3.
The media’s challenges: legislation and commercial imperatives
The Protection of Information Bill currently before Parliament is meant to replace an apartheid-era law dating from 1982 … it would virtually shield the government from the scrutiny of the independent press and criminalise activities essential to investigative journalism, a vital public service.1
This chapter first examines specifically how the legislative apparatus left over from the apartheid period hindered the work of journalists but remained because it suited the democratically elected leaders of the post-apartheid era. Then, it examines how the growing uses of technology, coupled with commercial imperatives, affect the media’s role in a democracy. The argument here is that these forms of subjection and interference have had a negative impact on the ‘free’ and ‘independent’ media. Then there is the raft of legislation that has an impact on journalism, and, specifically, the ANC’s efforts to promote and explain its insidious creation, the Protection of State Information Bill (Secrecy Bill) through which, as the US media body, the Committee to Protect Journalists, said in the opening quotation, the activities of the independent press would be criminalised while the government of the day would be shielded from scrutiny if this had to be enacted.
The chapter proceeds to an overview of the South African media, to provide details of how it has grown from a small and narrow set of players three decades ago to the more diverse, amorphous and fluid media landscape in the new dispensation – although it also shows the shifts from concentration of media ownership to fragmentation and then back again. The chapter then describes the legal conditions under which journalists have to operate and how, in some instances, the laws have changed to accommodate the free flow of information while, in others, the legislation is deliberately obstreperous: The Promotion of Access to Information Act of 2000, for example, stands in stark contrast to the Protection of State Information Bill, which went before Parliament in July 2010 and again in September 2010, then again in November 2010, and was then passed by the National Assembly in 2011 before amendments were made in May 2012, which included a public interest defence. But then these were withdrawn in June 2012.
The chapter then looks at commercial imperatives and new media and the impact this has had, and continues to have, on the world of traditional journalism. It also shows how the meaning of the term ‘media’ has changed – from the traditional sphere of television, radio and newspapers providing the public with information and a public sphere for debate and analysis, to a broader view that encompasses citizen journalism, blogging, online publishing, and social networking sites, as well as cellphone technology used to pass on news to fellow citizens and to the traditional media.
Nick Davies is a journalist at The Guardian newspaper in London. His 2009 book, Flat Earth News, which subjects the profession to critical scrutiny, argues that journalism has been short-changed throughout the world. Owing to subjection by commercial imperatives, newsrooms have been slashed to half their original size in some cases, and desk journalism (where reporters sit at their desks ‘dialing a quote’ rather than venturing out to the site of the scene or to interview someone personally) is all-pervasive. Journalists write more stories in less time, with no time to check the facts, and they often regurgitate press releases from public relations companies. It amounts to what Davies calls ‘churnalism’ (2009: 70), stories churned out mindlessly from press releases, with the deadline rather than the accuracy of the facts in mind. While Davies’s research is based primarily in the United Kingdom there are interesting overlaps with (and differences from) the situation in South Africa, as this chapter will show. Indeed, Anton Harber observes in the introduction to the book Troublemakers: The Best of South Africa’s Investigative Journalism (2010), edited jointly with Margaret Renn, that there has indeed been a juniorisation of newsrooms, with age and experience levels having dropped in the post-apartheid era. He argues, however, that this romanticises journalism under apartheid, suggesting that some unspecified universal high standard of journalism was set, while it is debatable that coverage was then more accurate or substantial. The chapter then turns to the South African media landscape, with a particular emphasis on newspapers, and examines concentration of ownership, state interventions, and commercial imperatives, arguing that these are all different kinds of pressures which, it can be argued, are subjections.
The South African media landscape: an unprogressive concentration of media therefore a lack of diversity?
The claim that there is too much concentration of media ownership necessarily means a lack of diversity and, in turn, a need for state intervention to curb media excesses is a spurious one. My argument expresses the contrary: that the media is amorphous and fluid, lacking in unity and cohesion, with as many opinions as there are journalists in a newsroom. There is no one ideological agenda in ‘the media’, and journalists, by and large, exercise agency and act within the codes and ethics of their profession.
The media grew significantly in the last quarter of the twentieth century, and again from 2000 to 2007. What the figures below highlight is the growth from a small, narrow field of operators to a broader more diverse terrain. The media in 2007 consisted of seventy-one television stations, whereas in 2000 there were fifty-six, and in 1975 there were none. Similar growth trends can be seen in the number of radio stations. In 2007, there were 124 radio stations, in 2000 there were 105, and in 1975 there were seven. In March 2010, the Media Club South Africa website estimated that about 14.5 million South Africans buy the urban dailies, while community newspapers have a circulation of 5.5 million. There were twenty-two daily and twenty-five weekly urban newspapers in South Africa in 2010. In 2011, the state of newspapers showed these trends, according to The Media magazine of March 2012: newspaper distribution was double what it was in 1997, but there was a decline in the rate of growth over the last few years. Free community newspapers, however, have shown enormous growth: in 1997 there were 83 titles and in 2011 there were 195. While dailies’ numbers are up since 1997, they show a downward trend over the last four years, as Tony Banahan wrote in an article, ‘The figures don’t lie’ (The Media: March 2012). The following is a list of newspapers with sales and circulation figures from 2011.
• Beeld is an Afrikaans language daily, owned by Media 24, with copy sales of 36 754 and a total circulation of 76 321.
• Die Burger is an Afrikaans language daily paper, owned by Media 24, with copy sales of 35 680 with a total circulation of 78 901.
• Business Day is an English language daily owned by Business Day/Financial Mail in association with Avusa and the London-based Pearson, with copy sales of 8 532 and a total circulation of 36 103.
• Cape Argus is an English daily circulated in the Western Cape and is owned by the Independent Newspaper Group, with copy sales of 22 363 and a total circulation of 45 128.
• Cape Times is an English language daily, owned by the Independent Newspaper Group, with copy sales of 21 636 and a total circulation of 43 274.
• The Citizen is an English newspaper published six days a week, distributed in Gauteng and owned by Avusa/Caxton, with copy sales of 51 487 and a total circulation of 69 649.
• Daily Dispatch is an English newspaper in the Eastern Cape and is owned by Avusa, with copy sales of 22 634 and a total circulation of 22 394.
• Daily News is an English language daily based in KwaZulu-Natal and is owned by Independent Newspaper Group, with copy sales of 12 246 and a total circulation of 33 214.
• Daily Sun, the most-read newspaper in South Africa, distributed nationwide, is a tabloid owned by Media 24, with copy sales of 374 341 and total circulation of 374 400.
• Diamond Fields Advertiser is based in Kimberley in the Northern Cape and is owned by Independent Newspaper Group, with copy sales of 6 768 and a total circulation of 9 495.
• The Herald based in the Eastern Cape is one of the country’s oldest newspapers, launched in 1845, and is owned by Avusa, with copy sales of 15 178 and a total circulation of 22 139.
• Isolezwe is an isiZulu newspaper published Monday to Friday, based in KwaZulu-Natal, owned by Independent Newspaper Group, with copy sales of 105 713 and a total circulation of 106 734.
• Ilanga, owned by Independent Newspapers and distributed in KwaZulu-Natal, has copy sales of 135 359 and a total circulation of 135 706.
• Sondag is an Afrikaans newspaper owned by Media 24, with copy sales of 46 304 and a total circulation of 47 286.
• The Mercury is an English language Durban morning paper, owned by Independent Newspaper Group, with copy sales of 14 462 and a total circulation of 31 474.
• Pretoria News, an English daily based in Pretoria but also distributed in the provinces of Mpumalanga and North West, is owned by Independent Newspaper Group, with copy sales of 12 630 and a total circulation of 23 148.
• Sowetan is a daily English language newspaper aimed at a literate black readership, owned by Avusa, with copy sales of 86 892 and a total circulation of 116 347.
• The Star an English daily published in Johannesburg but circulated throughout the country is owned by Independent Newspaper Group, with copy sales of 58 321 and a total circulation of 136 552.
• The Times, one of South Africa’s newest papers, is an English language tabloid, the sister paper to the Sunday Times, owned by Avusa, with copy sales of 38 579 and a total circulation of 142 024.
• Volksblad is an Afrikaans language daily based in the Free State and is owned by Media 24, with copy sales of 13 169 and a total circulation of 21 353 for the daily edition.
• The Witness, an English language daily newspaper based in Pietermaritzburg, owned by Media 24, has copy sales of 8 971 and a total circulation of 21 908.
• The New Age is an English daily with sales and circulation figures unavailable.
The weekly newspapers:
• City Press is an English Sunday paper, owned by Media 24, with copy sales of 155 247 and a total circulation of 157 306.
