Online media could thwart the ruling party's plan to launch a media tribunal that would oversee the content of local publications.
The African National Congress (ANC) recently released a discussion document on the media in SA, which included the recommendation that a media tribunal be established by government to regulate the industry and deal with complaints from the public.
However, the ANC's desire to implement a media tribunal was met with outrage from the official opposition and local media associations. It has been compared to the censorship and press restrictions imposed by the National Party during the apartheid years.
In its discussion document on the issue, the ruling party argues that while press freedom is an important right, protected by SA's Constitution, it must be balanced with the media's responsibility to report accurately and fairly.
The ANC says the current self-regulation among the press, and the existence of a press ombudsman to whom complaints can be directed, are not strong enough mechanisms to ensure the media reports responsibly. It argues that these issues would be addressed through the establishment of a Media Appeals Tribunal.
Internet to the rescue
Industry commentators say regulating what is published on the Internet through news portals, blogs or Twitter would be extremely difficult to police, especially if the content is published outside of SA's borders.
Internet Society of SA chairman Alan Levine says the concept of a tribunal does not acknowledge that South Africans are living in an information age in which publishing is made easier by the Internet and sites such as Twitter.
World Wide Worx MD Arthur Goldstuck says the Internet is designed to evade the kind of control that is envisaged by the ANC. “The Internet defines censorship as damage and the Internet was designed to work its way around damage.”
Goldstuck says the tribunal's jurisdiction over online media would be highly questionable as many blogs, for example, are hosted in the US. “Most blogs in SA are beyond the jurisdiction of any media tribunal.”
He explains that publication is deemed to take place in the country in which the server is located.
Goldstuck adds that media located outside of SA's borders are unlikely to be subject to the media tribunal, unless the ANC also intends to clamp down on foreign reporters covering the country.
As a result, says Goldstuck, the online community, including blogs, Twitter and journalists, could simply move offshore, nullifying attempts by the South African authorities to regulate them. “Not only would it be thwarted, it's not technically or legally possible to clamp down on the blogosphere.”
Bypassing the threat
Lance Michalson, a partner with Michalsons Attorneys, notes that the tribunal seems to be mainly focused on print media. “Theoretically, at least, private bloggers would not be reviewable. However, it would be very easy for the legislature to increase the tribunal's jurisdiction to include all new media, which would include blogs, Facebook and even Twitter.”
However, he says, this is speculation at the moment until more information is provided on the tribunal, and what its powers and jurisdiction will be. Michalson notes that the document is going to be discussed at the ANC's National General Council meeting in September.
University of the Witwatersrand lecturer Franz Kruger says the mooted tribunal is a “bad thing all round”, but the Internet is much harder to police or regulate than print or broadcast. In addition, he points out that the ANC is only currently concerning itself with news published in print media.
However, Adrian Schofield, president of the Computer Society SA, expects the tribunal to include online media within its oversight duties.
Should this occur, with the existence of the Electronic Communications Act that regulates Internet service providers (ISPs), it would be a small step before government decided to haul in ISPs as publishers of content it deems inappropriate, he says.
Schofield is concerned about the possible implementation of a media tribunal. He says it is “adding more layers of control to address a problem that only the ANC perceives”.
Yet, the tribunal's powers could be limited by moving the source of the publication outside of SA, which would place it outside the ambit of the law, Schofield notes.
Raymond Louw, chairman of the Press Council, has no doubt that the tribunal's reach would extend to online publications. However, he questions how effective this oversight would be, or whether the tribunal would be able to police overseas publications.
“They have a long way to go before they can get anywhere near that kind of operation,” says Louw, one of the Press Council's representatives at the South African Editors' Forum.
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