Delegated Media Regulation Within the Context of Broadcasting in South Africa
June 22, 2017
This paper discusses the concept of delegated media regulation within the context of broadcasting in South Africa. It briefly discusses the history of media regulation during the apartheid period; the transformation of broadcasting media from an authoritarian government, to a liberalised media, the impact of the transformation with regards to internal media policies; focusing mostly in broadcasting media policy. The paper will then discuss the formation of independent regulatory agencies by government as delegated bodies; to monitor broadcasting media. These include the Independent Broadcasting Act of 1993 (IBA), the South African Telecommunications Regulatory Authority (SATRA) and the merger to the Independent Communications Authority of South Africa (ICASA), the Broadcasting Complaints Commission of South Africa (BCCSA), and the existence of the Media Diversity and Development Agency (MDDA). In discussing these bodies, the paper will look at the role played by these organisations in regulating broadcasting media, and the impact they have in the development and monitoring of broadcasting media.
Apartheid affected every single aspect of South Africa, including the media. Laws that regulated the media were tailor-made to restrict freedom of expression and subject the media to the extremes of the apartheid government. Before the rise of democracy, South Africa showed essential features of aristocracy; which consisted of whites, Indians and coloured people nominated to the legislative assembly. The ideology of apartheid brought division among the South African society along racial lines. The divisions in society and domination of the majority by the minority were reflected in policy formulation; which included stipulations that restricted the media (Fourie, 2004: 168). This was evident as the government exercised its powers in the broadcasting media. When the SABC was established in parliament, it was said to be the public broadcaster; but this was not the case. Because of political philosophies related to the political values of the society and those in power at the time, the SABC was the state broadcaster and not a public broadcaster; and as a result was said to be the apartheid state’s most powerful propaganda tool Dennis Jjuuko (2005: 3).
According to Jjuuko “The assumption to political power by the National Party in 1948 meant the Afrikanerisation of the SABC, which was achieved largely through controls of the board.” Jjuuko continues to say that during this time the SABC had to play a “significant role in the politics of the day, with no space to make independent editorial decisions.” This particularly had a negative impact on the importance on the SABC’s internal policies. As a result the SABC was referred to as “his master’s voice”, as it gave the government a platform to articulate the apartheid ideology, to control the people of South Africa; particularly blacks.
In support of this argument, one of the main laws that restricted media freedom was the one that reduced the broadcast/publication of activities of anti-government black groups. Fourie (2004) argues that from the apartheid laws “one can deduce that the public interest was very narrowly defined. (That) Many laws/policies of the apartheid regime only made provision for the interest of the minority and the security for their dominant position.”
Even though freedom of speech was in the constitution, it was not enshrined in the Bill of Rights, thus media freedom was not guaranteed. According to Fourie government/external policies forced the media to operate in a very restrictive legal framework; with more than 100 laws that restricted the conduct of journalists as well as media content. Government had the right to ban publications and to insist on the approval of media content before publication. This made the reporting of misconduct of government officials very difficult; and criticising the state was out of the question.
2. Transformation of broadcasting media
The transition to democracy during the mid 1990s raised questions on how to transform the media as an organ of “racist ideology into a forum of the advancement of national unity and equality” (Ashley Dawson). The transformation of the media incorporated issues of deregulation, liberalisation, diversification, industrialisation, convergence and privatisation. Also to be taken into account were economic issues, social and/ cultural issues, which include nationalism, local languages and cultural diversity; political issues-focusing on freedom of expression and freedom of speech, as well as the control and regulation of the media.
Early 1990, the National Party saw itself being influenced to take a liberal policy route in its broadcasting policies. This was due to the formation of a Task Group which was led by Professor H.C Viljoen, on Broadcasting in South Africa. The findings of the Task Group were not at all in favour of the apartheid government broadcasting policies. The recommendations were of a programming that “would cater for all sections of the general public” (Jjuuko, 2005). In a place of serving government, the SABC was to serve the public. The findings were clearly influenced by a functionalist paradigm and not power as was the case before.
Early 1994, the National Party (NP) and the African National Congress (ANC) agreed for the “SABC not to be used as a tool for political abuse” (Berger, 2004). Pressures rose as media practitioners were threatened by police and political activists, trying by all means to interfere with internal media policies and decisions. Media freedom was then enshrined in the constitution, as the right to information and freedom of speech.
Internal media policy
Internal policy can not be excluded from the external policy framework, for it is always formulated within the parameters of the external framework. This is due to the link between the media, economic and political structure of a country. Fourie (2001:190) states that “Internal media policy formulation takes place within the structure and operation of a medium itself. (And that) Gatekeepers are generally responsible for policy formulation on this level.”
A new political dispensation in South Africa impacted on the internal policy formulation of South Africa’s public broadcaster. There were also changes in the legal framework in the country, as the media could not broadcast nor publish certain information. “The unbanning of political organisations and political leaders in 1990 had an immediate impact on media internal policy” (Fourie). This was due to the fact that the apartheid news policy specified that the SABC would not offer a platform to opposition parties (Fourie, 2001). After 1990, the media experienced a more liberal working environment as the laws that restricted the media were amended; living more room for internal media policy.
As media democracy was in transition, government saw a need to delegate control to independent regulatory bodies to deal with media policy. These independent bodies would perform duties of allocation of frequency spectrum and licensing, the monitoring of broadcasters’ compliance with licence conditions, including content issues and competition, as well as protecting and upholding the editorial and programming independence of all broadcasters. All these changes were inevitably going to have an impact on both the power and importance of internal media policies over government external policies in both print and broadcasting media.
