A political economy of press self-regulation: the case of South Africa

Abstract

In 2011, the Press Freedom Commission (PFC) was established to recommend the most appropriate regulatory form for South Africa’s press, in the wake of the ruling African National Congress’s (ANC) criticism of the existing system of self-regulation as toothless and self-serving. The ANC has argued for the establishment of a statutory Media Appeals Tribunal. South Africa is not the only country having these debates. In the wake of the phone hacking scandal in Britain, an enquiry chaired by Lord Justice Leveson also considered alternative regulatory forms to self-regulation, given the failure of the Press Complaints Commission to stem the ethical excesses of the tabloid press. Several Southern African governments either have instituted or are considering instituting statutory regulation, and politicians are wasting no time in capitalizing on developments in Britain to drive a press control agenda. This article considers the merits of arguments for and against press self-regulation in South Africa, and options for the future. Using a political economy analysis, it argues that while the system has proved to be very effective in monitoring and adjudicating ethical breaches, it has been implicitly designed to cause minimal offence to the industry, and recent reforms have only partly addressed the problem.

Keywords

ANC Leveson enquiry political economy press accountability press councils press freedom press regulation self-regulation

The system of press regulation in South Africa, consisting in the main of the Press Council of South Africa (hereafter referred to as ‘the Council’ or PCSA), has generated a great deal of debate in the country.¹ The current Council was established in 2007, replacing the Press Ombudsman’s office which was established in 1997. Both bodies distanced themselves from the apartheid-era South African Media Council, which aided and abetted the apartheid regime in censoring newspapers (PFC, 2012: 12). The Ombudsman’s office was widely considered to be under-resourced, leading to it lacking visibility, and several press houses ignored its rulings; as a result, and in response to growing criticism about the body’s ineffectiveness, the press decided to re-launch a more complex, well-resourced body (Berger, 2010: 294–5). When it was established initially, the Council referred to itself to as a press self-regulatory body, but now refers to itself as an independent co-regulatory body between the press and members of the public. Until October 2012, it consisted of six press representatives and six public representatives, as well as an Ombudsman and Deputy Ombudsman. Significant changes were made to the composition of the Council on this date, including the addition of a retired judge as Chair, as well as a Director and Public Advocate.² More than 640 publications subscribe to the Council’s code, and most are members of the industry representative body, Print and Digital Media South Africa (PDMSA).

The Council effected these changes in the wake of a series of reviews of the adequacy of the self-regulatory system. These included one by the Press Freedom Commission (PFC), which was established by PDMSA and the South African National Editors’ Forum (SANEF), to recommend the most appropriate regulatory form for South Africa’s press. Its establishment followed hot on the heels of a review by the Council of its own processes. Both reviews led to the Council making significant changes to its structure and functioning in October 2012. These introspective exercises were initiated after the ruling African National Congress’s (ANC) criticism of the existing system of self-regulation as being self-serving and toothless as it was captured by the very industry it is meant to adjudicate on, and was ‘not adequate to sufficiently protect the rights of the individual citizens, community and society as a whole’ (ANC, 2007). The ANC expressed particular concern about the lack of proper sanctions for errant publications, as well as the tendency for papers to bury apologies deep in the paper when they commit ethical transgressions. The party has also argued that by requiring complainants to sign a waiver that they will not appeal their matter to court should they lose, they were deprived of access to justice (FW De Klerk Foundation, 2011). In an attempt to remedy these deficiencies, the ANC also called on South Africa’s Parliament to hold public hearings to investigate the feasibility of setting up a statutory Media Appeals Tribunal, to hear appeals from the Press Ombudsman’s office. At the time of writing, these hearings had not taken place. The purity of the ANC’s motives in making these criticisms has been called into question by the press (The South African, 2010), and understandably so. For a variety of reasons, the press has become the news agenda-setter in South Africa, exposing many cases of abuses of power, principally by ANC leaders, including outright illegality. These exposés have strained relations between successive ANC leaderships and the press, and fuelled fears that what lay behind their attempts to reintroduce statutory regulation, which last existed under apartheid, was a press control agenda designed to neutralize its investigative capacity (Right 2 Know Campaign, 2012: 2).

