Dateline South Africa: A Rational Approach to Responsible Media

To be sure, media practitioners and the media industry — whether in South Africa or elsewhere — are not above the law, nor should they view themselves in this light. The media must be held responsible and accountable.

Importantly, they should have the grace to unconditionally apologize when errors such as misattribution, single-source reporting and misleading information are published or broadcast.

These are instances where a robust and independent regulator should pro-actively intervene, both to ensure that high standards of journalism prevail and to determine the most appropriate apologies and other measures when infractions occur, as they inevitably will, given the pressures of working to tight deadlines.

By the same token, politicians and government employees are also not above the law, and they must understand that when they enter public life, they give up some of their privacy rights. Instead of portraying themselves as victims of media persecution, they should expect that citizens will judge their fitness for office.

They do so based on the ethics demonstrated through their behavior, and should strive to ensure that they live up to the expectations of the public whose interests they claim to serve. They too must be held responsible and accountable.

In a democratic society, the independent media is one mechanism through which this accountability is pursued. It is partly to enable effective functioning of the fourth estate that the rights to freedom of expression and access to information are guaranteed under South Africa's constitution.

Donald Gips, the U.S. Ambassador to South Africa, underlined the parallels between South Africa and the United States of America, especially in terms of the reasons why constitutional architects have enshrined media freedoms in both countries.

"America's founders recognized that the best way to fight corruption and promote democracy in their new nation was through a free press," he said. Addressing an audience at the South African Institute of International Affairs in Johannesburg, Gips added that "at the most basic level, governments are accountable to citizens, and democracy requires those citizens to make choices.

“A free press provides the information that permits the public to make informed choices." He went on to note that the challenge in South Africa is to balance the right to criticize with the need for enhanced media professionalism and ethical reporting.

Self-justifying defensive apologies from media organs that have overstepped the bounds of journalistic ethics or have blatantly misreported facts are clearly unacceptable.

Equally unacceptable are self-justifying, petulant reactions from public servants whose unethical or corrupt behavior has been exposed. In both cases, sincere and dignified apologies are called for, alongside appropriate punitive measures determined by the respective regulatory bodies and the law in each case.

In addition to the scrutiny of regulatory bodies and the law, public scrutiny results in consumer decisions to read, listen to or watch (or decline to do so) the media instruments that are deemed most accurate, entertaining and informative.

As the South African media landscape diversifies further with the introduction of various new media organs, including the launch of the ruling party's own newspaper, the range of choices available to consumers is set to increase.

As a result, the shared responsibility of both the state and the media profession to ensure effective yet independent media regulation will be heightened. The calls for improved media regulation cannot be ignored by the major players in the South African media landscape, including those who train practitioners.

By the same token, no incumbent government can afford to overlook the importance of the free press as a facilitator of democratic consolidation and social development. This is especially true of an alliance that premises its manifesto on a pro-poor platform.

Public office and the use of public monies must ultimately benefit South Africa's citizens, the majority of whom live in poverty. Given the great responsibility inherent in this, it is entirely appropriate that public servants endure sustained scrutiny from various avenues, including the media.

The media must be free to operate independent of political influence and without fear of arrest by police or suspension by employers such as that experienced by two journalists in recent weeks.

Given all the underlying tensions, there have been a range of calls for widespread and constructive consultation, including from respected figures such as Desmond Tutu and Mamphela Ramphele. Rather than shouting each other down, civil society, the media and members of the ruling alliance need to truly listen to each other and debate the issues in a rational and reasonable manner.

Media practitioners need to acknowledge the validity of some concerns raised by the ANC, and agree to debate alternatives for strengthening media regulation.

The ANC, for its part, needs to withdraw the pending media law in its current form and concede that it jumped the gun in announcing its intent to resurrect the issue of a tribunal before soberly analyzing the existing self-regulatory system and the potential for strengthening it.

It is neither rational nor in the public interest to moot a move from one extreme (self-regulation) to the other (state regulation), particularly as a scan of global best and worst practice points clearly in favor of self regulation and highlights the dangers of statutory control of the media. Indeed, even the African Union guidelines emphasize that self-regulation is the preferred option.

Preliminary results from research commissioned by the Freedom of Expression Institute to garner international best practice on media accountability systems, clearly show that the majority of democracies have opted for independent self-regulation, which reportedly works very well in countries such as Sweden, Peru and Tanzania.

Other states, including New Zealand and Ireland, have recently reviewed their self-regulatory systems and have implemented measures such as restructuring the press council to allow for greater public input (New Zealand) and empowering the council to commission and publish studies on the accuracy of reporting (Ireland).

Even in those countries that have opted to set up regulatory structures by law, the most effective of these have incorporated mechanisms to ensure the independence of the press councils from state interference.

Denmark's eight-member council, for example, includes two members recommended by each of the legal profession, journalists' union, press owners and the council for adult education, respectively.

A redrafted law must focus on a narrow definition of national security, rather than a broad and vague one of national interest — and it must pass the litmus test of constitutionality as well as alignment with existing legislation promoting access to information and protecting whistleblowers.

Laws and regulations generally remain in force well beyond the life of the administrations that engineer them. History has shown all too cogently that the worst misuse of rules is perpetrated by those who exploit loopholes in the laws that they inherit from predecessors.

In post-liberation Zimbabwe, the Mugabe administration's willful misuse of the Rhodesia-era Public Order and Security Act is an object lesson.

As a useful benchmark, perhaps the proponents of any legislation or new regulations should envisage how those laws and regulations might potentially be used against them, should their worst enemies attain power at some point in the future, no matter how distant that possibility might seem at the present time.