Events of the past year show that the media's system of self-regulation is working well, write media lawyers Dario Milo and Pamela Stein in the Sunday Times. 

Dario Milo and Pamela Stein write in the Sunday Times:

It’s timely at the start of the new year to take stock of the significant developments in media law in 2008. The ANC had proposed at its Polokwane conference in December 2007 that a statutory media appeals tribunal to regulate the print media be explored.

That issue was hotly debated last year.

An alternative to court action should be available, but this alternative already exists in the form of the press ombudsman.

A statutory tribunal would effectively allow a government body to interfere with the content of publications. This would constitute a dramatic invasion of media freedom.

In any event, the press ombudsman system is working. Far from being a yes-man for the media, the ombudsman, Joe Thloloe, handed down many important rulings against the media last year, including the publication of a front-page summary of his ruling in the claim brought by a former Land Bank board member against the Sunday Times.

Of all the criticisms that may be levelled at the ombudsman, being soft on the media is not one of them. And it’s important that the institution be strengthened even further — bolstering non-media participation and possibly levying fines.

If the ombudsman system fails, proponents of a statutory tribunal would be provided with potent ammunition .

There was a plethora of draft legislation last year which contained major restrictions on media freedom.

Most prominently, parliament’s ad hoc committee on intelligence legislation debated the Protection of Information Bill, which aimed to regulate the classification of state information.

The bill contained draconian provisions, including permitting classification where the information could harm the “national interest”, which was so hopelessly defined that it could be argued to cover almost anything. Worse, there was no provision for a public-interest defence for the media.

It was no surprise that, when it was announced that the bill would not be passed in 2008, many commentators saw this as an occasion for dancing in the streets.

It’s hoped that when the bill, or another version of it, is debated again, the drafters take on board the submissions about media freedom made by various media houses.

The media were not successful in shelving the Films and Publications Amendment Bill, which has been passed by parliament.

One of the problems with the new law is that it requires pre-publication approval for articles that, for instance, contain references to “sexual conduct” as that concept is defined in the act .

In its earlier form, this provision was clearly overboard and unconstitutional.

The legislature has softened the position to now exempt those publications that subscribe to the press ombudsman’s code of conduct. While this is an improvement, it is by no means a magical wand that removes the fundamental constitutional objection to pre-publication censorship, and the law may well face a constitutional challenge.

Then there was the debate about Zapiro’s cartoon depicting ANC president Jacob Zuma preparing to “rape” lady justice.

Zapiro was unmoved, stating that the cartoon conveyed exactly what he wanted it to — that our justice system was being violated by Zuma and his supporters.

Zuma ended the year by threatening to sue Zapiro and the Sunday Times for R7-million for defamation.

Cartoons are a form of commentary .

Our law has for years recognised a defence known as fair comment: the right of every person to express their opinion honestly on matters of public interest, provided the underlying facts are true.

Freedom of speech must extend to ideas that shock and offend, which many thought was true of Zapiro’s cartoon.

Another area of media law that attracted attention in 2008 was the openness of court proceedings.

“Closed court proceedings,” as Judge Zakeria Yacoob once said, “carry within them the seeds for serious potential damage to every pillar on which every constitutional democracy is based.”

The rule against secrecy also applies to documents before courts.

The Constitutional Court recognised this principle last year in the landmark application by Independent Newspapers for access to classified court documents in the unlawful-dismissal case by former director-general of the National Intelligence Agency, Billy Masetlha, against then president Thabo Mbeki.

The court confirmed that the default position was that open justice required that courts must be open and documents that formed an integral part of such proceedings must be made available.

This approach should be applied in the context of non-judicial adjudications that raise public interest issues.

An example from last year is the inquiry by Frene Ginwala into the fitness for office of former national director of public prosecutions Vusi Pikoli.

The decision by President Kgalema Motlanthe to release the report was clearly correct, as was Ginwala’s approach to the hearing itself, which was for the most part conducted in public.

As with so much else, 2008 was a turbulent year for the media.

We would do well not to rest on our laurels, and to constantly test developments in this area of the law against the demands of freedom of expression in an open and democratic society.

* Milo and Stein are specialists in media law at Webber Wentzel attorneys. This article ferst appeared in the Sunday Times on 11 January 2009.