Media Development and Diversity Agency Bill: hearings

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
5 March 2002
MEDIA DIVERSITY AND DEVELOPMENT AGENCY BILL: PUBLIC HEARINGS
 

1. 1. To encourage ownership and control of broadcasting services by persons from historically disadvantaged groups. The aim here is to achieve empowerment of historically disadvantaged groups. (This is mentioned in Section 3 of the Act). Again, this is reiterated by the fact that an aim of the Act is to ensure that commercial and community broadcasting licences, when viewed collectively, are controlled by persons or groups of persons from a diverse range of communities in South Africa. The nature of the SABC's broadcasts, whether on radio or television are adjudicated upon by the public, and our programming and audiences that we deliver to, generates advertising which is one of the key mechanisms of sustaining income at the SABC. To the extent that there is concern from any interested person in the contents of any programme, such a person may lay a complaint with the Broadcasting Complaints Commission of South Africa ("BCCSA"). To that end, the SABC is bound by its Code of Conduct particularly in relation to matters such as fair and accurate reporting, fair comment and balance in its programming structure. The SABC is also regulated upon by the Advertising Standards Authority ("ASA") when it comes to the nature of advertisements broadcast across our radio and television services. Finally, we may be called before the Broadcast Monitoring and Complaints Committee ("BMCC") to answer contraventions of our licence conditions. We are therefore answerable to many institutions.Over and above this, the SABC is involved in a host of other activities and bodies, all of which bring something or other to bear on aspects of transformation of and contribution to the media in South Africa. The globalisation of media and communications, the homogenisation of news, the low density of media infrastructure in the urban areas primarily, the challenges facing the SABC, particularly the education department in relation to matters of literacy, the development of media, training and then, throughout our services, the promotion of all languages are matters which are of crucial importance to the SABC. However, the way in which this is undertaken must be seen in the context of the developing media throughout South Africa on a macro level and the particular advances and transformation of structures within the SABC at a micro level.

       

   2. To promote the empowerment and advancement of women in broadcasting services.
   3. To encourage equal opportunity employment practices by all licensees.
   4. To ensure equitable treatment of political parties by all broadcasting licensees during any election period.
2. Some of the key aims of the SABC Charter are as follows:
   1. The making of its services available throughout the Republic;
   2. To provide broadcasting services that inform, educate and entertain;
   3. To respond to audience needs;
   4. To maintain archives;
   5. To nurture South African talent; train people in production skills and conduct research.