South Africa is not the only country having these debates. The ethical and legal transgressions of tabloid newspapers in Britain – culminating in the phone hacking scandal where journalists employed by Rupert Murdoch’s News Corporation were accused of hacking celebrities’ phones, bribing police officers and using other ethically dubious measures to pursue stories – is a grim reminder of how the self-regulatory system can fail utterly to stem intrusive, abusive newsroom practices. When the phone hacking scandal broke, Prime Minister David Cameron called for the press self-regulatory body, the Press Complaints Commission (PCC), to be scrapped, as it was ineffective and lacked rigour, and argued for ‘a new system entirely’ (BBC, 2011). An enquiry chaired by Lord Justice Leveson heard evidence of phone hacking and considered options for regulating the press in future (Cameron, 2011). Leveson proposed a co-regulatory arrangement, where the law provides a mechanism for the communications regulator, Ofcom, to recognize that the new regulatory body meets the requirements of independence and maintaining high standards in the press (Leveson, 2012: 36). Leveson (2012: 17) has argued that this arrangement could in no way be construed to be statutory regulation, with all its attendant dangers of state control of the press.

In addition, several Southern African governments have either instituted or are considering instituting statutory regulation, including Zimbabwe, Botswana, South Africa and Zambia. For those governments intent on statutory regulation, the developments in Britain are a boon, as they can be used to discredit self-regulation and pursue a more explicit press control agenda. In the wake of the phone hacking scandal and the Leveson Commission, has press self-regulation had its day as the preferred model of regulation for the press? Answering this question requires considering whether self-regulation is inherently flawed as a system of regulation, as well as the broader question of whose interests are served by this system. As is argued in the next section, this analysis could be enriched by the insights offered by political economy theory.

Why a political economy analysis of press self regulation?

In its broadest sense, political economy concerns itself broadly with the relationship between structures of control in capitalist society and the production of wealth needed to reproduce that society (Mosco, 2009: 25). More narrowly in relation to media studies, political economy examines power relations in the production, distribution and consumption of media, and embeds this analysis in the social context in which media is produced (Wasko, 2005: 44). Political economy can provide the conceptual tools to unpack the relationship, if any, between political, economic and media power, and to analyse the impact of commodification of the media on press regulation (Murdock and Golding, 2000: 72). Political economy analyses of the dynamics of media regulation tend to focus on the socially detrimental effects of deregulation of media ownership and growing media concentration, but little attention has been paid to the inner dynamics of specific regulatory institutions, especially in the printed press.

This lack of attention is a lacuna because such analyses could help unpack the power relations embedded in the press regulation system and relate these to power dynamics in society more broadly, to help explain why regulatory failure occurs. More specifically, political economy can be used to examine whether press self-regulatory structures such as press councils act as checks on the worst excesses of commodified media, as they are meant to, or whether they facilitate the process of commodification by failing to sanction media excesses effectively, or even colluding with the very industry that they are meant to regulate by giving a semblance of accountability to an industry that increasingly exercises power without accountability. These theoretical insights will be used to explore the power dynamics at work in the system of press regulation in South Africa.

Journalism standards in South Africa

An appropriate model of press regulation must be informed by local dynamics, including local journalistic cultures. South Africa lacks Britain’s intrusive tabloid culture, which has made the case in the former less compelling than the latter. In fact, very few complaints to the South African Press Council have been about violations of the right to privacy.

It is difficult to establish what is an ‘acceptable’ rate of complaint to press councils, but according to the Press Council of Ireland, its ratio for 2008 was 9.3 complaints per 100,000 citizens, whereas in the UK it was 7.8 per 100,000 (Press Council of Ireland, 2009a: 9). The rate in South Africa, where 250 complaints were lodged out of a total population of 50.5 million people in 2011, a ratio of 0.05 complaints per 100 000 citizens, is negligible by comparison. The number of complaints could be attributed to a lack of knowledge of the Press Council, the still relatively low penetration of newspapers, or the relatively high ethical standards of newspapers.

However, there are indications of systemic pressures on journalism standards in South Africa. Most of the complaints received by the Council’s Press Ombudsman have been about accuracy, followed by not seeking the views of the subjects of critical reporting, and lack of context and balance. These findings imply that fact-checking systems in newsrooms need improvement, and that journalists in several newsrooms struggle to find sufficient time to investigate stories properly.

