Media Regulation in South Africa (PDF)

MEDIA REGULATION IN SOUTH AFRICA EXTERNAL AND INTERNAL REGULATION  EXTERNAL REGULATION Constitution Section 16 – Freedom of Expression Section 32 – Access to Information Section 14 – Right to Privacy Section 36 – Limitations of Right SECTION 16 – FREEDOM OF EXPRESSION Secti...

MEDIA REGULATION IN SOUTH AFRICA EXTERNAL AND INTERNAL REGULATION  EXTERNAL REGULATION Constitution Section 16 – Freedom of Expression Section 32 – Access to Information Section 14 – Right to Privacy Section 36 – Limitations of Right SECTION 16 – FREEDOM OF EXPRESSION Section 16 contains detailed provisions with regard to freedom of expression, stating “Everyone has the right to freedom of expression, which includes: freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Section 16 (2) contains the following limitations to freedom of expression “The right in subsection (1) does not extend to; propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm  SECTION 32 – ACCESS TO INFORMATION Section 32 provides for the right to access to information, also known as the right to know. The right to know was enshrined in the South African Bill of Rights in reaction to the restrictive information policies by the Apartheid regime. Section 32 states that “Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.” Section 32 not only provides for access to information held by the state, but also from a third party if it is required to exercise or protect any right. it applies to public bodies, as well as private bodies, including companies.  SECTION 14 – RIGHT TO PRIVACY & SECTION 9 - EQUALITY Section 14 contains detailed provisions on the right to privacy. Defining the scope as follows: “Everyone has the right to privacy, which includes: the right not to have the person or their home searched; their property searched; their possessions seized; or the privacy of their communications infringed.” Section 9 contains strong provisions on legal and social equality. Is in line with internationally recognised human rights law, "Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."  SECTION 36 – LIMITATIONS OF RIGHT (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including; (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.  EXTERNAL REGULATION OF THE PRESS The press is not formally regulated, however the following laws have an impact on it: - The Imprint Act, 43 of 1993 - The Legal Deposits Act, 54 of 1997 - The Competition Act, 89 of 1998 - The Film and Publications Act, 65 of 1996 - The Electronic Communications Act, 36 of 2005  THE IMPRINT ACT, 43 OF 1993 The Minister may make regulations as to— (a) the procedure to be followed in connection with the registration of abbreviations of the names of printers; (b) any matter which shall or may be prescribed under this Act. and, in general, for the more efficient implementation of the objectives of this Act.  THE LEGAL DEPOSITS ACT, 54 OF 1997 To provide for the preservation of the national documentary heritage through legal deposit of published documents; to ensure the preservation and cataloging of, and Access to, published documents emanating from, or adapted for, South Africa: To provide for access to government information; to provide for a Legal Deposit Committee; and to provide for matters connected therewith. THE COMPETITION ACT, 89 OF 1998 To provide for the establishment of a Competition Commission responsible for the investigation, control and evaluation of restrictive practices, abuse of dominant position, and mergers; and for the establishment of a Competition Tribunal responsible to adjudicate such matters; and f or the establishment of a Competition Appeal Court; and for related matters. Preamble.-THE PEOPLE of South Africa recognise: That apartheid and other discriminatory laws and practices of the past resulted in excessive concentrations of ownership and control within the national economy, inadequate restraints against anti-competitive trade practices, and unjust restrictions on full and free participation in the economy by all South Africans. THE FILM AND PUBLICATIONS ACT, 65 OF 1996 ACT To provide for the classification of certain films and publications; to that end to provide for the establishment of a Film and Publication Board and a Film and Publication Appeal Tribunal; to repeal certain laws; and to provide for matters connected therewith. Publication” means— (a) any newspaper, book, periodical, pamphlet, poster or other printed matter; (b) any writing or typescript which has in any manner been duplicated; (c) any drawing, picture, illustration or painting; (d) any print, photograph, engraving or lithograph; (e) any record, magnetic tape, soundtrack, or any other object in or on which sound has been recorded for reproduction; THE ELECTRONIC COMMUNICATIONS ACT, 36 OF 2005 To promote convergence in the broadcasting, broadcasting signal distribution and telecommunications sectors and to provide the legal framework for convergence of these sectors; To make new provision for the regulation of electronic communications services, electronic communications network services and broadcasting services; To provide for the granting of new licences and new social obligations; To provide for the control of the radio frequency spectrum; To provide for the continued existence of the Universal Service Agency and the Universal Service Fund; and To provide for matters incidental thereto.  