   THE SABC'S APPROACH TO THE BILL

3. It has always been the SABC's view that a light touch regulatory environment is ideal for diversifying and encouraging access to the media. It is against this background that we must view the establishment of the MDDA. We are already against this background, highly regulated and would caution against regulations which enforce further regulatory obligations, particularly given the human resource stresses already felt by the SABC.
4. It is clear that the regulatory environment comprising ICASA, the BCCSA, the BMCC and the ASA will now be joined by an additional agency, the MDDA and any sub-agencies which it chooses to develop will impact upon the nature of the regulatory environment in which the SABC operates. Already, many thousands of person hours are devoted each year to matters of a regulatory nature. We would rather use these person hours to improving our service and, to the extent that the MDDA forces more hours to be diverted into regulatory matters, the more the service will be affected. The way in which the MDDA will interface with the SABC, other regulatory bodies, the Portfolio Committee and so on, has been canvassed and we look forward to this being developed by the debate around regulations. It is vital that the questions of interface, co-operation and synergy be properly spelled out to ensure that the MDDA fulfils the needs for which it is being established.
5. It is our contention that the establishment of the MDDA should be geared primarily to areas of service where the current media and particularly, the SABC with its public service mandate are unable to penetrate, whether such penetrative failure is due to infrastructural or other causes. By this we mean that the aims and objectives of the MDDA should be significantly geared, in the initial stages in any event, to those areas not currently covered by emerging and established media and to the extent that it encroaches upon these areas, it does so with the full intention of working in tandem with and in support of pre-existing structures.
6. Most importantly in this regard, is the fact that consideration must be given by the board as well as any parties considering proposals to the sustainability aspects of the businesses of proposed beneficiaries. It must be pointed out that one of the key difficulties in community stations even in urban areas is the difficulty of sustainability having regard to market forces and the lack of advertising revenue generating possibilities. In areas envisaged to be covered by this legislation, particularly where small local community radio services will cover their area, sustainable growth, even existence, without sustainable funding mechanisms will be almost impossible to maintain.
7. The Bill contains no definition of "commercial media", but it does appear as if small commercial media will benefit from MDDA funding. This requires clarity and elucidation.
8. Given the statutory nature of the MDDA, there is always the possibility that the body can become over enthused with developing new media to the detriment of established and current media. Obviously the SABC can have no argument with the establishment of any type of new media in areas where there is no access. However, this should also be done having regard to the roll-out provisions of the SABC's broadcasting roll-out plans which will impact upon the table provided by Sentech regarding the population without Grade B FM reception as at 1 June 2000. Obviously the SABC roll-out plan will decrease this number over the next few years. It is the SABC's aim to reduce the number of people without Grade B FM reception to approximately 1 million within the next four years. However, this is dependent on cost factors and once this roll-out plan is complete, the number of South African who will require subsidised reception will be significantly reduced. The SABC hopes that MDDA will work in conjunction with it so that matters undertaken by the MDDA are done having regard to current infrastructural developments being undertaken in the SABC's roll-out plans.
9. It is the public service mandate of the SABC to provide media services which entertain, educate and inform as broad a number of South African citizens as possible. To the extent that the establishment of the MDDA will assist in the infrastructural roll-out provided by the public broadcaster, its establishment must be welcomed.
10. The SABC is also most anxious to ensure that broadcasting and media development do not take place to the detriment of current initiatives undertaken by the SABC. The SABC is of the view that it provides programming to an inclusive South African audience and is on a fast track to promoting diversity in its programming and broadcasting services. The composition of its Board, management and newsroom staff all reflect transformation of the media at the public broadcaster. The roll-out into the rural areas has been immense, empowering many South Africans who were previously disadvantaged by not having access to the media to now have access. The SABC broadcasts in all official languages across its television channels and radio stations and on that basis, the SABC must be viewed as making a major contribution to access transformation and diversity.
11. The SABC would not want to be seen as a spoiler in respect of a contribution to the budgetary needs of the MDDA and has made its commitment to government in this regard. Conversely however, we are of the view that the MDDA could assist in funding the public broadcaster particularly in roll-out matters. However, a proper business plan and research regarding the mechanisms of raising funds need to be undertaken to ensure that past failures are not repeated. The simple support of government would not be sufficient to guarantee the success of the project. Finally, in this regard, our own sustainability cannot be threatened by the requirement of the contribution, a matter which probably contributed to past failures.
12. Ownership and control of media is a critical area which needs to be addressed in order to promote diversity. However, this should be done in similar ways as those encouraged by the IBA Act. The process of transformation must be an inclusive one involving all stakeholders. While new media and unconventional media in emerging areas and identified markets is vital, the regulations should look at the way in which possible mechanisms can be developed to bolster the aims of the MDDA through existing media institutions and organisations.

