ANC proposals for a media tribunal are profoundly in conflict with the constitution – and that's why they won't fly, Press ombudsman Joe Thloloe told the Mail & Guardian's ombud Franz Kruger in an interview for the paper.  He also bemoaned the growth of tabloidism, adding that all newspapers were bound by the same basic rules of journalism.

Ombud to ombudsman: The Mail & Guardian's ombud, Franz Krüger, interviews press ombudsman Joe Thloloe.

How high is public trust in the media in South Africa?
There are two measures I use. The one is the circulation figures of magazines and newspapers. Those remain very high. They wouldn't be that high if the public didn't have confidence in the media.

But then I listen to talk radio and I look at readers' letters to newspapers. And there you get a group of people who are very disgruntled with the quality of newspapers. These are largely political complaints. It is very rare that there are complaints about general news. So I would say the politicians are not happy with the media in this country, but the general public accepts the media as reliable.

Why are the politicians unhappy?

Well, it's the normal story. The politician will love only the publication that paints a rosy picture of what he's doing, how he loves his constituency. The world over that is a phenomenon.

Even though journalists' relationship with politicians may be naturally adversarial, do journalists have some duty of loyalty to the new democracy?

By the very fact that they are part of the South African society, journalists are bound by what is in the Constitution. Their responsibility is to take the vision in the Constitution and hold it up and say: Are we living up to that vision? And they would also have to say, are the people who have power making sure that vision becomes reality?

So questioning and criticism is patriotic?
Very patriotic. It's the only way in which journalists can show their patriotism.

Are the media as a whole supportive of the new order?

I would say largely yes.

With some exceptions?
There are times when I do worry about the tone. Instead of saying so-and-so has been found guilty of corruption, you get an undertone of glee, some gloating. You've nailed the bastard. It does worry me. But what the hell! It is freedom of expression that the Constitution grants us.

The ANC has recently proposed a media appeals tribunal. What's your view of that?

It's largely ignorance of what the current system of self-regulation is doing. If you have a statutory media appeals tribunal, then you are diminishing freedom of expression. It's no longer the journalist who expresses himself without fear or favour, he's always looking over his shoulder to see what the tribunal is saying.

The route that we have chosen — the current system — says that we are allowed freedom of expression in the Constitution, and this freedom says anybody has the right to have his opinions, to express these opinions and to distribute information without any controls except the few that are in our legal system.

That freedom of expression is not only granted to journalists and the media, it is granted to every citizen of the country. Also, this system is voluntary. Publications themselves say we will subscribe to the press code, because we are committed to high standards on our publications. If it is imposed from outside, it is no longer that internal drive that says we want high quality, it is now, how do we keep on the right side of the law. Having said that, we do recognise that we need input from the public. That's why on August 1 the system was changed to allow for greater public participation.

The accusation has been that it's hopeless to think that anybody would police themselves effectively and that self-regulation is just an excuse to keep people off the press' back.

It's not a question of policing ourselves. It is a question of how do we push for higher standards in the industry, which has freedom of expression. I don't see myself as a policeman. My role is to assist publications reach the highest standard of journalism.

The other side of that criticism is that the press has overstepped the boundaries and this shows the need for somebody else to pull us back into line.
The courts are still there. If anybody has been defamed, that person has the right to go to court and sue for defamation. If somebody has had their rights infringed, that person has the right to go to the police and say there was trespass on my property, there was theft of my property. The courts can pull us up and say you are not doing the right thing. This system runs parallel to the courts.

The one example often referred to is the reporting around the health minister. There have been accusations of invasion of privacy, of criminal conduct, of all sorts of things. What's your view of that story?
Unfortunately it is a matter still on my desk, so I will not be able to comment on it. But the code is very specific about some things. It says you will not use information illegally obtained unless it is in the public interest. You will respect people's privacy and only infringe on that right if it is in the public interest. Now the interesting thing is to determine what the public interest is. If you took the matter to court, it would be considering the same questions.

Is press freedom under threat?
I don't think so. That resolution was fairly well-couched. They say they want to create a media appeals tribunal that will strengthen the self-regulatory mechanisms. They also go out of their way to say they won't endanger press freedom. So there is still room for negotiation between the press council, the media and the ANC.

Aren't some of the formulations in the resolution just a smokescreen?
They wouldn't be there if the ANC was determined to clamp down on the press. They are aware of their limitations; of what they can do. They probably know that ultimately any of these things would be tested in the Constitutional Court. I'm sure they are aware that a MAT will not stand the test of the constitutional court. That's why I don't believe that press freedom is under threat.

You're saying it's unconstitutional, the proposal infringes press freedom, but you're saying it's not going to happen.
I'm pretty certain it will not happen.

You've mentioned increased public participation in the machinery of press self-regulation. What else is new about the office that you have taken on?

We have gone on a massive publicity campaign to get South Africans to understand the press code, to understand the working of this office. Initially we were getting an upsurge of complaints coming to this office, but I'm expecting this to taper off once people get to understand the system.

Would you be in favour of having the power to fine newspapers that break the code?
We have debated that and have decided against it. This is a voluntary system and if you fine somebody they could just pull out of the system instead of paying the fine. So for a voluntary system to function you need the cooperation of all the players. Print is different (to broadcast). Anybody can take a piece of paper, write and distribute it.

In general, what is the state of journalism in South Africa?

On the whole, it is pretty high. If you consider the millions of words that are churned out by publications in this country and the very few complaints we do get, it says that, on the whole, the South African public is satisfied with the quality of journalism it gets. But there seems to be a very serious competition with the broadsheets trying to out-tabloid the tabloids. That is what I find fairly worrying.

What are they doing?
Very sensational headlines, comment masquerading as news; we are getting much more of that happening.

Do the tabloids deserve being regarded as journalism?
It depends on what tabloids you are looking at. The basics of good journalism still remain the same, whether it's a tabloid or a broadsheet. You have to have your facts right, you have to be balanced et cetera. Where you are talking about a style of tabloid journalism that the National Enquirer engages in, you run into serious difficulty and that is not journalism.

How would you characterise it?

Stories that are sucked out of peoples thumbs. Stories that are pure entertainment without any news value. That is the tendency we are now picking up in South African tabloids.

The tabloids insist they are factual.

It might be true that a woman complained that she had sex with a tokoloshe. She might have said that. But does the journalist believe the story to be true? It is the way the journalist treats that truth that matters. Now you can either be cynical and make fun of that woman or you can say she has a deeper problem you might want to probe. But you don't just put it as a fact that she was raped by a tokoloshe. That's ridiculous, quite frankly.

And yet they are bought in large numbers. Doesn't that indicate that their readers trust them?
I've asked a few people why they read the tabloids and why they don't complain about the contents of the papers. And they say there's nothing to complain about, this is just fun reading. They read them for entertainment. They take them at face value, they don't take them seriously. The people who come to this office to complain about the tabloids are not in the target readership group.

So given what you said, should the tabloids expect a rough ride if they are called to your office?
No, no, not a rough ride. All I insist on is that they follow the code. They subscribe to the same press code all other publications subscribe to.

* This interview first appeared in the Mail & Guardian on  March 7, 2008.  Franz Kruger is the paper's internal ombud, while Joe thloloe is the Press Ombudsman.