More than a month ago, I submitted my first Promotion of Access to Information (PAI) Act application to make public the 2008 Sunday Times report by the Harber commission. On 3 May, World Press Freedom day, Avusa informed me my application had been denied. While I was not surprised, I remain puzzled.
I personally delivered the application to Avusa, one of South Africa’s biggest media companies, and it was received by Avusa’s information officer, Howard Benatar.
In my application I requested Avusa make public a 2008 report compiled by media experts and academics Anton Harber, Franz Kruger, Dario Milo and Paula Fray. The four-person panel was commissioned by Avusa to investigate the newsroom policies of (and problems at) Sunday Times’ newsroom, and the subsequent report details the systemic gatekeeping and policy failures of the Sunday Times newsroom. The investigation was, according to the executive summary of the report, an attempt to restore the paper’s credibility after it was forced to issue a series of high-profile story retractions in 2007 and 2008, and the Press Council ruled against the paper following complaints.
The report was completed in December 2008 and has never been publicly distributed, despite that being one of the recommendations of the panel.
In an astounding slight against freedom of information, transparency and media accountability, Avusa last week refused to release the 2008 report. And in a twist of irony, I received the refusal, written by Avusa editor-in-chief Mondli Makhanya, on World Press Freedom day, the 20th anniversary of the Windhoek Declaration on press freedom, a document which places freedom of the press, of expression and access to information as fundamental to the states that the “fulfillment of human aspirations”.
In Avusa’s refusal to release the 2008 report document (addressed to me) Makhanya states quite broadly that “Avusa Media Limited is a private body under the [Promotion to Access to Information] Act,” and adds the “transparency obligations in relation to private bodies are obviously different from public bodies”. Makhanya utilises the descriptions of the Act that distinguish a private body from a public body, in that the Act’s definition of public bodies includes departments or bodies of state, or any other institution that exercises a power or performs a duty in terms of the South African Constitution, or any other legislation.
But does the absence of legislated power or duties attributed to the Sunday Times and private media in general mean it does not exercise a public power, or perform a public function?
In Avusa Media’s “pledge” to readers the company highlights its role in the functioning of democracy where “every citizen enjoys equality, human dignity and freedom”. Avusa’s pledge also speaks to the importance of the right to freedom of expression, and further states its newspapers play a “vital and indispensible role in facilitating the dissemination of information in South Africa”.
We do not need Avusa or the Sunday Times to make public their roles in a democracy to know that they exercise an important and pervasive public power, and they also serve a crucial public function “as a watchdog over the people, institutions and forces that shape our society”. Their powers as democratic institutions are further evidenced by the outrage created by government attempts at statutory regulation of the South African media.
Therefore, while Makhanya’s contention that “transparency obligations in relation to private bodies are obviously different from public bodies” may (in some instances) be valid when referring to any other private bodies, this does not hold true for a media institution. Simply because the Sunday Times is not mandated to be transparent, does not mean it should not be so. Herman Wasserman, deputy head of Rhodes University’s School of Journalism and Media Studies and a seasoned journalist and media ethics writer, responded to my email query about what the Sunday Times’ obligations should be. Wasserman said without responsibility, the fight for media freedom “does not mean much”.
“How can the media celebrate journalists as heroes when they are captured in distant countries, but remain too cowardly to subject themselves to scrutiny at home? Because refusing to be fully transparent on a matter of ethics is cowardice. Surely any journalist worth their salt would be suspicious if a government agency claimed that a summary of a report is sufficient and refused to divulge the full report. Why then apply a different yardstick to the media’s own affairs?” he said.
In light of Avusa’s role as “watchdog”, as well as its associated power in society, the Sunday Times and all journalistic media institutions have a more pertinent and crucial obligation to transparency than any other kind of private institution. This is echoed in Media accountability and freedom of publication by prominent media theorist and researcher, Denis McQuail: “The power of the media, like that of government, has to be used in a legitimate way, which is not far removed from the notion of responsibility.”
Anton Harber, co-author of the 2008 Sunday Times report and a long-standing media professional and academic, similarly expressed his dismay at Avusa’s refusal to release the document. “The Sunday Times had an opportunity to demonstrate a commitment to openness and public accountability. Instead, it have chosen the path of hypocrisy, failing to practice the transparency it expects of other public institutions,” Harber wrote in an email to me last week.
While the Sunday Times does have several fundamental and imperative ethical reasons why it should be transparent, Avusa, as a private company, has several “legitimate” grounds for refusal to grant access to information according to the PAIA. The Act’s list includes instances where the requested documentation contains commercial information, “the disclosure of which would be likely to cause harm to the commercial or financial interest of the body”. In refusing to release the report document, Makhanya calls on this provision, and writes that “the contents of the report contain commercial information relating to Avusa Media Limited which if disclosed would be likely to cause harm to its commercial interests”.
Jane Duncan, also a lecturer at the Rhodes University School of Journalism and Media Studies and former director of the Freedom of Expression Institute, said this clause generally refers to information of a financial nature. “[The 2008 Sunday Times report] is editorial information. Avusa’s refusal on these grounds implies that editorial decisions are a commercial concern only, and … purely about the bottom-line,” she said.
“[Avusa] has actually made your case for you,” Duncan told me, referring to Avusa’s commercial interests argument. “Avusa claims it has implemented the recommendations of the report. But if it has done so, then releasing the report won’t harm its commercial interests – readers won’t punish the paper because the problems would have been fixed. So what commercial interests could [the release of the 2008 Sunday Times report] possibly harm?
“It is probably more likely that people will mistrust the Sunday Times because of its secrecy. This secrecy creates the impression in the minds of the public that there are secrets that the Sunday Times won’t reveal, and that perhaps the rot is deeper than the executive summary shows.
