By Jane Duncan · 9 Jan 2012
In the next few weeks, the Press Freedom Commission will be holding public hearings into the adequacy of the self regulatory system for the press. In terms of this system, complaints of unethical reporting are handled by the Press Council of South Africa (PCSA), which was set up and is run by the press and members of the public.
The Commission was established by the press industry representative body, Print Media South Africa and the South African National Editors’ Forum in the wake of the African National Congress’s (ANC) accusations about the existing system.
The ANC has complained that the PCSA favours the press and fails to protect the rights of citizens. It has championed the establishment of a statutory Media Appeals Tribunal, independent of the press, to hear appeals from the Press Ombudsman’s office: a move which will usher in statutory regulation, and possible state control of the press.
Press self-regulation has long been considered the gold standard of press regulation. Yet this system of regulation seemingly is undergoing an existential crisis in the wake of the phone tapping revelations in Britain. The self-regulatory Press Complaints Commission (PCC) failed to stem this and other intrusive practices by the tabloid press.
As a result, Prime Minister David Cameron established the Leveson Commission of Enquiry to probe the abuses. Once it has heard testimony from victims of these practices, it will then consider options for regulating the press in future.
In anticipation of this leg of the enquiry, more British media commentators are arguing that self-regulation has failed and needs to be replaced either by co-regulation between the government and the industry or statutory regulation. No doubt the ANC is watching these developments with keen interest.
Two points need to be made about the perceived crisis of self-regulation in the light of the phone hacking scandal. Firstly, the PCC is not, strictly speaking, a self-regulatory body as it is dominated by proprietors, not journalists. What has failed is not self-regulation per se, but a particular model of self-regulation.
The rationale behind journalistic self-regulation is sound. True journalism has an ethical basis, and must be driven by a deeper moral purpose, namely to expose wrongdoing and make society better. Self-regulation necessitates journalistic self-organisation and self-activity, as it involves journalists promoting and protecting the principles of their craft through peer review.
Peer review is an important principle for journalists as they have (or should have) no vested interests other than protecting the principles of their craft, while the same cannot be said for media owners, big business, governments, Parliaments and others in positions of power.
At some stage or another, all these power-holders will probably come into conflict with the democratic role of journalism, which is why it is important to keep journalistic decision-making as far away from them as possible.
This is why the ANC’s proposal for a Tribunal reporting to Parliament is such a bad idea. Parliament is a player in the news arena and its members will inevitably want to see reports that put them in the best possible light.
However, in many newsrooms, media owners, managers and even editors have placed journalists under pressure to produce stories for multiple platforms with fewer resources at their disposal, often with negative implications for the quality of journalism. Yet the very people that have created this problem dominate the so-called self-regulatory system.
The PCC is also not a regulator. There are three components to regulation: rule-making, enforcement, and adjudication. Regulators need to demonstrate that they are independent (both from government and from the industry they claim to regulate), effective, accountable and transparent.
Self-regulators need to work particularly hard to demonstrate their independence, as they are generally set up by the very industry that they regulate, which makes them particularly disposed to industry capture.
Unsurprisingly, in Britain, as owners, managers and editors are presiding over their own misdemeanours, they have designed the system to cause themselves minimal offence. The PCC lacks proper investigatory and enforcement powers, confining its role mainly to the mediation and adjudication of complaints rather than acting as a regulator of journalism standards. It does not levy fines, and relies on reprimands to deter unethical conduct.
The more proactive roles of regulation, such as investigation, initiating complaints and mapping industry trends, often do not sit comfortably with press councils, who consider them inappropriate for a sector that has freedom of expression at its core.
The danger of formalising the system by giving it ‘teeth’ is that newspapers will opt out of the system, which in turn may invite statutory regulation on the grounds that voluntary regulation is not taken seriously by papers.
Furthermore, Parliaments may argue that voluntary councils cannot strengthen their powers of investigation and sanction without a statutory backstop, and push for the establishment of a co-regulatory system involving industry and statutory collaboration. Co-regulation can be a backdoor method of introducing statutory regulation, so this option should be treated with great caution.
But the danger of not strengthening the regulatory aspects of the system is that the industry will not take the council seriously, and its rulings will be given short shrift or even ignored, which will invite statutory regulation too.
