MEDIA FREEDOM AND ETHICS

Introduction

Freedom of the media is fundamental to the media

This learning unit will teach you the role that freedom of the media plays within the Constitution

The Constitution and Bill of Rights Prior to 1994 the natural rights of SA citizens were not protected but now the fundamental human rights of each person is protected in Chp2 of the Constitution Human rights = basic fundamental rights to which every human being is entitled

Chp 2 starts with the words: “The Bill of Rights is the

cornerstone of Democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” Human rights are broadly divided into first, second and (newly developing) third generations: 1) civil and political rights: life, equality, privacy, freedom of expression, association, assembly, opinion, belief, religion and movement 2) rights associated with social and economic aspects: food, water, housing, healthcare, social security, education and the rights of children 3) environment, development, culture and language

The Right to Freedom of Expression S16 of Chp2 of the Constitution contains the freedom-of-expression clause: 16 (1) Everyone has the right to freedom of expression, which

includes

a. Freedom of the press and other media;

b. Freedom to receive and impart information and ideas;

c. Freedom of artistic creativity;

d. Academic freedom and freedom of scientific research.

16 (2) The right in subsection (1) does not extend to:

a. Propaganda for war;

b. Incitement to criminal violence; or

c. Advocacy of hatred that is based on race, ethnicity, gender or

religion, and that constitutes incitement to cause harm (hate

speech).

Freedom of expression (“freedom of speech”) is one of the most important rights concerning journalism and mass media

WHY? 1) The classical truth theory presumes open discussion and free exchange of ideas are essential in determining the true state of affairs 2) The participation in democracy theory is based on the fact that citizens should be freely informed about politics in order to be able to participate in a working democratic process 3) The social stability theory is based on the idea that the free flow of information helps in creating social stability as society is made aware of their problems and can adjust in accordance thereto 4) The individualist theory regards freedom of expression as vital in promoting the individual’s autonomy – it is a part of the right to personal growth and self-realisation

What Does this Mean for Media Law Students? Free press is essential to be able to participate in public life and participation in public life is essential to the proper functioning of a democracy Freedom of expression is the right to say or publish what needs to be said without the fear of punishment BUT rights no not exist in a vacuum Rights must be balanced against one another – rights will sometimes have to be limited or will limit (or infringe) on another right Eg. freedom of expression could violate the right to privacy

Case study: p. 32 of the Module Manual Tshabalala-Msimang and Another v Makhanya and Others

Rights may be limited ito the limitation clause (section 36 of the Constitution) – when it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom In other words any restriction of a right must be reasonable and must be proportional in that the impact or extent of the restriction must match the importance of the aim served by the limitation of the right. In SA everyone may express themselves freely but where a right of freedom of speech contravenes some criminal prohibition, the offender is prosecuted by the state (Criminal Law)

When the right of freedom of expression infringes on the right of another individual, the law grants the injured party damages (Civil Law)

The Role of the Press

The most important features of the role of the press:

The press provides an information service covering a very wide range of topics – this helps the individual to develop and achieve self-fulfilment AND it extends their contact to larger social groups

The press provides entertainment

The press plays a role in the expression of public opinion by providing criticism and comment on topical issues in the news

The press plays a cultural role by including items of cultural interest and importance to the various language and population groups.

The press gives expression to the diversity of political views in South Africa

The press assumes the role of “watchdog” over the government, functioning to inform the public on issues of malpractice and incompetence – vitally important to the functioning of a democracy, to ensure that the executive of the government never assumes more power than it is entitled to and so guarding against the emergence of autocratic rule

Restricting Freedom of Expression: ensorship In what circumstances and to what degree may rights be limited?

“to censor” means to evaluate, criticise, assess, prohibit and suppress Censorship has also been defined as the suppression of freedom of expression

Not just government which censors… pre-censorship: producers of messages, art and entertainment censor their own work before it reaches the public. Eg. In SA editors and journalists have in the past avoided taking a firm stand on various issues, such as criticising the government for fear of being condemned as racist and anti-government. Various theories and debates around censorship

Public Good versus Individual Liberty

The primary justification for censorship (or limiting freedom of expression) is that certain messages are harmful to society. The key issue is whether individuals should be prevented from seeing or hearing certain messages or be allowed to receive those messages and decide for themselves? The answer is whether you believe individuals are capable of thinking for themselves… In general it is harmful to withhold messages from society since a well-informed public is necessary for a strong and effective democracy BUT there are 2 exceptions where censorship is a good thing: 1) The need for national security, especially in wartime 2) The protection of children, since it is almost universally acknowledged that children are not fully capable of thinking for themselves on all issues

