Webber Wentzel 2013 Press Council Workshop 21 May 2014 THE
FUTURE OF PRINT MEDIA REGULATION Dario Milo | Partner Webber
Wentzel Attorneys [email protected] C: 073 910 0156 T:
011 530 5232 Twitter: @dariomilo
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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 Commissions 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
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TWIN 2010 THREATS: SECRECY BILL AND STATUTORY MEDIA TRIBUNAL
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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
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GOVERNMENT BODY TO REGULATE PRESS 5
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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
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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
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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
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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
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POPI AND THE MEDIA? 11
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PROCESSING? AND GOOGLE SPAIN ECJ JUDGMENT, MAY 2014 12
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JOURNALISTIC EXEMPTION SECTION 7 OF POPI AND ADEQUATE
SAFEGUARDS 13
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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
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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 Newspapers blogs o Newspapers Facebook posts o Tweets from
newspapers Twitter accounts Eg: Independent Press Standards
Organisation (June 2014, UK) 15
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