7.3: Legal Issues

According to Potter (2006), the cornerstone of international standards on the news media is Article 19 of the United Nations Charter, which states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.

Countries that are members of the United Nations are committed to upholding the charter, including Article 19, but that has not stopped some countries from suppressing their own news media and blocking access to international news. In some cases, journalists have been killed, imprisoned, or exiled for trying to do their jobs.

Danilo Arbilla of the Inter-American Press Association and Uruguay’s website Búsqueda says the best press law is no law at all. In the ideal world, he says, legislation governing press freedom would take up no more than a couple of pages, “containing clear and frankly worded clauses prohibiting any attempt to regulate … freedom of expression”.

Needless to say, the world is not an ideal place. Press laws vary around the world to such an extent that it is not possible to summarise them all. Some democratic countries have laws to ensure journalists’ access to public information, while others limit what information can be published or aired. In some countries, it is illegal to name the victim of a sexual crime, or to identify juveniles accused of criminal activity. Even within countries, there may be differing local laws covering issues such as whether a journalist can be forced to name a confidential source or provide reporting notes to a court of law and under what circumstances. Suffice it to say that journalists need to be aware of the laws in the countries in which they work as well as ongoing efforts to have restrictive laws lifted.

In South Africa, there are various laws that govern the media, some aimed at specific sectors, such as broadcasting. Broadcasters in South Africa need licenses. Newspapers and websites do not need licenses. State information is protected by law. This refers to strategic information that could affect the safety of the country if it becomes public. The South African Constitution clearly protects the freedom of the press. During the apartheid area, the mass media in South Africa were censored, therefore, the Constitution of democratic South Africa makes specific mention of the media.

Article 16 in the Bill of Rights of the South African Constitution¹³ states: “1. Everyone has the right to freedom of expression, which includes: a. freedom of the press and other media.” There is a limitation, namely: “2. The right in subsection (1) does not extend to: a. propaganda for war; b. incitement of imminent violence; or c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” It is clear that the Constitution allows for a great deal of press freedom in South Africa, with only three clear and reasonable exceptions.

There are, however, some laws that either restrict or enable the work of the media. During the covid-19 pandemic in South Africa, the state of disaster regulations made false reporting about the pandemic an offence. The Protection of Personal Information Act (POPIA) of 2020 protects the right of the public to keep their personal information private. This means organisations may not share personal information of people that they might have on record with anyone else, except with permission. Journalists should be aware that POPIA also criminalises the spreading of certain content online, including hate speech, unlawful intimate pictures, and messages that incite violence. The Promotion of Access to Information Act of 2002 enables the media to apply for access to government and other types of information that could be in the public interest. The act allows the media (and everyone else in the country) to request access to information held by the government or by any other person if this information is required to exercise a right. The right that the media exercises when applying for information in terms of this act is to serve the public interest. This is a very helpful act, because the media can source all kinds of information through the provisions of this act to cover important news.

One of the most common kinds of legal issues journalists face is libel or defamation, which is an offence. In South Africa libel can be a civil or criminal case. Defamation is a statement of fact that is substantially false about someone who can be identified and that tends to harm that person’s reputation. Defamation is called “libel” when the statement is published, and “slander” when it is broadcast, but the basic parameters are the same. Generally speaking, if a statement is true, it cannot be defamatory. Journalists, therefore, must confirm independently what their sources say if those comments could defame another person. There have been very few successful defamation court cases in South Africa, where people have taken newspapers or news media to court because their reporting was either inaccurate or false, thereby injuring these people’s reputation. One example is a case from 2013: a journalist was found guilty of defamation after publishing stories about a magistrate where it was claimed that the magistrate abused his power to protect a friend. This was not true, and the journalist was found guilty of a crime. He had to pay a fine.

As new technology changes the way journalists do their work, media laws are changing. It is difficult to regulate online media, but there is a need to protect people from misinformation, fake news, hate speech, and discrimination. Governments around the world are working on ways to protect the public. As mentioned above, POPIA in South Africa now criminalises certain types of messages online.

As we already discussed above in this section, journalists are subject to other laws that apply to individuals in a given country, such as laws governing privacy. A journalist who wants access to information cannot enter private property, take documents without permission, or secretly listen in on a telephone conversation. These are breaches of privacy and illegal. Large news organisations usually have lawyers on call to guide journalists and editors when they need to make journalistic decisions that raise tricky legal questions. Smaller news organisations and independent journalists need to rely on online resources and their own knowledge of the law. Many of the laws that are applicable to journalism are available at this link.

Reference

13. From https://www.gov.za/documents/constit...bill-rights#16