Case Summary and Outcome

The Complaints and Compliance Committee (CCC) at the Independent Communications Authority of South Africa held that the order by the South African Broadcasting Corporation (SABC) to no longer broadcast footage of the destruction of public property during protests was invalid from its inception. The Media Monitoring Project Benefit Trust, the Support Public Broadcasting Coalition and the Freedom of Expression Institute challenged the legality of SABC’s new policy in a complaint to the CCC. The Committee reasoned that the SABC resolution constituted a categorical blocking of the public’s right to information which was in conflict with its licence conditions and the Broadcasting Act read with the Constitution.  In so doing the SABC had acted outside its powers in violation of the central constitutional value of legality.

Facts

On Thursday 26 May 2016, the South African Broadcasting Corporation (SABC) issued a media statement regarding its new approach to the broadcast of violent protest action, namely, that it would no longer broadcast footage of the destruction of public property, such as schools, in any of its news bulletins on the grounds that it was not going to give publicity to such destructive and regressive actions. On June 1, the Media Monitoring Project Benefit Trust, the Support Public Broadcasting Coalition and the Freedom of Expression Institute lodged a complaint with the Complaints and Compliance Committee (CCC) alleging that the SABC had failed to discharge its legal duties.

The complainants argued that such a policy was not only in conflict with the duties of the SABC in terms of the Broadcasting Act and its licences, but also with the constitutional principle of freedom of expression and freedom to receive information or ideas. Further, it took South Africa back to deplorable apartheid bans on news and comment, whether by the then SABC, apartheid laws or regulations.

The SABC said it was obvious that the presence of television cameras intensified the enthusiasm with which protesters would act and attack public institutions by, for example, setting them alight or destroying them. Further, from the perspective of the protection of children against scenes of violence on television and the protection of SABC journalists against violence in such situations, the decision of the SABC made sense.

Decision Overview

JCW Van Rooyen delivered the judgment.

He began by noting that as an administrative tribunal, the CCC had to interpret the Broadcasting Act in a manner that “promote[s] the spirit, purport and objects of the Bill of Rights” as required by section 39(2) of the Constitution; and must give effect to section 192 of the Constitution which requires broadcasting to be regulated “in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”. Further, in doing so it must seek to align broadcasting with the democratic values of the Constitution and to enhance and protect the fundamental rights of citizens.

The CCC held that central to this matter was the media’s crucial role in South Africa’s constitutional democracy and the likely impact the policy would have on the SABC’s capacity to fulfill that role. The tribunal also noted the importance of the free flow of information, particularly information in the public interest,  and the fact that South African courts including the constitutional court have repeatedly stressed the pivotal role of the media as the watchdog of society keeping check over the government and keeping the public informed.

The CCC held that the SABC had a number of obligations in terms of the Broadcasting Act: (a) to provide coverage of “significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests”; (b) to “encourage the development of South African expression by providing…programming that offers a plurality of views and a variety of news, information and analysis from a South African point of view, and advances the national and public interest”; and (c) in terms of its licenses, in the production of its news and current affairs, to meet the highest standards of journalistic professionalism; provide fair, unbiased, impartial and balanced coverage independent from governmental, commercial or other interference; and provide a reasonable opportunity for the public to receive a variety of points of view on matters of public concern.

The CCC said that all the above meant “that the SABC’s obligations under
the Broadcasting Act and its licences must be interpreted in a manner that promotes freedom of expression, which inter alia includes, according to section 16 of the Constitution, (a) freedom of the press and other media; and, importantly (b) freedom to receive or impart information or ideas.  The CCC, quoting the Court in SABC v. NDPP that “what is central to the issue is not the responsibility and rights of the SABC as a broadcaster but the right of the public to be informed”, held that it was clear that “focus should be placed on ensuring that accurate information, with the scenes of service delivery protesters burning public property, is broadcast to the public and that, where a breach of these duties is clear, it should advise Council to compel the SABC to give effect to the citizen’s fundamental right to receive even offending, shocking or disturbing information as long as it enjoys the protection of section 16 of the Constitution read with the Broadcasting Code.”

The CCC also held that the SABC, by banning a category of coverage in advance was engaged in the practice of the prior restraint of expression which is only permissible in truly exceptional circumstances. It was held that there was nothing in either the Broadcasting Act or the licenses permitting such a categorical and absolute restraint in the SABC newsroom. The CCC concluded that the SABC acted outside its powers in taking the decision as published in the 26 May statement and therefore its action “did not comply with the central constitutional value of legality”. The complaint was upheld.