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CHAIRPERSON’S REPORT
1. INTRODUCTION
With fifteen years of democracy behind us, as well as sixteen years of BCCSA adjudications, the question arises as to whether the BCCSA still has a role to play in a society that places such a high value on freedom of expression. Are we not, perhaps, an anachronism in a society where people speak their minds freely, often using language that may have led to burning at the stake in the 16th century? Yet the fact remains, by addressing complaints – the number of which has steadily risen, and currently exceeds 1800 annually – we have often acted as a lightning rod for irate complainants by the mere fact that we have meticulously attended to every complaint and provided reasons for our decisions.
On the other hand, we have attempted to ensure that broadcasters do not regard the BCCSA as a censoring body. In this regard, the BCCSA does not initiate complaints, nor does it act as a censor by evaluating programmes before they are broadcast. The BCCSA also only acts on complaints which make out a prima facie case of a contravention of the Broadcasting Code. When these cases are dealt with – which amount to 10 % of the complaints – fair administrative justice is applied. There is also an appeal structure so that parties to a dispute, when an appeal is allowed, have a second opportunity to put their cases. The seventy five broadcasters that fall under our jurisdiction have also contributed to informing millions of South Africans of the existence of the BCCSA by means of regular advertising of its role and function. When, in 2008, the subscription broadcaster DSTV accepted the BCCSA’s jurisdiction, a further 87 television channels were added to the duties of the BCCSA.
As bound by law, the BCCSA regards fair administrative justice as a core value in the more than 14000 complaints which have been dealt with over 16 years. The result has been a splendid one, since the BCCSA has never been taken on review to a court. Of Course, the BCCSA cannot be complacent, and it must continue to be vigilant at all times in its quest for justice.
2. RESEARCH
The hundreds of judgments on the website – www.bccsa.co.za – bear witness to the fact that the BCCSA is constantly confronted with constitutional issues such as the protection of dignity, privacy, children, freedom of religion, freedom of choice, the right to be informed, bona fide artistic and dramatic merit, or scientific merit and, ultimately, the generous application and interpretation of freedom of expression. In the process, research into several foreign broadcasting systems, including those of Germany, the United Kingdom, Canada, India, the Netherlands, the United States of America, Greece, Italy, the Republic of Ireland, as well as relevant material in the European Court of Human Rights has been undertaken; in addition, contact has been made with colleagues in these countries by way of visits and international conferences – two of which have been hosted in South Africa by the BCCSA. Personal contact has added countries such as Slovakia, Egypt, Russia, Spain, France, Hong Kong, Japan, Brazil, Uganda, Zambia and Rwanda to the list.
3. ADMINISTRATIVE JUSTICE
The core rules of fair administrative justice are: hearing interested parties, giving rational reasons, being bona fide, and being independent. Independence is guaranteed by the BCCSA Constitution: the BCCSA obtains its funds from the National Association of Broadcasters per enforceable contract to pay our reasonable expenses; a panel chaired by retired Judge of Appeal John Trengove has, since 1993, appointed all our Commissioners; the Chair is elected by the BCCSA itself; the Registrar is appointed by the BCCSA; the Chair is in charge of the office, with the assistance of the Registrar; from the Commissioners, the Chair appoints Tribunals; the Appeal Tribunal is constituted in a manner which ensures that the Chair of the first Tribunal has no say in who sits on appeal; to ensure that the Appeal Tribunal is not perceived to be biased, the Rules provide that two persons from outside the BCCSA may sit on appeals; judgments are written by the Chair of a Tribunal or by one of the Commissioners on the Tribunal and circulated for approval; judgments are required to be rationally connected to the facts and based on law. Ultimately, the rule of law is crucial to the functioning of the BCCSA: only that which is permitted by law is relevant. The Broadcasting Code is regarded as more than a mere code of ethics; it is regarded as an instrument of law, which must be interpreted within the spirit of the Bill of Rights in the Constitution of the Republic of South Africa.
4. CONSTITUTIONAL INTERPRETATION
The Independent Communications Authority of South Africa (“ICASA”) licensed several subscription broadcasters in 2007; these include DSTV, which, as previously stated, joined the BCCSA in 2008. DSTV has, however, functioned since 1995 and has built up a strong subscriber base in this period. M-Net, which is also a subscription broadcaster, has been subject to the jurisdiction of the BCCSA since 1993. A special Code for Subscription Broadcasters was developed by the National Association of Broadcasters at the request of ICASA, and this Code has also been approved by the BCCSA.
A core feature of DSTV and M-Net is the freedom of choice of subscribers: a contract is concluded with the broadcaster and access is thereby gained to foreign broadcasters, as well as to a few local broadcasters that also form part of the DSTV bouquet. Subscribers are provided with a blocking mechanism that provides some measure of comfort to sensitive adult viewers and to subscribers who have children.
