As submitted to The Daily Maverick
I would hope that regular readers are by now in no doubt as to my commitment to the freedom of the press, and free speech in general, and that the following therefore doesn’t give anyone the idea that I’ve been offered a government contract. As I’ve frequently argued in these pages, no idea should be granted the status of being sacred or outside of the realm of criticism. It’s a legal defense – not a principled or philosophical one – to assert that something is enshrined in the Constitution (for example). The possibility is always open for the Constitution to be wrong on some issue, or for it to provide an inefficient mechanism for safeguarding and promoting goals that we agree are desirable.
There can be little doubt that some aspects of the proposed media legislation are deeply troubling. We might also find broad agreement that regardless of the actual motives of the proponents of the Media Appeals Tribunal, the Protection of Information Bill, and the Internet and Cell Phone Pornography Bill, this set of 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.
But it is also possible to see a case for all three of these initiatives, because there are plausible circumstances in which some form of control over information could be merited. Even though I’m fully in support of adult access to pornography, I can understand why it might not be appropriate for minors. 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.
It may therefore be uncharitable of both sides of this debate to frame their opponents in the crude terms that has characterised much of the commentary to date. Outside of the political context in which this war is operating, representatives of the media might be prepared to concede that absolute liberty to publish is inadvisable. Likewise, government officials might concede that the legislation could be used to protect vested interests or to suppress knowledge regarding corruption or criminal activity on the part of the state.
But instead, what both sides tend towards is hyperbole. The state is clamping down on the free press, because they want to be able to operate unchecked by public sentiment, while local government officials continue to climb the greasy pole leading to a seat on the gravy train. The media have a vendetta against this person or this party, and are more interested in making damaging accusations than offering responsible and objective reportage. And just as we can’t trust the governments stated intentions, neither should we trust those of “the media”.
To focus specifically on the Media Appeals Tribunal (MAT), I no longer believe that the situation is as clear-cut as I did a few weeks ago. My prior – and complete – opposition to it was in no small part thanks to people like Jackson Mthembu and Jacob Zuma, who defended the idea by making claims that appeared implausible. One such claim, oft-repeated, is that the average citizen has no defense against damaging allegations made against him in the press. This is immediately implausible in the sense that there is no incentive for the press to publish damaging allegations against “ordinary” people, because they are typically not newsworthy.
The more typical case is that of publishing potentially damaging allegations against people and organisations (such as the ANC) that do have the means to defend themselves. When Zuma responded to a related question in Parliament by saying that many South Africans are “poor”, and “can’t get a lawyer to go and defend them”, one can’t help but find this disingenuous. Not only are the media unlikely to report on such individuals, but these individuals are also unlikely to suffer any reputational or other damage as a result of such coverage, in that most people wouldn’t be bothered to read those particular stories.
Consider, by contrast, the situation of companies, especially those that are the target of protest and strike action by workers. In December of 2009, the South African Commercial Catering and Allied Workers Union (Saccawu) embarked on industrial action against Pick n Pay over alleged racist practices. Saccawu and their allegations were given sufficient – and sufficiently sympathetic – coverage in the media that Raymond Ackerman eventually felt it necessary to respond by open letter in an attempt to refute the allegations made by the union.
Regardless of whose case had more merit in this instance, the truth is that Pick n Pay (and Ackerman himself) were put in a position of having to deny having beaten their wife. In other words, simply having to respond to the story gave it some measure of credence, as well as giving it traction in the media marketplace. The alternative of simply ignoring the story and not responding could be read as an admission of guilt. Either way, the corporation loses – especially if the story in question involves South African workers, and allegations of racism on the part of an employer.
What is the alternative? Well, perhaps it’s difficult and requires more investigative work, but one alternative is for the media to play a stronger gatekeeping role themselves. This could involve ignoring more of the press releases they receive, especially when those press releases contain damaging allegations that are not or cannot be substantiated. Simply forwarding them to the spokesperson of the company in question puts that spokesperson in the position of having to deny beating his wife, and makes the press complicit in any reputational damage that may accrue.
In other words, it’s not only giving journalists the space to make trouble for others that is at issue. There are also occasions where providing space for others to make trouble can’t be read as simply passing on the information to your audience. In providing that space, it can be the media who thereby put the accused into the invidious position of having to respond, where any form of response could be insufficient to ward off damage. In these instances, publishing the story is not a morally neutral action, but rather one that can contribute to any harm that might accrue.
There could, in other words, be two entirely separate issues involved in the MAT and how justified it might be. The first issue is the notion of political bias, where Zuma and others might feel that a particular publication is intent on providing negative coverage of government, and where they attempt to defeat that by characterising the media as malicious and in need of external control.
The second is an issue of competence, where increasingly junior (and 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. This still doesn’t provide an argument for a Media Appeals Tribunal, but it does perhaps suggest that an Ombudsman – mostly focused on complaints laid by wronged parties – might not currently be performing all the roles required for the media to operate responsibly, and for us to be confident that they are doing so. The complexities of personal, corporate and governmental spheres (and their intersections) cannot be summarised in slogans, and we do the debate a disservice by retreating to our respective ideological laagers.