Most of the major newspaper groups, namely Media 24, Independent Newspapers, Avusa and Mail and Guardian have to different extents reinvested in investigative journalism capacity, which has raised the bar in journalism standards considerably. However, in the wake of the global recession the print media industry is struggling financially, with circulation and advertising income having declined almost across the board. These downward pressures on profitability have in turn placed pressures on newsrooms to reduce costs, leading to mass retrenchments and the overburdening of remaining staff. Media 24 followed the lead of Independent Newspapers and centralized control of its newsrooms, retrenching several senior journalists (Harber and Renn, 2010: xxi; Niewoudt, 2009), and syndicating more copy across titles. Skills development budgets have become soft targets for budget cuts. Many sub-editors have been retrenched (Harber, 2009).

Editorial lapses in the Sunday Times newsroom in 2007/8 illustrated graphically how these cutbacks can impact on journalism standards. A report commissioned into editorial lapses demonstrated how key checks and balances had been allowed to slide. The paper’s organizational structure had become top-heavy, while being thin in relation to news generation (Fray et al., 2008: 79). At times, stories were re-written and ‘sexed up’ into front-page ‘splashes’, leading to sensationalism and the introduction of inaccuracies. Its approach of failing to attribute sources of information sufficiently led to the publication of incorrect information (Fray et al., 2008). More recently, examples of ‘brown envelope journalism’ involving the former premier of the Western Cape, Ebrahim Rasool, and two Independent Newspapers journalists, were uncovered (Tolsi, 2012).

Adrian Hadland has argued that the South African media as a whole is experiencing gradual professional diminishment. According to Hadland, press self-regulation has been weak in the past and at times its judgements were treated with contempt, but there is evidence of it being taken more seriously since its re-launch. However, there is still too little journalistic involvement in ownership or strategic decision-making (Hadland, 2012: 105). So while there is little evidence of the sorts of ethical lapses that have been uncovered in Britain, it is entirely possible that financial pressures in South African newsrooms may lead to more ethical lapses in future.

If ethical lapses do increase, then the Council will have to ensure that the regulatory system for newspapers is sufficiently robust to ensure the maintenance of journalism standards, while protecting the freedom of expression of its members by not interfering unduly in their internal operations. If the ANC’s proposed Tribunal is legislated into being, and the press decides to refer the legislation to the Constitutional Court on free expression grounds, then in assessing the constitutionality of the Tribunal’s founding law, the court would probably need to consider the adequacy of existing regulatory frameworks. The next sections will examine this issue.

The ‘self’ in self-regulation

What is often not well-acknowledged in debates about the integrity of self-regulation is that the ‘self’ in self-regulation is a contested concept. From the perspective of media workers and their organizations, journalism has an ethical basis. In this normative paradigm, ethical principles and practices cannot be legislated or compelled, but must be driven by a deeper moral purposes and must arise primarily out of journalistic self-organization and self-activity. Codes of ethics should involve an assertion of journalistic principles, as well as the primacy of the judgement of their peers. Good journalists should not abuse these spaces, as their activities have a moral base, and they should not hesitate to speak out if any of their peers erode this base through poor ethical conduct. Peer review is an important principle for journalists as they have (or should have) no vested interests other than the protecting the principles of their craft, while the same cannot be said for media owners, big business, governments, parliaments and others in positions of power, including in civil society. At some stage or another, all these power-holders will probably come into conflict with the democratic role of journalism, which is why it is important to keep journalistic decision-making as far away from them as possible (Duncan, 2011; IFJ, 1954; Warren, 1998). According to this rationale, while self-regulation is by no means the best form of press regulation, it may well be the least worst.

This understanding of self-regulation is captured in its most uncompromising form in the International Federation of Journalists’ (IFJ’s) Declaration on the Conduct of Journalists, which states that: ‘Within the general law of each country the journalist shall recognise in professional matters the jurisdiction of colleagues only, to the exclusion of every kind of interference by governments or others’ (IFJ, 1954). In pursuit of this objective, the IFJ through its affiliates has been engaging in a struggle to return the craft to what it considers to be its ethical foundation – namely to speak truth to power – which for the IFJ includes ensuring, at the very least, that self-regulatory mechanisms that are set up are controlled, in the main, by journalists. This objective is proving to be difficult to achieve. Globalization and commercialization of media have shrunk autonomous spaces for ethical journalism, placing the craft under pressure in the name of the bottom line. In many newsrooms, media owners, managers and even editors have placed journalists under pressure to produce journalism for multiple platforms with fewer resources at their disposal, with negative impacts on the quality of journalism. Journalists’ status has also been eroded, making it more difficult to exercise power in many aspects of the media system, including regulation (The Guardian, 2011; Warren, 1998).

