Weak Watchdogs
This blog isn’t about law’s approach to society but rather society’s approach to the law. The media is seen around the world as the fourth estate.[1] That means that it is there to keep the other spheres (like government) in check; to act as a watchdog to the other spheres. This role ensures that a ‘democracy is fuelled by a well-informed public who themselves are the source for the power and legitimacy of the government’[2].
As I’m sure you know, South Africa flaunts its democracy wherever she can. That’s why when the Secrecy Bill was brought to the table, activists vehemently protested it. A democratic state can have its say, everyone knows that.
And I agree. The Secrecy Bill was awful. Now it’s still not ideal, but it’s better. Right now, however, I’m cross with the media.
I feel that they’re abusing their freedom.
And I know that’s a swooping unfair generalisation. But that’s exactly what they’ve been doing lately.
Let’s take Oscar Pistorius and his bail application.
The murderer who clubbed his girlfriend to death with a cricket bat. Who thought she was an intruder. Who has a history of a temper.
Wait.
What? You mean to say that all of these details were published before he even appeared in court?
Oh but we saw a photo of him crying in court…and let’s face it, only guilty people cry so he’s obviously guilty.
What? They weren’t allowed to take photos of him in court?[3]
Oops.
Luckily, as reported by South African National Editor’s Forum chairman, Nic Dawes, ‘there was no intention to contravene a court order’[4] and that there ‘seemed to be confusion’ regarding the covering of the case.
So don’t worry!
After all that damage and after all the papers that had already been sold because of the photo, they removed the images.
You can still find them on Google Images though (just type in ‘Oscar Pistorius crying’).
Simple!
Or how about the high profile Sexwale divorce case that we shouldn’t know anything about?
You see, the only reason Tokyo went public was, according to his spokesperson, ‘in the interests of transparency, to end speculation and to avoid a guessing game around which cabinet member may be involved’.[5] His wife Judy, on the other hand, wanted the divorce to be handled in ‘an entirely discreet and dignified manner’.[6]
Basically, everyone was speculating so much that Tokyo found it in his best interests to go public with the divorce. There were so many articles published about personal details linking specifically to this couple, as well as facts and figures that we already knew about them, that Tokyo’s announcement was old news to us.
On this announcement, the Times published the following Editor’s note:[7]
The Sunday Times is naming Tokyo and Judy Sexwale as the parties in this divorce case after obtaining legal advice. We believe that it is justified because neither party has asked that they not be named and both have commented to us through their lawyers. Tokyo Sexwale has stated through his lawyer, Billy Gundelfinger, that he would like it recorded publicly that he is a party to the divorce. There is significant public interest in knowing that he is to be divorced because strong allegations of misconduct have been made against him. In addition, there are no minor children affected by the divorce.
This, all in the name of public interest.
My question is this though: is it really in the public interest to nurture such speculation and how far are we going to let the media go to sell a story?
Is this speculation conducive to a ‘well-informed’ public, which as we saw earlier is the media’s role?
Are they just allowed to roam free, and when they break the law to publish a paragraph of an ‘apology’ when the effect of their speculation has already impacted?
Legally, let’s see how far they’re allowed to go. For this, we look to the sub judice rule. Sub judice means ‘under judgment’[8] and the rule goes like this: a case (especially a criminal case), under active proceedings, cannot be commented on publically if that commentary will prejudice the case. If it is seen to prejudice the case, the offender will be found in contempt of court.
Contempt of court is a criminal offence.
You could see how this would work with the jury system: members of the public can be easily persuaded by speculation, and would then have to judge the case with this bias in mind. In South Africa, however, judges are left to decide. Judges are expected to act impartially, so no one’s particularly worried about speculation affecting them.
Because of this, the media have been given a pretty wide scope when it comes to censorship. This was seen in the SCA’s ruling in the case of Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape):[9]
[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.
I’m not worried about speculation effecting judges, I’m worried about society. Speculation is spread under the guise of ‘public interest’, but the speculation of the Pistorious and Sexwale focuses on male power, and the dominance of women.
How is it in the interests of society to highlight these issues and sell them because they’re newsworthy, with little thought to the consequences of spreading such messages.
The strategy, they taught us in media class, is ‘if it bleeds, it leads’.
Talk about barbaric.
I’m worried about the privacy of the parties. I’m worried about Judy Sexwale, having her divorce dragged through the media when she wanted it done ‘discreetly’, in a ‘dignified manner’. I’m worried about the emotional trauma the media is putting already-traumatised people through.
I’m worried that the media seem to get away with anything for a ‘good story’, even if that story is anything but good.
Even if it comes at the expense of someone’s privacy, of their dignity.
It’s time to hold these ‘watchdogs’ to account.
[1] First coined by Edmund Burke, who used it in a parliamentary debate in 1787. Schultz, Julianne (1998). Reviving the fourth estate. Cambridge, England: Cambridge University Press. p. 49. ISBN 978-0-521-62970-6.
[2] The Fourth Estate in the USA and UK, viewed on 27 March: http://www.academia.edu/1275514/The_Fourth_Estate_in_the_USA_and_UK_Discourses_of_truth_and_power
[6] Ibid.
[7] Ibid.
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