© Webber Wentzel 2013 Press Council Workshop 21 May 2014 THE FUTURE OF PRINT MEDIA REGULATION Dario Milo | Partner Webber Wentzel Attorneys C: T:

RECENT INVESTIGATIONS INTO PRINT MEDIA REGULATION Major investigations of print media regulation across a number of jurisdictions, but for different reasons o Leveson enquiry (UK) November 2012 phone hacking and unethical behaviour by press o Australian inquiry February 2012; Convergence Review March 2012 o New Zealand Law Commission March 2013 Regulation of the converged media o South Africa's Langa Commission – April 2012 Against background of Media Appeals Tribunal threat – Polokwane conference 2007; Durban National General Council 2010; Mangaung 2012 : o “The Press Freedom Commission’s recommendations go a long way in responding to the ANC conference resolutions. There remains a lot of work to be done to ensure full implementation of the principles guiding the ANC resolution. Also the Parliamentary Inquiry using the PFC report as a basis remains relevant” 2

TWIN 2010 THREATS: SECRECY BILL AND STATUTORY MEDIA TRIBUNAL 3

THREE THEMES FOR FUTURE OF PRESS REGULATION Statutory regulation would be vulnerable to constitutional attack Press Code should be amended to ensure members benefit from exemptions from legislation eg Protection of Personal Information Act 2013 How will Press Council address online publication, if at all? 4

GOVERNMENT BODY TO REGULATE PRESS 5

THE CONSTITUTIONALITY OF A MAT? A government controlled tribunal that can punish journalists and decide on the content that is published will be an infringement of press freedom In Miami Herald v Tornillo: o The US Supreme Court held that a Florida law which made it an offence for a newspaper to refuse to provide every candidate for election to a public office with an automatic right of reply when they had been criticised by the newspaper, was an infringement of press freedom; o Compelled newspapers to print that which they would otherwise not have printed; o The law unjustifiably treaded on the toes of editorial integrity, and hence fell foul of free speech rights 6

THE CONSTITUTIONALITY OF A MAT? Some of the observations made by the court are well worth noting in the context of the debate around the establishment of the MAT: "The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press." "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated." 7

THE CONSTITUTIONALITY OF A MAT? Scope to challenge constitutionality in at least following areas: o Will it be state controlled or truly independent ? o Substantive rules that MAT will seek to apply – may not deviate from what courts have already articulated when balancing freedom of expression, dignity and privacy. This ironically means that Press Council regulation can exact stricter standards from its members than a MAT could (because based on consent); e.g. right of reply o Sanctions that MAT could apply – may not offer prior restraint, may not ban journalists or require them to register, may not impose large fines that have a chilling effect on expression, may not even be able to force the media to apologise So public actually better off with regulation that is self/ co-regulatory because : o May impose higher standards on press than a statutory tribunal could o May impose more severe sanctions on press than a statutory tribunal could 8

9

THE NEED FOR THE CODE TO KEEP PACE WITH LEGISLATIVE DEVELOPMENTS Protection of Personal Information Act 4 of 2013 Will regulate the processing of personal information by public and private bodies and impose onerous conditions on such processing (eg can generally only collect information from data subject; generally need consent etc) 10

POPI AND THE MEDIA? 11

PROCESSING? AND GOOGLE SPAIN ECJ JUDGMENT, MAY

JOURNALISTIC EXEMPTION – SECTION 7 OF POPI AND “ADEQUATE SAFEGUARDS” 13

THE ELEPHANT IN THE CHAT ROOM New Zealand Law Commission 2013 “The fundamental weakness of both the Press Council and the [Broadcasting Standards Authority] is the fact that both are designed to operate in a traditional media environment which no longer exists. In other words, neither was designed for the digital era and the convergence of media platforms.” Raises fundamental issues about whether it is still appropriate to compartmentalise the regulation of different media Eg NZ Law Comm concluded that should have voluntary complaints body across all types of news publishers irrespective of distribution channel 14

PRESS CODE AT LEAST NEEDS TO REGULATE ONLINE PUBLICATIONS OF MEMBERS Clause 5.1.3: complaints extend to electronic media of member publications “Electronic media” should include any official online/ digital/ social media publication by the member concerned e.g. o Newspaper’s blogs o Newspaper’s Facebook posts o Tweets from newspaper’s Twitter accounts Eg: Independent Press Standards Organisation (June 2014, UK) 15

JOHANNESBURGCAPE TOWN 10, 16 & 18 Fricker Road,15 th Floor, Convention Tower Illovo Boulevard,Heerengracht, Foreshore Johannesburg, 2196, South AfricaCape Town, 8001, South Africa T T Legal Notice: these materials are for training purposes only and do not constitute legal or other professional advice