The ANC idea of a media tribunal won't fly, writes Dario Milo in the Sunday Times. But it may be time for consider giving the ombudsman more muscle, by way of a power to fine, for instance.

Dario Milo writes in the Sunday Times:

One of the most controversial proposals to emerge from the ANC’s Polokwane conference in December was that the establishment of a statutory media appeals tribunal should be investigated for print media.

The ANC deserves credit for putting this important issue on the public agenda. The manner in which a democracy regulates its print media is a barometer for the extent to which the democracy is truly free.

The print media are already highly regulated. Important aspects of common law, such as the laws of defamation and privacy, govern what may be published. A bottomless pit of legislation, including the Films and Publications Act, the Criminal Procedure Act and the Protection of Information Act, also criminalise certain publications.

Despite this, there is a pressing need for the development of regulatory alternatives to judicial action to vindicate the rights of persons aggrieved by the print media’s reportage. The print media wield significant power and should be accountable for their actions, not only before courts, but also in forums that allow for speedy and inexpensive remedies.

The issue raised by the ANC is whether this need should be met by statutory regulation or a system of voluntary regulation.

At present, a self-regulatory regime exists in the form of the recently revamped Press Council. This comprises the press ombudsman (currently the veteran journalist Joe Thloloe) and an appeals panel (currently chaired by a retired judge of the Supreme Court of Appeal, Judge Ralph Zulman).

The ombudsman receives and adjudicates complaints about such issues as factual accuracy, right of reply and invasion of privacy. But his sanctions are limited: while the ombudsman may rule that a newspaper that has infringed the Press Code should publish a correction, a retraction and an apology, he may not impose fines or award compensation. And, of course, newspapers and magazines may choose to remain beyond the ombudsman’s reach.

The important question is whether this system should be supplemented or replaced by statutory regulation. The formidable constitutional hurdle that statutory regulation faces is that a government body would then, whether directly or indirectly, have the power to interfere with the content of publications.

This would create a chilling effect that would undermine press freedom — and the public’s right to receive information on matters of public interest.

In Miami Herald Publishing vs Tornillo, the US Supreme Court unanimously struck down a statute that required newspapers to publish a political candidate’s right of reply where his views were criticised. The court stated : “Regardless of how beneficent-sounding the purposes of controlling the press might be, we remain intensely sceptical about those measures that would allow government to insinuate itself into the editorial rooms of this nation’s press.”

A statutory tribunal would drastically undermine the exercise of editorial control and judgment. It is the editor’s prerogative to determine how a newspaper should treat public issues and affairs.

This is not to say that South Africa’s current self-regulatory system is without its blemishes.

But rather than throwing the baby out with the bath water, the system of voluntary regulation should be reformed to ensure that it is regarded as credible by the public.

For instance, it may well be time to revisit the waiver requirement that requires complainants before the ombudsman to waive their right to also litigate the matter before the courts.

It also seems to me to be necessary for its credibility that, as in the UK, the majority of the Press Council should be public representatives .

There is merit in considering whether the ombudsman should be able to levy fines in appropriate circumstances.

And the ombudsman should also be proactive; the UK’s Press Complaints Commission frequently revises its code in light of developments (such as the role of the paparazzi in Princess Diana’s death) and it also reports, advises and trains on topical issues.

Although the idea of a statutory media tribunal suffers from major constitutional defects, we should use the space that the debate has created to revisit and revitalise the current system of self-regulation.

# Milo is a partner at Webber Wentzel attorneys and the author of Defamation and Freedom of Speech. This article first appeared in the Sunday Times on 4 May.