CHAIRMAN’S REVIEW July 2012 – June 2013
The Broadcasting Complaints Commission is a tribunal set up by the National Association of Broadcasters in 1993. In 1995 its Code and Constitution were found to comply with the IBA Act. This decision of the IBA excluded the jurisdiction of the IBA and now ICASA from complaints against broadcasts of members of the National Association of Broadcasters and, later on, also that of the Association of Christian Broadcasters. From 1993 the BCCSA was in any case acting as a tribunal which dealt with complaints from the public against broadcasts of the members of the National Association of Broadcasters. The Commission, though recognised by the Independent Communications Authority of South Africa as a Tribunal which deals with complaints against broadcasters, is not a statutory body. It deals with complaints from the public against the content of programmes which have been broadcast and are prima facie not in accord with the Broadcasting Code, which was adopted by the National Association of Broadcasters in 1993 and has, from time to time, been amended by the BCCSA with the approval of the Independent Communications Authority of South Africa. It is not permitted to exercise pre-control over broadcasts and thereby act as a censor, which is anathema within the Constitution of the Republic of South Africa, which guarantees freedom of expression, which includes the right to artistic, dramatic and scientific freedom. No right is, however, absolute, and the Constitution places reasonable limits on this freedom. However, it has often been stated that freedom of expression lies at the heart of democracy. This is important for the new South Africa against the background of a pre-constitutional state which had actively and aggressively stifled this freedom as part of the grand project of apartheid, a political ideology that has since been declared a crime against humanity.
The dynamics of broadcasting in South Africa, with its general focus on pressing social and political issues, has kept the BCCSA particularly busy in its twentieth year. Experience has also led to greater clarity in regard to certain recurring issues. The main concerns, as in previous years, have been the protection of dignity, privacy and reputation, balance and the right to reply in programmes which deal with matters of public importance,court reporting, the matter of sufficient information regarding content and appropriate age restrictions and advisories relating to films that are broadcast.
In the past twelve months a total of 1616 complaints were received. Of these, 1082 concerned material that fell within the BCCSA’s jurisdiction, while the bulk of the remainder related to matters not within our jurisdiction (e.g. advertisements) or which were so vague that they could not be entertained. Where promotional material relates to the station itself, such material does, however, fall within the jurisdiction of the BCCSA. Complaints as to promotional material were, for the most part, concerned with material alleged to be excessively gruesome or explicit, which was broadcast at a time when a large number of children would probably have been part of the audience. Altogether, 417 complaints were deemed to be too general to warrant being entertained. In spite of efforts from the Registrar to convince complainants to be more specific, the attempts generally failed. In all, 62 of the complaints were adjudicated by Commissioners at the request of the Chairperson, and in 55 instances the matters were referred to a Tribunal by the Chairperson.
In two instances, an application for leave to appeal to the Appeal Tribunal was allowed by the Chairperson. The first appeal concerned a complaint relating to a Carte Blanche, a programme broadcast by M-Net, in which the complainant was accused of having sold a mere time-switch device and not an electricity saver, as claimed. The first Tribunal held that the broadcast was unfair in that it did not state the view of the complainant. This decision was upheld by the Appeal Tribunal. The order that the error be rectified in a subsequent broadcast was, however, set aside at the request of the complainant, who felt that a correction might resurrect the earlier issues raised by the broadcaster. The second matter concerned court reporting (the so-called “Sunday Rapist” case) where the Appeal Tribunal confirmed the finding that a radio station had not complied with the requirement of fairness in reporting on the trial during a news bulletin. Evidence by the accused that he was not guilty of the charges were followed by an interview with the mother of one of the – at that stage – allegedly raped girls. The Appeal Tribunal upheld the decision by the first Tribunal.