EXTERNAL REGULATION OF BROADCASTING Broadcasting Markets: Public, Commercial and Community Broadcasting fall under the Department of Communication Regulator: Independent Communications Authority of South Africa (ICASA) ICASA Act, 13 of 2000 Broadcasting Act, 64 of 2002  ICASA ACT, 13 OF 2000 To provide for the establishment of the Independent Communications Authority of South Africa; to provide for the dissolution of the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority; to transfer the functions of the latter authorities to the Independent Communications Authority of South Africa; to amend the Independent Broadcasting Authority Act, 1993, the Telecommunications Act, 1996, and the Broadcasting Act, 1999; and to provide for matters connected therewith. PREAMBLE Recognising that technological and other developments in the fields of broadcasting and telecommunications are causing a rapid convergence of these fields; Acknowledging that the establishment of an independent body to regulate broadcasting and telecommunications is required.  CONT Object of Act: The object of this Act is to establish an independent Authority which is to— (a) regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society, as required by section 192 of the Constitution (provision for establishing an independent authority); (b) regulate telecommunications in the public interest; and (c) achieve the obiects contemplated in the underlying statutes.  BROADCASTING ACT, 64 OF 2002 To amend the Broadcasting Act, 1999, so as to add certain definitions; to provide for the conversion of the old Corporation into a public company in terms of the Companies Act; to clarify the relationship between the policies governing public commercial services and the values of the public broadcasting service; to provide for the continued existence of the old Corporation during the transitional period; to provide for a procedure relating to authorisation of all channels carried by the broadcasting services; to provide for the procedure relating to the granting of additional subscription television service licences and to open subscription television services to full competition; to provide for the application and granting of television licences; to provide for the imposition of penalties for failure to pay television licence fees; to provide for the appointment of inspectors; and to provide for the making of regulations; to amend the Independent Broadcasting Authority Act, 1993, and the Independent Communications Authority of South Africa Act, 2000; and to provide for matters connected therewith.  EXTERNAL REGULATION OF THE ADVERTISING SECTOR (Companies: FCB, Lobedu Leo Burnett, Grey Holdings, Ogilvy & Mather, Young & Rubicam, J, Walter Thompson, etc.) ICASA Competition Act, 89 of 1998 Consumer Affairs Act, 71 of 1988  COMPETITION ACT, 89 OF 1998 To provide for the establishment of a Competition Commission responsible for the investigation, control and evaluation of restrictive practices, abuse of dominant position, and mergers; and for the establishment of a Competition Tribunal responsible to adjudicate such matters; and for the establishment of a Competition Appeal Court; and for related matters. Preamble.-THE PEOPLE of South Africa recognise: That apartheid and other discriminatory laws and practices of the past resulted in excessive concentrations of ownership and control within the national economy, inadequate restraints against anti-competitive trade practices, and unjust restrictions on full and free participation in the economy by all South Africans. That the economy must be open to greater ownership by a greater number of South Africans. That credible competition law, and effective structures to administer that law are necessary for an efficient functioning economy. That an efficient, competitive economic environment, balancing the interests of workers, owners and consumers and focused on development, will benefit all South Africans.  CONT IN ORDER TO; Provide all South Africans equal opportunity to participate fairly in the national economy; Achieve a more effective and efficient economy in South Africa; Provide for markets in which consumers have access to, and can freely select, the quality and variety of goods and services they desire; Create greater capability and an environment for South Africans to compete effectively in international markets; Restrain particular trade practices which undermine a competitive economy; Regulate the transfer of economic ownership in keeping with the public interest; Establish independent institutions to monitor economic competition; and Give effect to the international law obligations of the Republic.  