20 March 2009

Botswana: Media Practitioners Act - a Critical Analysis (Part Two)


In this second instalment GOSEGO LEKGOWE discusses the controversial Media Practitioners Act

Section 10 of the Media Practitioners Act deals with the right of reply. The provision compels a media practitioner who publishes a statement about or against a person to publish a reply from the person in respect of whom the publication is made. The provision is furnished with a 'clock clause' in terms of which the reply shall not be published later than two subsequent editions. The provision further states that the reply shall be published with the same prominence as the original statement.

It is not difficult to detect that section 10 constitutes a limitation on the right to freedom of expression and media freedom. First, it interferes with editorial autonomy. The editor is deprived of his liberty on what to publish, when to publish it and where to report it on the paper. The editor, the gatekeeper of information, is dispossessed of his entitlement to choose which stories get published and which stories should be given prominence based on the time-tested elements of news. The provision is a compulsion by government on print- press to publish that which reason could otherwise tell them not to publish. Consequently, the strict three- part test must be applied to it to test its constitutional validity.

First, it must be determined whether or not this provision fulfills any of the legitimate aims laid down in the Constitution. Under this provision, an individual whose name has been a target of allegations of wrong doing, inequity or of damaging critique is provided with a right of reply that affords them a fair opportunity to respond and rectify flawed or damaging publication. It is certainly a great and intolerable injustice to deprive individuals who suffer harm at the palms of the press the right to be heard.

The right to be heard, a basic principle of natural justice, must be found coiled and interlaced in all institutions of a democratic state that have or a likely to impact on the fundamental liberties of others. Section 10 looks like an attempt to safeguard that cherished principle.

Nevertheless, an in-depth scrutiny of this provision renders this aim secondary and merely incidental. But in evaluating the legitimate aim of this provision, one must reach beyond the general aim that the law serves and look at the specific purpose and effect of the provision.

The paramount purpose, looked at in the light of the holistic object of the Act is the preservation of high professional standards. In the last edition of this analysis it was argued in this paper that maintenance of professional standards is not amongst the aims listed in the Constitution that may justify restriction on the right to freedom of expression and media freedom and owing to that, that Parliament does not have a constitutional mandate to compel high professional standards on journalists. Without modification, that argument is again adopted here.

Therefore, the paramount purpose cannot be sustained under the Constitution. What is the effect of this provision? In terms of this provision, the right of reply belongs not only to those whom negative publication has been made about; it further extends to those whom positive publication has been made about. In all instances, the media practitioner is compelled to publish the reply.

The right to be heard is given even to those who have not suffered any prejudice resulting from publication. There is no pressing social need to give those whom positive publication has been made about them the right of reply.

As a result of this, the limitation exerts great impairment than necessary to the right of freedom of expression and media freedom. Because of its unconstitutional purpose and effect, section 10 does not survive the 'legitimate aim' test.

The next leg of the three-part test concerns the determination of whether the limitation is reasonably justifiable in a democratic society. For a limitation to pass this test there must be a demonstrable rational connection of the restriction to the aim. It has been shown above that such rational connection does not exist.

There is no rational connection between giving people whom positive publication has been made about the right of reply and protection of their reputations, even when one throws the monstrous animal called 'professionalism' into the equation, such rational connection is still not to be found.

The provision contains an extremely unfair and unnecessary requirement. In addition, the restriction inflicts great impairment on the right of freedom of expression and media freedom. This is so since now everybody who is merely stated in a publication can claim the right to reply under any circumstances.

The importance of protecting the reputations of others cannot be overemphasized. Yet, when Parliament sets out on a course to make a law that is intended to curtail a fundamental liberty such as the right to freedom of expression and media freedom such law must be designed with sufficient consideration to constitutional rights by molding restrictions as narrowly as possible. That has not been done.

The likely effect of the provision is that, fearing opening floodgates of replies and potential jail sentence if not published, media practitioners will be debarred from publishing anything that could not prove to be true in a court of law and accurate in a science laboratory, that constitutes an onerous task on journalism that is likely to stifle investigative journalism; journalists will likely steer well clear of the potential zone of application and controversy to avoid punishment.

This "dampens the vigor and limits the variety of public debate." It exerts an objectionable chilling effect on the right to freedom of expression and media freedom.

The aim of protecting the reputations of others is achievable without resort to means as extreme as the ones employed in the provision.

In conclusion, it is found that, in the current form, the right of reply enacted under section 10 is not reasonably justifiable in a democratic society.

Does the provision satisfy the test of sufficient precision and clarity? It is not clear from the provision whether any type of reply must be published by the media practitioner. For instance, if the reply is potentially defamatory of other individuals, must it still be published? If it is not published is it an offence under section 36 or, would 'potential defamation' be a defence under section 36? What if the reply is unreasonably long? What if the reply is in Chinese or Portuguese?

Will refusal to publish it on the basis that its content is indeterminable be an offence? Further still, it is unclear from the provision whether the editor still retains his usual and fundamental editorial powers to strike out irrelevant or damaging matters that he would not in his wisdom publish.

I argue that since Section 36 is silent as to the requirement of intention, it imposes absolute liability on any person who contravenes any of the provisions in the Act.

There is no indication that intention is an element of the offence. Should we read the element of intention into the provision in view of the seriousness of the offence (three years imprisonment)? Cast in such wide terms the provision is liable to wide interpretation by both enforcing authorities and journalists.

This creates an invitation to abuse and the Minister may apply the provision in situations that bear no relation to the legitimate aim. The test of sufficient precision and clarity also fails.

In the final analysis, perhaps cast in a different form, the right of reply may meet constitutional requirements. In the current shape it catches any type of reply and severely impairs the right of freedom of expression and media freedom.

During election time this provision will definitely bring the press to a stand still as every candidate will demand that his/her reply be published. Section 10 of the Media Practitioners Act is inconsistent with section 3(b) read with section 12 of the Constitution and hence is not valid law. The High Court must strike it down on reasons furnished above.

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