3. Independent regulatory bodies
3.1 SATRA – IBA – ICASA
Fourie argues that “The narrow articulation of the public interest by the previous government was also clearly reflected in telecommunications policy formulation and the implementation of this policy under apartheid.” As in broadcasting and print media, freedom to better services and access to this sector featured strongly in its policy formulation; also the application of universal service as a policy instrument reflected the historical inequalities of the South African society (Fourie, 2001).
The rise to democracy saw South Africa taking cognisance of the international trends; which included the deregulation of the telecommunications and broadcasting, and the phasing out of monopolies. Also technological developments which include convergence between broadcasting and telecommunications impacted on the regulation of both sectors.
The emergence of the first democratic elections in South Africa also lead to the transformation of the SABC as a public broadcaster; thus the formation of the Independent Broadcasting Act (IBA)1993, and the South African Telecommunications Regulatory Authority of 1996. SATRA was established as an independent body to regulate the telecommunications industry. Also as the independent regulator SATRA had to balance the interests of consumers, and the stakeholders in Telkom as well as the market participants. The formation of these two bodies was due to the need to ensure the development of the media in areas of public broadcasting, commercial and community broadcasting, and lastly to guard against internal media policy.
As part of the transformation the IBA called for the Triple Inquiry, which stated that the independence of the media is a central public principle which ensures editorial freedom (Triple Inquiry Report, 1995). In 1995 the government indicated that it “fully recognised and accepted the role of the media to be a critical commentator on government activity in the country” and that “the media should be beyond the control of government” (Johnson, 1996: 297, sited in Steyn).
The IBA was subsequently merged with SATRA in 2000 to form the Independent Communications Authority of South Africa (ICASA). The merger was to ensure effective and seamless regulation of the telecommunications and the broadcasting sectors as well as to accommodate the convergence of technologies. Through the formation of this independent regulatory body, it was then decided that editorial independence together with internal media policies were of outmost importance; that the broadcaster (using the SABC as an example) should safeguard its editorial independence to ensure its credibility as a national source of reliable and regular information.
As the democracy years rolled over, successive ministers of communication attempted to claw back some of the forfeited control over electronic communications, and correspondingly reduce some of the independence for the players involved. This trend has also been in broadcasting. “Government has felt that SABC has been law unto itself in deciding how to deliver on, and be accountable for, its legally enshrined mandate” (Berger, 2005). This is what led to the introduction of editorial policies in the SABC, which was initiated by the Broadcasting Amendment Bill of 2002. In embracing the importance of these internal media policies; parliament declared the independent regulator ICASA; which works at arms length from the government to approve them.
ICASA derives its mandate from ICASA Act of 2000, the Independent Broadcasting Act of 1993, Broadcasting act of 1999, and Telecommunications Authority Act of 1996. ICASA’s mandate includes the regulation of broadcasting in the public interest, and to perform adjudication functions. As part of delegated media regulation, ICASA works hand-in-hand with the Broadcasting Complaints Commission of South Africa. The BCCSA was set up by National Association of broadcaster of Southern Africa in 1993 to adjudicate and mediate complaints against broadcasters/broadcasting licence holders.
ICASA also ensures fairness and diversity of views broadly representing South African society. One of its objectives is to ensure that in the provision of broadcasting services, the needs to language, cultural and religious groups, and the need of educational programmes, are taken into consideration (ICASA Position Paper 2000). It also promotes and encourages ownership and control of telecommunications and broadcasting services from historically disadvantaged groups. Again ICASA works with the Media Diversity and Development. Agency which also ensures the empowerment of previously disadvantaged groups.
3.2 The Media Diversity and Development Agency
After the 1994 democratic elections, the media in South Africa was still not reflective of the country’s diversity. The legacy of apartheid still played itself in various spheres of society, including the media, where the nature of the public discourse was shaped by patterns of ownership and control, such that the poor and disadvantage remained marginalised. The White Paper on Broadcasting Policy, 1998 concluded that, “Society benefits from free, independent, and pluralistic media.” It was then decided that a supportive policy environment was required; and in achieving this Government committed itself to corrective action.
This was due to the need to rectify the wrongs inflicted by apartheid in media development and diversity. Government took an initiative to set up an independent agency that will address problems of the media development and diversity in the country and provide assistance through loans and subsidies to the marginalised groups (MDDA position paper, November 2000). The MDDA’s mandate is to promote diversity and development in print, broadcasting and new media. It works with bodies dealing with Telecommunications, licensing and film. Also develops policies that are informed by ongoing research and evaluation.
It is of common knowledge that freedom of expression is one of the hallmarks of democracy; which requires a media that is free from state control. Before the democratisation of South Africa, the South African government was empowered to control the media, to limit free speech as it pleased. During this time newspapers were closed down, and anything that seemed to be giving voice to the voiceless, being a novel or a film, it was banned. Press freedom was at this time described as having “its left leg in plaster, its right arm in a sling a patch over the left eye, deafness in the right ear, a sprained ankle and a number of teeth knocked out” (Joel Merwis, 1979, in Berger 2004).
In redressing the historic imbalances caused by the apartheid policies, government saw it necessary to free the airwaves by delegating media regulation to independent bodies. This was and still is a way of ensuring democracy in the media sector. The telecommunications Green paper stipulates that, “telecoms is an important means of building democracy by giving citizens access to the information and telecommunications services that enable them to participate effectively in the decision-making process of society,” thus the formation of SATRA to guard against government interference.
ICASA and the MDDA also work hand-in-hand to ensure that “the central public interest principle in broadcasting is that of universal access, that there is a diverse range of language, religious, and cultural programming,” (MDDA, 2005). One can conclude and say the independent regulators are working towards harmonising dysfunctions; which can include opportunities for small media companies, challenges or problems around media policies to improve the functioning of broadcasting media as a whole.