CONSUMER AFFAIRS ACT, 71 OF 1988 ACT To provide for the prohibition or control of certain business practices; and for matters connected therewith. "arrangement" means, except in paragraph (a) of the definition of 'business practice’, an arrangement or undertaking negotiated by the committee; “benefit” means any prize, reward, gift, service, concession, free admittance or admittance at a reduced charge to a place of entertainment, free insurance or insurance at a reduced rate, or any other benefit or advantage of any kind whatsoever; “business” means any business, undertaking or person who-- (a) offers, supplies, or makes available any commodity; (b) solicits or receives any investment or to whom any investment is supplied or made available; “business practice” includes -- (a) any agreement, accord, arrangement, understanding or undertaking, whether legally enforceable or not, between two or more persons; (b) any scheme, practice or method of trading, including any method of marketing or distribution; (c) any advertising, type of advertising or any other manner of soliciting business; (d) any act or omission on the part of any person, whether acting independently or in concert with any other person; (e) any situation arising out of the activities of any person or class or group of persons,but does not include a practice regulated by competition law; EXTERNAL REGULATION OF TELECOMS SECTOR (Companies: Telekom, Neotel, MTN, Vodacom, Cell C, etc.) ICASA Act, 13 of 2000 EXTERNAL REGULATION OF THE FILM SECTOR Film and Publications Act, 69 of 1996  FILM AND PUBLICATIONS ACT, 69 OF 1996 ACT To provide for the classification of certain films and publications; to that end to provide for the establishment of a Film and Publication Board and a Film and Publication Appeal Tribunal; to repeal certain laws; and to provide for matters connected therewith.  CONT “publication” means— (a) any newspaper, book, periodical, pamphlet, poster or other printed matter; (b)any writing or typescript which has in any manner been duplicated; (c) any drawing, picture, illustration or painting; (d)any print, photograph, engraving or lithograph; (e)any record, magnetic tape, soundtrack, or any other object in or on which sound has been recorded for reproduction; ( f )computer software which is not a film; (g)the cover or packaging of a film; (h)any figure, carving, statue or model; and (i) any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet;  INTERNAL REGULATION OF THE MEDIA  INTERNAL REGULATION IN THE PRINT MEDIA Print Media South Africa (Umbrella of Newspaper Association of SA, Magazine Publishers Association of SA and the Community Press Association of Southern Africa. Aims: to represent, promote, interact and intervene in all matters of common interest: 2007) South African National Editors Forum Press Ombudsman & Press Council Press Code of Professional Practice (Fourie, 2009: pp96-98) SOUTH AFRICAN NATIONAL EDITORS FORUM The South African National Editors’ Forum (Sanef) is a non- profit organisation whose members are editors, senior journalists and journalism trainers from all areas of the South African media. Committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics and diversity in the South African media. Vision To promote the quality and ethics of journalism, to reflect the diversity of South Africa, and to champion freedom of expression. Mission To be a resource and catalyst for achievement of its vision through debate and action programmes. Values values are integrity, tolerance, accountability and the public interest.  PRESS OMBUDSMAN The Press Council, the Press Ombud and the Appeals Panel are an independent co-regulatory mechanism set up by the print and online media to provide impartial, expeditious and cost-effective adjudication to settle disputes between newspapers, magazines and online publications, on the one hand, and members of the public, on the other, over the editorial content of publications. The mechanism is based on two pillars: a commitment to freedom of expression, including freedom of the media, and to high standards in journalistic ethics and practice.  CONT The Council has adopted the South African Press Code to guide journalists in their daily practice of gathering and distributing news and opinion and to guide the Press Ombud and the Appeals Panel to reach decisions on complaints from the public.Member publications subscribe to the Press Council's Code of Ethics and Conduct for SA Print and Online Media.. The Council is the custodian of this Code and may amend it from time to time, depending on needs.  PRESS CODE OF PROFESSIONAL PRACTICE Preamble The basic principle to be upheld is that the freedom of the press is indivisible from and subject to the same rights and duties as that of the individual and rests on the public’s fundamental right to be informed and freely to receive and to disseminate opinions. The primary purpose of gathering and distributing news and opinion is to serve society by informing citizens and enabling them to make informed judgments on the issues of the day. The freedom of the press to bring an independent scrutiny to bear on the forces that shape society is a freedom exercised on behalf of the public. The public interest is the only test that justifies departure from the highest standards of journalism and includes: a. detecting or exposing crime or serious misdemeanour; b. detecting or exposing serious anti-social conduct; c. protecting public health and safety; d. preventing the public from being misled by some statement or action of an individual or organisation; e. detecting or exposing hypocrisy, falsehoods or double standards or behaviour on the part of public figures or institutions and in public institutions.  