KEEPING THE PUBLIC INFORMED
Each of the broadcasters under the voluntary jurisdiction of the BCCSA has the duty to advertise the services of the BCCSA on a regular basis. More than 32 000 advertisements were aired by broadcasters over the past twelve months. Indeed, at the end of 2010 the BCCSA won a medal from the President’s office for the effective advertising of its services to the public. This endeavour by broadcasters within our jurisdiction, is, I submit, outstanding. This endeavour is especially outstanding when measured against advertising time available to, and expenses incurred by, the broadcasters. I would therefore like to express my gratitude to the broadcasters under our jurisdiction for the publicity they have given to the BCCSA. These endeavours demonstrate the availability of the BCCSA to the public, and the support given to the BCCSA, as their tribunal of choice, by the broadcasters under its jurisdiction. Of course, since the BCCSA is not itself permitted to initiate a complaint, we are fully dependent on the public to bring matters to our attention. The public must be, and fortunately is, widely informed about our existence.
3. THE PROTECTION OF CHILDREN
The protection of children against harmful material is an important aim of the Broadcasting Code. In the previous year – and it is worthwhile mentioning this again – for the first time, complaints were also received where the reputation and dignity of children were allegedly impaired by a broadcaster. The complaints were lodged by parents and other custodians. In two instances, the complaints were upheld: in one instance, the broadcaster was ordered to pay a fine, and in the other instance it was ordered to broadcast an apology. In the third matter it was held that the words complained of did not in fact defame but served to debunk a stereotype regarding violence in a particular area.
In so far as the protection of children is concerned, DSTV provides its subscribers with a block-out mechanism, and TopTv requires subscribers to insert a pin for all films with an 18 rating. DSTV has now solved the technical problem that arose in cases where the EPG differed from the age restriction as shown directly on the screen at the beginning of a film. Of course, as is well known to subscribers, parents and other care-givers are also in a position to exclude age-restricted materials by way of a block-out mechanism.In so far as promotion materials are concerned, the BCCSA has often ruled that particular care should be displayed as to the time when adult material is promoted explicitly
In so far as the three pornography channels allowed by ICASA for TopTv are concerned, films will only be permitted to be broadcast after 20:00 and the channels will only be available on demand for a particular programme by inserting a pin number available to an adult who is a subscriber to TopTv and has also added these channels to his or her subscription. In any case, child pornography and violent sex remain impermissible for these channels.
In so far as age restrictions on films are concerned, we expect broadcasters to apply the age restrictions and classifications imposed by the Film and Publication Board. Broadcasters often increase the age restrictions and add to the classification as a result of the wide impact of the broadcasting medium.
The Constitution of the Republic of South Africa guarantees the right to freedom of conscience, religion, thought, belief and opinion. This fundamental right confirms what is already part of common law, but the Bill of Rights strengthened it immensely by making it a fundamental right against which legislation could be tested, and speech could be protected. The Constitution and the Broadcasting Code, however, do not permit hate speech based on religion. Hate speech is, however, only prohibited when it amounts to the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Mere impairment of the dignity of believers as a section of society is, accordingly, not sufficient. The impairment of dignity, in so far as the definition of hate speech is concerned, is only one of the elements. Advocacy and incitement are other necessary prerequisites.
The traditional rather wide definition of blasphemy, as developed and understood by our courts, would accordingly have to be limited in terms of section 39 of the Constitution in accordance with what section 16(2)(c) of the Constitution prohibits. When TopTv, in a pseudo newscast caricaturing public personalities, included an image of Jesus as background to a news item that a recently discovered text revealed that Jesus had been married, the images portraying a pen-sketched image of a nagging wife and an image of Jesus, did not go so far as to amount to hate speech. The figure of Jesus was, in any case, not denigrated.
When one complainant, a few years ago, based his argument on the alleged denigration of Scientology, the remarks by the presenter were regarded as unfortunate, though they were deemed not to amount to hate speech, since they lacked advocacy and incitement.
A few years ago, when representatives of a pagan section of the community complained that a false impression was created in a 50/50 programme on SABC that witches are evil, their point of view that this was unjustified was accepted. However, in the absence of advocacy of hatred, the remark was found not to have been in contravention of the Code. In fact, the remark was found to have been made in a lighthearted manner, without the intention to hurt anyone.