However, pure self-regulation may be unstrategic in an environment where public trust in the media needs to be built, as this will fuel the perception that the media are accountable only to themselves (Bertrand, 2008). Press self-regulation has generally been aligned with the social responsibility theory of the press (Berger, 2010: 2). A public element to the system is important to address deficiencies in the social responsibility model of journalism that tends to underpin the rationale for self-regulation. However, the form of self-regulation articulated by unions and federations such as the IFJ incorporate – to an extent – a systematic critique of capitalist media ownership and funding (McQuail, 2005), and cannot be strictly aligned with social responsibility theory and therefore accused of its deficiencies.

With the above in mind, two points need to be made about the perceived crisis of self-regulation in the light of the phone hacking scandal. First, the PCC cannot strictly be described as a self-regulatory body as it is dominated by proprietors, not journalists. So it can be argued that what has failed is not self-regulation per se, but a particular model of self-regulation. The National Union of Journalists (NUJ) has criticized the British PCC for this very flaw, leading to the NUJ’s General Secretary, Michelle Stanistreet, arguing at the Leveson enquiry:

For years we have had the media bosses’ model of self- regulation. It is one that excludes both the producers and the consumers of the media output and represents only the owners. The general public and journalists themselves have had to contend with what has been little more than a self-serving gentleman’s club. (The Guardian, 2011)

The second point is that the crisis has less to do with the perceived failures of self-regulation and more to do with the problem of political patronage. In return for favourable coverage in Murdoch’s various media outlets, successive Labour and Conservative governments liberalized ownership rules and skewed the media landscape to favour Murdoch. In bending the rules in this manner, the British government created a regulatory environment where Murdoch believed he was unassailable (Freedman, 2008: 105–21). Far from being a lesson in the failure of self-regulation as a regulatory model, the British phone hacking scandal is a lesson in why the state should be kept out of media regulation. A regulatory model is needed that is resistant to political pressure, and statutory and even co-regulation may well make this objective more rather than less difficult to achieve.

In the South African case, the Council is not, strictly speaking, a self-regulatory body: it is a co-regulatory body between the press and members of the public. Six members of the Council are selected by the press, the remaining six are public members and the Council is chaired by a retired judge. The journalistic voice in the Council is weak. This means that the experiential knowledge of working journalists cannot inform the Council’s decision-making, which is a structural weakness in the Council’s composition that can be attributed partly to the fact that journalists’ associations/ unions in South Africa are relatively weak; so their weakness on the Council is a reflection of a more general weakness in the media sector.

Neither the PFC’s review nor the Council’s own review considered this problem, which will probably see the problem of owner and editor dominance of the press component of the system continuing and as a result will not entrench a system of journalistic peer review.

The ‘regulation’ in self-regulation

What is meant by the ‘regulation’ in self-regulation? Regulation generally balances rights with responsibilities in particular sectors; in the case of the media, regulation ideally seeks to balance the right to freedom of expression of media producers with the rights of media users, and acts as a check on unconstrained industry action that may threaten users’ rights. There are three components to regulation: rule-making where the basic ground rules of the sector are established; enforcement, where action is initiated against parties who have broken the rules; and adjudication, where decisions are taken about whether rules have been upheld or not (Campbell, 1999: 714–15). In order for regulators to command public confidence, they need to demonstrate that they are independent (both from government and from the industry they claim to regulate), effective, accountable and transparent. Self-regulators need to work particularly hard to demonstrate their independence (Media Standards Trust, 2010), as they are particularly predisposed to industry capture.

Broadcasting regulators generally tend to have more intrusive powers of investigation than press regulators, to enable the former to establish whether licensees are keeping to their licence conditions; these powers may also include powers to issue fines and to initiate investigations where it suspects that breaches have taken place. Print regulation evolved according to different regulatory traditions, as the rationale for statutory regulation that existed in broadcasting – namely to regulate a public resource for a diversity of views and in the public interest – did not exist in the print media.

The danger of formalizing the self-regulatory system by giving it ‘teeth’ through strengthening its investigative powers, and giving it the power to issue fines, is that print media groups will refuse to be part of the system, which in turn may invite statutory regulation on the grounds that voluntary regulation is not taken seriously by the very industry being regulated. Furthermore, parliaments may argue that voluntary councils cannot strengthen their powers of investigation and sanction without a statutory backstop.