INTERNAL REGULATION OF BROADCASTING Broadcasting Complaints Commission of South Africa (BCCSA) National Association of Broadcasters (NAB): is the voice of the South African Broadcasting Industry (both radio and television)  BROADCASTING COMPLAINTS COMMISSION OF SOUTH AFRICA (BCCSA) The Broadcasting Complaints Commission of South Africa (BCCSA) is a string complaints authority established by the National Association of Broadcasters (NAB) to enforce a Code of Conduct for television and radio broadcasts in South Africa. The Commission receives complaints from the public about offensive broadcasts and has the power to reprimand or fine broadcasters and to require the broadcast of a correction or apology. The BCCSA is independent of the NAB and of government, although it is funded by the NAB and recognised by ICASA as an independent disciplinary tribunal.  NATIONAL ASSOCIATION OF BROADCASTERS (NAB): The NAB is a non-profit organisation funded entirely by its members. regularly engage with policy makers on behalf of members in order to promote an industry grounded in the principles of democracy, diversity and freedom of expression.  INTERNAL REGULATION OF ADVERTISING Advertising Standard Authority of South Africa (has a Code of Advertising Practice) ADVERTISING STANDARD AUTHORITY OF SOUTH AFRICA The Advertising Standards Authority of South Africa (abbreviated ASA) is an independent entity organised and financed by members of the marketing communications industry of South Africa. Its purpose is to manage South Africa's voluntary, self-regulating system of advertising. The ASA works with a variety of marketing communication industry stakeholders to ensure that advertising content in the country meets the requirements of its Code of Advertising Practice and to control advertising content in the South African public's interest. The ASA of South Africa's Code of Advertising Practice is based on the Consolidated ICC Code of Marketing and Advertising Communication Practice prepared by the International Chamber of Commerce. Member organisations, including advertisers, advertising agencies, and the media agree upon advertising standards in the ASA code and work to effect the swift correction or removal of any advertising that fails to meet their agreed-upon standards.  INTERNAL REGULATION IN TELECOMS Universal Service Agency State Information Technology Agency (SITA) Internet Service Providers Association?  UNIVERSAL SERVICE AGENCY The Universal Service and Access Agency of South Africa (USAASA) is a State Owned Entity of government established through the Electronic Communications Act, No 36 of 2005, to ensure that "every man, woman and child whether living in the remote areas of the Kalahari or in urban areas of Gauteng can be able to connect, speak, explore and study using ICT's.  STATE INFORMATION TECHNOLOGY AGENCY SITA’s role is to consolidate and coordinate the State’s information technology resources to achieve cost savings through scale, increase delivery capabilities and enhance interoperability. The organisation is committed to leveraging Information Technology (IT) as a strategic resource for government, managing the IT procurement and delivery process to ensure that the South African government gets value for money, increased productivity; qualitative solutions, services and products; and uses best practice IT approaches in its modernisation and the delivery of services to all citizens. MONITORING INSTITUTIONS FOR ALL MEDIA SECTORS FXI – Freedom Expression Institute MDDA – Media Development and Diversity Agency FXI – FREEDOM EXPRESSION INSTITUTE The Freedom of Expression Institute (FXI) is a voluntary non- governmental organisation established in 1994 to promote and advance the rights to freedom of expression, access to information, and to oppose censorship. The FXI was formed on 27 January 1994 from a merger between the Campaign for Open Media and the Anti- Censorship Action Group. The FXI is managed by an Executive Committee which employs a full-time staff. The FXI is a member of the Media Institute of Southern Africa (MISA), which is a regional organisation devoted to the promotion of freedom of expression and a free, fair and independent media. The FXI is a member of IFEX, the global free expression network and AFEX - the African free expression network.  MDDA – MEDIA DEVELOPMENT AND DIVERSITY AGENCY The Media Development and Diversity Agency's (MDDA) mandate and objectives are to: Create an enabling environment for media development and diversity that reflects the needs and aspirations of all South Africans; Redress exclusion and marginalisation of disadvantaged communities and persons from access to the media and the media industry; Promote media development and diversity by providing support primarily to community and small commercial media projects; Encourage ownership and control of, and access to, media by historically disadvantaged communities, as well as by historically diminished indigenous language and cultural groups; Encourage the development of human resources and training, and capacity building within the media industry, especially among historically disadvantaged groups; Encourage the channelling of resources to the community media and small commercial media sectors; Raise public awareness with regard to media development and diversity issues, and Liaise with other statutory bodies such as the Independent Communications Authority of South Africa (ICASA) and the Universal Service and Access Agency of South Africa (USAASA). ENDS