Okyerebea Ampofo-Anti explains why those complaining about the press must choose between going to the Press Ombudsman or court.
The Press Freedom Commission (PFC) was given a mandate to devise the most suitable press regulatory mechanism for South Africa. The creation of the PFC was an attempt to address some of the concerns about the current self-regulatory system.
The PFC’s report was issued in April and is being considered by South African National Editors’ Forum (Sanef) and Print and Digital Media South Africa (PDMSA). While it was generally well received by the print media and welcomed by the ANC, there are some problematic recommendations made that should be cause for concern within the print media. The recommendation regarding the requirement that people who complain to the Press Ombudsman waive their right to take the matter to court.
Now, whoever lodges a complaint with the Press Ombudsman must sign a waiver giving up their right to institute legal proceedings. Some have criticised this, saying it discourages people from submitting complaints to the Ombudsman. The PFC recommended that this waiver requirement be scrapped because the waiver has a chilling effect on the use of the Ombudsman. Also, a court considering a future claim on the same facts would take into account the decision of the Ombudsman, which would reduce the amount of damages awarded.
The removal of the waiver is a backward step in ensuring the Ombudsman provides a quick, informal and effective dispute resolution mechanism. The PFC appears to have overlooked and/or downplayed a number of important considerations.
Firstly, the idea that the waiver discourages people from using the Ombudsman doesn’t take into account the purpose of having a complaint mechanism outside of the courts. The Ombudsman is meant to be an inexpensive and speedy alternative to litigation. Also, the Press Code provides people with the opportunity to complain about breaches of media ethics for which there are no civil remedies – for example to complain about a misleading or inaccurate headline. The Press Code also provides remedies that courts don’t, like ordering a front page apology.
Considering this, it is clear that someone who has a legitimate interest in resolving a complaint will not be deterred by the waiver because there are clear benefits to lodging an Ombudsman complaint. Only people who want monetary compensation would be discouraged due to the waiver. The true deterrents are the perceptions that the system is biased in favour of the media and/or ineffective and that the available remedies are not sufficient. Once those concerns are addressed, which the PFC sought to do, there is no reason for the waiver to be scrapped.
Secondly, the risk that complainants will use the Ombudsman as a fishing expedition is real. When dealing with a complaint, a publication would ordinarily put forward its version of events and also produce relevant documentation to support its case. This would result in the complainant having a full version of events as well as all the relevant evidence upfront, thus enabling them to assess the weaknesses in the publication’s defence before instituting legal proceedings.
Thirdly, publications are less likely to play open cards with the Ombudsman or to make any damaging concessions. The current practice at the Ombudsman is that editors often make concessions in an attempt to resolve a matter and are also willing to admit when errors have been made. This is less likely to occur when the prospect of subsequent civil proceedings exists, with the knock-on effect that informal and speedy resolution of complaints will be less frequent.
Fourthly, although the PFC has recommended that legal representation should not be permitted, there is nothing to preclude publications from seeking legal advice and briefing attorneys for all the preparatory work relating to a complaint. Introducing the prospect of a subsequent civil case could prompt publications to involve attorneys behind the scenes. Consequently, the objective of making the process more user friendly and introducing equality of arms will be undermined.
Lastly, the PFC’s statement that a court faced with civil proceedings will take into account the Ombudsman’s findings ignores the fact that a complainant can withdraw the complaint at any stage. Consequently a duplicitous complainant could withdraw a complaint after deciding that he or she has good prospects of success with a civil claim. The PFC also ignores the fact that in civil proceedings relating to defamation, breach of privacy or infringement of dignity, the legal costs involved far outstrip the damages awarded. The end result is that publications will suffer financial prejudice if they are forced to defend a civil claim, regardless of the amount of damages awarded to the complainant.
It is hoped that in assessing the PFC recommendations and deciding how to implement them, PDMSA and Sanef consider these concerns. Should the PFC’s recommendation be implemented, one way of mitigating the harmful side effects is to compel complainants to agree that no information or documentation obtained in the course of an Ombudsman complaint can be used by the complainant in subsequent court proceedings. In the absence of any mitigating steps, the scrapping of the waiver may well undo the progress sought to be made by reforming the current self-regulatory system.
This story was first published in the October 2012 issue of The Media magazine.
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