License to Censor: The use of media regulation to restrict press freedom - South Africa

Population: 49,900,000
Press Freedom Status: Partly Free
Licensing for print outlets: No
Licensing of journalists: No
Independent Regulatory Body(s): Yes

Introduction

South Africa has one of the freest and most vibrant media environments on the continent. Though print media ownership is highly concentrated, a range of private and independent print outlets provide some diversity of views. The broadcast sector is dominated by the state-owned South African Broadcasting Corporation (SABC), which operates a network of radio stations through which most South Africans receive their news, as well as three television stations that claim most of the television market. Concerns regarding official encroachments on the editorial independence of the SABC have been a key factor limiting media freedom in recent years, as has hostile rhetoric on the part of top government officials against critical media outlets. There have also been serious incidents of intimidation of journalists by police and ruling party politicians, as well as cases of the arrest and overnight detention of journalists at crime scenes.

The legal environment for media freedom is generally robust. The 1996 constitution provides for freedoms of expression and of the press, as well as for access to information and independence of broadcast regulation. It states that "national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views."¹⁸⁶ However, it also allows for restrictions on "propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm."¹⁸⁷ In addition, several apartheid-era laws that remain in effect – as well as a 2004 Law on Antiterrorism – permit authorities to restrict the publication of information about the police, national defense forces, prisons, and mental institutions, and to compel journalists to reveal sources. These are rarely used in practice. The Film and Publications Act, introduced in 2006 and subject to much debate before being signed into law in September 2009, legitimizes some forms of pre-publication censorship (on the grounds of protecting against child pornography, propaganda for war, descriptions of sexual conduct, and hate speech), and creates a legal dichotomy between government-recognized publications and others.¹⁸⁸ High Court gag orders are used to prevent the media from reporting on sensitive stories, and civil defamation suits are also occasionally filed against journalists. The most remarkable of these were a series of defamation claims filed by President Jacob Zuma of the ruling African National Congress (ANC) party against newspapers, a broadcaster, and even a cartoonist originally for amounts totaling R64 million ($9 million), two of which were settled in his favor out of court.

Another cause for concern is the growing tendency in government departments and other arms of government to restrict access to information. In addition, in a worrying development, the Protection of Information Bill, currently under discussion in parliament, would replace an apartheid-era secrecy law and grant broad power to government officials to classify information if doing so is "in the national interest."¹⁸⁹ In October 2010, the administration agreed to make revisions to the bill, including the removal of the concept of "national interest," which would be replaced by clearly defined national security concerns; discussions on these proposals are ongoing. Journalists accept that it is appropriate for governments to maintain control over limited "official secrets," but object to the extremely wide ambit of this legislation, the provision for jail sentences of up to 25 years, and the lack of a public interest defense.

Laws Relating to the Regulatory Framework

There are no legal requirements or any sort of licensing or registration process for print media, which are allowed to commence operations at will; nor are there any for websites or blogs. Likewise, individual journalists do not need any sort of formal licensing in order to practice their profession.

Broadcast media fall under the legal purview of the 1999 Broadcasting Act and the 2006 Electronic Communications Act (ECA), which provide for a three-tier structure of public, commercial, and community broadcasting that is diverse and serves the needs of the public. However, the laws are broadly worded and critics have noted that their definitions, particularly regarding community media, have become inadequate. The ECA attempted to prevent broadcast concentration by prohibiting a single entity from owning more than one commercial television station or more than two AM or FM commercial radio stations. Cross-ownership of print and broadcast outlets is also limited.¹⁹⁰ However, concern that this law is potentially stifling growth in the broadcast sector prompted the regulator to issue a discussion paper in April 2010 suggesting that these rules be relaxed. An additional piece of legislation, the 2009 Films and Publications Act, created the Film and Publication Board "with the objective of regulating the creation, production, possession, and distribution of certain publications and films through classification, imposition of age restrictions, and giving of consumer advice."

The statutory body responsible for broadcast regulation is the Independent Communication Authority of South Africa (ICASA), which serves as a licensing authority and is also mandated to monitor license conditions regarding local content and other issues. ICASA is mandated by the constitution to regulate broadcasting in the national interest and to ensure fairness and a diversity of views, and was established by the Independent Communications Authority of South Africa Act of 2000 (amended in 2006). ICASA also runs a statutory Complaints and Compliance Committee (CCC), which is empowered to hear complaints regarding both broadcasting and telecommunications. It is supposed to be independent; its eight members are appointed by ICASA following a public nominations process.