• Saturday Star is a weekly, based in Johannesburg, owned by Independent Newspapers, with copy sales of 57 121 and a total circulation of 97 257.
• Independent on Saturday, owned by Independent Newspapers, has copy sales of 22 473 and a total circulation of 46 008.
• Isolezwe nge Sonto, owned by Independent Newspapers, has copy sales of 81 041 with a total circulation of 81 553.
• Ilanga Langesonto, owned by Independent Newspapers, is distributed in KwaZulu-Natal and has copy sales of 85 726 and a total circulation of 85 726.
• Mail & Guardian, owned by Mail & Guardian Media, has copy sales of 35 324 and a total circulation of 45 692.
• Post, owned by Independent Newspapers, has copy sales of 25 831 and a total circulation of 43 413.
• Soccer Laduma owned by Media 24, distributed nationwide but also in Botswana and Swaziland, has copy sales of 345 088 and a total circulation of 345 088.
• Rapport, owned by Media 24, has copy sales of 215 479 and a total circulation of 231 911.
• Sun, owned by Media 24, is an Afrikaans language Western Cape tabloid, with copy sales of 103 056 and a total circulation of 103 056.
• Sunday Independent, owned by Independent Newspaper Group, in Gauteng, Western Cape, KwaZulu-Natal, Mpumalanga, Northern Province, has copy sales if 14 621 and a total circulation of 39 569.
• Son op Sondag is owned by Media 24; distribution is in the Eastern and Western Cape, with copy sales of 60 174 and a total circulation of 60 174.
• Sondag is owned by Media 24 and distributed in Gauteng, Free State, Northwest, Mpumalanga, Limpopo, KwaZulu-Natal and Northern Cape, with copy sales of 46 304 and a total circulation of 47 286.
• Sunday Times, owned by Avusa, is distributed nationwide with copy sales of 253 721 and a total circulation of 451 361.
• Sunday Tribune is owned by Independent Newspaper Group, distributed in Gauteng and KwaZulu-Natal, with copy sales 41 344 and a total circulation of 82 477.
• Sunday World, owned by Avusa, distributed in North West, Northern Cape, Free State, Eastern Cape, KwaZulu-Natal, Mpumalanga, Limpopo, and Gauteng, has copy sales of 127 490 and a total circulation of 147 614.
• Weekend Post is owned by Avusa and distributed in Western Cape and Eastern Cape with copy sales of 19 899 and a total circulation of 23 656.
• Weekend Argus is owned by Independent Newspapers and distributed in the Western Cape with copy sales of 49 217 and a total circulation of 70 212.
• Weekend Witness, owned by Independent Newspapers and distributed in the greater Pietermaritzburg area, has copy sales of 12 549 and a total circulation of 21 908.
Some trends
In an analysis of the above list a number of different trends emerge, but I cannot focus here on all of them. While there is a variety of newspapers, the majority in English, they are geared towards different readerships. Some tabloids target niche markets, for example those interested in sex and scandal, as reflected, for instance, in the Sun. But although there are many newspapers there are very few owners. A point worth noting is that, according to Harber (2009) the growth of the Daily Sun suggests that the reading public is widening. The Daily Sun is the country’s biggest newspaper, aimed at black, working class people, offering local news and gossip, and focusing on the everyday lives and struggles of people rather than on intellectual debate. While the Daily Sun is the most widely read daily newspaper in the country, Harber said, daily papers aimed at an intellectual market, on the other hand, do not survive, and he provided the example of the attempt by the Weekly Mail in 1990 to launch a daily, the Daily Mail. This paper could not sustain itself and lack of funding meant that it met its demise less than two months after launching. ThisDay, a national intellectual daily to compete with The Star lasted a year, from October 2003 to October 2004, running up debts of up to R14 million (www.bizcommunity.com/article/196/90/4987). The problem was that neither was able to capture a sufficiently large advertising market or to reach a broad enough audience. The Weekender followed the same pattern as the Daily Mail and ThisDay when it shut down in November 2009. Business Day/Financial Mail (BDFM) launched the Weekender in March 2007. It serviced an intellectual readership, and at its second birthday in March 2009, according to the All Media and Products survey (AMPs) of 2009, the paper showed a significant following of 71 000 readers per issue. However, by November 2009 the management of BDFM closed the paper because of financial constraints. Again, it was a case of not enough advertising and not enough sales. In the meantime, at the lower end of the market the tabloid Daily Sun – launched by Media 24 in 2003 – sold 508 000 copies daily in March 2004, when it was not yet one year old (Harber 2009), and the AMPs survey showed growth from 1.4 million readers in 2003 to 3.4 million by 2005 (AMPs 2009).
A further trend, evidenced by the last point, is that newspaper readership’s decline has been arrested, according to the South African Advertising Research Foundation (Business Day: 1 April 2010). Newspaper sales stabilised, according to the research, and the number of South Africans reading newspapers had increased to 15.324 million, compared with the figure of 14.5 produced by Media Club South Africa in March 2010 cited earlier in this chapter. A fifth trend to be gleaned from the above listing of newspapers is that there is a concentration of ownership by four main players: Avusa, Independent Newspaper Group, Caxton and Media 24. This concentration cannot be a good thing. We need more media, we need a diverse media, and we need media where all voices, from all classes, races and genders are heard – but does this concentration translate into an unprogressive hegemony by big capital? There are far too many issues that are conflated in a discussion of media freedom in South Africa. According to the ANC, in a discussion document for its September 2010 NGC, ‘Free, independent and pluralistic media can only be achieved through not only many media products but by the diversity of ownership and control of media’ (ANC 2010). This is a curious statement, given that the ANC wishes to exercise political control of the media via a media appeals tribunal. It could be claimed that the ruling party’s argument for diversity and transformation is a spurious one, that it is self-serving and a disguise for its more insidious intentions of controlling the free flow of information and criticism. Readers of newspapers in fact have pointed to arguments for diversity as a ‘guise’ to mask the ANC’s efforts to control and limit the role of the media. The extract below from a letter to The Times shows how one reader responded.
It is an open secret that the ANC realises that its inevitable decline in power and control of the country has arrived, now the only option it has is to close access to information. It is not by coincidence that the Protection of Information Bill and the media appeals tribunal are being proposed simultaneously (The Times: 16 August 2010).
Is this concentration of ownership an unprogressive hegemony?
Four big companies own the lion’s share of the commercial print media. This concentration of ownership does not translate into four views in the media, as is sometimes implied by the ANC. I will argue that this assumption reflects reductionist logic and is a simplistic and inaccurate answer to the question of the concentration of ownership. The ruling party uses the concentration of media ownership to try to limit the free space of the media. The stranglehold of big media companies has provided a platform for the government to initiate laws and policies under the guise of development, transformation, protection of privacy and state security, which threaten to close the discursive spaces for open criticism germane to developing a democratic culture and society.
There are different ways of looking at what ‘diversity’ means in relation to concentration of ownership. In response to the long-held belief that ownership and control of commercial media translate into determination of content, Thabo Leshilo, the veteran journalist, then columnist at The Times and public editor at Avusa Media, argued: ‘The idea that such concentration of ownership is a threat to democracy is far-fetched and can only succeed in inflaming passions’ (Sunday Times: 8 November 2009). He pointed out that the big four did not form a news cartel. ‘They all compete fiercely for market share, even to the point of wanting to kill one another’s titles’ he argued. Leshilo was responding to the Media Development and Diversity Agency (MDDA), a section 21 company set up by the government in the new democracy to investigate media ownership and lack of diversity. The stated aims of the MDDA were to give adequate space to women, children and people with disabilities, and for the self-regulatory mechanism for newspapers to be aligned with legislation. Leshilo explained that in South Africa there was little correlation between shareholders and the stories that appeared in papers, radio or television. Nic Dawes, editor of the Mail & Guardian, made the same point: ‘Editors I know and respect would resign if given instructions by management, advertising and shareholders on what news content should be. In all major SA newsrooms, at least those that I know of, they keep a strict Chinese wall between advertising and editorial’ (cited in Daily Maverick: 2 October 2010).
Leshilo wrote: ‘What shareholders care about is the return on their investment. They do not scrutinise papers to check if they do a good job on covering women or people with disabilities, for example’ (Sunday Times: 8 November 2009). In South Africa, he further expounded, shareholders appoint a board, which appoints management, which then appoints editors. While Leshilo conceded that papers could do a better job of covering marginalised communities, women and children, it was not for a government agency to be policing newspapers or the news. He added that some methods proposed at the MDDA meeting were hugely problematic:
They betrayed a veiled desire by representatives of government, state organs and the ruling alliance to impose their own set of values on society and determine what is acceptable to publish. Their suggestion to resuscitate debate on the ANC’s ill-conceived idea of subjecting independent media, privately funded media to a state media tribunal or some other government agency is a dead-giveaway of their intentions (Sunday Times: 8 November 2009).
In theoretical terms, what Leshilo was describing was the unprogressive hegemony of the ANC and the attempted closure of media spaces. A government agency, wanting more diversity to sympathetically reflect the concerns of neglected rural people, blacks, women, children and people with disabilities, is deployed as a disguise for more political control of the media. This constitutes an unprogressive hegemony in disguise as openness, which would ironically limit and hinder free speech and freedom of expression – hallmarks of what is required to sustain democracy – even more than the so-called concentration of ownership. Attesting to this view would be the following point made by Mondli Makhanya en passant in an interview conducted in 2008: ‘Cyril Ramaphosa has greeted me a few times as we’ve passed each other by on the escalator, not once has he called me in for a chat, nor has he visited me in my office … ’. Yet Ramaphosa is one of the owners of his newspaper. While the area of ownership and media concentration is not the focus of my argument, I have raised it here to show that there are different ways of looking at diversity. In particular, the argument for a direct relationship, or even a correlation, between ownership and journalistic freedom of expression, is too reductionist and conflates ownership with control of information and opinion dissemination. Moreover, it does not add up to the real experience of journalists within a particular newspaper. This is not to deny that the world of journalism is affected by profit motives of owners, as the closure of newspapers suggests, nor is it to deny that rural areas are inadequately covered and that the majority of newspapers have a middle class bias. In addition, the new world of technology has made the old world of newspapers struggle for its space. The traditional media world has been subjected to significant competition, an onslaught, if you like, over the last decade, with the wave of new technology that has rolled in to compete for its space. However, as media analyst Paula Fray pointed out in an interview in March 2008, if you remove cell phones from the equation of new media only a small percentage of South Africans have access to the Internet: ‘Fewer than ten per cent of adult South Africans surf the Internet but its impact is still significant,’ she said, but technology has certainly changed the way our children consume information:
Increasingly news needs to be more interactive, shorter, targeted and media now face the challenge of building relationships with their online users. The flood of information on the Internet actually promotes targeted media because people are looking for products that serve their needs. In the last year particularly, I’ve seen the online websites of print products become more interactive and multi-media.
Fray observed that the traditional world of the media was changing from one in which media meant radio, television and newspapers, to an expanded view which embraced a range of technology, including the Internet. In this new technological age the consumption of information has spread and expanded. Despite rapid technological changes, the question of who has access to these developments remains. The former Weekly Mail editor and the first journalist in South Africa to begin publishing online, Irwin Manoim, commented on the results of Internet usage in South Africa in the wealth trends survey in Gauteng (Sunday Times: 22 June 2008). His research showed that 493 000 people had accessed the Internet over the four-week monitoring period; twenty-one per cent of them had read the news online, and eleven per cent had read a daily paper online. Manoim commented that the wealthy were probably reading business news online, which the Internet provided as it unfolded, but which print can only provide the next day. ‘Internet news can be read on your office computer while you are working. It even prompts you when news that is of interest to you comes up,’ he said.
While this was the trend in the upper end of the wealth scale, or living standards measure, the Gauteng Wealth Survey also showed that printed news was doing better than ever at the lower popular tabloid end of the market (Sunday Times: 22 June 2008), reflecting the same trend in other developing countries in Africa and the East, for example China and India. Nevertheless, South Africa’s newspapers were affected by the global economic recession of 2008 and the move away from advertising in print to advertising on the Internet, which is cheaper according to Manoim. Many newspapers and magazines have closed down. For example, Maverick magazine folded in October 2008, Ymag in November 2008, Enterprise magazine in December 2008, The Weekender in November 2009, and Femina, South Africa’s oldest women’s magazine, in February 2010. Before a more detailed discussion of the complex question of commercial imperatives and the intersection between media and democracy, this chapter now turns to an overview of the legislation, a severe form of subjection which hinders the work of journalists and the free flow of information, thus signifying significant closures for democracy.
State subjection via the law and civil society reaction
A free media is guaranteed in Section 16 of the Constitution under the principle of freedom of expression. The section reads:
16. Freedom of expression
Everyone has the right to freedom of expression, which includes
a) freedom of the press and other media;
b) freedom to receive or impart information or ideas;
c freedom of artistic creativity; and academic freedom and freedom of scientific research.
It is inherent in the Constitution that no right is absolute. It would be within this context that the media’s fight for independence from political control, as in the Protection of State Information Bill and the proposed media appeals tribunal, would take place should the issue reach the Constitutional Court. The scrutiny of the independence of the media did not begin only in 2010, as we saw in Chapter Two. The civil society watchdog body, the FXI, in a booklet entitled The Media and the Law, pointed out that while media freedom is constitutionally protected and the country has one of the freest media in Africa, as the ‘honeymoon phase of our new democracy fades, so it becomes clear that attacks on media freedom are increasing’.
Over the past few years, the FXI has charted a trend of increasing censorship of the media and individual journalists. This censorship is not only directly applied through laws and lawsuits, but also indirectly, through a withdrawal of advertising and self-censorship. A favoured method to silence the media is the defamation lawsuit. Media freedom is also under threat from the courts in the form of interdicts brought by aggrieved parties against the media. This amounts to pre-publication censorship and, although the interdicts are temporary, by the time the interim period lapses, the news story is out of date and the banned copies must be pulped, with severe financial implications. Another increasing threat to media freedom has been the pressure brought to bear on journalists and media to reveal the confidential sources of their information (Freedom of Expression Institute 2008).
In the above extract there were three main issues of concern to the FXI: increasing censorship through laws and lawsuits, particularly the defamation lawsuit;2 interdicts to prevent publication and the pressure to reveal confidential sources. The legislation that impacts on media and non-media freedom of expression is discussed below. This includes the two Bills that have not yet been passed in parliament. If the two Bills are enacted they will profoundly affect the work of journalists.
• Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000). The aim of this Act was to prohibit hate speech but it also raised freedom of expression issues. According to the Act, no person may publish, propagate, advocate or communicate words that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm; or promote or propagate hatred. This raises the question of how journalists would report on issues that might offend. The most likely effect on editors and journalists would be self-censorship.
• Films and Publications Act (No. 3 of 2009). The aim of this Act was to protect against child pornography. However, it could also be used as a form of pre-publication censorship, which would counter the media freedoms guaranteed in the Constitution. Three media organisations, the FXI, Sanef and Misa, felt that there was no record of newspapers or news broadcasters having contravened the common law crime of displaying child pornography or of exposing children to pornography. In the end, the Bill was enacted without the government having consulted adequately with the media and subsequent to complaints from media NGOs, a clause was included to protect bona fide newspapers, but, according to Raymond Louw, deputy chairperson of Sanef ’s media freedom committee and publisher and editor of Southern Africa Report, about 700 publications and magazines were not included in the clause and therefore have to comply with the Act (Business Day: 12 November 2009). Dene Smuts, a Democratic Alliance MP and the former editor of a woman’s journal, said: ‘No one at all should be conducting pre-publication inspection. That is censorship of the most primitive kind, whether imposed on broadcasters or print media, and it is plainly unconstitutional’ (Sunday Times: 6 May 2007). In a public survey conducted by TNS Research, citizens were asked whether new laws were needed to clamp down on the media to curb child pornography, and seventy three per cent of South Africans said that it was ‘important to have independent TV stations, radio, and newspapers so that we get unbiased news’ (Sunday Independent: 6 May 2007). Out of a total of 2 000 respondents in Johannesburg and Pretoria, eighty seven per cent agreed on the need for independent uncensored news; seventy seven per cent from Soweto agreed; seventy two per cent from Cape Town and Durban. Bloemfontein came in lowest with sixty per cent.
• National Key Points Act (No. 102 of 1980). This Act prevents publication about security arrangements at key strategic installation points called national key points. The law prevents reporters and photographers from reporting and taking pictures of, for example, the security wall built around the president’s and cabinet ministers’ homes in Pretoria. Any state department or public entity could be declared a national key point by the minister of safety and security in the interests of national safety and security. In an interview which took place in January 2008, Hopewell Radebe observed that, ‘Sanef is struggling to get laws repealed and, as Justice Pius Langa warned, if editors don’t let the laws be promulgated, it’s hard to have them repealed. In effect the National Key Points Act means you could get into trouble for taking a picture of a Post Office!’
• Protection from Harassment Act 17 of 2011. The aim of the Act was to protect victims from stalkers. However, investigative journalism would be impeded, because it sometimes requires what could be conceived of as ‘stalking’. In effect, for doing their work, journalists could have faced criminal charges or damage claims. Sanef made submissions opposing the Bill on the basis that this would have the unintended consequence of impeding investigations by journalists. By 2011, when it was enacted, an exemption clause had been added in for journalists.
• Protection of State Information Bill (B6 – 2010). This Bill was before Parliament in 2009 and for most of the second half of 2010. If enacted, it would prevent certain stories from being published as it allowed a broad range of information to be classified as secret. Owing to the wide outcry over this Bill, that its classification is too broad and that too much power is vested in the minister of security to decide what classified information is, it was withdrawn temporarily in 2008, to return in 2009, and again in 2010. In June 2010, the Bill came before Parliament with twenty-three submissions from civil society groups and editors concerned about the implications for journalists gaining access to state information. The editors were concerned that a journalist could be jailed for up to twenty-five years for publishing classified information. In May 2012, the Bill before the National Council of Provinces was amended to include a public interest defence.
The Bill seems to suit the ruling party’s hegemonic purposes and one can argue that it reflects an agenda for what could be defined as an unprogressive hegemony, a closing of the open and free spaces for civil society action in order to create a society where there is secrecy rather than transparency. The curtailing of media freedoms – if the Protection of State Information Bill were to be enacted without a public interest defence – would criminalise investigative journalism and jail sentences of between three to twenty-five years would be imposed for those in contravention. If enacted, it would mean that newspapers would not be able to question whether a president is fit for office, nor expose misconduct and corruption by public figures. In fact, the media’s function, as discussed in earlier chapters, of holding power to account and exposing abuse of power, would have been curbed. In June 2012, parliamentary discussions on the Bill were postponed to September 2012.
The Secrecy Bill
The main focus of this section is to present evidence of the public discourse around the Bill through letters to some newspapers, rather than to unpack clause by clause the legislation itself. First, if the Protection of State Information Bill (or ‘Secrecy Bill’) were to become law without amendments, it would create a secret society, as it would stop the free flow of information as stipulated in the Promotion of Access to Information Act of 2000. According to a ‘Civil Society Statement’ (2 August 2010)3 the Secrecy Bill, if enacted, would mean that: a document containing state information may be classified as confidential, secret, or top secret. You, as a member of the public, a whistle-blower or a journalist, would be liable for a criminal offence if caught with such a document, as you ought to have reasonably known that it was dangerous. Besides the absence of a public interest defence, there are other problems with the Bill. These include:
• It gave the state security minister huge power, including extending to the right to classify information in any organ of state. The criteria for classification are not spelled out.
• The sentences are harsh: twenty-five years in jail for the disclosure of ‘top secret’ information, fifteen years for ‘secret’ information, and five years if the information was classified ‘confidential’ or if the offender ‘should have known’ that this would ‘directly or indirectly’ have benefitted another state or non-state actor or prejudice national security. Even possession or disclosure, regardless of whether there is prejudice, could translate into jail terms of up to five years. And if that possession or disclosure was in respect of information classified by the State Security Agency the penalty rose to ten years.
• The state argues that the public’s right to information is met by the Promotion of Access to Information Act (Paia) and the whistle-blower provisions of the Protected Disclosures Act and Companies Act. The Secrecy Bill undermines this by overriding Paia as whenever there is a clash, the Secrecy Bill should take precedence.
• The Bill’s scope was ostensibly narrowed to national security matters only. This is eroded by the introduction of broad concepts such as ‘economic, scientific or technological secrets vital to the Republic’ and ‘state security matters’, defined as anything and everything the State Security Agency considers its business.
• The idea of a classification review panel that was introduced after much protest appears to lack true independence, as it would be chosen by and would report to Parliament’s joint standing committee on intelligence, which works behind a veil of secrecy.
Civil society groupings launched the Right2Know campaign to oppose the Secrecy Bill, in Cape Town on 31 August 2010 and in Johannesburg on 16 September 2010. In the launching statement, the Right2Know said that, if enacted, this Bill would create a ‘society of secrets’, criminalise whistle blowers and impinge on press freedom in South Africa. It would become close to impossible to investigate those in positions of power for corruption or abuse of office, and it would lead to self-censorship by journalists afraid of imprisonment. There were many articles written by the media itself, as well as by political analysts in the media, about the Bill, and letters from the public show how some citizens felt their lives would be affected negatively by a media clampdown. The majority of these letters indicated that many members of the public could see that the controls were political. The letters variously described the purpose of the Bill as ideological obfuscation and constituting a desire to cover up the ruling party’s own inadequacies and its tarnished image owing to the many exposures of corruption, and they serve to show that many did not believe in the ideological social fantasy that the ‘bourgeois commercial media’ was merely serving the interests of their ‘capitalist bosses’, or that the ‘neoliberal media’ was a threat to democracy. Many disagreed with the comment made by Blade Nzimande, the minister of higher education that: ‘We have a huge offensive against our democracy ... the print media is the biggest perpetrator’ (The Star: 11 October 2010).
Letters from The Times:
ANC wants grip of iron
President Jacob Zuma’s contention that the media are suspect because they were ‘not democratically elected’ (August 12) once again shows how misguided the ANC’s conception of democracy is. Democracy means to be able to exercise choices. No newspaper forces me to buy and read it. It is the proposed media tribunal that is undemocratic because it removes choice … (Louis van Rooyen, Klerksdorp, 16 August 2010).
We’ve no one to blame but ourselves
All this chaos about the media tribunal and the Protection of Information Bill started the day President Zuma and his supporters were voted into power … Now, despite Zuma’s promises to preserve the freedom of the media and freedom of expression, his attention-seeking police chief, Bheki Cele, is arresting and harassing reporters and newspapers. How could the media pose any threat to the revolution? (Sabelo Mkhaliphi, Johannesburg, 12 August 2010).
We must protect public’s right to know
Our government’s proposed controversial Protection of Information Bill and the ANC’s plans for the establishment of a media tribunal that would regulate the media are against the Constitution … Freedom and access to information are some of the main features of a democracy. Democracy centres on investigative and fearless reporting, and independent media that are truly free from any interference. Critical and probing questions are essentials of good journalism. A free media also helps prevent abuse of power, and promotes accountability and transparency. Media independence from the government is crucial to encourage public discussion and participation. Democracy requires an informed populace. Freedom of the press is something we should not forego (Abdullah Saeed, 10 August 2010).
We should be opening up our democracy
The proposed media tribunal and the new classification [of information] laws set a dangerous precedent. It is the fine detail and the letter of the law that count. Control of the media is a disaster. We do not need an army of officials classifying documents. We should be opening up and relying on a mature and democratic public to see its way through. The ANC should withdraw the bills and look for other ways to open debate, discussion and action in a democracy (Graeme Bloch, by email, 10 August 2010).
Elites want to seize control of media
In view of the bid by the ANC to establish a media tribunal, and the mafia style arrest of Sunday Times journalist Mzilikazi wa Afrika, I am reminded of Marxist sociologist Ralph Miliband … ‘They share power with others only when it is in their interest, and they never voluntarily surrender power. To rule their society, elites employ techniques such as dominating the economy, using the police and military forces, and manipulating the educational system and the mass media.’ He said elites often believe that leadership by an elite is the natural state for people to live in and that people are easily led. For me, this view accurately explains the government’s attitude to the media (Tshilidzi Tuwani, by email, 10 August 2010).
Tribunal a bid to keep a lid on top-level rot
I am quite disturbed by the ANC’s proposed media appeals tribunal and the Protection of Information Bill. Though the party might claim that the media tribunal would adjudicate complaints from citizens about the press, it has become quite apparent that it is the ANC’s strategy to stop the media from exposing the corruption of top officials. It seems the ANC wishes to build a state in which people are not allowed to know the evil deeds and mischief of the leaders they have elected (Thalukanyo Nangammbi, Pretoria, 11 August 2010).
One of the most important points to note is that citizens made the link between the Protection of State Information Bill and the media appeals tribunal and seemed to find that these were not isolated or randomly proposed regulations and laws but laws that would work together to close the spaces for democracy. What was apparent from these readers’ comments was that a connection was being made by many of the public that there was, on the part of the ANC, ideological obfuscation at play, and the media were used as a scapegoat for the ruling party’s problems. There are resonances with Žižek’s explanation of the ‘symbolic over-determination’: the basic trick of displacement was to displace social antagonism into antagonism between the sound social texture, social body, and – in his example – the Jew as the force corroding it. Thus the force of corruption was located within a particular entity. (1989: 125). In an explanation of how surplus supports ideology, Žižek wrote that the displacement is supported by a condensation of features: Jew as profiteer, Jew as schemer, Jew as seducer of innocent girls, Jew as corrupt and anti-Christian, and so forth, so that a series of heterogeneous features and floating signifiers became condensed, and it is this very surplus which becomes the last support of ideology. In South Africa, we have a similar ideological interpellation or hailing of the media as unsupportive of transformation or as capitalist bastards or as enemies of the people and as a threat to democracy and a law unto themselves, of whom Jackson Mthembu wrote in the article ‘Big stick to beat errant journalists’, if ‘they need to be jailed then they need to be jailed’ (Mail & Guardian: 23-29 July 2010).
The function of ideological fantasy, deployed from Žižek’s theory, is to mask inconsistency. It is precisely the way antagonistic fissure is masked. This explains the ANC’s gaze on the media. The ANC needs to close the media spaces in order to create a mirage of unity, so that it seems as though society is united and harmonious. In a 2008 interview, Hopewell Radebe described the phenomenon journalistically:
The ruling party just wants happy stories, finish and klaar. We try and put all sides of the story together, and so they call us enemies of the people. We once reported on a housing story in Mpumalanga’s Bushbuckridge area. The people were happy they received houses, yes, but they were not happy with the type of houses they got. It had changed their culture of living and builders had just looked at cost effectiveness. The housing department took exception to the story.
From the fantasy gaze of the ANC, the media is the cause of social antagonism, which prevents society from achieving its full identity as a closed, homogenous totality. As some of the letters from the public showed, citizens were not blinded by the ANC’s ideological stratagems. They tell of a paranoid construction of ‘the media’ with a symbolic over-determination invested in it. As Ferial Haffajee, editor of City Press, commented in a Special Assignment programme on SABC 3 on 17 August 2010: ‘I really wonder why the ANC is not as obsessed about poverty, the delivery of housing, and unemployment as it is about the media’.
Žižek (1989) described how in the Soviet Union those who disagreed with ‘the Party’ as representatives of the people were positioned ideologically as traitors or enemies of the people: ‘Fantasy is a means for an ideology to take its own failure into account in advance’ (1989: 126). It constitutes the frame through which we experience the world as consistent and meaningful. The letters from the public showed that the writers understood that the ANC was indulging in an ideological social fantasy and was attempting to structure the media as outside democracy to suit its own purposes, masking its own inadequacies and inconsistencies. So then, we give houses to the poor, but do not let anyone know that the poor were not happy with those houses for that would make you an enemy of the people. Not all the letter-writers accepted the ANC’s ideological interpellations of the media as ‘enemy’. I would call them cases of rejection of the ideologically interpellating voice of the ANC.
The letters below, from the Daily Sun, show a similar trend, except the second letter which points to a terrible mistake the media made when it published a wholly inaccurate story about Kgalema Motlanthe’s private life.
Tribunal a warning
The ANC’s media tribunal is uncalled for and must not be allowed to happen. The tribunal’s main objective is to hide the corruption of under-performing politicians. Why can’t the ANC first establish a tribunal into corruption by political office-bearers? … (Julius Sadiki, Jo’burg, 4 August 2010).
We DO need a media tribunal
I would like to add my voice to the call for a government regulated media tribunal. We have seen in the past how the media has failed to use self-regulation mechanisms like the press ombudsman. A lot of people’s rights have been infringed in the name of freedom of speech and freedom of the press. Let me remind my fellow South Africans of Kgalema Motlanthe’s love-child saga, and of Zapiro’s cartoons depicting our president pulling his pants down and getting ready to rape Lady Justice. These are just two examples of how the media targets and demonises people they don’t like. If a false story makes headlines, it’s read by millions. A retraction is normally a small column that goes unnoticed. The media is being used by certain individuals to distort the image of their rivals to further their own agendas. We need a media tribunal – finished and klaar! (Sipho Nsibande, Pretoria, 2 August 2010).
Media bill a bad idea
The proposed media tribunal is a very bad idea for a country like ours, where corruption is common … Those who have a lot to hide will support this tribunal. But those who have nothing to hide will understand that journalists are the ears and mouths of ordinary people. If you know that a newspaper story about you is true, you will want to form a media tribunal that will consist of your political allies, who will cover up for you (Patrick Sekgala, Kanana, 11 August 2010).
Media bill a cover-up for corruption
I am strenuously opposed to the proposed law calling for a media tribunal and the Protection of Information Bill by the ANC and its alliance partners. To me this smacks of a total abuse of power. Those who argue that media self-regulation is not enough either have skeletons in their closet and fear the media will expose them or do not want the masses to know how their tax money is being spent. Why is it only the media that is being targeted with this tribunal? … the ruling party does not want them to know about their public shenanigans. Service delivery is horrible but the ruling party conveniently isn’t calling for a tribunal to deal with their failure to provide basic services! (Puleng Mmila, Seokodibeng, 11 August 2010).
ANC wants to keep us all in the dark
Why does the ANC insist on this media tribunal? Why do they hate a free press? Why do they want to turn SA into Zimbabwe? What are they trying so hard to hide from the public eye? Do they prefer the dark? The media is there to inform the public on matters that concern them as South African citizens. According to the ANC, the media is their biggest enemy at the moment. Is this because it is spilling the beans on the corruption of party leaders? This attempt to gag the press has nothing to do with protecting the dignity of South Africa or the needs for journalistic accuracy, as the ANC claims. Free speech and access to information are the lifeblood of our democracy. Why is government trying to take that away from us? (Zama Mhlambi, Pretoria, 3 August 2010).
Media face major threat
The media in our country face a massive threat if the proposed media tribunal law is passed. This is a poor decision by untrustworthy politicians who want to manipulate the media in order to praise their achievements, conceal their crimes and promote their questionable agendas in the full knowledge that they will not be found out … The media are a mirror of society and should continue to cast light in the dark corners, exposing all wrongdoings regardless of the powers involved (Jerry Pingurai, Port Elizabeth, 3 August 2010).
The media must not knock ANC
Although the proposed media tribunal might not be the perfect solution to the shoddy and biased journalism in this country, few would deny that we need an effective regulation mechanism to curb the excesses of some of our media. The SA media has positioned itself against the ANC. There seems to be desperation to link every Tom, Dick and Harry to the ANC. For a ruling party that has enjoyed a two-thirds majority, it is inevitable that most people will be linked to them. Print media hire males to slander the ruling party. Personal opinions and conservative columns rubbishing the ANC cause major irritation – hence the calls for a fairer system to regulate these excesses. Rubbishing and denigrating the ruling party is the work of the political opposition, not the media! (Patrick Rampai, Klerksdorp, 16 August 2010).
ANC doesn’t have monopoly on truth
In 1994, Nelson Mandela proclaimed that no person or group could claim to have a monopoly on the truth. He further warned that any prejudice that hampers freedom of expression is a disservice to society. Indeed, Madiba was spot on! At the root of media freedom lies a mirror through which the concepts of accountability, transparency and openness – are to be realised. Constitution – Why fear media criticism if your affairs are above board? (Puleng Mmila, Seokodibeng, 17 August 2010).
Media Bill to protect corrupt ANC cadres
The ANC has two major problems. One: keeping their promise of bettering the lives of the people. Two: corruption is rocking the mighty Titanic in all sorts of undesired directions! The ANC of Oliver Tambo has in recent years been infiltrated by greedy, unpatriotic and insensitive men and women … The liberal media of our country, a product of the democracy fought for by the ruling party, have gone to great lengths to hold government accountable, with high professional standards. That has meant reporting on stories of corruption within the ANC, which has led to the downfall of a few cadres. Is the media getting too close to even bigger wrongdoers? It seems so. Why else would we need a Protection of Cadres Bill – sorry, I mean the Protection of Information Bill? For the ANC to continue with its proposal for a media appeals tribunal would be to concede that corruption has won the day and we must shut up and watch soapies! (Christopher Mazibuko, Soshanguve, 26 August 2010).
SA a democratic state no more
Censoring the SA media is a big mistake by President Zuma and his political cronies. It not only undermines freedom of speech but the integrity of journalists to be transparent in their work … Ironically, the people who are pleading for a tribunal have made headlines for mismanaging taxpayers’ funds. If the Information Bill is passed, corrupt officials will have no boundaries … The media only tells people about information, not what to do with it … South Africa is slowly sliding off the democratic radar! (Thabo Mthombeni, no place provided, 19 August 2010).
Evil lurks in ANC
… Untrustworthy politicians are proposing a bill that will protect them from being exposed by media when they steal from government coffers. Tender irregularities will then go unpunished, as we will never know about it. The proposed media tribunal could be good as long as independent people are appointed to run it and they aren’t accountable to Parliament. The real evil now is the proposed Information Bill, which I suspect is meant to cover up corruption … (Patrick Sekgala, Ndhambi Village, 26 August 2010).
One of the letters in support of the ANC’s proposed legislation to curb the ‘excesses’ of the media points to a good example of irresponsible journalism when the Independent Group ran a story of Kgalema Motlanthe’s love child. This story proved to be false. It was indeed irresponsible reporting. The retraction, as the reader correctly pointed out, was very small in comparison to the hurt and damage the big front-page story must surely have caused. This was a reason for more control of the media, according to the writer, ‘finished and klaar’.
Another member of the public felt, in the same way that the ANC feels, that the media was positioning itself as an opposition party. The statement that the print media hire ‘males to slander the ruling party’ is quite inexplicable. However, the other letters showed that many readers were not so easily hoodwinked. The views against the Secrecy Bill and the media appeals tribunal showed an awareness that the ruling party wanted to cover up corruption (for example tender irregularities); that those who wanted it ‘had a lot to hide’ while the Secrecy Bill was a Protection of Cadres Bill; that the media was the ‘voice, ears and eyes’ of the people; that this would instil fear in journalists; free speech and access to information was the lifeblood of democracy; democracy was under threat from the ANC and not the media and it smacked of abuse of power; that ‘South Africa was sliding off the democracy radar’; that the ANC does not have a ‘monopoly on the truth’; wanting to hide the incompetence regarding the provision of service delivery was the real issue; the public had the right to know what was happening in their country; and the agenda is self-enrichment.
Understanding these letters
Some members of the public saw through the ideological obfuscation of the ANC, showing that the social reality is conflictual by nature and that the ANC had deliberately created an ‘us’ (the ANC and ‘the people’) and a ‘them’ (the media). It does this because it does not recognise sufficiently the role of a critical and independent media in a democracy. Conflict is necessary in a plural society, but of course there has to be some kind of consensus (Mouffe 2005: 131-32) which could be based on the ethico-political values informing the political association, although there will always be different meanings attached to the way they will be implemented. This is what we find playing itself out in South Africa today regarding the fight for democracy between the media and the ANC. And so we have something called ‘lawfare’ where, at the drop of a hat, all parties run off to the courts to have disputes resolved.
The media is caught in a deep slumber
Prior to 2010 there appeared to have been considerable complacency within the journalist profession about media freedom and attempted subjugations, for instance in their response to the Secrecy Bill. By 2010, however, the media profession had begun to realise that a different challenge existed, and exercised considerable resistance following the three events alluded to in the first chapter: the further push for the media appeals tribunal by the ANC, the Protection of State Information Bill before Parliament, and the arrest of a Sunday Times journalist, Mzilikazi wa Afrika, outside the newspaper offices on 4 August 2010.
Ferial Haffajee referred to this earlier ‘complacency’ when she observed that the media does not ‘scream’ loudly enough, when it feels its independence is at stake. Haffajee was a speaker at the Second International Media Forum South Africa, held on 21-22 May 2008, in a panel discussion entitled ‘Is the media free in South Africa to report what it wants?’ She argued: ‘Our media should get constructive criticism awards. The National Police Commissioner has been suspended after a series of articles exposing him. The media should be marketed as a key component of freedom.’ The chair of the panel session, John Perlman, asked whether ‘the media scream too loudly’ when they think that press freedom is under threat. Haffajee answered, ‘No, we don’t scream too loudly. Look what happened in Zimbabwe, in tiny fractions democracy disappeared and it all started with media freedoms being whittled away. Now it’s all gone. We must not apologise for screaming loudly’. Concurring with Haffajee, Franz Kruger, head of the Radio Academy at Wits Journalism, and also Mail & Guardian ombudsman, suggested in an interview that there seemed to be little resistance to attempted subjections, reflecting that, for example, with regard to the possible media appeals tribunal, the ANC could ‘couch it in terms of development, transformation and democracy. In many ways the ANC feels it owns these terms because it was democratically elected, having won the struggle’. Kruger also said ‘[The ANC] hasn’t taken on what it means to have an independent media. Yes, there would be a constitutional challenge, there will be reaction, but will it be enough?’
However, there were also cross-cutting moments of optimism, if one considers a new non-racial organisation, Projourn, formed at the end of 2009, which aimed to tackle precisely such closing interventions by the state, as well as to address other concerns related to journalism. Projourn, according to Michael Schmidt, at the time a member of the steering committee,4 is an organisation ‘for journalists by journalists’ because most in the industry were tired of decisions being made for them by either Sanef, or NGOs not directly involved in the day to day working lives of journalists. By the end of 2009, Projourn had already attracted 300 members. For Schmidt, the reason for the existence of this organisation was to protect media freedoms and he concurred with Kruger’s concern when he observed that:
Things can change with the Constitution and we need to be organised. We held a dialogue on the issue of Media Appeals Tribunals and we said this would be the first issue we would take up as state interference would be intolerable. We do need to find a way on how to acquire teeth.
Projourn is open to all working journalists, freelance journalists, community journalists, broadcast journalists, print, radio, magazine, traditional and new media. ‘We don’t want to look after just our own interests but the interests of democracy in general,’ said Schmidt. This perspective shows the intersection of professional codes with the ideal of democracy. But while there was some hope reflected in the formation of Projourn there were others who sensed inertia and a lack of awareness about the state’s hindering of a free media. Leshilo made an apposite observation: that not too many journalists wrote about the implications of the Protection of State Information Bill. The Bill, if enacted, would have direct bearing on the work of the media. Yet, Leshilo wrote, there were no protests inside or outside Parliament by journalists, nor many stories written about it (Sunday Times: 25 October 2009). He observed a most curious and inexplicable fact that on the occasion of Media Freedom Day, 19 October 2009, none of the newspapers sent their reporters to cover the event held at the University of the Witwatersrand. For him it was an important historic event, but it went largely unnoticed by its own industry. He wrote:
I am dejected because of the scant regard our newspapers gave to the celebration of Media Freedom Day on Monday. Am I missing something here or do such occasions no longer matter? Is it not important to take stock and ponder how well we use and protect our freedom of speech? Does our nation not deserve to know why the South African National Editors Forum (Sanef) continues to urge vigilance against threats to press freedom, given that we have the freest media on the continent?
Leshilo also pointed out that, besides the reporters, newspaper editors did not bother to attend an event that Sanef, their own lobby group, was party to organising. There were a paltry four paragraphs on the wire service, the South African Press Agency (Sapa), on the event and, even more ironically, the Sowetan, which co-hosted it, completely ignored it too. It can then be said that very possibly a state of inertia existed within the journalist profession with regard to their freedoms. They took freedom for granted. Here was an opportunity for the media to talk to its citizenry about media freedom, freedom of expression, constitutional guarantees, and new laws which threaten freedom. The Secrecy Bill provided the ideal news angle, and was put before Parliament in the very same month as Media Freedom Day. It was a missed opportunity and signalled complacency and lack of resistance within the media industry in 2009. Managing partner at the M&G Centre for Investigative Journalism (nicknamed amaBhungane),5 Stefaans Brümmer captured the essence of the situation when he reflected, in an interview, that the media was ‘caught in a deep slumber’:
I am very, very concerned about the impact a number of legislative developments may have on journalists’ ability to do their work. Last year it was the Protection of Information Bill, which would have handed the power easily to classify documents to a very wide array of functionaries and would have imposed very stiff penalties, which journalists or their sources could have suffered just for possessing such documents. The Bill was withdrawn, but may be back soon. This year we have the Protection of Personal Information Bill and the Protection from Harassment Bill, each with features which are likely to impede the flow of information to journalists or prevent them doing things they habitually do in democratic societies. So this is about the defence of hard-won democratic space and yes, I am concerned that the media has been caught in a deep slumber. I am not suggesting that journalists should toyi-toyi yet … But unless we engage and make ourselves heard, these consequences may well become part of the legal arsenal available to public figures who do not like the media›s probing attention.
Brümmer was concerned, in 2009, that there were very few voices from within the journalist profession protesting about the Bill and no sense of urgency or outcry save for legal submissions. His other noteworthy observation was that had we been living in the apartheid days there would have been action. ‘I’m sure had the perpetrator been the apartheid state there would have been more of an outcry. But the outcry would have come from the alternative press.’ What he was alluding to was that a serious complacency, inertia, or burying of heads in the sand existed in 2009. It could be that there was still trust in the ANC-led government that freedom of the media would continue, even though this was by no means certain given the legislation that was being considered by the government.