But the danger of not strengthening the regulatory aspects of the system is that the industry will not take the council seriously, and its rulings will be given short shrift or even ignored, which will in turn invite statutory regulation. However the fact that a council lacks key features of a regulator weakens the system and makes it susceptible to attack on the grounds that it is structurally biased towards the industry it regulates because it has been designed to ensure minimal intervention. According to the IFJ:

If the industry cannot prevent mistakes and abuses, it must at least submit itself to meaningful and serious review of its behaviour and equip its self-regulator with the mandate and resources to carry out ‘without fear or favour’ investigation that would make outside regulation unnecessary. Meaningful self-regulation is not just ‘soft law’. It is the application by the profession of ‘hard norms’ that make calls for the police or the magistrate unnecessary (Marthöz, 2010: 13).

Press councils should regulate journalism standards, and not just mediate and adjudicate complaints. This means that in addition to their adjudicative role, they should monitor press standards, proactively investigate possible breaches of the press code, report regularly on compliance with the code and have a range of remedies at its disposal to sanction breaches of the code (Media Standards Trust, 2010). In this regard, Claude-Jean Bertrand has argued that press councils need to commission research on the influence and functioning of the news media. He has supported the idea of them having the powers to issue fines, but the fines levied should be ploughed back into the press council to strengthen its activities, and should fund public education drives to inform people of the existence of the press council, to encourage media literacy work and education campaigns on the media. He has also favoured a press council which plays an active advocacy role in the defence of press freedom. While press councils are the most well-known method of achieving print media accountability, Bertrand has identified at least 110 media accountability systems, many of which may require media organizations to justify their decisions (Bertrand, 2008). The more proactive roles of regulation, such as investigation, initiating complaints and mapping industry trends, often do not sit comfortably with press councils, who consider them inappropriate for a sector that has freedom of expression at its core (PCC, 2010).

The Press Council’s investigatory and prosecutorial roles

The South African Press Council describes itself as a self-regulatory mechanism to provide adjudication to settle disputes between the print media and the public (PCSA, 2011). So on the one hand, it describes itself as a regulator, but on the other it has until recently confined its role to adjudication, which is problematic. In its review report of August 2011, the Council attempted to steer a middle path between an interventionist and a hands-off role, arguing that public expectations of the body should be tempered as it is simply one player among many who have ethical standards as their core concern. However, it also acknowledged that it did have a role to play in raising the standards of journalism, and accepted that it should adopt a more proactive approach to regulation. To this end, the Council proposed the appointment of a director to concentrate on public engagement around journalism standards and media freedom, and a public advocate to assist aggrieved members of the public to formulate their complaints. The public advocate can also lay his or her own complaints if no complaints are forthcoming on a particularly serious matter (PCSA, 2011: 6). The Council also proposed issuing guidance notes to editors when unhealthy trends are picked up from complaints. Its reports would also map trends in the media environment more broadly, to assist the public to understand whether journalism standards are improving or declining (PCSA, 2011: 9). However, the Council rejected a proposal for it to accept third party complaints as a matter of course, preferring to encourage the prospective complainant to contact the person affected by the article and encouraging him or her to lay a complaint.

Third party complaints are necessary to ensure that the Council acts in the public interest, rather than the interest of the complainant only, which means that it should accept third party complaints as a matter of course, and not just as an exception to the rule. This activity is entirely consistent with, and in fact necessitated by, its regulatory role. There may be circumstances where a constituency or group of people may feel aggrieved by a story. In such cases, a community of interest, and in fact society as a whole, stands to be affected by unethical reporting. Paid-for stories may never come to light except through third party complaints, especially if exposed during the course of court proceedings.

The Media Council of Tanzania is an example of a strong self-regulatory system. It has accepted the need for third party complaints, but has circumscribed its definition of complainants to prevent abuses of the system. The Council defines a complainant as any individual acting in his or her own interest; anyone acting on behalf of another person who cannot act in his or her own name; anyone acting in the interests of, or in the name of, a group or class of persons; a body of persons whether corporate or unincorporated; or anyone acting in the public interest (Media Council of Tanzania, 2011). In order to protect the rights of a person who does not wish to complain, a third party complaint should, wherever possible, be accompanied by written consents from the parties directly affected.³

The PFC saw sense in the need for the Council to accept third party complaints, and eventually the Council conceded that it would, adopting the Tanzanian definition to ensure that the definition of who constituted a third party was not too broad. However, the Council has remained reluctant to extend its proactive role to the investigation of alleged breaches of the code. A more proactive role implies that the Council should have an obligation to investigate cases where the code may have been breached, not just the discretion to do so, and should develop policies and procedures and budgets to enable this function.

