism and journalism ethics?
Journalism is both a vocation and a trade - and no amount of studying journalism or consuming media will ever give you a real handle on the range of complex decisions and weighing of interests that goes on daily in a newsroom:
Serious about the practice of journalism
These are things that journalists wrestle with over years, which is why the best newsrooms are so robust because discussion takes place on these issue in a forthright manner when they come up. Newsrooms may appear anarchic to an outsider but only the most blinkered outsider would confuse the irreverence with malicious intent to harm or to distort information. Journalists are not particularly respectable people but they are serious about the practice of journalism and they do worry if there is an ombusdman complaint or a law suit against them.
It is fair to say I have never met a journalist who is cavalier about an ombudsman complaint or lawsuit against them. Although mistakes will happen, your reputation is everything.
Scrapping the waiver to sue
I was very interested to read Rhodes University's Prof Guy Berger's recent argument that scrapping the waiver to sue when you make a complaint to the ombudsman would, in fact, increase its credibility. He also makes the interesting point:
...[T]he newspapers who are voluntary signatories to the Press Council accept that their system can order them to publish apologies and corrections when a complaint is upheld. But they could also agree to further powers, whereby serious or repeat offenders could face fines akin to the case in the voluntary broadcast regulator, the Broadcasting Complaints Commission of South Africa.
"When violating newspapers have to shell out funds to the Council, even if there is a prior ceiling agreed, they are more likely to cut an editor's annual bonus if he or she incurs such a penalty."
Slippery slope
I fear that these suggestions, if implemented, would be a slippery slope. On the issue of meting out fines, newspapers companies are not the money-making machines of yesteryear and having to budget for lawsuit war chests is in itself onerous for many, especially when you consider that some interdicts are sought mischievously by wealthy individuals or companies seeking to stop the publication of a story. Just to fight an 11th-hour interdict comes at a hefty price tag for the newspaper when you must pay for senior counsel to go to court.
And I don't think it's fair to compare the print industry with the broadcasting industry - where commercial radio is, quite frankly, a licence to print money and the SABC is state-funded and allowed to fritter its revenue away.
The waiver, to my mind, is crucial as it separates absolutely the processes and decisions of the ombudsman and the courts. If the waiver were scrapped, you can bet your frilly knickers that ombudsman rulings would start being presented in court to support defamation suits.
Consider completely different things
However, the ombudsman and the courts consider completely different things: Besides dealing with accuracy, the ombudsman also looks at the greater ethical environment, for instance, issues such as fairness and balance; the courts consider the law of defamation. Ethics can be textured and grey; the law is much more black and white.
The essence of South Africa's defamation law is whether a reasonable person might think less of another person because of what was said or written. What is said in Parliament or a court of law is what is termed "privileged" - that is you cannot sue a person for saying it or reporting on what was said in that arena - and you cannot defame the dead.
If a law suit goes to court, the media house in contention can defend its right to publish on the basis of public interest or that it is fair comment (ie in an opinion piece) or by providing proof of what it said. And so, in the fascinating case of writer Ronald Suresh Roberts, who sued the Sunday Times for calling him "unlikeable", the court found that Suresh Roberts was actually "unlikeable".
Guaranteed by our Constitution
But ultimately, defamation law is tested in the context of the right to freedom of the press as guaranteed by our Constitution, which is why in a country such as Britain it is far more onerous for the media to defend itself against lawsuits as the courts are guided by common law - legal precedent - which tends to favour the individual against the press. In South Africa, we have common law but the Constitution is the supreme law of the land.
When it comes to the area of public interest, South African courts also consider the private and public lives of public officials to be fair game because they are paid with taxpayers' money. And the same goes for the government as a whole because it is not a legal entity and it inappropriate for the government to use taxpayers' money to wage law suits against the media.
I would argue that it also inappropriate for taxpayers' money to be used for statutory oversight of the media in the form of a media appeals tribunal when the print industry funds the Press Council to do so.
Talk about defamation!
The ANC has questioned the independence of the Council because of this funding structure but, talk about defamation!, on what basis exactly is the party questioning the integrity of the council members and the press ombudsman Joe Thloloe, who is a respected independently-minded veteran journalist?
By comparison, it has been a very long time since the ANC - with all the influence that comes with being the majority party - has managed to come up with an SABC chairman, with the same kind of integrity, who can set aside political considerations so that the interests of the public are put first.
And here, I suspect, is the rub: the ANC is not keen on people of great integrity who put the SA public first. It appears to think the newspapers are being Big Meanies because they expose corruption and maladministration in the government and editors exercise their right to fair comment when they criticise the ANC. The ANC prefers tamer news hounds such as the SABC.
But don't be fooled and don't give away the ground that has been won: Our rights are entrenched in the Constitution, the courts of law are there to penalise financially those who break the defamation law and the press ombudsman investigates more textured issues of ethics. It's all good - and it's enough.
For more:
