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In our Alert of 30 November 2016 entitled ‘Reinforcing the Responsibility of Broadcast Media’ we considered the High Court ruling that sub-rule 3.9 of the Broadcasting Complaints Commission of South Africa (BCCSA) voluntary Code of Conduct (Code) was inconsistent with s192 of the Constitution.
The direct consequence of this decision is that that members of the public may now proceed to lodge complaints with the BCCSA without fear that they will be called upon to abandon other rights which they may have (and which would discourage them from making such complaints before the BCCSA as they would be at risk of losing such rights).

What has happened is this matter also has precedent in other spheres. In fact, the Press Council which deals with the print media has already eliminated from its constitution a similar rule to that now eliminated from the BCCSA’s Code. (Supporting this was a recent article in the Daily Maverick).

The downside is that certain print media houses have elected to withdraw from the Press Council (because they no longer have the protection of the waiver requirement and to appoint their own “internal“ ombudsman).

This, with respect, will lead to negative consequences:

Complainants will not necessarily receive fair hearings or proper sanctions for their complaints by such internal tribunals since it offends the fundamental principle that one cannot be a judge in one’s own cause. In other words, media houses who elect to regulate themselves directly, ie not through any independent body, are unlikely to punish themselves for their own sins, or give complainants a genuinely fair hearing;

The credibility of the media will decline since they will no longer be accountable to objective standards of fair and accurate reportage;

The fact that independent bodies no longer regulate media (because the media withdraws from such regulatory bodies), will increase the risk of Government imposing its own code of conduct on the media and thus discourage press freedom. In this way the media “shoots itself in the foot”.

One would hope that the media (especially the broadcast media) will not take a defensive attitude to what has happened. It should rather encourage its members to apply the standards they have set for themselves in the Code. This will minimise the risk of complaints or civil suits.

Richard Marcus, Dispute Resolution practice and services, Cliffe Dekker Hofmeyr.

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