The Press Council of New Zealand’s review conceded that there may be particular instances where the Council should initiate its own investigations, such as when it has researched and publicly espoused a view, or when those directly affected may not be able to lay a complaint, or when there is need for a timely consideration of a seemingly clear breach of the code. The report makes the further point that a Council should not need the power to initiate its own complaints, thereby representing the public in the complaint if it accepts third party complaints (Barker and Evans, 2007: 30).

Another controversial feature of the Press Council has been the requirement for complainants to waive their right to take the matter to court if they use the Ombudsman’s services. There is no unanimity among press councils that waivers are even needed: in 2007, 56% of 87 press councils surveyed worldwide did not require a waiver (Barker and Evans, 2007). The rationale for this measure was that complainants would have ‘two bites at the cherry’ (Frayintermedia / Mail and Guardian Journalism Dialogues, 2008: 6), where the Ombudsman’s office is used as the first stage of a court procedure.

The PFC contested the Council’s grounds for insisting on the waiver, describing the Council’s characterization of the complaints procedure as an arbitration as ‘inapposite’ because it lacks many of the basic procedures of an arbitration, such as the fact that complainants cannot determine the rules for the handling of their complaints. The PFC also described arbitrations as a ‘defensive and insular’ mechanism, which is inappropriate for hearings that involve an institution like the press that wields public power. The procedure should be rather be characterized as an administrative action, which means that its proceedings could be appealed to court at a later stage and which therefore made the waiver inappropriate (PFC, 2012: 35–43). The Council also relented on this matter in October 2012, and agreed to drop the waiver requirement.

Sanctions

According to the ANC, the Council is toothless because it does not levy fines (ANC, 2007). In its defence, the Council argued in its review report that the self-regulatory Broadcasting Complaints Commission of South Africa (BCCSA) has not found that fines are a deterrent against breaches of the code, and that the moral suasion that flows from a critical adjudication process is the most effective sanction. Fines may formalize the process to the point where legal representation is required, which will undermine the accessibility of the complaints process (PCSA, 2011: 51–4). The Organisation for Security and Co-operation in Europe (OSCE) has also argued that the introduction of fines may raise the related question of the need for statutory power, which should be avoided (OSCE, 2008: 36–7).

However, there are distinct advantages to introducing fines. Ethical transgressions will be given a monetary value, which may make publications much more careful about lapses in future as they have the potential to impact on profits. Public perception that the system has ‘teeth’ will also probably increase. But unfortunately, globally the terms of the debate have become captured by owners and their interests, leading the IFJ to ask whether it is acceptable for the scope of reform to be limited by the need to ensure cooperation of the industry, with ‘parameters of self-regulation being defined by the apparently limited capacity of the industry for self-criticism and self-control’ (Marthöz, 2010: 18).

The Council had expressed concern that fines may invite legal intervention, and that legal haggling may make the process more expensive and adversarial. However, the problem could be mitigated by the Press Council adopting a ladder of intervention, setting out the sanctions prescribed for a particular level of offence. Severe and repeated transgressions of the code would attract fines, determined according to a formula based on the severity of the transgression. Given that this formula will be established upfront and agreed on as part of the voluntary process of self-regulation, there should be no need for legal arguments at the time of adjudication.

An additional complaint about the self-regulatory system is that publications often do not publish decisions and apologies with the same level of prominence as the original complaint. One approach to address the problem is that the Council’s constitution should require a decision and apology to be published that is of equivalent value to a particular graded offence.⁴ Another approach is that adopted by the Press Council of Ireland, which has published detailed guidelines for the publication of its decisions (Press Council of Ireland, 2009b).

The PFC recommended that space fines be introduced, but monetary fines should not be introduced for press content. However, monetary fines, suspension and expulsion from the Council should be introduced as penalties for failure to appear before hearings and for repeated non-compliance with rulings (PFC, 2012: 69–70). In November 2012, the Council accepted these recommendations.

Conclusion

Since its re-launch in 2007, there can be little doubt that the Council has established itself an independent, effective mediator and adjudicator of complaints. It has criticized harshly publications that have transgressed the code, and has not demonstrated any discernible bias towards the industry it regulates in its judgements, especially in relation to complaints from ruling party members and government officials. Furthermore, there are no indications of a crisis in journalism standards of the order that prompted the establishment of the Leveson Commission.