The Right to Know Versus the Right to Privacy

The public’s right to be informed may clash with an individual’s right to privacy (a weighing process is necessary)

Public interest // what interests the public

Individuals have a right to be protected from the release of certain information that may cause humiliation, embarrassment or the disruption of their personal lives

We need to ask if the benefits to the general public outweigh the harm

Freedom of Expression versus Hate Speech

Hate speech is excluded from the right to freedom of expression

Hate speech causes problems (for the media and media lawyers) as it is the hardest term to define

Even after S10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA) spelt it out further, by barring “words based on one or more of the prohibited grounds, against any person that could reasonably be construed to demonstrate a clear intention to be harmful; be harmful or to incite harm; promote or propagate hatred”.

Case study: p. 37 and 39 of the MM The Islamic Unity Convention v The Independent Broadcasting Authority and Others Laugh it off Promotions cc v South African Breweries International

“Prohibited Grounds” includes:

And any ground where discrimination undermines equality, dignity and freedom

Censorship Legislation under Democracy

In February 2000, the Promotion of Access to Information Act (PAIA) became law

The purpose of the act = “to give effect to the constitutional right of access to information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights” In 2006 The Baseline Report state that SA is enjoying more freedom of expression and access to information than it has done in decades and even centuries and it further states that SA has the most progressive legislative framework for access to information in the Southern African Developing Countries (SADC) Region.

There are limitations to this law, including the lack of an adequate budget and the fact that provisions don’t apply to the Cabinet or individual MPs and MPLs Public bodies and private bodies also do not have to disclose: 1. Information about or commissioned or supplied by a third party (such as

someone’s tax details from SARS)

2. Trade secrets or information that could put someone at a business disadvantage

3. Information that could threaten police investigations, national security or

economic interests 4. Information about policy discussions or decision-making (like the full

minutes of meetings) 5. Information that is requested “frivolously” or would take “unreasonable”

resources to compile.

In 2001 the Protected Disclosures Act became law Act protects people who may come across confidential information in an organisation they feel the public has a right to know (“whistle-blowers”) Whistle-blowers have considerable protection from the law if they reveal confidential information to a lawyer to get legal advice

BUT if they go to the Public Protector the burden of proof is on them to justify disclosure being in “good faith” and based on “substantially true” information A whistle-blower who has gone to the media is only protected if 1. They believe the information is substantially true; 2. They receive no reward, financial or in kind; 3. They believe they could not tell their employer because they would be

harmed or prejudiced or the employer would destroy the evidence; 4. They have tried making the disclosure to others but nothing had been done

about it; 5. The disclosure was about something very important

There is still legislation dating back to the apartheid regime on the statute books which impacts on access to information

The South African National Editors’ Forum (Sanef) has listed 10 Acts whose removal or would improve freedom of information

They are: 1. Defence Act 2. Criminal Procedures Act 3. Magistrates Court Act 4. Inquest Act 5. Maintenance Act 6. Armaments Development and Production Act 7. National Supplies and Procurement Act 8. Petroleum Products Act 9. National Key Points Act 10.Protection of Information Act

Case studies: p. 42 and 43 of the MM Using the Promotion of Access to Information Act South Africa’s Nuclear Programme: Striving to ensure the full story of South Africa’s nukes are told, by Shaun Smillie

ICE TASK Due: Email to me -15 Feb 2013

Present in class – 19 Feb 2013

Make a poster regarding Freedom of

expression

Ethics and Code of Conduct

What is Media Ethics?

“Media ethics is a branch of philosophy that deals with what is morally permissible for

media workers to do, and not what is not. It provides guidelines to identify the best alternative actions within the broader

communicational context, and how to choose between them. It is a part of moral

philosophy, media ethics should ideally be applied voluntarily”

Ethics = an integral part of journalism and any other media field, as they are constantly confronted with various choices in respect of responsible reporting of news

What does ethics have to do with media and PR practitioners? Why should attention be given to of this principle?