Another judgment – also a few years ago – authored by Deputy Chairperson Viljoen, concerned a derogatory slogan drawn across the sky by a light airplane: while the Tribunal held that the words complained of were so defiant of the Christian deity that they constituted the advocacy of hatred, nevertheless, the context in which the words were published eliminated the provision regarding the incitement to cause harm. That hurt caused to religious feelings is, in itself, not sufficient to justify a finding of hate speech based on religion, is apparent from the 2012 dismissal of a complaint by a Roman Catholic who alleged that the Pope had been maligned in a broadcast. A complaint from a Hindu during the last year was not upheld since the programme complained about did not denigrate the god referred to. In so far as the taking in vain of the Lord’s name is concerned, the approach which the BCCSA has taken over many years is that films which include a high frequency of such words should be screened after the watershed. It should be borne in mind that M-Net, in its films, excludes profane language where a subscriber exercises that choice by way of the family choice on the decoder.
5. HATE SPEECH
The BCCSA has often held that bona fide news report on hate speech may include a verbatim report of what transpired, even where the words quoted in the news report in themselves amount to hate speech. This principle has, over many years, been applied in several matters before the Tribunal of the Commission. These judgments, which also find support in the 1995 Jersild judgment of the European Court of Human Rights, emphasise the fact that the public has a constitutional right to be informed by way of bona fide news. That dramatic merit and an anti-discriminatory message may also save material which, on the face of it appears to be hate speech, emerges from a 2011 judgment, authored by colleague Dr Gilfillan, where the screening of images of explicit violence were justified in a music video on the basis of their dramatic merit, as well as the socio-political value of the anti-racism message conveyed in the video.
A particularly problematic aspect of any inquiry into hate speech is the fact that, while the broadcast of material may be offensive to religious or racial or moral feelings, this is insufficient grounds for a finding of hate speech. There have not been any matters before the BCCSA Tribunal which concerned hate speech based on gender. In 2012, however, the repeated broadcast of a joke concerning sex with women of a certain ethnic origin, was held to have amounted to hate speech based on gender. That derogatory language does not necessarily amount to an impairment of dignity, or to hate speech based on gender, was, however, held in a matter where a presenter was merely poking fun at a female caller. On the whole, the BCCSA has displayed particular care in finding too readily that provocative material necessarily also amounts to hate speech. In some news items, certain broadcasters have included by way of background material the Struggle song, “Kill the Boer, Kill the farmer”. This has not been regarded as hate speech by the BCCSA, which reasoned that the public had a right to be informed in a news item as to what the song was about.
6. INVESTIGATIVE PROGRAMMES
Acts of alleged corruption, alleged poor service by traders, and alleged irregularities or the failure to act on the part of law-enforcement officers, are regularly discussed in great depth in broadcasts. The BCCSA has emphasised the value of programmes of this nature, and it has held that only where the absence of balance is indisputable would a contravention of the Code be found in regard to these kinds of programmes, which form an essential ingredient of any democracy. Opinions must, however, either be based on the truth or as close to the truth as far as is reasonably possible. Of course, broadcasters must ensure that their facts are well researched. The word “alleged” has often been held to be an insufficient defence to defamatory and other injurious materials. When a certain person was identified as having been added to the list of suspects in a particular murder case, and no new evidence was made available by the broadcaster, the broadcaster was held to have contravened the Code and a substantial fine was imposed. A re-broadcast of a programme after three years without checking whether the facts had, in the mean time, changed, led to a the imposition of a heavy fine against the broadcaster.The right to reply has now clearly been held to be available only to a person or organisation which has complained. Thus, when a recent complaint was lodged with the BCCSA that the SABC had not granted a right to reply to certain organisations, the complaint was not upheld, since the complainant had not been mandated by the organisations that had allegedly not been approached for a reply.
