Would Media Appeals Tribunal be constitutional?

Many people have asked me whether the proposed Media Appeals Tribunal (MAP) would pass constitutional muster. We already know that the proposal for a MAP is wrongheaded, self-serving, deeply reactionary and unnecessary. But if Parliament passed a law that further limited the freedom of the printed media to publish what it deems important, and if such a law subjected the printed media to the dictates of a MAP, would this limitation on the freedom of expression be justifiable in terms of our Bill of Rights?

The short and somewhat unsatisfactory answer is that it is far too early to answer this question.

The various ANC proposals for a MAP and the various justifications for this Tribunal have been so confusing and contradictory that it is impossible to say what such a Tribunal would actually be empowered to adjudicate on, how it would be constituted and what its powers might be.

Last week Julius Malema stated that the ANC has already decided on such a Tribunal and that it wants Parliament to appoint it. He seemed to envisage that such a Tribunal would prevent the printed media from publishing certain facts which had been denied by politicians (and those lucky individuals connected to politicians) because such facts would be “mere gossip”.

These people [members of the printed media] are dangerous. They write gossip and present it as facts.

President Jacob Zuma, citing his experiences in Russia (that bastion of freedom of expression, respect for human rights and democracy), indicated last week that such a Tribunal would protect politicians from the publication of facts about their “private lives”. This is a contradiction in terms, as in an open and democratic society only the most intimate aspects of a politicians’ life can be said always to be truly private. (Of course, President Zuma has a vested interest in stopping the media from reporting on his private life, given the fact that his private life is rather adventurous and does not always conform to what he claims to believe when he speaks in public.)

He has also argued that the media tramples on peoples rights (by which I take him to mean the rights of politicians and their friends) to human dignity.

He continued by suggesting that the problem with the media was not only that it sometimes reported badly or even wrongly on events: it was ideological. Because some in the printed media do not agree with everything ANC leaders do and say, they are not in tune with the South African public. As President Zuma wrote:

The media must seriously conduct an introspection (sic) and open a constructive debate about the role of this institution in a post-apartheid South Africa. Is the media a mirror of South African society? Is it in touch with what the majority of South Africans feel and think? Does this institution actually know and understand South Africans? Why was it surprised by the explosion of national pride during the Soccer World Cup tournament? Why did South Africans decide to rise above the daily diet of negativity and defeatism that they are fed daily in the media?

So what is it to be? Will a Tribunal take over the role of the Press Ombudsman – but with enhanced powers? Will it censor journalists to stop them reporting “gossip” or other facts that are routinely denied by the well connected and the powerful? Will it be used to ensure that the media change its ideological stripes so that it becomes more compliant and in touch with what the majority of South Africans (read, members of the ANC) feel and think?

Before we have answers to these questions (on which the various ANC cadres who have commented on the need for a MAP seem to differ) it is not really possible to say whether the MAP has any chance of passing constitutional muster. A few preliminary points may be of interest though.

First, a MAP empowered to adjudicate on and punish members of the printed media will have to be independent. If it is not independent, it will be unconstitutional. A body appointed by Parliament will not be independent as it will in effect be appointed by the majority party.

If the proposed law therefore creates a MAP appointed by Parliament and that law empowers the MAP to punish journalists and newspapers, the law would be dead in the water. The limitation on press freedom would be so egregious that it could never be justifiable in an open and democratic society (although it might be well received in Russia) and would therefore not be found to be justifiable by our Constitutional Court.

Second, a MAP – even an independent one – that is empowered to address the perceived ideological impurity of some sections in the media will also be dead in the water. The very essence of media freedom hinges on the prohibition of state interference with the ideological content of what the media publishes. If the President does not like the attitude or ideological perspective of some in the media he has every right to complain and moan and shout about it. He can also make reasonable arguments about why the media is too cynical, hysterical or negative about South Africa.

But in the end – from a constitutional perspective, at least –  he (or the legislature) has no power to interfere with the media to try and change the way it reports on what is happening in South Africa. If a newspaper only wants to report on corruption, crime, and how evil the ANC is, it has a constitutional right to do so (I might not buy that paper, but many others – with money to burn – probably will).

Just as members of the media can complain about the ANC but cannot tell the ANC what to think or do, so the ANC can complain about the media but cannot tell it what to write and what not to write. If the ANC wants to get the media to be more positive and less hysterical it needs to convince the media to do so through persuasion, charm and – just a thought – through good governance.

Third, if the MAP will be empowered to address the possible infringement of the dignity of individuals by the media, this might also be constitutionally problematic. At the moment courts are legally empowered to deal with this through our defamation laws. The Constitutional Court has developed our common law of defamation to bring it in line with the guarantees of media freedom and it is now far more difficult for any person – including any politician – successfully to sue the media for defamation.

If the MAT is required to apply a less onerous standard when it deals with complaints about the infringement of the human dignity of anyone, this would therefore most probably also be unconstitutional. If a court cannot impose a stricter standard to punish the media for defamation, then a MAP – who will always be less indpendent than a court – will never be constitutionally allowed to do so.

These preliminary remarks indicate that there is very little that the proposed MAP could legally and constitutionally do that the existing Press Ombudsman or the courts cannot already do. This suggests that the members of Parliament will waste lots and lots of their time – time perhaps better spent attending to the concerns of constituents about potholes, trigger happy policeman, lack of toilets and running water and dysfunctional schools. The legislature will thus either pass a law creating a MAP that will not change anything, or it will pass a law creating a MAP that would be unconstitutional and therefore would be declared invalid by our courts.

The question to ask (but maybe not of the Chief State Law Advisor) is: why bother?

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