An analysis of press regulation and the proposed Media Appeals Tribunal in line with the constitutional imperative of a free and independent press

Abstract

This study provides a critical analysis of press regulation in South Africa, in light of calls for a Media Appeals Tribunal (MAT), an institution that would, if created, be mandated with statutory regulation of the press. Statutory regulation is compared to self-regulation of the press, the last of which is conducted by the Press Council of South Africa (PCSA). The study is divided into six chapters. The first chapter serves as the introduction and inspects the calls for an MAT. The second chapter is devoted to determining the constitutionally entrenched rights and limitations to freedom of the press and other media. It is studied how the law regulates what the press may and may not publish, in part through the laws of defamation and privacy. The legal framework in which the PCSA as self-regulatory body functions is studied. The mandates of the Film and Publications Board, as well as the Media Development and Diversity Agency, are also studied insofar it relates to the calls for an MAT and press regulation. It is also discussed how convergence and declining trust in the media affect press regulation. The third chapter studies how both the South African press and broadcast media are regulated. The PCSA's formation and functioning are determined, and its efficacy studied through available sources. Additionally, the PCSA's strengths and weaknesses are analysed through an array of considerations. It is then studied how the broadcast media is regulated through both the Broadcasting Complaints Commission of South Africa and the Independent Communications Authority of South Africa. Cognisance is also taken of how the Advertising Regulatory Board regulates advertisements appearing in the media. Chapter four looks at models and benchmarks of press regulation. As much is done by studying international principles and agreements that may influence the South African position. International trends in media regulation are also studied in order to place the research question in a broader context. Critique of a statutory regulator of the press is studied in light of calls for an MAT. Norms, best practice and the common functioning of press councils are also studied, noting how "best practice" is to be determined and implemented. The fifth chapter engages with the premise that the MAT could be instituted as a constitutional body, thus framing it as a chapter nine institution. Accordingly, it is studied how the independence of such an institution is tested. In line with the calls for an MAT, the independence of the Independent Communications Authority of South Africa, an institution which is constitutionally required, is studied to envisage the desirability of an MAT as chapter nine institution. In conclusion, the sixth chapter ties together and makes recommendations for further development of press regulation in South Africa, in line with the constitutional imperative of a free and independent press. Press self-regulation in South Africa is found wanting, whereas statutory regulation is found to be undesirable.