By law, the ICASA council is selected by parliament in a process that is intended to be open and provide transparency. Following the 2006 amendments, the process has been overseen by the parliamentary committee on communications, which calls for nominations by the public, holds open interviews of short-listed nominees, and submits a list of nominees to the minister of communications. The minister then selects proposed appointees from this list, but the final choices are subject to parliamentary approval and parliament can ask for a review of the minister's selections. Although there is some scope for political influence – given the minister's enhanced involvement in the process and the fact that the ANC holds a comfortable majority in parliament – the process is open and transparent and civil society has been able to play an effective role in the selections process.¹⁹¹ A further measure to guarantee the independence of ICASA mandates that those serving as public or political party officials, as well as those with a financial stake in a broadcast entity, are not allowed to become councilors. In terms of decision making, the minister is legally enabled to issue directives to ICASA, but these are also subject to public scrutiny and review. Following the 2006 amendments to the ECA, ICASA became state funded under the umbrella of the department of communications. A draft bill proposed by the minister published in 2010 would increase government control over ICASA, but the draft remains under discussion. Communications Minister Roy Padayachie is currently looking at the controversial aspects of the bill and is expected to send it back for redrafting.

The process for granting commercial broadcast licenses is fair and open. In terms of procedure, ICASA periodically issues a call for license applications in the Gazette, although applications can also be sent in at other times. When an application is received, ICASA takes into account the demand and need for the proposed service, the applicant's financial and technological ability to provide the service, and the applicant's ownership and control structure.¹⁹² If a license is granted, there is a strong presumption that it will continue to be renewed. ICASA can deny a license renewal only if the applicant has violated the license conditions or the broadcasting law.

South Africa's public broadcaster, the SABC, is a wholly government-owned company that is accountable to parliament and to ICASA, and it is constitutionally mandated to be editorially independent. However, as a corporatized entity, it has articles of association and a "shareholder's compact" that require consultation with the ministry of communications in regard to the appointment of executive members by the board as well as the financial health of the broadcaster. Thus, the minister is legally able to exercise veto power over the chief executive officer (CEO) and chief financial officer (CFO) positions, which also gives the government potential influence over editorial policy because the CEO also serves as editor in chief and has final say over politically sensitive editorial decisions. The SABC board is composed of 3 executive staff as well as 12 non-executive members. The Broadcasting Act mandates that these appointees be selected by an open process under the supervision of the parliamentary committee on communications, which advertises its calls for nominations in major media outlets; shortlists candidates for public interviews on the basis of diversity, skills, and commitment to freedom of expression; and selects a final list to be ratified by parliament and appointed by the president. Although the process provides for transparency in the selections, there are few specific provisions in the Broadcasting Act limiting potential conflict of interest with regard to board membership.

Worryingly, proposed legal changes made during the past few years suggest that the government would like to extend its control over the SABC. For example, in February 2009, then president Kgalema Motlanthe refused to sign a version of a proposed Broadcasting Amendment Bill due to a clause allowing parliament to fire board members of the SABC or to dismiss the entire board. The amended bill required "proper inquiry by parliament" before such dismissals and was adopted on February 17 and signed into law on September 1.¹⁹³ Upon enacting the bill, parliament recommended the removal of the SABC board for failure to perform their fiduciary duties although by that time, the majority of board members had already resigned.¹⁹⁴ In October 2009, a draft Public Service Broadcasting bill was published that would give the minister of communications enhanced powers over the SABC, including allowing the minister to issue directives to the board in a range of areas. This bill stirred outrage among concerned groups, who felt the bill needed further revision. In November 2010, Padayachie withdrew the bill pending further consultation.¹⁹⁵

Impact of Regulation on Media Freedom

Although the regulatory framework for broadcast media in South Africa operates in a fairly independent manner, there are some concerns in practice. Regarding the appointments process to ICASA, during the last call for nominations for board members in 2010, civil society groups were able to have sufficient input into the process for filling the empty positions, and one of their nominees was elected to the board.¹⁹⁶ Issues concerning potential conflicts of interest among board members have occurred, but in general have been resolved positively. For example, in November 2009, Communications Minister Siphiwe Nyanda appointed William Stucke as a councilor following recommendations by parliament's portfolio committee on communications. During his interview for the position, Stucke declared his intent to sell his shares in the internet service provider QPOP so as to avoid violating section six of the ICASA Act, which prohibited those with financial interests in the communications sector from being appointed as a councilor. However, by May 2010, he had yet to follow through on his promise, causing concern over the validity of his appointment. As a result, he received a full salary from ICASA but was not able to perform his duties until the issue was resolved. Finally, on June 28, he relinquished his shareholding in QPOP and QPOP's licenses were transferred to another company.