“Journalism without a moral position is impossible. Every journalist is a moralist. It’s absolutely

unavoidable. A journalist is someone who looks at the world and the way it works, someone who takes a close look at things every day and reports what she sees, someone who represents the world, the event, for

others. She cannot do her work without judging what she sees”

- Marguerite Duras -

“To everyone who proposes to have a good career, moral philosophy is indispensable”

- Cicero -

In journalism, ethics is essentially the moral principles or the Code of Conduct which serves as a guide Journalists are confronted with ethical problems/dilemmas and choices are sometimes very difficult to make

“journalism is not a neutral craft nor is it a technical skill. Choices

confront journalists constantly, and decisions have to be made one way or

another”

The Need for Ethics

Ethics = essentially a branch of philosophy and is used in the context of “rightness” and “goodness” Ethics is distinct from law as law sets minimum standards as to how one should behave in society Ethics must also be distinguished from morality Morality is a set of beliefs or general rules of conduct in society//Ethics entails an understanding of the very foundations of what we consider to be right or wrong Sometimes general morality is compromised or breached. Eg. Plagiarism or journalistic fabrication Often, journalists must weigh up the competing moral values (especially when facing a moral dilemma) Ethical decision may then be considered as a rational, deliberate process since the quality of thinking of the journalist must consider the matter that would eventually lead to a justifiable action

Ethical theories which may be followed by media practitioners: Virtue

Deontological ethics

Utility

Rights Love

Virtue Aim = to determine what it means to live a “good life” and what “goodness” means in a societal context One of the best ethical theories of the Western tradition is that of Aristotle = “gold Mean” Based on the virtue temperance and is essentially the “practical wisdom or phronesis” = the ability to discern the proper conduct in a given situation Wisdom emanates from a virtuous character developed through “everyday habit guided by reason”

Confucius could be paralleled with Aristotle in that he said that a virtuous person would be “benevolent, kind, generous, and above all, balanced, observing the mean in all things.” Eg. you are a reporter in a murder case. Should you publish the exact details of the murder, it may offend some readers? Further, the relatives, family members of the deceased may suffer further pain, in addition to have o loved one lost. On the other hand should you decide not to publish, the ethical considerations come into play in that the ethical value of truth telling and the public interest must be considered

Deontological ethics Greek word for “duty” Kant – the “categorical imperative” Based on the fact that a moral action is one that would be right for everyone, everywhere, at any time In justifying the action one must consider whether such an action would apply universally Journalists have a duty to tell the truth and never shy away from it, regardless of the consequences It is the duty of the journalist to ascertain the correct details of the news and he or she should never stray away from the truth

Utility “utilitarianism” Aim = to “seek the greatest happiness for the greatest number of people” by maximizing pleasure and minimizing pain This requires a calculation of the likely consequences of an action in order to determine whether or not it is ethical “The goal of utilitarianism is “...to produce the best outcomes, not simply good outcomes”

Rights

Virtue is based on what is “good” in society – a rights-based approach Justice forms the basis for any ethical action What is right on the other hand is based on the premise that there exists a “social contract” amongst people in society Such a contract can be regarded as ethical only if it is as a result of a fair, deliberate process John Rawls – the contract is possible on the basis of what is called the “veil of ignorance” - iow a social contract can come into being if people suspend (hide) their own interest and features (behind the veil) such as race, gender, group and individual interest in the negotiating process of the social contract. Once the social contract is concluded you step out from behind the veil and attempt to conclude a contract that will be fair to everyone and treats everyone equally, irrespective of their position in society = “walk in someone else’s shoes”

Love

Individuals do not live atomized - we live in a community which exists independently and in relation to one another

Love –based theories have been developed on the basis of nurturing, caring, affection, empathy and inclusiveness

Ethics of care is especially applicable when journalist must deal of stories based on tragedies, sufferings and pain

Ethics of care ensures that journalists do not see compassion, engagement and sympathy as flaws in their professional make- up BUT as being appropriate and the best ethical response under circumstances involving tragedy, pain and suffering

The Difference between Authoritarianism and Libertarianism au·thor·i·tar·i·an

1. Characterized by or favoring absolute obedience to authority, as against

individual freedom: an authoritarian regime.

2. Of, relating to, or expecting unquestioning obedience.

lib·er·tar·i·an

1. One who advocates maximizing individual rights and minimizing the role of the

state.