“This is an unfortunate usage of the commercial interests argument for Avusa to make, as it reinforces the impression that commercial interests trump the public interest,” Duncan said. “Avusa is using its commercial concerns as a shield to resist accountability.”
Both Murray Hunter, the national coordinator of the Right2Know campaign, and William Bird, director of Media Monitoring Africa, expressed doubts regarding Avusa’s commercial interests argument. Hunter said: “It’s not as if the Sunday Times is selling staplers. It is selling society, and selling the channels through which we understand our country.
“[Avusa’s refusal to release the document] is also not helpful to those of us trying to defend the media and their right to access to information. If the Sunday Times is willing to admit the media are not accountable to the public, which it appears it has done by refusing to release this document, then it plays into the hands of the ANC proposals for statutory regulation of the media,” Hunter said. (Disclosure: Hunter spoke to me in his personal capacity, and not on behalf of the Right2Know campaign.)
Bird was similarly sceptical of Avusa’s refusal on the grounds of commercials interests when I contacted him. “I don’t buy that,” he said.
“It’s not like the report is an internal strategy document. This investigation and report were specifically compiled after a series of ethical lapses at the Sunday Times,” he added.
“The media are watchdogs to monitor general accountability, but since this [report] is about improving the [journalistic] practice it is difficult to understand why Avusa is refusing to release this document. I am mystified.”
This argument casts further doubt over Avusa’s capacity to act “as a trustee for the public interest” – as described in the company’s pledge – when the company’s commercial interests will determine Avusa’s actions in the last instance. Deputy Ombudsman for the Press Council Johan Retief described Avusa’s use of the commercial interests argument as “unfortunate”.
Harber added: “[Avusa’s] action will embolden those who argue the media demands standards of others that it does not impose on itself, that it serves narrow commercial interests and not broad public values. I am saddened that a brave and outspoken paper – and such a strong institution – should show such timidity about itself.”
Considering Avusa’s claim that the release of the 2008 Sunday Times report would “be likely to cause harm to its commercial interests”, the only way I can gain access to the report is in terms of the public interest override in Section 70 of the Act. Makhanya brushed this consideration aside in his refusal to release the document: “We have also applied our minds to Section 70 of the Act, the public interest override. None of the conditions for the application of that override exists.”
The PAIA contains a public interest override, where the information office must release the information if it is in the public interest to do so, even though the information may be considered confidential. But this clause is limited to instances where the disclosure of the record would reveal evidence of “a substantial contravention of, or failure to comply with, the law; or imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question”.
This means the grounds for disclosure are cumulative; if the “and” were replaced by an “or”, then allow for more general public interest arguments to be made. This dangerously narrow definition of public interest is a cause for concern in access to information from private bodies, and Duncan questioned the Constitutionality of the definition. “It is exceedingly difficult to gain access to information on such grounds,” she said. “Increasingly, private bodies are wielding public power and the more concentrated the [media] industry, the more public power they have.”
When asked whether he viewed the 2008 Sunday Times report as being in the public interest, Retief said he believed newspapers should be transparent in matters of the public interest, but that publications can handle matters internally, “out of the public eye”.
“Avusa’s argument that the public has no interest in internal steps that were taken to prevent future mistakes is reasonable.
“As far as I can see, the Sunday Times went out of its way to correct its mistakes and to prevent them in future. If it did not do that, it would have been in the public interest to know what the problems were (because that would have affected the public). However, it looks as if the opposite has happened. So, how is it going to affect people if they know what steps the newspaper took to rectify the situation? I think the newspaper’s decision should be respected,” Retief explained.
Were the Act’s narrow definition of the “public interest” utilised more broadly in South African courts, journalists would find themselves hard-pressed to use it as a feasible defence. In fact, some of the Sunday Times most high-profile stories would not fall within the definition’s ambit. This narrow definition casts doubt as to whether the publication of late health minister Manto Tshabalala-Msimang’s health records, was in the public interest, as was said in 2007 by the Sunday Times and other media professionals. Tshabalala-Msimang’s alleged alcoholism and subsequent abuse of her public power to have a liver transplant do not appear to break any laws, or lead to public safety or environmental risk. The alleged action by the minister, as reported by the Sunday Times, may be morally reprehensible, but according to the PAIA, publishing it is not in the public interest.
Strange then that the Sunday Times would rely on such a definition of public interest to protect its continued secrecy, when the same narrow definition (if employed by South African courts generally) would undermine its freedom of expression and diminish its capacity to be “trustees of the public interest”.
In this week’s edition of the Sunday Times, Makhanya wrote in his weekly column about the virtues of World Press Freedom Day and described the history and implementation of the Windhoek Declaration over the past years. He refers to the free flow information as “one of humanity’s top priorities”, and emphasises citizens’ right to “receive and impart information”. Referring to elected council officials, Makhanya writes: “But once they are elected, they will retreat into the impenetrable shell of city hall, from where they will stymie the flow of information. ‘Private and confidential’ will be stamped on innocuous pieces of paper”.
Makhanya proposes that, “If South Africa is to be a country that cherishes the free flow of information and wants an informed citizenry, it needs to instil a culture of openness… Informed citizens would then be able to partake in the lives of their communities from an empowered position. That would be in the spirit of Windhoek.”
And Makhanya is right. A culture of openness, transparency and a free flow of information is necessary for citizens to realise their rights. But it would be naïve to limit this culture only to “elected officials”. Wasserman added that, if South African media “want to be taken seriously as watchdogs over government, if they want to fight for transparency in public life (e.g. against the Protection of Information Bill), then they should have the guts to turn the gaze upon themselves.”
And who other than South Africa’s biggest weekly newspaper to lead by example? DM
Originally published by the Daily Maverick.