ICASA does remain state funded, instead of relying primarily on directly collecting license fees. Critics have alleged that the body is underfunded, compromising its ability to fulfill its role in monitoring conditions for licensees, conducting research, or successfully defending legal challenges brought by industry groups. Concern also remains about the relationship between ICASA and the minister of communications, particularly the minister's frequent attempts to influence or interfere with ICASA operations and decision making.

Likewise, the licensing process is largely conducted in a transparent and fair manner, despite some accusations of bias. Several dozen commercial radio stations and SABC-run radio stations have been licensed to operate. However, in terms of television, apart from the three SABC stations, there is only one free-to-air commercial TV station. ICASA has also taken an active role in efforts to expand the number and broadcasting range of community radio stations, licensing almost 100 community radio stations as well as three community television stations. Some critics allege that this process has been inadequate and has been slowed by lack of bandwidth and bureaucratic delays. The Media Sustainability Index published in 2008 noted that "panelists said that there is a perception that preferential treatment [in the granting of licenses] does occur, but they did not offer examples."¹⁹⁷ On the positive side, overt interference in broadcasting is not known to occur, with no reported cases of closure of stations or suspension of licenses on politically motivated grounds.

Given its dominance over the broadcasting sector due to its reach and number of affiliated radio and television stations, the operations of the SABC have also been given particular scrutiny. While officially editorially independent, the SABC has come under fire for displaying a pro-ANC bias, for reflecting internal ANC rifts in management struggles, and for practicing self-censorship. The television stations in particular have been singled out for carrying generally progovernment coverage and being hesitant to cover negative news, as well as discriminating against smaller or opposition political parties. Some commentators deemed critical of the ANC were allegedly "blacklisted" for a period during 2005-06 while in other cases, scheduled programs have been axed.¹⁹⁸ In addition, the SABC, already inadequately funded, faced allegations of financial mismanagement leading to significant losses for the 2008-09 fiscal year, causing the dissolution of the entire board. When parliament decided to reconstitute the board in late 2009, civil society groups such as the SOS coalition persuaded the committee to advertise for nominees in a much wider variety of both print and broadcast media, and the hearings were attended by hundreds of interested parties, thus ensuring that the process was much more transparent.¹⁹⁹ In December, a new 12-member board – headed by former minister of arts, culture, science, and technology Ben Ngubane – was appointed, in consultation with opposition parties. However, some board members elected did have ties to political parties. Indeed, three were members of the ANC – retired ANC diplomat Barbara Masekela; Clifford Motsepe, who was nominated by the ANC Youth League; and Desmond Golding, economic adviser to the Minister of Public Works – and one, David Niddrie, was nominated by the SA Communist Party, an ANC ally. The ANC members did not seem to appreciate the conflict of interest between their political party membership and their independence as SABC board members. In 2011, one of the shortlisted nominees for a board vacancy, Lumko Mtimde, was nominated by the ANC. Due to lack of sufficient funding, the SABC has been forced to make cutbacks in the quality of its programming, and the fact that more than 75 percent of its funding comes from commercial activities raises issues of it being susceptible to commercial pressure as well as pressure from the government and the ANC.²⁰⁰

The concept of self-regulation is well developed in South Africa, with separate mechanisms to cover both print and broadcast media. A system consisting of a press ombudsman was replaced in 2007 by a Press Council, under which the ombudsman now operates.²⁰¹ The council is composed of five members of the public and six press representatives, plus a public representative who acts as an alternate for one of the five public members. Maintaining a majority of six press representatives was a deliberate decision to prevent self-regulation transforming into public regulation. Decisions are based on a code of conduct that was developed by press industry representatives, and although the system is voluntary it is subscribed to by more than 1,200 publications, including all major print outlets. Several media houses do have in-house mechanisms to deal with complaints as well. Although the mechanism is seen by those within the industry to be broadly effective, an increase in cases means that resolution of complaints sometimes does not take place in a timely manner, although the appointment of a deputy has helped to streamline the processing of complaints. In addition, the ombudsman is not empowered to hear cases brought against online publications.²⁰²

