Raymond Louw Discusses the Constitutional Protection of Media

30 Mar 2015
Raymond Louw

PEN South Africa Vice President Raymond Louw has written an opinion piece for Business Day examining the constitutional protection of media. This follows on from the Western Cape government’s decision to instruct provincial departments to not renew their subscriptions to the Cape Times newspaper, which PEN South Africa has expressed its concern about.

Newspapers are more than mere commodities
Originally published by Business Day on 30/03/2015

The furore sparked by the Western Cape government’s “request” to the heads of departments under its control not to renew their subscriptions to the Cape Times when they expire has thrown up questions about the role of newspapers and whether a government should exercise choice, like any other consumer, in deciding whether or not to buy a particular title.

While some people — including Anton Harber, professor of journalism at the University of the Witwatersrand — argue that people in government should read a wide range of newspapers, presumably so that they are kept abreast of the public’s knowledge of their policies and whether or not people are satisfied with the way they are carried out, others regard newspapers as an item to be bought or rejected like any other supermarket product.

Democratic Alliance leader Helen Zille says the purchase of newspapers is purely a matter of consumer choice. She asked in a recent radio interview: “What makes newspapers a special category of product?’’

Well, the constitution makes them special. Newspapers and other media are given constitutional protection in the bill of rights. They are the only commercial product accorded that status by law — which fits into the natural order of a democratic state that the founders hoped to achieve in SA.

Fundamental, core principles of democracy are the exercise of freedom of expression and the freedom to gather and disseminate news and information so that people can know what is going on in the country — what the levels and branches of government are doing, whether these activities are fair and just, and what they think about them.

A vital principle is the ability to criticise and express disapproval of government policies and conduct without interference. If one discounts the recent arrival of social media, the only way those aims were achieved was by encouraging the establishment of independent newspapers and magazines and providing for public and independent broadcasters.

To ensure that they can operate freely and with maximum independence, democratic countries shape their laws to protect the media. This gives the media special status; without legal protection it cannot operate freely and there is very little freedom of expression, with the result that democracy is stifled and overtaken by authoritarianism, if not dictatorship.

In SA that protection is embodied in clause 16 (1) of the constitution’s bill of rights under the heading “Freedom of Expression”. It states that “everyone has the right to freedom of expression, which includes (a) freedom of the press and other media”; and (b) “freedom to receive and impart information or ideas’’. It goes on to outline other artistic and academic freedoms and sets out a number of limitations.

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So what does the constitutional protection of the media entail? The constitution spells that out boldly in clauses 7 (2) and 8 (1) of the bill of rights.

Clause 7 (2) says, “the state must respect, protect, promote and fulfil the rights in the bill of rights’’ and clause 8 (1) imposes those demands on all civil servants and institutions of the state. It says “the bill of rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state’’.

These are tough requirements. The state and its servants must respect the freedom of the press and other media. While that cannot mean that the state must regard the press with deference, it does mean that the state must avoid interfering with or interrupting the press process.

They must also protect it, promote it and enable it to fulfil its role. Many obligations arise out of those instructions. In regard to protecting and promoting the press, nothing should be done which prevents newspapers from being published and being made available to people.

Promoting the press suggests that people have to act proactively in the interests of the press by, for example, adopting legislation that provides for meetings of state bodies to be open to the press and to enable access to information.

So, the Western Cape cabinet “requested” provincial departments not to renew their subscriptions to the Cape Times when they expire. The word “request’’ will be interpreted as an instruction as the provincial treasury will back that up by refusing to budget for Cape Times subscription renewals.

Is that instruction a contravention of the constitution? One may accept that the cabinet has the right to decide that it will not renew its subscriptions because it amounts to the exercise of choice. And it stated that it was motivated by the fact that the quality of the newspaper had deteriorated and it was not providing cabinet members with the desired content.

But in ordering departments not to renew subscriptions without giving them an opportunity to decide for themselves¸ the Western Cape cabinet is, in fact, imposing a boycott on the Cape Times by all the departments. That is by no means showing respect for the press, or protecting and promoting it.

This may not be as drastic as it appears, as the Western Cape government subscribes to a newspaper cutting service which sends it copies of all stories in the press relating to the Cape and the administration. Despite this, one may argue that the Western Cape cabinet should not discard a major paper even if the quality is questionable because there is the immediacy of the content that the cutting agency may not send.

There may also be stories that do not relate directly to the Western Cape and are thus not supplied by the cutting service, containing information about ideas and practices elsewhere that could be applied by the administration.

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The proper course of action for the cabinet to express its dissatisfaction with the quality of the paper would have been for it to have complained to the editor.

Zille also alleges that the paper was guilty of plagiarism in one of its stories. Again, the correct course of action would have been for Zille to lay a complaint against the paper with the press ombudsman. Plagiarism is an offence under the Press Code and if the allegation is found to be correct, the self-regulatory ombudsman will impose a severe sanction on the paper.

The Western Cape government has another choice: it can rescind its decision and leave it to the departments to make their own decisions about the paper.

• Louw is the chairman of the South African chapter of the Media Institute of Southern Africa.

(Image courtesy of Press Council)