However, the fact that the Council’s founding members initially chose a ‘soft law’ model of self-regulation that was designed to cause minimal offence to the industry was a structural flaw in the system’s design that was exploited by the detractors of self-regulation. Aspects of the ‘best practice’ the Council drew on were implicitly designed to benefit proprietors, rather than journalists or the public at large. As mentioned earlier, political economy involves an examination of the power relations in the media, and the way these power relations reproduce and reinforce the capitalist system; from the South African case it becomes apparent that key decisions were taken about the design of the regulatory system, based on ‘best practices’ that embedded unequal power relations, to the advantage of press owners and to the detriment if media workers and press users. Such ‘best practices’ are not class neutral, but structure, and are structured by, the power imbalances between the owners of the means of communication on the one hand, and the producers and consumers of communication on the other. ‘Best practice’ from countries such as Tanzania and Ireland offer tougher models of self-regulation because the balance of class forces in these institutions differed from the UK variety, in that they were shaped partly by working journalists and the trade union movement more broadly. However, these ‘best practices’ are not as widely recognized in the ‘global’ consensus on self-regulation and as a result are considered deviations from it rather than significant contributions that could assist in rethinking and renewal of regulatory practice.

However, while it cannot be denied that the South African system was designed to check the worst features of an excessively commodified media – from inaccuracies and lack of balance to violations of the right to privacy – it embraced the logic of commodification by confining sanctions to moral suasion only. By refusing to accept third party complaints, it individualized grievances against the media, which made it more difficult for class action grievances to be considered. Such complaints are more likely than individual complaints to unearth systemic problems in media coverage that may problematize how communications resources are distributed in society (such as systemic bias against immigrants, gay people, etc.), another key concern of political economy theory. The lack of resources devoted to analyses of ethical trends made it even more unlikely that more fundamental questions of media power will be raised, as the public is unable to see the bigger ethical picture. As they are on the coalface of media production, media workers are well placed to understand the effects of commercially oriented institutional controls over media production. Yet given their absence in Council structures, this understanding cannot inform decision-making, which means that they cannot exercise agency in shaping ethical values. Overall, the system that was set up in 2007 facilitated capitalist accumulation by providing a mechanism to handle grievances on specific press transgressions – thereby giving the press a semblance of accountability without which it would lose public trust – while failing to provide more wide-ranging mechanisms to help audiences and journalists define the kind of journalism they need and want to see: mechanisms that could give them a more meaningful voice in how the press is organized and thereby realize a more substantive notion of media accountability. To this extent, the regulatory system performed a system-maintaining function, ensuring that the press’s processes of profit-taking were not disrupted by journalistic and audience demands for a better, more responsive and ultimately more democratic press.

However, there are contradictions in the self-regulatory system that need to be recognized: the system has enjoyed a relative autonomy from the industry. It is clear that the Ombudsman’s office has exercised a great deal of agency and independence from the industry, and that on the level of its judgements there is no evidence of system failure. In an analysis of judgements made by the Ombudsman’s office between 2008 and 2012, Robert Brand found that 52% of complaints against the press were upheld or partially upheld, which does not seem to imply systemic bias towards the press creeping into the adjudication process (Brand, 2010: 5). Furthermore, at the PFC hearings, several editors complained bitterly about the overly critical judgements made by the Ombudsman’s office; judgements that would most likely have been more lenient had they been made by courts of law. But the structural flaws in the self-regulatory system predisposed it to system failure, and other countries considering regulatory models from the press could well draw lessons from the South African case.

To what extent have the recent reforms improved the regulatory system, and are they likely to head off the establishment of a statutory Media Appeals Tribunal or demands for a statutory backdrop for the Council? The PFC’s recommendations and the Council’s acceptance of a number of these recommendations will undoubtedly go a long way to addressing concerns; in fact, the ANC has expressed satisfaction with the PFC’s report (South African Press Association, 2012). The reconsideration of its original positions on third party complaints, fines and the waiver addressed several structural weaknesses by strengthening the role of complainants and enhancing public participation. The appointment of additional staff also implies greater capacity. But the Council has shown little appetite for adopting a more proactive approach or for increasing the number of working journalists as opposed to editors and owners. This means that the Council is likely to continue on its path as a mediator and adjudicator of complaints, albeit a more effective one, while failing to address adequately systemic problems in the press as they arise.