In order to fulfil their watchdog role in society, journalists, NGOs and civic-minded members of the public need access to public records. But Brümmer explained that these individuals’ access would now be limited because of the Bill’s definition of ‘personal information’, for instance civil and criminal records as maintained by the courts, or titles and other deeds, bonds, and antenuptial contracts as recorded by the Deeds Office:
The type of public records described are needed by journalists (and others fulfilling a watchdog role) to warn when public figures (whether in the public or private sector) may abuse the trust of the public, such as by hiding a conflict of interest between their public duties and their private interests. While the person of interest would be a public figure, it is often necessary to examine the public records of persons who are not public figures to ‘follow the money’ to public figures.
Brümmer added that ‘The type of public records described are also needed, regardless of whether the information subject is a public figure, to warn of physical or moral danger to the public, such as when toxic waste is leaking from premises or when an unsafe or contraband-laden aircraft is seen taking to the sky’. These records, he said, tended to be freely available in developed democracies. Sam Sole, Brümmer’s co-managing partner at amaBhungane, commented about the issue of personal information:
The definition of what is public is very vague leading to the default position being that it is private, given the general intentions of the Bill. The journalistic exemption is based on having a code, which contains the same principles – which is not on – given that the principles in this Bill are very restrictive – such as the need to inform the subject, the need to collect only information that is directly relevant to a specific purpose etc. The Bill also basically invites the regulation of journalistic conduct via the issuing of a code for journalists by the regulator. I can’t believe the law commission came up with such an Orwellian approach. We know the state has the capacity to gather and process ever more personal information – and no doubt does so. This essentially grants the state monopoly control over that process and de-democratises information.
For the work of these two investigative journalists, the passing into law of the above Bill would mean an obstruction to the flow of information necessary for their investigations. They would not gain access to information easily, nor would their stories be able to be published in the detail they would otherwise have been. In short, it would impede democracy because holding power to account, one of the tenets of independent journalism, would be curtailed. However, in 2011 an exemption for journalists was included on personal information.
While the state, from above, hinders the flow of democracy and the free flow of information through its foreclosing impending legislation, commercial imperatives and new journalism and social media have also had an impact on the world of journalism. While Brümmer and Sole both accept that citizen journalism, blogging and the Internet have increased the flow of information, there have been others who argue that this has had a detrimental effect on traditional journalism. This will be shown in the next section. The argument is that traditional journalism, for instance the world of newspapers, for all its flaws is more reliable than bloggers’ views and citizens’ opinions. The next section puts the world of South African print journalism within the international context of newspapers’ struggle for survival. It shows that while politics and ideology is the focus of this book, the changing world of technology also affects the media, the traditional media, in this case, the world of newspapers. It is a tangent to the main argument here but it is a huge change in the world of journalism.
Commercial imperatives and the impact of new media
‘It’s the consumer, stupid!’ wrote Arianna Huffington, founder of The Huffington Post, when she also stated that the ‘ … key question is whether those of us working in the media (old and new) embrace and adapt to the radical changes brought about by the Internet or pretend that we can somehow hop into a journalistic Way Back Machine and return to a past that no longer exists and can’t be resurrected. As my compatriot Heraclites put it nearly 2500 years ago, “You cannot step into the same river twice”’(Huffington 2009).
Touché, Huffington. The pattern in the developed world is that the newspaper industry is in decline. In fact, the industry is shrinking at a rapid rate. The question posed by media analysts has been whether South Africa will follow this trend or the trend of developing countries (for example, India and China, where newspaper circulation is rising) or whether the Internet will replace newspapers. It seems that South Africa is part of the developing world trend if one considers the increase in the number of South Africans buying newspapers, from 14.5 million in 2008 to 15.234 million in 2009, as shown in the first section of this chapter. However, if it is true that the traditional world of journalism in South Africa is in decline, albeit not at the same rate as that in the developed world, this will have implications for the kind of journalism that will replace it. Nobody seems to know what the future holds for newspapers, or what precisely will replace them. As Clay Shirky commented:
So who covers all that news if some significant faction of the currently employed newspaper people loses their jobs? I don’t know. Nobody knows. We’re collectively living through 1500, when it’s easier to see what’s broken than what will replace it. The Internet turns forty this year. Access by the general public is half that age. Web use, as a normal part of life for a majority of the developed world, is less than half that age. We just got here. Even the revolutionaries can’t predict what will happen (Shirky 2009).
The World Association of Newspapers Newsroom Barometer showed in a 2009 survey of 700 editors and senior news executives in 120 countries, the following: eighty-six per cent believed that integrated print and online newsrooms will become the norm; eighty-three per cent believed that journalists will be expected to be able to produce content for all media within five years; two-thirds believed some editorial functions will be outsourced despite frequent newsroom opposition to the practice; forty-four per cent believed that online will be the most common platform for reading news in the future, compared with forty-one per cent in 2008; a majority of editors, fifty-six per cent, believed that news in the future will be free (this was up from forty-eight per cent in the 2008 survey; and only one-third of the editors believed the news will remain to be paid for while eleven per cent were unsure (Harber 2009). The World Association of Newspapers showed, at the end of 2009, that the circulation of quality dailies and tabloids in the United Kingdom had dropped: circulation for dailies was down 4.2 per cent, Sunday papers were down 7 per cent, and the circulation of The Guardian was down 14.8 per cent, The Independent was down 7.2 per cent and The Times had fallen 9.4 per cent while the Financial Times dropped 9.2 per cent (Redman 2009).
The global economic recession of 2009, wreaked havoc with the traditional media world, especially print. In fact, in a matter of two years from 2007, when the newspaper industry worldwide showed growth, to 2009 when the industry was imploding, there were massive changes, according to Manoim (2009: 51). The first ‘culprit’, he observed, was the global recession: currencies slipped, newspaper prices rose, and advertising revenues collapsed. The recession, however, merely hastened the real culprit, media experts pointed out (Harber 2009; Kruger 2009; Manoim 2009), which has been the increased use of the Internet to access news over the past decade. This has created a culture in which consumers are becoming accustomed to receiving news for free. There has, additionally, been the growth of cellphone technology to pass on news between citizens and to traditional media (citizen journalism). Worldwide, the Internet has scored two damaging blows against print media. The first is that it took away readers, especially young readers. As Manoim noted:
Back in 1993, some thirty-five per cent of the USA population read a newspaper every day. By 2008 that figure had dropped to thirty-four per cent. Less than two per cent of Americans used the Internet for news in 1995, but by 2008, the figure was thirty-seven per cent, slightly higher than the number reading newspapers. While older people are still reading newspapers, the bad news is that younger people are hardly bothering to start (2009: 55).
The second impact of the Internet is that it managed to take away advertising from print media. It is cheaper to advertise online, and in some cases it is free. While one argument is that the above scenario, the decline of print, is a developed world phenomenon, and that print sales in India and China are increasing. In Zimbabwe, where Internet penetration is even narrower than in South Africa, citizens used cellphones to pass news on via small message service (SMS) technology, according to Dumisani Moyo (2009). This occurred in Zimbabwe during the last election of March 2008, when there was a virtual blackout of news owing to harsh clampdowns by the ruling party, Zanu–PF.
The School of Journalism and Media Studies at Rhodes University in Grahamstown launched a cellphone-based technology project, Lindaba Ziyafrika (‘the news is coming’ in isiZulu), with the idea that such technology can be used to increase social capital and social bonding, and help civil society to better engage with the government, according to Dugmore (2009: 30), who said that the basis of the project was to facilitate citizen reporting and opinion-sharing through cellphones, which are now ubiquitous in South Africa. The idea was that if ‘ordinary people can better receive information’, and also have a say, it would be a great boon for local democracy.
Media commentators have noted that online penetration in South Africa is indeed small compared to the global trend – five per cent compared to the global average of twenty five per cent, according to Wertheim-Aymes (2009). However, with the use of cell phone SMS technology and with increased bandwidth, more people will gain access to the Internet on their cellphones. Another important fact related to the decline of print media, not just in the developed world but also in South Africa, is that advertisers, on which newspapers depend for revenue, are increasingly putting their money online. Wertheim-Aymes said that ‘Advertisers in SA are still pumping billions of rand into television, print and radio. Only three per cent of ad spend goes to the web. But this will change as cellphone rates come down and once there is more equitable and affordable access to broadband. It’s not a question of if. It’s a matter of when’.
The closure of The Weekender newspaper
The Weekender, a publication of Business Day/Financial Mail, owned by Avusa locally and Pearson in the UK, seemed to have been founded with the rationale that if you produce a quality high end product, with ‘interesting, lengthy, discursive stories full of good writing and respectable intelligence, eventually people will come. Well, scratch that idea,’ Tim Cohen wrote in the Daily Maverick (10 November 2009). It was closed down on 7 November 2009. I had a contract with The Weekender at the time of its closure, to write a series on media in a time of political change. The contract was one week short of the last article. I was devastated at the closure. I felt the same loss and bewilderment when the Daily Mail, a daily started up by the then Weekly Mail, where I was a junior reporter, was closed down in 1990.
