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An Analysis of Press Regulation and the Proposed Media Appeals Tribunal in Line with the Constitutional Imperative of a Free and Independent Press

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An Analysis of Press Regulation and the Proposed Media Appeals Tribunal in Line with the Constitutional Imperative of a Free and Independent Press An analysis of press regulation and the proposed Media Appeals Tribunal in line with the constitutional imperative of a free and independent press FN Lion-Cachet Orcid.org 0000-0002-7143-3386 Dissertation accepted in fulfilment of the requirements for the degree Master of Laws in Perspectives on Law at the North- West University Supervisor: Prof WJ du Plessis Co-supervisor: Prof KD Beiter Graduation ceremony: May 2020 Student number: 24138665 PREFACE I was inspired to conduct this study following my LLB mini-dissertation on the same subject, awarded cum laude. Through the LLB module, I was introduced to the major arguments of this study; however, many matters were left unaddressed. A research LLM enabled me to engage more deeply with the issues at hand, particularly to determine if and how the Media Appeals Tribunal could serve a role towards greater media accountability, by envisaging it as a constitutional institution. I also had the opportunity to engage more deeply with existing literature and different sources of law about the desirability of self-regulation compared to statutory regulation. i "Everything we hate about the media today was present at its creation: its corrupt or craven practitioners, its easy manipulation by the powerful, its capacity for propagating lies, its penchant for amplifying rage. Also present was everything we admire and require: factual information, penetrating analysis, probing investigation, truth spoken to power." ― Brooke Gladstone ii "For journalists, the obligation to accept scrutiny is special, for scrutiny is the sanction which journalists hold over others." – Jens Linde iii ACKNOWLEDGEMENTS Eben, my ouers, Elmien, Klaus en die NWU. iv ABSTRACT This study provides a critical analysis of press regulation in South Africa, in light of calls for a Media Appeals Tribunal (MAT), an institution that would, if created, be mandated with statutory regulation of the press. Statutory regulation is compared to self-regulation of the press, the last of which is conducted by the Press Council of South Africa (PCSA). The study is divided into six chapters. The first chapter serves as the introduction and inspects the calls for an MAT. The second chapter is devoted to determining the constitutionally entrenched rights and limitations to freedom of the press and other media. It is studied how the law regulates what the press may and may not publish, in part through the laws of defamation and privacy. The legal framework in which the PCSA as self-regulatory body functions is studied. The mandates of the Film and Publications Board, as well as the Media Development and Diversity Agency, are also studied insofar it relates to the calls for an MAT and press regulation. It is also discussed how convergence and declining trust in the media affect press regulation. The third chapter studies how both the South African press and broadcast media are regulated. The PCSA's formation and functioning are determined, and its efficacy studied through available sources. Additionally, the PCSA's strengths and weaknesses are analysed through an array of considerations. It is then studied how the broadcast media is regulated through both the Broadcasting Complaints Commission of South Africa and the Independent Communications Authority of South Africa. Cognisance is also taken of how the Advertising Regulatory Board regulates advertisements appearing in the media. Chapter four looks at models and benchmarks of press regulation. As much is done by studying international principles and agreements that may influence the South African position. International trends in media regulation are also studied in order to place the research question in a broader context. Critique of a statutory regulator of the press is studied in light of calls for an MAT. Norms, best practice and the common functioning of press councils are also studied, noting how "best practice" is to be v determined and implemented. The fifth chapter engages with the premise that the MAT could be instituted as a constitutional body, thus framing it as a chapter nine institution. Accordingly, it is studied how the independence of such an institution is tested. In line with the calls for an MAT, the independence of the Independent Communications Authority of South Africa, an institution which is constitutionally required, is studied to envisage the desirability of an MAT as chapter nine institution. In conclusion, the sixth chapter ties together and makes recommendations for further development of press regulation in South Africa, in line with the constitutional imperative of a free and independent press. Press self-regulation in South Africa is found wanting, whereas statutory regulation is found to be undesirable. KEYWORDS Press regulation, self-regulation, media regulation, Media Appeals Tribunal, Press Council of South Africa, statutory regulation, press freedom, media freedom vi TABLE OF CONTENTS LIST OF ABBREVIATIONS ....................................... xv CHAPTER 1: INTRODUCTION .................................... 1 1.1 Problem statement ..................................................... 1 1.1.1 Background to the study ............................................... 1 1.2 Research question ...................................................... 2 1.3 Aim and objectives of the study ................................ 3 1.4 Point of departure, assumptions, and hypothesis .. 4 1.4.1 Point of departure ......................................................... 4 1.4.2 Assumption ................................................................... 4 1.4.3 Hypothesis .................................................................... 4 1.5 Methodology ............................................................... 4 1.6 Relevance to research unit ........................................ 5 1.7 Definitions and terms ................................................. 6 1.7.1 On the classification of the terms 'media' and 'press' ... 6 1.7.2 On the classification of the term 'self-regulation' .......... 7 1.8 Format .......................................................................... 8 1.9 The Media Appeals Tribunal ...................................... 9 1.9.1 Policy framework for the Media Appeals Tribunal ...... 10 1.9.2 Following the calls, a period of introspection .............. 13 vii 1.9.3 Current inquiries into press accountability and regulation .................................................................... 16 CHAPTER 2: THE RIGHT TO A FREE PRESS AND REGULATION BY THE LAW ..................................... 19 2.1 Introduction ............................................................... 19 2.2 The constitutional rationale for freedom of expression ................................................................. 20 2.2.1 The importance and protection of a free press and other media .......................................................................... 23 2.2.2 Limitations and exclusions to the right to a free press and other media .......................................................... 26 2.2.2.1 Section 16(2) categories of exclusion ......................... 26 2.2.2.2 General limitations as per section 36 .......................... 28 2.3 Legislation giving effect to the Constitution .......... 30 2.3.1 Promotion of Equality and Prevention of Unfair Discrimination Act ....................................................... 30 2.3.2 Laws of general application ........................................ 31 2.4 How the law regulates editorial content of the media .................................................................................... 33 2.4.1 The law of defamation and the media ......................... 35 2.4.1.1 Introduction ................................................................. 35 2.4.1.2 Criminal law defamation ............................................. 36 2.4.1.3 Defamation in terms of delict ...................................... 37 viii 2.4.1.3.1 Introduction ................................................................. 37 2.4.1.3.2 Unlawfulness .............................................................. 37 2.4.1.3.3 Fault ............................................................................ 41 2.4.1.3.4 Publication .................................................................. 42 2.4.1.3.5 Defamatory matter ...................................................... 44 2.4.1.3.6 A plaintiff as a natural or legal person ........................ 45 2.4.2 The law of privacy and the media ............................... 48 2.4.2.1 Introduction ................................................................. 48 2.4.2.2 Constitutional right to privacy ...................................... 48 2.4.2.3 Legitimate expectation of privacy ............................... 49 2.4.2.4 Personal information ................................................... 50 2.4.2.5 The 'public interest' defence ....................................... 51 2.4.2.6 Consent as defence .................................................... 53 2.4.3 Protection of confidential sources ............................... 54 2.4.4 Conclusion on the legal remedies ............................... 55 2.5 Self-regulation and its legal framework .................. 55 2.5.1 Introduction: self-regulation as a form of mediation and arbitration .................................................................... 55 2.5.2 The advantages of self-regulation .............................. 56 2.5.3 Self-regulation's place within the legal
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