The Dangers of Crying Wolf on Press Freedom

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Recently the Parliamentary Portfolio Committee on Communications held the third in a series of public hearings on print media transformation. Many in the print media industry have been sceptical about the Committee’s motives in calling the sector to account on this issue, and understandably so.
Coming in the wake of the African National Congress's (ANC) threat of statutory regulation, as well as the Protection of State Information Bill, sections of the industry read these hearings as yet another attempt to limit media freedom, but this time using transformation as the beating stick, rather than the inherent weaknesses of press regulation or national security.
As a result, several organisations adopted a boycott approach, refusing to give the process legitimacy by participating. But this approach was unstrategic. The ANC is using the transformation issue very cleverly to delegitimize the industry as being too white and too male, and therefore out of step with broader society. But the only reason why the issue can be used in this way is because the industry had laid itself wide open to criticism for lack of transformation.
If transformation is defined narrowly as de-racialisation, then the industry’s performance on its Broad Based Black Economic Empowerment (B-BBEE) scorecards is poor.
With a combined contribution status of level 5, its performance is well below the level 3 that government appears to consider acceptable. Most companies that conduct serious business with government are at level 2 or even 1. If other sectors could have pulled up their socks to this extent, then the print media could have too.
In spite of this poor showing, the industry representative body, Print Media South Africa (PMSA) rejected the ANC’s calls for a transformation Charter for the sector, preferring instead to develop its own transformation roadmap with the assistance of a mooted Transformation Council. The ANC is clearly not happy with this proposal, but it is difficult for them to take the matter further as, in term of the B-BBEE Act, the process of developing a Charter is voluntary, which means that the industry has a right not to develop one.
There are sound arguments for a print media Charter. The sector has been lagging behind broadcasting in ensuring greater black involvement, and the document would commit the sector to specific transformation targets.
Industries develop transformation Charters when their challenges are so great that they cannot be addressed by the generic scorecards. For instance, had the financial services sector relied on the generic scorecards only, it would have de-racialised, but this would not have automatically led to greater access to financial services. In the wake of a mass campaign led by the Financial Sector Coalition Campaign, the financial services Charter included an additional element setting targets to increase access.
The balance of forces around a Charter process will determine whether it has an elite or mass character. A process initiated in terms of the B-BBEE Act is likely to be more inclusive than a self-initiated process as, in the case of the former, the law requires the process to be inclusive, otherwise the Charter cannot be promulgated as a sector code. If underpinned by grassroots campaigns, then the process has greater transformational potential, providing greater space for a struggle around the meaning of transformation than the scorecards, which lend themselves more readily to elite transformation, notwithstanding their purportedly broad-based nature.
Like the financial sector, the print media have peculiar transformation challenges that cannot be addressed by the generic scorecards, such as the need for media access and diversity as an element of transformation. High levels of investment in skills development are needed to improve editorial quality, especially since skills developments budgets have become soft targets for internal cutbacks in the wake of the global recession. The strategic nature of the sector, given its role in opinion formation, makes it an even stronger candidate for a Charter.
The PMSA’s reasons for rejecting a Charter are that, if it were to be promulgated as a sector code in terms of the Act, thereby replacing the generic scorecards as a measure of transformation and binding the industry to the code, then this would constitute another form of regulation.
They argue that by opening the door to this possibility, the Charter process could in time be used to limit the independence of the industry through the promulgation of further regulations that have got nothing to do with transformation. The fact that the sector has been defined in its code could enable this process. Given the fractious press-ANC relations, they argue, it is important to anticipate the unknown and not start a process when they have no idea where it will end up.
They argue further that a compelling case has not been made for a Charter, as opposed to continuing to rely on the generic scorecards. The costs of accounting in terms of the Charter process will be high, given that several print media companies operate in sectors other than publishing, such as printing and distribution, and that as a result they will probably need to prepare several scorecard to satisfy their diverse customer base.
The media freedom issues are not nearly as clear-cut as those raised by the Media Appeals Tribunal. In assessing the PMSA’s arguments, much turns on whether the gazetting of a charter constitutes a form of regulation, and if so, if it is a form of regulation that threatens media freedom.
If regulation is understood as legally binding rules that govern media behaviour, with sanctions for those who do not obey the rules, then it is difficult to see PMSA’s argument that Charters are a form of regulation as they are voluntary processes.
Even if sector codes are binding, the only sanction for non-compliance is that government may refuse to trade with untransformed companies, but the company cannot be fined or its executives sent to jail for non-compliance. To this extent, B-BBEE is a form of soft law, although admittedly it may not remain so into perpetuity.