2. One who believes in free will.

The first newspaper in South Africa was “The Cape Town Gazette and African Advertiser/ Kaapsche Stads Courant en Afrikaanse Berigter, published on 16th August 1800. At that time it was the only newspaper that was allowed and it was printed on a government press. This was one way in which the principle of authoritarianism was used. In 1829 the principle of libertarianist freedom of the press was established in South Africa. It continues to this day and press freedom is protected by the Constitution – S16

Media Law and ethics

: A journalist has a duty to maintain the highest professional and ethical standards A journalist shall at all times defend the principle of Freedom of the Press and other Media in relation to the collection of information and the expression of comment and criticism He shall strive to eliminate distortion, news suppression and censorship. A journalist shall strive to ensure that the information he disseminates is fair and accurate, avoid the expression of comment and conjecture as established fact and falsification by distortion, selection or misrepresentation A journalist shall promptly rectify any harmful inaccuracies, ensure that corrections and apologies receive due prominence and afford the right of reply to persons criticised when the issue is of sufficient importance A journalist shall obtain information, photographs and illustrations only by straightforward means. The use of other means can be justified only by overriding considerations of the public interest. The journalist is entitled to exercise a personal conscientious objection to the use of such means Subject to justification by overriding considerations of public interest, a journalist shall do nothing which entails intrusion into private grief and distress.

A journalist shall protect confidential sources of information A journalist shall not accept bribes nor shall he allow other inducements to influence the performance of his/her professional duties A journalist shall not lend himself to the distortion or suppression of the truth because of advertising or other considerations A journalist shall not originate material which encourages discrimination on the grounds of colour, creed, gender or sexual orientation A journalist shall not take private advantage of information gained in the course of his duties before the information is public knowledge A journalist shall not engage in plagiarism and shall ascribe information used in articles to the original source or individual, organisation, media channel or news agency

( )

This international declaration is proclaimed as a standard of professional conduct for journalists engaged in gathering, transmitting, disseminating and commenting on news and information in describing events The principles are as follows: Respect for truth and the right of the public to truth is the first duty of the journalist In pursuance of this duty, the journalist shall at all times defend the principles of freedom in the honest collection and publication of news, and of the right to fair comment and criticism

Adopted by 1954 World Congress of the IFJ. Amended by the 1986 World Congress

The journalist shall report only in accordance with facts of which he knows the origin The journalist shall not suppress essential information or falsify documents The journalist shall only use fair methods to obtain news, photographs and documents The journalist shall do the utmost to rectify any published information which is found to be harmfully inaccurate The journalist shall observe professional secrecy regarding the source of information obtained in confidence The journalist shall be alert to the danger of discrimination being furthered by media, and shall do the utmost to avoid facilitating such discriminations based on, among other things, race, sex, sexual orientation, language, religion, political or other opinions, and national and social origins The journalist shall regard as grave professional offenses the following: plagiarism; malicious misinterpretation; calumny; libel; slander; unfounded accusations; acceptance of a bribe in any form in consideration of either publication or suppression Journalists worthy of the name shall deem it their duty to observe faithfully the principles stated above. Within the general law of each country the journalist shall recognise in matters of professional matters the jurisdiction of colleagues only, to the exclusion of any kind of interference by governments or others.

Theories of Ethics One of the most prominent exponents of ethics of duty is Immanuel Kant The basic premise of his philosophy is that you should act in the same way you would have others act in a similar situation Essentially, a person must be treated with respect and no person must be regarded as a mere means to an end Iow treat people in such a manner that you will always be able to justify your conduct towards such people In this way, universalizing a morally good action imposes a duty on all to do the same for no other reason than it is your duty Called the categorical imperative – obedience is necessary because everyone desires goodness Ethics may be regarded as the moral principles of the Code of Conduct = guiding principle to the behaviour of journalist Guidelines are important since journalists make important decisions daily

“Journalism being what it is, even the most virtuous journalist, operating from what they see as the best of motives, inevitably will produce some morally unsatisfactory results. In either case it is worth understanding what went wrong and how to prevent its

recurrence”

ICE TASK Due: 20 Feb 2013

Write a page on one of ethical theories (Virtue, Deontological

ethics, Utility, Rights or Love). Decide which one you feel you are

able to relate to the most. Describe what the theory entails and how it

will be applicable/ applied by you in you future career.

* Hand in your draft and the final typed copy.

The essay has a title

Rough draft included

Uses full sentences

Evidence of a logical flow of thoughts

Uses verbs correctly

Uses capital letters correctly

Uses connectives appropriately

Uses full stops/commas in appropriate places

Correct use of apostrophe

Correct spelling

Appropriate style

Kept to the topic

Marking sheet…