Comment to the Press Freedom Commission on regulating the print media

The Press Freedom Commission “released a call for the SA public to voice its opinion about press freedom and the regulation of print media”. What follows is a submission made by the FSI Chairman (not a consensus statement by the FSI generally).


To whom it may concern,


This submission is intended to express support for the model of independent regulation, where a South African Press Council operates independently of both the media and government.

Regardless of the actual motives of proponents of measures such as the Media Appeals Tribunal, the Protection of State Information Bill, and the Internet and Cell Phone Pornography Bill, any constraints on free dissemination and access to information could be used for both noble and ignoble ends. It is for this reason that we’re wary of dictatorships, no matter how benign – if the framework for oppression exists, it would be naive to trust that such a framework will always be used to defend our best interests.

In a constitutional democracy, any presumptions made with regard to regulatory frameworks should favour freedom, with any limitations to the freedom of citizens and the press needing special justification. But there are nevertheless plausible circumstances in which some form of control over information could be merited. Even though one might be fully in support of adult access to pornography, restrictions on access by minors would be appropriate. Even though the citizenry should have access to as much information as possible about the workings of the state, it is nevertheless plausible that some information might present threats to national security, if widely broadcast. And while the media is rendered largely pointless if it can’t serve as a watchdog, there are legitimate questions to be asked about accountability and the reputational damage that might occur as a result of a media that thrives on scandal, and which is incentivised to publish news before their competitors do.

Neither the media itself, nor the state, should enjoy special authority with regard to press regulation. Not the media, for two primary reasons:
1. While some South African media attempt to uphold journalistic ethics, and to refrain from disseminating false, misleading or defamatory information, our media is not of equal quality in this regard. Yet, we cannot have different regulations for different media, in that these judgments are both impractical, and have no clear authority in terms of who would make them. The pressure to scoop your competitors can result in a deficit of prudence in this regard, especially for those media that thrive on scandal or controversy. In these cases, self-regulation will tend towards protecting the rights of those media to continue favouring sensation over more balanced coverage.
2. Second, the media is not populated by professionals to the extent that it once was. Pressures from Internet sources such as blogs, where information and analysis is frequently available without cost, have made operating a newspaper more difficult, and have cut profit margins to such an extent that the employment of a class of seasoned journalists, sub-editors and editors is now the exception rather than the rule. This raises an issue of competence, as increasingly junior (and often temporary) staff in newsrooms may lack the experience and wisdom to understand the long-range implications of what they report, even in cases where they don’t publish any actual untruths.

The case against the state having special authority with regard to regulation of the media is clear: A free society needs a fearless press to expose malfeasance or incompetence on the part of the state. The state has a vested interest in suppressing damaging information, or at least disincentivising its publication. We cannot trust that a state-controlled media will allow itself to be subjected to robust criticism, and their authority with regard to press regulation therefore needs to be restrained.

However, both the state and the media itself have legitimate interests in the regulation of print media, which need not be understood as an adversarial one. As any journalist would know, sound relationships with state officials can only contribute to the breadth and depth of coverage, and likewise state officials would know that the prospects of unfavourable coverage could be enhanced if the press media has no reason to regard them as honourable and fair participants in the production of press outputs.

A third party that also has legitimate interests in the regulation of print media is the public itself, many members of which desire fair and accurate reporting, and who might also abhor the sensationalistic tendencies of some of the press, particularly the tabloid media.

These three parties – the state, the press and the public – should therefore be participants in any regulatory process regarding the print media. Seeing as this regulation requires “passing judgement on complicated matters of journalistic reporting”, frequently involving ethical concerns, representation on any Press Council should also include those who have expertise in the area of ethics. Here, I would strongly caution against the frequent assumption – particularly in South Africa – that ethics and religion are easy bedfellows. In other words, it cannot be taken for granted that independent ethical opinion can be provided via the presence of religious leaders on a Press Council (even though they should of course be eligible). Ethics is after all a matter of academic enquiry, and our universities are well stocked with people who have this specialisation (as are various NGO’s).

The proposal here is therefore that a press council should contain representatives from all three sectors, including persons from outside the state and the press itself who have expertise in the field of ethics. The precise composition of such a council in terms of how many representatives it should contain, in what proportions, and questions of voting rights and veto’s is of course a complex matter, which can only be addressed briefly here. A summary of the composition envisaged here would be as follows:

A Council consisting of 10 members with equal voting rights, with
– 5 representatives from SANEF (or their delegated representatives)
– 3 members of the public
– 2 representatives of the state

Jacques Rousseau

Chairman: Free Society Institute