The BCCSA has also had to adapt to modern standards of tolerance: crude and profane language in a drama broadcast after the watershed, and mildy crude language broadcast just before the watershed, must be tolerated. In programmes directed at children, high standards are, however, expected to be maintained. In so far as subscription television is concerned, it would seem that evern cartoons on occasion approach unacceptable levels of violence and crude language. However, here too the BCCSA has to be balanced in its approach. For example, eight years ago the BCCSA permitted a Pokémon cartoon that showed especially aggressive behaviour in the fight against evil.
5. IMPORTANT RECENT JUDGMENTS
In so far as dignity is concerned, the Appeal Tribunal has held that dignity does not relate to the dignity of a group, but only to the dignity of an individual. Where sections of the community are concerned, a case based on hate speech would have to be made out. Furthermore, only the person whose dignity has allegedly been impaired may file a complaint. Thus, in a case where a member of the community filed a complaint that a Minister had been referred to in a degrading manner by a presenter, it was held that only the Minister had the right to complain. To hold otherwise would mean that a matter could be decided “against” the Minister without his or her taking part in the matter before the Tribunal. The dignity of a person who has passed away is not protected in our law. Thus when the highly respected General de la Rey was, jokingly, referred to as having been gay in a song, this was not regarded as a contravention of the Code. Allegations of the violation of the dignity of Dr Verwoerd, South African Prime Minister in the sixties, were also, accordingly, held not to fall within the ambit of the Broadcasting Code.
In another matter, the Tribunal held that “dignity” included reputation. Thus, for example, where a person is referred to as a paedophile in a broadcast, it is not a defence if the word “alleged” is used when, indeed, images are shown suggesting sexual molestation by that person. In order, however, not to make it impossible for the media to identify such a person, an alternative test of reasonableness is permitted, as is the case in defamation law. High standards must, however, be complied with, and it is not permissible to simply state that a person is an “alleged” paedophile or “alleged” thief, whilst the general tenor of the programme seems to indicate that the person is in fact a paedophile or a thief. This approach is not unique to the Broadcasting Code, but is based on the general principles of defamation in South African law.
It does not often happen that the BCCSA is confronted with a massive complaint from a Metropolitan Municipal Council against a broadcaster. Claims of corruption and mismanagement lay at the core of the broadcast. All the complaints were dismissed. No appeal was filed. The judgment of Deputy Chair Viljoen makes for interesting reading within a constitutional democracy which seeks to uphold high standards. Of course, the matter before the Tribunal did not deal with the question whether corruption and mismanagement did in fact take place, but whether the standards of fair reporting were complied with.
The BCCSA has on only three occasions been called upon to decide whether gratuitous violence might be excused on the basis of the documentary nature of a particular programme. In two instances, the documentary nature of the material was successfully argued to constitute a defence; and in one instance, where a beheading was screened during the SABC 19:30 news, it was held that the scene was based on the truth, but that the concept of dignity – which is a core value of the Constitution – trumped the defence of its having documentary value. Generally, however, a generous interpretation is given to the term “documentary”. This approach is based on judgments of our Constitutional Court, Supreme Court of Appeal and the German Bundesverfassungsgericht. Police files showing dead bodies in the so-called Sizzlers massacre in Cape Town, as well as a re-enactment of the actual shooting, were, recently, held to amount to documentary material, and as such held not to be in contravention of the Code.
Finally, the BCCSA has constantly held that derogatory terms used to describe sections of the South African populace (even if not actually intended to be derogatory) are not acceptable. Only historical or documentary material, shown after the watershed with due warning as to language, may include derogatory words. There have been instances where the use of such words was found not to be in conflict with the Broadcasting Code as a result of their newsworthy nature within a certain context. This is a very limited category and usually pertains to instances where it is necessary to expose shocking behaviour. At the end of 2008 the BCCSA was confronted with complaints from two political parties regarding the presidential candidate, Mr Jacob Zuma (now President), who was afforded more or less 45 minutes to explain the future plans of the ANC. The parties claimed that the SABC should afford them equal time to put their case. The BCCSA Tribunal held that it was not within its powers to direct access in these circumstances. Access could only be ordered by the Complaints and Compliance Committee at ICASA, and then only during the election period (i.e. one month before election day). The only circumstances where the BCCSA may legitimately order a broadcaster to grant a complainant access is when that person has been seriously criticised in relation to a matter of public interest, and he or she was not afforded the opportunity to respond.
6. A NEW BROADCASTING CODE
In July 2009 ICASA published a new Broadcasting Code after consultation with the industry. Industry’s concerns with the Draft Code were addressed after hearings were held. The new Code does not include the introductory paragraphs of the 2003 Code. The 2003 introduction included a provision that gaps in the Code could be filled in by the adjudicating authorities (that is, the BMCC – currently the CCC – and also the BCCSA). Such a provision conflicts with the Rule of Law, which is a founding value of our Constitution, and requires that contraventions should be supported by law and not be dependent on the discretion of the Judge or other adjudicator. The new Code, accordingly, does not include this unconstitutional provision. Although the new Code does not include a reference to the Constitutional right to freedom of expression, such a reference is unnecessary in the light of section 39 of the Constitution, which requires adjudicating authorities to interpret all law in the light of the Bill of Rights. Freedom of expression is, accordingly, included in the new Code by way of clear implication.