There are two reasons for this sub-section on The Weekender’s closure. First, it shows how commercial imperatives impact on the world of journalism and, second, through the letters on the closure, it shows the need the public had for this paper’s function as a public sphere for debate, albeit an intellectual, middle and upper class sphere. There are two ways to view the closure on The Weekender. It seems to be a pattern in South Africa that newspapers targeting high-income earners do not survive because the intellectual readership is insufficient to carry the paper in sales. But a second gaze could show that this is also the trend overseas, where newspapers are fast becoming anachronisms as people read the news on their laptops and iPads. This is not so in working class markets, as the tabloid expansion shows. The Weekender was also South Africa’s first newspaper casualty of the global recession of 2008-2009. The closure was suddenly announced on the 7 November 2009. According to a report by Jocelyn Newmarch in the last edition of the paper (The Weekender: 7-8 November 2009), the BDFM board made a decision to shut down the paper because of ‘the ongoing economic crisis and difficult trading conditions’ (advertising was down by twenty per cent). The columnist Jacob Dlamini told readers in his last column for the paper about his rationale for writing: ‘If I do not remember the stories and the books of my childhood in Katlehong, who will?’ (The Weekender: 7-8 November 2009). It was not just journalists who felt the loss of one of the democratic spaces in society. The following letter to Business Day showed the space that The Weekender provided:
… The Weekender was much much more than a newspaper to its readers. It raised the intellect of all South African society. It gave me the same opportunity to be in the same auditorium as the greatest thinkers and politicians in the country. I shall miss the debates and public lectures as much as I shall miss the excellent articles throughout the paper … Please reconsider your decision [to close]. While the board of any company should always consider its bottom line, the board of a newspaper should consider its responsibility to building a free society of committed citizens – and The Weekender did exactly that (Sizwe Majola, Midrand, in Business Day: 11 November 2009).
The essence of the letter was that the reader would miss the space for stimulating intellectual debate, independent analysis, breaking news, and thought-provoking stories which he felt the paper provided. In the end, commercial imperatives held sway with the board of BDFM, as The Weekender had cost and lost the company R20 million since its launch in March 2006, according to editor of Business Day and editor in chief of The Weekender, Peter Bruce (2009). Bruce stated in his blog that while this was a large sum of money, it was not nearly enough. It would be easy to assess The Weekender’s closure as a one-off event in the landscape of South African media but this would be a narrow focus and would be ignoring the conditions that have affected the world of traditional media. Some of these conditions included: the global recession of 2008-2009; the increased use of the Internet to access free news, where advertisers could advertise cheaply or for free; the high costs of printing; and an increased awareness of the environment and therefore the need to save paper and trees. On the other hand, it could be argued that intellectual quality newspapers just don’t survive in this country, given the performances of The Daily Mail and ThisDay. Besides the bottom lines of profits from media companies, there are citizenry’s bottom lines too. Thabo Leshilo cited the commercial imperatives of the citizenry in the decline of print media:
Newspapers cannot compete with bread and milk when families struggle to fill empty bellies on shrinking budgets. I would love to say that all that shall pass when the economy starts picking up. But I’m afraid to say the halcyon days of high circulations are over for newspapers (The Times: 27 November 2009).
The trick, according to Leshilo, was to stop conflating journalism with the printed word. Most newspapers have grasped the future by going multimedia, for example, and the debate is far from local. These issues were being grappled with in the developing world in the new millennium, where the demise of print has led to many debates about the future of journalism.
My case for the continued role of traditional journalism is the investigative side of the profession, as well as the context that journalism can provide to the news. Can the average citizen make sense of the Wikileaks cables? Does the citizen have the resources to investigate a story and write it up without being paid for it? It remains to be seen whether the South African media will work out the challenges posed by the commercial imperatives it is faced with but these facts remain: new and social media are growing, and use of the Internet to access news is growing.
The figures below indicate where South Africa stood in 2009 in relation to new media and traditional media and show the numbers of people who read print and who read online.
Newspapers readers:
• Sowetan – 1.5 million
• The Times – 375 000
• The Daily Dispatch – 298 000
• The Herald – 232 000
Online readers:
• Sowetan Online – 6 million unique page impressions a month and 288 000 unique users
• Times Live (the Times and the Sunday Times) – 4 million
• Daily Dispatch (including Saturday) – 1.4 million
• The Herald (including Weekend Post) – 1.7 million
• Sunday World – 1.1 million page impressions and 80 000 unique users
• (The Times: 27 November 2009)
There is indeed a space for citizen journalism and new media, which includes blogging and social networking, but if it replaces traditional journalism this would be a loss of professional and investigative journalism. This intersection between the role of the media in a democracy and the fight for independence from political interference is my main argument but it should be made clear that the fight for democracy takes place within a highly competitive commercial climate and the increasing use of technology.
‘It’s the consumer, stupid’, and ‘you cannot step into the same river twice’ (meaning you can’t go back) was Huffington’s (2009) unoriginal but instructive point but I have argued that if newspapers disappear completely it will be a loss to democracy.
After numerous postponements the Bill was passed by the National Assembly on 22 November 2011, with 229 yes votes, 107 no votes, and two abstentions. It was then referred to the National Council of Provinces (NCOP), the second tier of Parliament, for further consultations, public hearings and submissions. The NCOP conducted hearings around the country in the first few months of 2012. The Bill has to be passed by the council before it proceeds to the president for gazetting. The public participation process threw up some surprises for the ANC. Citizens from the Cape Flats, for instance, questioned the ANC about service delivery and asked pointed questions about what the party wanted to hide. Forewarned by this attack, the ANC in the Eastern Cape bussed in supporters but the NCOP tried a new tactic. Every time anyone said ‘Secrecy Bill’ he or she was shot down, and told to address the issue and, further, not to mention service delivery. Reports from attendees at the Eastern Cape hearings, as well as many of the other provinces thereafter, questioned why the government was prioritising the Bill. Given this mixed bag, it was rather perplexing when Parliament issued a statement: ‘2 February 2012: Bill gets resounding approval’. A careful reading of the statement does not explain why the hearings were to be considered a ‘resounding’ success. The Right2Know campaign made other findings. Many people do not know the implications of the Bill, but when they do they state unequivocally that they want less secrecy in society, not more. They want a free flow of information so that they can make informed decisions about their lives. In March 2012, a further postponement was announced, (to 17 May 2012), and only seventeen of the 263 written submissions were approved for presentation to the parliamentary committee. It seemed to be a case of Parliament not wanting to acknowledge all the protests against the Bill. But then, on 10 May 2012, in a surprise and welcome move, a twist, if you like, the ANC made significant amendments to the Bill which would not criminalise journalists and whistle-blowers. It also removed the clause ‘ought to have reasonably known’ (that something was classifiable), and removed minimum sentences so that if you reveal criminal activity through the use of a document (that could be or was classified) you cannot be criminalised. However, the State Security Agency seems exempt from this. It still falls short on espionage. As a journalist or whistleblower you could fall short of the law if the information you reveal benefits a group hostile to the state and you are endangering the country.
While in the end many of the problematic contentions in the Bill were amended to bring it in line with the Constitution, it did not happen overnight – it was a battle that lasted two years. Moreover, it did not happen without serious interventions and protest action by civil society groupings, legal representations and submissions. The inclusion of a public interest defence, however clumsy or imperfect, was a huge victory for activism, and for democracy. But before you could say ‘victory’ the amendments were rejected in June 2012 and deliberations on the Bill postponed until September 2012.
NOTES
1Extract from a letter to President Jacob Zuma by the Committee to Protect Journalists: Business Day: 17 August 2010.
2For example, the lawsuit by President Zuma against cartoonist Zapiro (discussed in Chapter Five), for R7 million, is the largest in the world against any cartoonist or journalist.
3Some of the organisations which opposed the bill consisted of: AmaBhungane of the Mail & Guardian, Cosatu, the FXI, Sanef, the Institute of Security Studies, Media Monitoring Africa, the Committee to Protect Journalists (international), the Alternative Information and Development Centre (AIDC), Anti-Privatisation Forum, Equal Education, the Lesbian and Gay Equality Project (LGEP), Social Justice Coalition, the Open Society Foundation, Misa, Print Media SA, Idasa, and the SAHRC.
4Schmidt later became executive director of the Institute for the Advancement of Journalism. The remark was made in an interview.
5amaBhungane means dung beetles in isiZulu. The aim of the investigative unit is to get to the bottom (dung) of things to expose corruption and the abuse of power.