    CONCLUSION

13. The position paper states that the MDDA will "support initiatives aimed at ensuring that the public broadcaster fulfils its mandate to reach out to the provinces". However, it is unclear whether this would be undertaken by the provision of funding for regional services or whether it intends to regulate for the way in which regional broadcasts should occur. It is vital that the SABC is fully consulted to ensure that it is the former rather than the latter which forms this view. We raise the concern because the paper states at 10.1.2 that "commercial (ie for profit) media projects will not ordinarily be eligible for subsidies". This does not directly impact upon the SABC, but if a provincial diversity strategy forms part of the MDDA's agenda, and if that agenda includes the SABC, then we would expect to become a beneficiary of funding. The provinces form an integral part of our mandate and the SABC has every intention of integrating that into our media.
14. The MDDA's mechanism of providing subsidies both direct and indirect, funding of other natures, building capacity, encouraging social responsibility, training, evaluation, monitoring and research would all be welcomed provided that these are undertaken in as light a touch and non-interventionist a manner as possible. As set out, the mandate should be targeted primarily towards covering emerging media and particularly media which caters to those disadvantaged groups which are not properly accommodated by the SABC and other media structures as currently in existence. While there is obviously much to be said in criticism of the traditional ownership mechanisms, control and management of traditional media, the SABC cannot be tarred with the same brush, given the enormous rate of transformation which permeates our environment.
15. In conclusion, we are supportive of this initiative and see that its role is a vital one contributing to media diversity. However, we are of the view that prior to moving to the next phase of regulations, clear support and sustainability from a funding and infrastructural perspective must be secured to ensure its success. This must of course, be undertaken with the proviso that diversity and development rather than regulatory or watchdog functions will provide the impetus.

Appendix 3

MEDIA MONITORING PROJECT

Submission on the Media Development and Diversity Agency Bill

Introduction

The MMP supports the overall aims and objectives of the Media Development and Diversity Agency (MDDA) and supports genuine attempts at developing and diversifying the South African media environment. MMP's submission will focus on the following areas:

1. Principles of the media

2. Independence

3. Funding

4. Mandate of the MDDA

5. Development

6. Diversity; &

7. Special Groups

1. Principles of the Media:

The role and impact of the media in any society has far reach in3 consequences. It is an invaluable source of information for that society and is also the medium which gives voice to the opinions and concerns of that society. MMP believes that the MDDA should and must uphold the values of freedom of expression, independence of the media, democracy and human ri3hts, values essential for the creation and maintenance of a free and independent media.

The MMP notes that the media has a special role to play in society, not only in informing and educating people but also as a means of facilitating criticism and observations of the government of the day. It is because of the media's special role n relation to government and society that it warrants special treatment. For the media to operate successfully it must be independent of government The history of the SABC has taught us that where the state controls a broadcaster it is no longer able to service the public it is there to serve.

State control is not the only enemy of the media, there are of course very real threats of monopolies and corporatization that may also work to prevent the media from adequately informing, educating and serving the needs of the public. In this regard the role of the MDDA is seen as crucial by the MMP as it is through genuine community participation, through marginaIised groupings voicing their own opinions and through diversity that the battle for a diverse and democratic society can be won. It is in this context that the MMP's remarks are framed.

2. Independence:

The issue of independence was raised by the MMP in its submission made on the draft paper (See Annexure). The MMP would again like to stress its importance. As the Bill stands there is a very real danger not only of the independence of the Agency being compromised but also for considerable government interference.

For the MDDA to succeed it is critical that it is independent of government. This is the case for a number of reasons:

·

Community & Society Buy In:

For the Agency to succeed those people whose needs it aims to address must see the Agency as reputable, approachable and open. This is not to suggest that government cannot be viewed in this way but if the Agency has clear ties to government it will almost certainly be viewed as a tool of government. It is vital for the success of the MDDA that people take ownership of the MDDA and not government.

·

Funder Buy in:

In discussion with funders there is a very clear unwillingness to support a structure that has links to 5overnment. For many funders it is part of their brief to ensure that they do not fund projects linked to 3overnment especially where they relate to development and diversity, and the fields of media. If the Agency is to get guaranteed assistance from reputable funders it is critical that the Agency is independent from government

· No Diversity without independence:

The definition provided in the Bill of diversity is as follows,

"1 (v) 'diversity' with regard to media means access to the widest range of sources of information and opinion, as well as equitable representation within the media in general"

independence from government is a requisite for ensuring genuine diversity. On one level the argument is simply that those opposed to 3overnment may not have their voices heard -whether this is a reality or just a fear it certainly cannot be viewed as contributing to diversity.

Fear of government sanction or funding withdrawal may prevent those groups opposed to government from expressing their views. While it may for example be morally indefensible and dim in the extreme to oppose transformation in sport for instance those who oppose it have the right to express their opinions. Indeed one of the advantages of true diversity is that by allowing all who choose to have their say the foibles of those voices in opposition will be highlighted and the weakness of their ar5uments made abundantly clear.