All complaints brought to the Press Council, along with the council's rulings, can be accessed through its website.²⁰³ The website also clearly lists the guidelines for the complaint process, including the official definition of a complaint as well as the time frame allowed to make a complaint after publication (14 days in most cases). The adjudication procedure is overseen by the ombudsman, who receives complaints and attempts to resolve the matter informally between the parties. If a complaint cannot be settled informally, the ombudsman will hold a hearing with two other council members (one a member of the press and one representing the public) in which decisions are reached by a majority vote. Either one of the parties may then appeal to the chairperson of the South African Press Appeals Panel (SAPAP), a retired Supreme Court of Appeal judge, within seven days of receipt of the decision. If the chairperson feels it is reasonable that the SAPAP may reach a decision different from that of the ombudsman, he or she can grant leave to appeal. Appeals to SAPAP are final, and those bringing a complaint must also waive their right to litigation through the court system, though should they disagree with the findings of the ombudsman and Press Appeals Panel process, complainants can take the proceedings for review to the High Court. Apologies as well as the judgments of these two groups are supposed to be publicized by the paper concerned in a manner prescribed by the ombudsman or the judge. More than 60 complaints were heard over 2008-10, with more than half of these during 2010, and two-thirds of the complaints have been upheld, providing evidence that the system operates independently of the press.

First introduced in 2007 by the ANC, the idea of a Media Appeals Tribunal was re-tabled at party meetings in mid-2010. The party, which has stated that this body is aimed at the press, envisions a statutory body, nominally independent yet accountable to parliament, that would strengthen and complement existing mechanisms "in the public interest."²⁰⁴ Crucially, the tribunal would be able to take punitive measures against journalists and press outlets, including heavy fines on newspapers and prison sentences, though recently it appears to have backtracked on jailing journalists. While the ANC justified the proposal by arguing that the ombudsman system was expensive and ineffectual, the proposals have met with a significant pushback from industry representatives as well as from both local and international press freedom advocates, who argue that the proposed tribunal would hamper media freedom and is unnecessary given the mechanisms already in place, which they would prefer to strengthen if necessary. Toward the end of 2010, the South African National Editors' Forum (SANEF) and an ANC delegation led by Deputy President Kgalema Motlanthe met to discuss media-government relationships and the Media Appeals Tribunal. After the meeting, Motlanthe announced the ANC wanted to suspend its call for a media tribunal while awaiting the outcome of a public appeal by the Press Council for the public and institutions to put forward proposals for "the strengthening" of or amendment to the Press Council system.²⁰⁵ In January 2011, the ANC acknowledged the Press Council's own review and said it would wait and see whether fines would be adopted for violators of the code.

Unusually, broadcast media houses are able to decide if they want to be bound by the decisions of the statutory CCC, or by the Broadcasting Complaints Commission of South Africa (BCCSA), which falls under the purview of the National Association of Broadcasters (NAB), an industry membership group. The BCCSA is a legally recognized voluntary self-regulatory body for broadcasting that operates according to the same code of conduct as the CCC, and its members do not fall under CCC jurisdiction. Most broadcasters, including the SABC and large commercial media owners, are members of the NAB. BCCSA proceedings and rulings are held in public and its rulings are made public. The BCCSA actively encourages complaints and also monitors compliance by errant broadcasters. The BCCSA complaint procedure is similar to that of the Press Council. In addition to adjudication, the complaint can be settled at a hearing, and rulings can include fines of up to R50,000 ($7,150) as well as orders to broadcasters to air the findings of a hearing or any other BCCSA directives. Hearings are held in a boardroom and are open to the public. Neither of the parties is required to attend but can if they choose, and they can address the committee. Parties are not entitled to legal representation when appearing before the committee (though they can have advisers present), but they are entitled to legal representation at hearings. The chairperson can require a complainant to waive his or her rights to legal recourse in the interest of fairness.²⁰⁶ Similar to the Press Council, the process in practice also appears to be active and credible.