But as things stand, there is nothing either in the B-BBEE Act or in the regulations that threatens the independence of the industry, and by extension media freedom. The Minister of Trade and Industry’s role is tightly circumscribed and the involvement of other relevant tiers of government is recommended in the codes of good practice, but not prescribed.
While their suspicions are understandable, the PMSA’s arguments against a Charter are speculative and even tendentious. They rely on the slippery slope logic where opening the door to government involvement in the press may create other openings further down the line for government regulation. But if this happens, then these regulations will raise Constitutional issues on press freedom grounds and the industry can then pursue a Constitutional challenge.
The psychological impact of recent attempts to curb media freedom cannot be underestimated. Understandably, they have created a siege mentality in the press, which can lead to the press rejecting any measure involving government or Parliament on press freedom grounds, even if the measures are relatively benign, or even warranted.
It is desirable that the press is as free as possible to continue producing agenda-setting journalism, which sections of the press have excelled at in the recent past. But it is also dangerous for the press to cry wolf on press freedom, as it could devalue the cause and make the public increasingly sceptical about the merits of media freedom arguments.
The press has proved that it is unlikely to self-transform, and that unless there is pressure on its owners and managers from outside the industry, then the status quo will remain, albeit in altered form. Ironically, by rejecting a Charter, the industry may have invited more ANC attempts at regulation on the ground where it is weakest, as attitudes harden towards it.
It is likely that the real reason why the press remains disproportionately white and male, especially at the levels of ownership and management, is that they have not seen a business case for transformation. While government advertising does remain a significant income stream, the press does not rely heavily on government business, which has meant that the industry lacks the incentive to improve their B-BBEE profile.
A Charter process, which is even more onerous than reliance on the generic scorecards, will require a commitment lasting several years, which makes it even less attractive as a transformation proposition. It is very possible that the sector may have to prepare several scorecards, but the costs of doing so need to be offset against the costs (economic, political and social) of rejecting a Charter, and the PMSA does not seem to have undertaken such a cost-benefit analysis.
The industry's blinkered approach to transformation could backfire on it in future. Opportunistic elements of the ANC leadership could drive a wedge between the industry and its ANC-supporting black and female readers, which could translate into lost sales.
Furthermore, many working class South Africans, irrespective of political affiliation, clearly feel that their concerns remain under-represented in the press, and that elite discourses still dominate. This alienation creates a space that more transformed competitors could occupy, and providing they have the right B-BBEE credentials, the future buyers of Independent Newspapers could be particularly well poised to occupy this space.
The PMSA clearly wants to capitalise on the success of the Press Freedom Commission (PFC) by self-initiating a commission of enquiry to develop a transformation roadmap that may address the more legitimate aspects of the ANC’s concerns about the press. But it is doubtful that this success is replicable on the transformation question.
Unlike with the PFC process, which the ANC was open to, and which therefore created space for a middle ground between the industry and the ANC on the content regulation question, the ANC has made it clear that it has no interest in the PMSA’s self-initiated transformation roadmap, which they see as a delaying tactic to avoid a Charter.
More substantially, any meaningful transformation roadmap will probably go to the heart of the industry’s money, and they are likely to resist reforms that impact negatively on their profits.
In the wake of Parliamentary pressure, it is possible (although unlikely) that the industry could develop and police its own performance on B-BBEE. But one aspect of transformation that does not lend itself to self-regulation and that requires public regulation is ownership concentration. There are strong arguments to be made for ownership to be limited through statute to enable diversity of opinion, but any attempt to develop a roadmap for the industry to self-regulate on this matter will be a fool’s errand.
As a general rule, self-regulation must not be used in areas where the objectives to be achieved are so fundamental that they require strong regulation on behalf of the public, especially when fundamental democratic principles are at stake.
While reader complaints can be dealt with successfully by way of self-or co-regulation, fundamental questions of market structure should not, as too many vested interests are at stake. A self-initiated process can lead to dominant sections of the industry succumbing to an overwhelming temptation to capture the system to gain competitive advantage.
In weighing up the merits of an industry self-initiated transformation process or a statutory process, the public is being made to choose between two evils, namely capitalist power and state power. On balance, though, it is likely that public power on transformation questions, as an effective counter-power to both, could be exercised more readily through the latter rather than the former.
In the fractious political climate that exists in the run-up to the ANC's next elective conference, there are real risks in relying on a transformation process that is not controlled by the print media. But what is beyond doubt is that an entirely self-controlled process will not deliver the type of press that South Africans need or deserve.

Picture credit: NS Newsflash/Flickr

Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University.