Guy Berger has argued that a regulatory system needs to pass a three-part test for it to be considered relevant to local conditions: (a) how fit is it for purpose in its own context, and does the destination exhibit common purpose; (b) are there general principles that can be extrapolated into a wider logical model which could claim some universal status; (c) how would it square with needs and capacity in the destination site?’ (Berger, 2011: 13). South Africa needs a press regulatory system that is fit for the purpose of defending the public’s right to know in a climate of growing political tensions over service delivery, corruption and mismanagement, high unemployment and growing inequality. Newspapers have taken a lead in exposing elite misconduct through their investigative journalism, ensuring a level of public accountability but in turn raising the ire of the ruling party and the government, who seem to be intent on exploiting any weaknesses in the self-regulatory system to shut these papers up. An additional feature of this climate is that the newspaper industry is in long-term decline and cost-cutting is rife. The role of the editor is mutating from focusing merely on editorial considerations to focusing on aspects of the media business that impact on editorial work as well. Journalistic working conditions are being adversely affected, and there are signs of these pressures impacting negatively on journalism standards. Yet journalists lack organizations to defend their working conditions, and promote optimum conditions for the practice of their craft.

A fit-for-purpose system would need to take all these factors into account. Such a system needs to avoid state control of the system and, in fact, any state involvement whatsoever given the poisoned nature of press–state relations at the moment. Hence, statutory models such as the ones found in Denmark and India are not fit for purpose. In Southern Africa, co-regulatory models, which involve a statutory backdrop exercised through the communications regulator, such as that proposed by Leveson, could bring with it considerable risks for the independence of the press. If the regulatory body that backstops the co-regulatory system is vulnerable to state capture or, worse, capture by the ruling party or even a faction of the ruling party, then potentially certification could be withheld on political grounds, effectively collapsing the self-regulatory system and making the press vulnerable to state control. The dangers of this happening are real. Democratic consolidation across most countries in the region has been weak and vulnerable to reversal (Moyo and Chuma, 2010: 1–9), and most have proved to be extremely reluctant to cede control of communications regulation. The exception, South Africa, has a communications regulator whose remit with regard to broadcasting functions enjoys constitutionally guaranteed independence. This notwithstanding, the de facto independence of the regulator remains the source of considerable controversy, with the government making repeated attempts to undermine the regulator’s independence on the grounds that it is ineffective and lacks accountability. The regulator in turn maintains that it is underfunded, which makes it impossible to develop the capacity needed to become effective. In view of these problems, it would be unwise to consider a regulatory system backed up by a statutory regulator, even in South Africa.

But at the same time, a system that remains under the thumb of proprietors and even editors is not fit for purpose either. These factors imply that a system is needed that maximizes public and journalistic involvement, involving inventive strategies to ensure that journalistic peer review is placed at the centre of the system, so that the system squares with the needs and capacities of the destination country and its regulatory framework. With the caveat that pure self-regulation is unwise, as the system needs public buy-in and therefore public involvement, the general principle that can be extracted into a wider logical model which could claim universal status is that of the continuing relevance of self-regulation.

The PFC report has been criticized by a leading investigative journalist, Sam Sole, for opening the system up to political pressure, as political organizations may now use the fact that the balance of power has tilted in favour of public representatives, and that sanctions have been increased, to capture the Council to penalize good journalism (Sole, 2012). Certainly, the fact that the PFC failed to interrogate who should constitute ‘the public’ in this new system does make it vulnerable to subversion, and the Council has also remained silent on this problem. Had the report defended the concept of self-regulation more vigorously, rather than casting it aside without proper explanation in favour of what it calls ‘independent co-regulation’, and had it thought through more carefully the criteria for selection of public representatives, it could have proposed a system that was tough while also being less susceptible to political capture: to this extent, the PFC may not have struck the balance correctly.

In the medium term, the whole system of media regulation will need to be reviewed in the light of convergence. The convergence of content implies the need for a convergence in the regulation of content, as it may not be sustainable for material published on various platforms to be subjected to different regulatory standards. The Council cannot afford to be caught flat-footed on this matter, as government again may use the emerging convergence regime to shift all regulation of content towards a statutory framework. Unless the bona fides of self-regulation are won now, the whole media system in a converged environment may find itself being subjected to statutory regulation or co-regulation on the grounds that manifestly inconsistent regulatory standards are unjustifiable.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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