Conclusion and Recommendations

Journalism has flourished since the end of apartheid in 1994. However, in recent years, the government has attempted to place additional limits on press freedom through the introduction of legislation such as the Films and Publications Act (which provides for certain publications to submit to pre-publication censorship and which the media is waiting to challenge in the constitutional court), the proposed Protection of Information Bill, and suggested amendments to legislation that would extend government control over bodies such as ICASA, the SABC, and the public service broadcasting framework. A serious deficiency in the progress of potentially restrictive legislation is the lack of consultation with the parties most likely to be affected. There is little consultation during the framing of a bill or before its presentation to parliament. "Consultation" is then squeezed into limited public hearings in parliament. In order to ensure continued freedom for South African media, journalists must be able to report without political interference. Before enacting new bills that have provisions intruding on media freedom, the ministries and parliament must allow more time for consultation with civil society – which, encouragingly, has been quite outspoken in their opposition to a number of the proposals – as well as proper consideration of the policy implications and adherence to international and regional best practice.

Similarly, existing self-regulatory mechanisms should be reformed where appropriate in alignment with input from all stakeholders, rather than attempting to introduce statutory regulation of the complaints process in the form of the proposed Media Appeals Tribunal. The current Press Council complaints system is largely seen by media practitioners and industry experts as in keeping with international best practice standards and is also considered broadly effective. Improvements can be made within this framework rather than imposing an alternate – and potentially more draconian – mechanism that can be more easily manipulated to restrict media freedom.

186 Steve Buckley, Kreszentia Duer, Toby Mendel, and Sean O Siochru, Broadcasting, Voice, and Accountability: A Public Interest Approach to Policy, Law, and Regulation, 2008, p.161.

187 IREX, "Media Sustainability Index (MSI) 2008-South Africa," p.346, accessed at: http://www.irex.org/system/files/2-Africa_08_sou-afr.pdf

188 Media Institute of Southern Africa (MISA), "Controversial Films and Publications Amendment Bill signed into law," 2 September 2009, accessed at: http://www.ifex.org/south_africa/2009/09/02/films_and_publications_amendment_bill/

189 Committee to Protect Journalists, "South Africans rally against 'secrecy bill'," 1 September 2010, accessed at: http://cpj.org/blog/2010/09/south-africans-rally-against-secrecy-bill.php

190 African Media Barometer (AMB), South Africa 2010, p.32, accessed at: http://fesmedia.org/uploads/media/2010_AMB_RSA_web_version.pdf

191 AMB, p.43-44.

192 Broadcasting, Voice, and Accountability, p.233.

193 MISA, "Parliament adopts amended broadcasting bill," 23 February 2009, accessed at: http://www.ifex.org/south_africa/2009/02/23/parliament_adopts_amended_broadcasting/

194 AfriMAP, "Public Broadcasting in Africa Series: South Africa," 2010, accessed at: http://www.afrimap.org/english/images/report/OSI_Public-Broadcasting-in-SA_2010.pdf

195 "Padaychie pulls plug on broadcasting bill," 21 November 2010, accessed at: http://marketing.bizcommunity.com/Article/196/15/54558.html

196 AMB, p.7.

197 MSI 2008, p.347.

198 MSI 2008, p.345.

199 AMB, p.46.

200 AMB, p.50.

201 Franz Krüger, "Media Courts of Honour: Self-regulatory Councils in Southern Africa and elsewhere," Fesmedia Africa series, November 2009, p.30, accessed at: http://fesmedia.org/fileadmin/files-fesmedia.org/Krueger__MediaCourtsofHonour__2009.pdf

202 AMB, p.59-60.

203 The Press Council's website can be accessed at: http://www.presscouncil.org.za/

204 Jackie Bischof, "In South Africa, a new struggle for press freedom," 17 September 2010, accessed at: http://cpj.org/blog/2010/08/in-south-africa-a-new-struggle-for-press-freedom.php

205 Gill Moodie, "Media battle royale looms," 11 January 2011, accessed at: http://www.bizcommunity.com/Article/196/466/55670.html

206 Broadcasting Complaints Commission of South Africa, "BCCSA Procedure," accessed at: http://bccsa.co.za/index.php?option=com_content&task=view&id=13&Itemid=27