· Without independence the Agency is open to abuse:

Without 3uaranteed independence it is not just those who oppose 3overnment who may be silenced, but government given the powers afforded to the minister in the current Pill, may chose to define fund in3 parameters such that only those who support a government friendly position will be heard.

It is for these reasons that the clauses relating to the minister in the Bill must be removed.

MMP suggests that Clause 13 3(b)

"The Minister may, in consultation with the board, determine which stakeholders must be invited to the meeting referred to in paragraph (a)" - be removed. If the board is set up as stated with relevant authorities and experts then what reason is there for the Minister to determine which "communities and persons are not adequately served by the media"? (13 1(a))

Two concerning clauses are 13(3)

"the Minister must in consultation with the board, prescribe

(a) detailed criteria for selecting -

i) community media projects

ii) small commercial media projects

iii) research projects"

(b) the manner in which an application for support for projects must be made; and

(c) the information that must accompany the application."

and 13(4)

"The Minister may, in consultation with the Board, prescribe the percentages of the money referred to in section 14(2)(a), to be utilised for

(a) community media projects;

(b) small commercial media projects; and

(c) research projects"

18(3) is the more worrying as it states the minister must in consultation with the hoard prescribe selection criteria. No justification is given for either the use of the word must or why the minister has been brought in at all. Once again if the board is properly appointed there seems little reason for the Minister to be involved. 18 (4) although thankfully devoid of "must' is nevertheless potentially equally damaging -giving the Minister power of the purse strings may in certain circumstances be tantamount to censorship or else for propaganda purposes. Again no reason is given for why the skills of the Minister would be required. In both 13 (3) and 13 (4) the potential for Ministerial interference and abuse is substantial.

MMP suggests that Clauses 19 3 (a), (b) and (c) are amended so as to exclude the Minister from the appeals process. Again no reason is 3iven as to why it should fall to toe Minister to be the last stage of appeal in a matter where the Minister may be based. 'AMP would welcome alternative su55estions to the Minister.

The MMP also suggests that Clause 21 be removed. As it stands the powers of the Minister are sweeping and given the relatively broad definitions of development and diversity in the Bill the potential for abuse is once again extreme. Again no justification is provided as to why the Minister should be given these powers. Any reasons for allowing the Minister to regulate on issues not catered for in the Pill must be discounted for there has been extensive research into the development and aims and intentions of the Agency.

It must be stressed that the MMP is not opposed to the Minister and one must assume that the Minister has no ill intention or desire to subvert the aims of the MDDA. However it is a matter of good policy to ensure that an agency is not created that may be abused in the future. Prevention is always better than cure.

3. Funding:

Of the Agency:

independence from government means not only principled, operating independence but financial independence as well. The funding of the Agency must be clearly outlined -and have built in safeguards to protect it.

It would appear that the Agency is to be funded by Parliament - a condition which is

hinted at in the funding clause of the Bill (See 14 (1) (a)). The MMP requests that the

Agency's position in terms of the Public Finances Management Act (PFMA) is clearly

defined as well as who will be its accounting officer. Such position may have a

profound effect on determining control of finances.

while there is a clear need for checks and balances the funding of the Agency should be structured in such a way that government or the Minister cannot easily interfere.

Of the Benefactors:

It has been noted previously in the Draft Position Paper, as well as the Bill that criteria for the allocation of funds had not been determined and this remains vague in the Bill.

The Bill confers a large amount of power on the Minister and his power would extend to determining and selecting which projects would be allocated funding as well as determining regulations.

It would appear that we have gone from a discussion paper with masses of detail to a Bill that seems to be a skeleton of its former self.

4. Mandate of The MDDA

Another worrying aspect of the Pill is the lack of attention given to ICASA. The Draft position Paper mentioned that the MDDA would work closely with ICASA but did not clearly state the nature and extent of the relationship. The Bill does not deal with the relationship to ICASA at all or any other regulatory bodies. This was noted by the MMP in its submission.