What the new Code does add is a standardised system of advisories and age restrictions. Previously, this was left to the discretion of the particular television broadcaster. A broadcaster may, of course, add to these advisories. The Code requires age restrictions of 10, 13, 16 and 18, and classification in cases of Sex (S), Language (L), Violence (V) and Nudity (N). A “B” for blasphemy is not required: the reason is that “blasphemy” has a legal connotation, and would suggest that broadcasters are in fact permitted to broadcast blasphemy, which could amount to hate speech. Where profane language is used, the “L” advisory is sufficient. The age restriction and advisory should be broadcast for ninety seconds at the commencement of a programme and for thirty seconds after each advertisement break. In cases where there is an ongoing problematic aspect, the Code requires the age restriction and advisory to be shown on the screen for the entire duration of the programme: e.g. late-night films which contain ongoing sexual content, and seemingly excruciatingly violent wrestling matches shown before the watershed. The PG must, in future, also have an age limit added to it – e.g. PG 10 or PG 13.
The Code excludes explicit sex (comparable to the X18 and XX category in the Films and Publications Act), any film which has been classified as XX by the Films and Publications Board, explicit sex mixed with violence, child pornography, excessive forms of violence and the effects thereof, and material which amounts gratuitous violence or hate speech based on race, ethnicity, gender and religion. Of course, bona fide drama, art, documentary or scientific material and bona fide religious discussion and the like would always be a defence, even in the case of material which might otherwise fall into the category of, for example, hate speech or child pornography. The exclusions are based on the Constitutional Court’s judgment in De Reuck v DPP and Others 2004(1) SA 406(CC).
The news, commentary and serious criticism clauses have remained the same as they were in the past. The clause on privacy has been broadened in that an accent has been placed on the privacy of persons who are bereaved. The clause which prohibits the payment of money to criminals for information has been repealed, since it relates to an internal matter at a broadcaster and does not relate to content on the screen. In fact, all provisions which deal with internal matters at a broadcaster, e.g. clearing a matter with a senior executive, have been repealed. A clause which deals with competitions on air has been added to the Code.
7. COMPLIANCE BY BROADCASTERS
One of the conditions of our being recognised by ICASA (formerly the IBA), is that the BCCSA should, on an annual basis, inform ICASA as to whether the broadcasters under its jurisdiction have abided by its orders and directives. It can be stated with confidence that all the broadcasters that are subject to the jurisdiction of the BCCSA in terms of section 54(3) of the Electronic Communications Act 2005 as a result of their membership of the National Association of Broadcasters, and which have consented to the jurisdiction of the BCCSA, have given effect to all rulings of the BCCSA and have abided by the procedures applied by the BCCSA. Where they were directed to pay a fine they did so within the stipulated time, and where a correction or the summary of a decision had to be published, this was also done. A list of these broadcasters is attached.
8. A NEW WEBSITE
Establishing our new website was a tremendous task. Hundreds of judgments needed to be transposed to PDF, and the search function had to be connected to several topical words. The website address remains www.bccsa.co.za.
9. IN MEMORIAM: DR WILLEM DE KLERK
Dr De Klerk passed away a few weeks ago. He was a founding member of the BCCSA and was a Commissioner for 14 years. His input in Codes and Tribunal sessions set the tone for reasoned and practical decisions. His wide expertise in communications, religion, philosophy and human relations, contributed immensely to the success of the BCCSA. It was a privilege to have had a prominent South African of his ilk as one of our Commissioners. We honour his memory and express condolences to his wife, Dr Nina de Klerk, and to his children.
10. MOTION OF GRATITUDE
In conclusion, I wish to thank the Commissioners for their diligent support. The three deputy Chairs (Professors Viljoen, Lötter and Heaton) have assisted me considerably in writing judgments and with certain administrative tasks. Prof Heaton resigned in April as a result of the pressure of her academic work. I would like to express my gratitude to her for the splendid work she has done. Ms Savannah Maziya also resigned in May, and we will miss her unique expertise in the broadcasting sphere. Various commissioners have also assisted us in writing adjudications, and I would like to thank them for their well-motivated and speedy work. Two new Commissioners were appointed in the posts which were not initially filled: Mr Zolile Ntukwana and Ms Koekie Mdlulwa. I wish to thank them for their availability. There are currently two vacancies, which will be filled in due course.
A special word of thanks to : the Chair of the Appointment Committee, the Honourable Mr Justice John Trengove for, once again, having assisted us with the two new appointments; Mrs Shouneez Martin, the Registrar, who, with the assistance of the secretary, Ms Kim Erentzen, has done a sterling job – they have gone about their task with diligence and loyalty; the Executive Director of the National Association of Broadcasters, Mr. Johann Koster, as well as to the Executive and Council of the Association for their firm and loyal support.
KOBUS VAN ROOYEN SC
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