THE FUTURE OF PRINT MEDIA REGULATION
Press Council Workshop
21 May 2014
Dario Milo | Partner
Webber Wentzel Attorneys
Dario.Milo@webberwentzel.com
C: 073 910 0156 T: 011 530 5232
Twitter: @dariomilo
© Webber Wentzel 2013
RECENT INVESTIGATIONS INTO PRINT MEDIA REGULATION
• Major investigations of print media regulation across a number of
jurisdictions , but for different reasons
o Leveson enquiry (UK) November 2012
• phone hacking and unethical behaviour by press
o Australian inquiry February 2012; Convergence Review March 2012
o New Zealand Law Commission March 2013
• Regulation of the converged media
o South Africa's Langa Commission – April 2012
• Against background of Media Appeals Tribunal threat – Polokwane
conference 2007; Durban National General Council 2010; Mangaung
2012 :
o “The Press Freedom Commission’s recommendations go a long
way in responding to the ANC conference resolutions . There
remains a lot of work to be done to ensure full implementation of
the principles guiding the ANC resolution. Also the Parliamentary
Inquiry using the PFC report as a basis remains relevant”
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TWIN 2010 THREATS: SECRECY
BILL AND STATUTORY MEDIA
TRIBUNAL
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THREE THEMES FOR FUTURE OF PRESS REGULATION
• Statutory regulation would be vulnerable to constitutional attack
• Press Code should be amended to ensure members benefit from
exemptions from legislation eg Protection of Personal Information Act 2013
• How will Press Council address online publication, if at all?
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GOVERNMENT BODY TO REGULATE PRESS
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THE CONSTITUTIONALITY OF A MAT?
• A government controlled tribunal that can punish journalists and decide on
the content that is published will be an infringement of press freedom
• In Miami Herald v Tornillo:
o
o
o
The US Supreme Court held that a Florida law which made it an offence
for a newspaper to refuse to provide every candidate for election to a
public office with an automatic right of reply when they had been
criticised by the newspaper, was an infringement of press freedom;
Compelled newspapers to print that which they would otherwise not
have printed;
The law unjustifiably treaded on the toes of editorial integrity, and
hence fell foul of free speech rights
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THE CONSTITUTIONALITY OF A MAT?
• Some of the observations made by the court are well worth noting in the
context of the debate around the establishment of the MAT:
"The choice of material to go into a newspaper, and the decisions
made as to limitations on the size and content of the paper, and
treatment of public issues and public officials - whether fair or unfair
- constitute the exercise of editorial control and judgment. It has yet
to be demonstrated how governmental regulation of this crucial
process can be exercised consistent with First Amendment
guarantees of a free press."
"A responsible press is an undoubtedly desirable goal, but press
responsibility is not mandated by the Constitution and like many
other virtues it cannot be legislated."
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THE CONSTITUTIONALITY OF A MAT?
• Scope to challenge constitutionality in at least following areas:
Will it be state controlled or truly independent ?
o Substantive rules that MAT will seek to apply – may not deviate from
what courts have already articulated when balancing freedom of
expression, dignity and privacy. This ironically means that Press Council
regulation can exact stricter standards from its members than a MAT
could (because based on consent); e.g. right of reply
o Sanctions that MAT could apply – may not offer prior restraint, may not
ban journalists or require them to register, may not impose large fines
that have a chilling effect on expression, may not even be able to force
the media to apologise
• So public actually better off with regulation that is self/ co-regulatory
because :
o May impose higher standards on press than a statutory tribunal could
o May impose more severe sanctions on press than a statutory tribunal
could
o
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THE NEED FOR THE CODE TO KEEP PACE WITH LEGISLATIVE
DEVELOPMENTS
• Protection of Personal Information Act 4 of 2013
• Will regulate the processing of personal information by public and private
bodies and impose onerous conditions on such processing (eg can
generally only collect information from data subject; generally need
consent etc)
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POPI AND THE MEDIA?
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PROCESSING? AND GOOGLE SPAIN ECJ JUDGMENT , MAY 2014
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JOURNALISTIC EXEMPTION – SECTION 7 OF POPI AND
“ADEQUATE SAFEGUARDS”
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THE ELEPHANT IN THE CHAT ROOM
• New Zealand Law Commission 2013
• “The fundamental weakness of both the Press
•
•
Council and the [Broadcasting Standards Authority]
is the fact that both are designed to operate in a
traditional media environment which no longer
exists. In other words, neither was designed for the
digital era and the convergence of media platforms.”
Raises fundamental issues about whether it is still
appropriate to compartmentalise the regulation of
different media
Eg NZ Law Comm concluded that should have
voluntary complaints body across all types of news
publishers irrespective of distribution channel
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PRESS CODE AT LEAST NEEDS TO REGULATE ONLINE
PUBLICATIONS OF MEMBERS
• Clause 5.1.3: complaints extend to electronic media of member
publications
• “Electronic media” should include any official online/ digital/ social media
publication by the member concerned e.g.
o Newspaper’s blogs
o Newspaper’s Facebook posts
o Tweets from newspaper’s Twitter accounts
Eg: Independent Press Standards Organisation (June 2014, UK)
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