In so far as “balance” in programmes which deal with matters of public importance are concerned, it has recently been emphasised that only in very exceptional circumstances is balance required in programmes that deal with foreign issues, which would, in those countries, probably be regarded as matters of public importance. The reason for this is twofold: firstly it is almost impossible to establish what is balanced within a foreign milieu, of which facts are not fully available to the Tribunal. Secondly, the requirement of balance in matters of public importance is primarily directed at South African issues, such as party politics, government and the like. Public importance should also not be equated with matters which are “interesting to the public”. Before balance is required, the BCCSA Tribunal must determine whether the matter dealt with lies at a level where balance is necessary to keep the public informed on issues which, for example, pertain to corruption, public health, lack of services, party politics, police action or inaction, and the like. It has been held that balance concerning the rules of a competition and the results thereof (in “Master Chef”), were not of such a nature that they reached a level of public importance in terms of clause 12 of the Code. In politics, “equal time” to political parties need not be granted. The main newsmakers are the government and the official opposition, and they are accordingly afforded more time, in general. During election periods, broadcasting time is allocated by ICASA on an equitable basis and, where necessary, and when a complaint is filed, the Complaints and Compliance Committee of ICASA intervenes. However, recently the BCCSA Tribunal held that a certain leader of a minority party and member of Parliament had convincingly argued that he should be afforded at least some broadcast time. The matter was left to the SABC to address on an amicable basis.
The more than one thousand judgments on the BCCSA website (more than 400 of which have also been published by Butterworth’s LexisNexis and 2 in the Constitutional Law Reports) bear witness to the fact that the BCCSA is constantly confronted with issues such as the protection of dignity, privacy, children, freedom of religion, freedom of choice, the right to be informed, material that has bona fide artistic and dramatic merit, or scientific merit, and, ultimately, the application and interpretation of the principle of freedom of expression. In the process, we have also researched several foreign broadcasting systems: German, English, Canadian, Indian, Dutch, Kenyan, Australian, New Zealand, Tanzanian, Zambian, American, Greek, Italian, Irish, as well as relevant material in the European Court of Human Rights. We have also made contact with colleagues in these countries by way of visits and international conferences – two of which were hosted in South Africa by the BCCSA. Recently a Kenyan delegation spent a morning with the BCCSA, seeking advice as to how its Press Council could be extended to include broadcasters. Officials from Rwanda were also met with at the end of 2012.
Personal contact over the years has added to our list countries such as Slovakia, Egypt, Russia, Spain, the Netherlands, France, Hong Kong, Egypt, Japan, Brazil, Uganda, Zambia, Lesotho and Mauritius, each of which were met with. Though the Chairman was not at the time representing the BCCSA, in 2009 he attended conferences in Montreal, Geneva and Beirut, where the protection of children in the broadcasting sphere also arose as part of the agenda. The 2011-12 inquiry into the Press Council by the Press Freedom Commission, of which the Chairperson was a member, also contributed to making contact with several countries. The Chairperson represented the BCCSA at a conference of Allied European Press Councils in Antwerp during October 2012. The conference was of particular significance, since certain questions which have typically arisen and continue to arise in the work of the BCCSA, were discussed in detail. The BCCSA has become an associated member of the organisation. The next conference in September will also be attended, and the Chairperson has been invited to take part in take part in one of the discussions.
8. INFORMATION ON AIR AS TO CONTENT AND AGE RESTRICTIONS
Once digitisation has been fully implemented, probably by 2015, the airwaves will be able to accommodate many more broadcasters. We will then encourage free-to-air television broadcasters also to make available continuous advisories as to content and age restrictions by means of parental block-out mechanisms. Currently, television broadcasters are required, where relevant, to include an advisory for the first 90 seconds at the commencement of a broadcast, and to repeat this after each advertisement break, for a period of 30 seconds. In some instances, the advisory is required to be continuous – e.g. in the case of WWE wrestling or some of the more explicit midnight movies. The BCCSA Tribunal has emphasised that a mere PG is insufficient. It must be accompanied by a 10 or 13 restriction.