Self-regulation is not inherently weak. As the International Federation of Journalists (IFJ) has argued, there is nothing to prevent the industry from subjecting itself to meaningful and serious review, which includes equipping the industry’s self-regulator with the mandate and resources to carry out ‘without fear or favour’ investigation that would make outside regulation unnecessary. The IFJ argued further that meaningful self-regulation is not just what they referred to as ‘soft law’, but the application by the profession of ‘…“hard norms” that make calls for the police or the magistrate unnecessary’’.
An IFJ affiliate, the National Union of Journalists’, has been particularly vocal over phone hacking. At the Leveson enquiry in November, its General Secretary, Michelle Stanistreet, argued that, ‘…[For] years we have had the media bosses' model of self-regulation. It is one that excludes both the producers and the consumers of the media output and represents only the owners. The general public and journalists themselves have had to contend with what has been little more than a self-serving gentleman's club’.
What are the lessons for South Africa? Since its re-launch, there is little doubt that the PCSA has established itself an independent, effective mediator and adjudicator of complaints. This can be attributed to the strong leadership shown by the PCSA and particularly the Ombudsman's office. It has much more credibility than the PCC.
Furthermore, there are no indications of a crisis in journalism standards of the order that prompted the establishment of the Leveson Commission. It is difficult to say what an ‘acceptable’ number of press complaints is, but according to the Press Council of Ireland, its ratio for 2008 was 9.3 complaints per 100 000 citizens, whereas in Britain it was 7.8 per 100 000. In 2011 South Africa had a ratio of 0.5 complaints per 100 000 citizens, which is negligible by comparison.
But there are indications of systemic pressures on journalism standards, as newsrooms cut costs to compensate for lost advertising revenue. Most of the complaints received by the PCSA’s Press Ombudsman have been about accuracy, followed by not seeking the views of the subjects of critical reporting, and lack of context and balance.
These findings imply that the fact-checking systems in newsrooms need improvement, yet sub-editors have been fired in droves. The slow death of traditional newspapers may well hasten this race to the bottom, and ethical transgressions may increase.
Will the PCSA be up to the task if the copy hits the fan? The PCSA is not, strictly speaking, a self-regulatory body: it is a co-regulatory body between the press and members of the public. Six members of the Council are selected by the Press, and the remaining six are public members, which makes industry capture less likely than in the case of the PCC. But the journalistic voice in the PCSA is weak, with editors and proprietors dominating, which is a structural weakness in the Council’s composition.
Until recently, the PCSA confined its role mainly to mediation and adjudication of complaints. However, in its review report of August 2011, the PCSA attempted to steer a middle path between an interventionist and a hands-off role, arguing for a more proactive monitorial and advocacy role, while rejecting arguments for it to accept third party complaints, issue fines and initiate its own complaints.
If the PCSA is going to act in the public interest, rather than the interest of the complainant only, then it should accept third party complaints as a matter of course, and not just as an exception to the rule. This activity is entirely consistent with, and in fact necessitated by, its regulatory role.
Furthermore, the PCSA should have an obligation to investigate cases where the code may have been breached. The acceptance of third party complaints makes it less likely that the powers to self-initiate complaints will be needed. Also, the PCSA’s grounds for preventing complainants from going to court if they use its services remain unconvincing.
All newspapers above a certain circulation threshold should establish internal mechanisms for handling complaints, which should be the first ports of call for readers. This approach may reduce the number of complaints handled by the PCSA, freeing it up to take on additional roles.
The upshot is that the PCSA’s founding members have chosen a ‘soft law’ model of self-regulation that is designed implicitly to benefit proprietors, rather than journalists or the public at large. This is a structural flaw in the system's design that is now being exploited by the detractors of self-regulation.
These flaws may lead to system failure in future, as it has done in Britain. Unless the system is reformed and develops 'teeth', then the establishment of a statutory Media Appeals Tribunal is almost inevitable, as the industry may have great difficulty in defending its version of self-regulation if the Tribunal’s constitutionality is challenged in the Constitutional Court.
As The Guardian’s editor, Alan Rusbridger, observed, ‘…Before we abolish self-regulation, we should first try it’.