The mandate of the MDDA is broad and the concern that needs to be raised is whether the mandate and functions of the MDDA is going to overlap and duplicate the functions of the Independent Communications Authority of South Africa (ICASA). It is fully appreciated that ICASA deals only with broadcasters and that no such body exists for print media; however the role, actions and activities of the Agency must be clearly defined so as to ensure: that:

·

the independence of ICASA is not further undermined,

· the roles and tasks of ICASA are not duplicated. While ICASA may or may not be able to fulfil its mandate, this should be addressed separately and does not serve as validation to create another organisation that will undertake tasks within ICASA's mandate. And

· to ensure that the issue of who takes precedence is also clear.

5. Development:

The development of the South African media industry is necessary in order to address imbalances of the past. While many development initiatives being with the best of intentions, there is a need for such initiatives to be sustainable. MMP welcomes the inclusion of the criteria in 13 (5), which suggests that information which may accompany an application for assistance from the Agency may include the objectives and goals of the project, business plans and measures for future sustainability and the proposed budget.

Such measures are however, viewed only as a possibility and not requisites. Emphasis on sustainable development is necessary to ensure real and meaningful changes in the media industry. South Africa's current media environment where several broadcasters are struggling to break even, and where shattering numbers of journalists are being retrenched means that the task of the MDDA in relation to development will be all the more difficult. Obviously in creating diversity it must also be acknowledged that sustainability is not always possible.

6. Diversity:

The definition of diversity as provided by the Bill, "diversity with regard to the media, means access to the widest range of sources of information and opinion, as well as equitable representation within the media in general", does not take into account diversity of content and programmes. In addition the Draft Position paper placed the majority of its emphasis on issue of ownership. While diversity of ownership is necessary to redress the imbalances of the past it also important to address the issue of diversity in content and programmes of these newly created media. Diversity in ownership does not necessarily result in diversity of content. Different stations owned by different sectors can end up with similar music and news. The definition could be revised to include the need to cater for diversity in content and programming. Also considering the importance of issues related to gender the MMP submits that there could be greater emphasis placed on gender diversity.

MMP also notes that the Bill is unclear as to how the Agency is going to promote diversification of the media industry.

7. Special groups:

It is noteworthy and commendable that section 17 of the Pill provides for and caters for special groups of people which include:

a) people historically disadvantaged as a result of apartheid;

b) poor people

c) people Iiving in rural areas

d) people Iiving in cities and towns having limited media resources

e) women

f) youth and children

g) members of marginalised language groups

h) illiterate people

i) senior citizens

j) people with disabilities

Groups mentioned under this section have largely been ignored by the media and it is essential the media becomes more representative and inclusive of the above mentioned groups. Indeed much of the abuse that has taken place in our country has taken the form of violation of peoples fundamental human rights; the scourge of racism and sexism continue to rob people of their rights to dignity and equality. The MMP therefore also urges that emphasis be placed on the promotion of human rights through the creation of this agency. The creation of the Agency is after all based on toe desire to ensure that people are able to exercise the right "to receive or impart information or ideas."(RSA Bill of Rights 16(1)c)

8. Conclusion:

· MMP re-iterates its support of a development and diversity agency and recognises the need for such an agency in South Africa.

· MMP notes that a comparison with the Draft Position paper and the Pill reveals that much of the detail in the Draft Paper has been excluded leaving the Bill vague.

· MMP submits that clarity on the issue of the levels of power and mandate of the MDDA are clearly identified - especially in relation to ICASA.

·

MMP also submits that safeguards are put into place to secure the independence of the Agency and to ensure that funding is distributed on a fair and equitable basis.

·

MMP further submits that the Pill be amended so as to ensure that the extensive powers given to the Minister are nullified.

· Finally MMP submits that a commitment to promoting, protecting and developing a culture of human rights (again with a clear emphasis on addressing racism and sexism) is emphasised both in the Bill and in the creation of the Agency.