DSTV provides continuous on-air information (i.e. age restrictions and a synopsis of the programme) on all channels through the Electronic Programme Guide (EPG), as well as a parental block-out mechanism. In addition, DSTV provides a mechanism for “family viewing”. This mechanism excludes crude and profane language in films. Of course, this mechanism is only applied to films that are broadcast from South Africa. The BBC has taken special steps to improve its information regarding possibly offensive material by posting a warning at the beginning of a programme. TopTv has introduced a novel procedure to protect children from films rated 18 and R18: the films are blocked out and are only accessible by way of a subscriber’s pin. Although this is not a requirement, the BCCSA has recognised the value of this approach. The BCCSA has emphasised the importance of subscription channels ensuring that age restrictions are indeed effective in so far as the parental control mechanism is concerned. In all cases where complaints were upheld, it was found that administrative error was to blame. DSTV and M-Net have both taken steps to address the problem. Of course, it should be borne in mind that whenever there is a direct feed from a foreign country, there is the risk of an age-restricted film being shown outside of the watershed in South Africa. Subscription broadcasters are aware of this problem, and they constantly address this matter with foreign sources. If such a problem persists, the only solution would seem to be for the subscription broadcaster to cut ties with the offending source. Subscribers should, of course, also bear in mind that this kind of risk exists when they subscribe to a broadcaster with foreign sources. The subscription system is working exceedingly well and the efforts taken to protect children are quite extraordinary and can be held up as an example within the international sphere.
9. COMPLIANCE BY BROADCASTERS
It may be stated with confidence that all the broadcasters that are subject to the jurisdiction of the BCCSA, as a consequence of their membership of the National Association of Broadcasters or the Association of Christian Broadcasters, which have consented to the jurisdiction of the BCCSA – have given effect to all rulings of the BCCSA and have abided by the procedures applied by the BCCSA. Where they were directed to pay a fine, they did so within the stipulated time, and where a correction or the summary of a decision had to be broadcast, this was also done. A list of these broadcasters is attached. As mentioned earlier in this report, between 32 000 and 32 500 BCCSA advertisements were broadcast during the period 1 July 2012 to 30 June 2013.
Panels of the Commissioners have sat during the year of reportage on 17 occasions and 62 adjudications were written by Commissioners. Adjudicators are appointed by the Chairperson where it is felt that a matter does not justify a full hearing by a Tribunal. There is, in any case, the right of appeal to a Tribunal. In the vast majority of cases, no such appeal was lodged.
11. MOTION OF GRATITUDE
In conclusion, I wish to thank the Commissioners for their diligent support and valuable contributions in our discussions. The Deputy Chair, Professor Viljoen, has assisted me considerably in writing judgments, reading all adjudications, and also with certain administrative tasks. Deputy Chair Makeketa has played an important role in his additional function as Chair of the Finance Committee – an important task which he has performed with diligence, assisted by Commissioner Venter. Commissioners have also written judgments and adjudications, and I would like to thank them for their well-motivated and speedy work. In the past year, 55 judgments and 62 adjudications were handed down. In 2011 we also appointed Mr Justice Ratha Mokgoathleng to chair our appointments committee. We are pleased to have him back in this capacity, and we esteem him for a decade of work as a Deputy Chair of the Commission, which came to an end when he was appointed as a judge.
Dr Lynda Gilfillan and her husband will soon be taking up residence in Australia, where their daughter lives. Over a period of fourteen years, first as co-opted Commissioner and then, for two terms, as Commissioner, she has contributed immensely to the standard of reasoning in judgments of the BCCSA. She has constantly reminded us of the importance of freedom of expression in well-reasoned, level argument. Her style has consistently attested to splendid manners and expert knowledge of the latest thinking within the political, artistic and social sphere. We acknowledge these exceptional services and collegiality with sincere gratitude. At the AGM Commissioners unanimously decided that there is no reason for her to resign as Commissioner. She would, accordingly, be asked to write adjudications and when she is in the country, she will sit as a Commissioner.
A special word of thanks is also due to Mrs Shouneez Martin, the Registrar, who has done a conscientious job as Registrar, often working from home over weekends and even during her holidays. Our secretary, Ms Kim Erentzen, has also made a tireless contribution in the handling of lesser complaints, and she also acted as Registrar in January. She has also, as from April, taken over the financial administration. Ms Deyana Julius joined the staff in March 2010 as an administrative assistant to the Registrar, and during this time she has demonstrated her diligence. She is now the Personal Assistant of the Chairperson on a part-time basis. Mr Kyle Erentzen was appointed as a Complaints Officer in 2011, and he has played an important role in the systematic processing of complaints. Ms Marion Mansfield, our accountant, has ensured that we continue to get an unqualified audit. We are indebted to her for her fine work.
Although work pressure – much of which is caused by problematic cases – has increased substantially during the past five years, the personnel have gone about their task in a dutiful manner.
Our special thanks also go to the Executive Director of the National Association of Broadcasters, Mr Johann Koster, and the Deputy, Ms Dimakatso Qocha, as well as to the Executive and Council of the Association for their firm and loyal support. Mr Koster left the services of the NABSA in January 2013. We have thanked him for his splendid assistance, over more than a decade, in supporting the BCCSA and its independence. Our sincere thanks also go to Ms Karen Willenberg, the Chairperson of the NABSA, for her continued and full support of the BCCSA.
Earlier this year we welcomed the new Executive Director of the NABSA, Ms Nadia Bulbulia, who has wide experience in broadcasting and broadcasting regulation. We wish her all of the best!
Lastly a word of gratitude to the 77 broadcasters under our jurisdiction. We are proud of the high standards pursued by them and their co-operation in working towards a voluntary and successful complaints system under the supervision of the BCCSA, which was set up by broadcasters in 1993.
JCW VAN ROOYEN SC
27 July 2013
- Prof Victoria Bronstein
- Dr Lynda Gilfillan
- Mr Brian Makeketa (Deputy Chairperson)
- Mr Alan Melville
- Adv Robin Sewlal
- Dr Linda Venter
- Ms Giuseppina Harper
- Dr Nana Makaula
- Ms Zali Mbombo
- Adv Boitumelo (Tumi) Mmysinyane
- Ms Shamila Singh
- Prof Henning Viljoen (Deputy Chairperson)
- Algoa FM
104.9 FM 9
· Radio Sunshine
Good Hope FM
· Thobela FM
· Ikwekwezi FM
· Lesedi FM
· Umhlobo Wenene FM
- Bush Radio
- Bok Radio
FM (Alkara 40)
- Motheo FM
- Radio Pulpit
University of Technology (Top Stereo)
of Johannesburg UJFM (UJFM Radio)
ASSOCIATION OF CHRISTIAN
Rand Stereo 93.9
News Community Radio
e.tv vs Chirongoma, Townsend & Brand, Case No: 16/2012 (BCTSA).
See Naicker vs 94.7 Highveld Stereo& Talk Radio
702; Case No: 26/2012(BCTSA).
Which, of course, is not an appeal on the merits but amounts to a
process whereby the Court determines whether the BCCSA has come to a rational
decision on the facts. The general approach in a review is
stated to be as follows by O’Regan J in the Constitutional Court case of Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others 2004 (4) SA 490 (CC):“(A)n administrative
decision will be reviewable if, in Lord Cooke's words, it is one that a
reasonable decision-maker could not reach.” In its nineteen years of existence
the BCCSA has not been taken on review.
BCVO & Geldenhuys vs Jacaranda 94.2 FM ,Case no: 02/2012(BCTSA);
PACSEN & Several Others vs Jacaranda
94.2 FM ,Case no: 05/2012(BCTSA); Botha and Hoërskool Alberton vs Jacaranda 94.2 FM, Case no: 25/2012(BCTSA).
De Lange, Saunders & Others vs SABC2,Case No:
Older Annual Reports: (Please click to view full report)
BCCSA Annual Report 1998
BCCSA Annual Report 1999
BCCSA Annual Report 2000
BCCSA Annual Report 2001
BCCSA Annual Report 2002
BCCSA Annual Report 2003
BCCSA Annual Report 2004
BCCSA Annual Report 2006
BCCSA Annual Report 2007
BCCSA Annual Report 2008
BCCSA Annual Report 2009
BCCSA Annual Report 2010
BCCSA Annual Report 2011
BCCSA Annual Report 2012
BCCSA Annual Report 2013
Film and Publication Task group reports - Part1
Film and Publication Task group reports - Part2