CHAIRMAN’S REVIEW: BROADCASTING COMPLAINTS COMMISSION OF SOUTH AFRICA
1 JULY 2014 – 30 APRIL 2015
On 20 August 2014, the BCCSA turned twenty-one. This makes the Annual General Meeting in 2015 the BCCSA’s first step into maturity. Since this meeting is also the last AGM being attended by me, in fact as a guest, as a result of my having stepped down on 30 April 2015, it would be fitting to not only provide an overview of what took place during the last ten months, but also to provide an overview of what we have achieved in these two decades. While last year’s report may be said to have set out the goals which the Commission has achieved, I believe that in the last ten months we have moved forward in a few important respects. I will, however, commence by stating certain important principles which must apply to a body such as the BCCSA. Thereafter, I will provide an overview of principles which we hold dear in regard to the manner in which the BCCSA exercises its powers.
In 1993 the National Association of Broadcasters set up this Commission. In order to ensure that the Independent Broadcasting Authority (IBA) would not also have jurisdiction over complaints concerning broadcast content, we had to obtain recognition from the IBA (now the Independent Communications Authority of South Africa – ICASA). This recognition was obtained in November 1995.
To understand the legal nature and independence of the BCCSA, it is necessary to take note of the legislation which made it possible for the BCCSA to become an independent recognised domestic administrative Tribunal.
Section 192 of the Constitution of the Republic of South Africa provides that broadcasting must be regulated by an independent body set up by legislation. The IBA Act, and thereafter the Electronic Communications Act 2005, created the possibility for broadcasters to set up a body which would deal with complaints from the public. This body would then exclude, with certain exceptions concerning elections, the jurisdiction of the IBA. The IBA (now ICASA) had to approve the Constitution and the Code applied by the body. The BCCSA commenced functioning in 1993, even before the IBA Act became operative. After 1 April 1993 the IBA Council requested the BCCSA to function as the de facto complaints body for the broadcasters under its jurisdiction by consent and via the National Association of Broadcasters. And in November 1995, after hearings were held, the BCCSA was formally recognised by the IBA in terms of the IBA Act. The IBA was adamant that there should be no representatives from the industry on the BCCSA, that it would have full control over its Constitution, and that only the BCCSA had the power to dissolve the BCCSA. Given the fact that section 192 of the Constitution requires an independent regulator over broadcasters, it was of particular importance that the BCCSA should, indirectly, enjoy the independence which section 192 requires from a body that regulates broadcasting. In terms of section 192 it could not have a lesser standing than the Regulator in so far as independence is concerned. The National Association of Broadcasters would provide the financing. A panel chaired by an independent person who would add two persons of his or her choice to the panel, would appoint Commissioners every five years. The Chair of the BCCSA and the Chair of NABSA or his or her representative would also sit on the panel. The IBA also resolved that the BCCSA would elect its own Chairperson and that it would be in order if that Chairperson was not one of the Commissioners. The Registrar would be appointed by the BCCSA. In 2004 the BCCSA decided to provide for an appeal body, and this was approved by ICASA. Closer legal examination of the nature of the BCCSA has demonstrated that it is a domestic tribunal the decisions of which must be rational,1 in contrast to that of a statutory body, the decisions of which must be reasonable in terms of the Promotion of Administrative Justice Act 2000. Nevertheless, the BCCSA has striven to deal with matters according to the standard of reasonableness. Over a period of 21 years there were two applications to take the BCCSA on review to a Court, and both were withdrawn after the BCCSA filed its answering affidavit. Importantly, in 2014 we had to make a ruling that the Human Rights Commission does not have jurisdiction to deal with complaints against the content of broadcasters. The matter concerned the inclusion in Carte Blanche of a photograph of the murdered daughter of the Complainant. The Human Rights Commission issued an order that an apology be broadcast and that the BCCSA must take steps to amend its Code so as to address the dignity of family members of victims, which are shown on television. The Chairperson ruled that the Human Rights Commission is not mandated by the Constitution of the RSA to issue orders of this nature and that it could only take steps to secure appropriate redress, which clearly does not include the authority to order redress or order that the BCCSA amends its Code. It was also pointed out that the Human Rights Commission had filed a complaint with the BCCSA against the broadcaster – a complaint which was dismissed since it was filed 18 months too late. A complainant could not, it was pointed out, then decide to deal with a complaint itself, which it was, in any case, not mandated by law to issue an order on.
Ultimately, the principle of independence of the BCCSA is closely related to the principle that members of the public and broadcasters must be at an equal level when appearing before a BCCSA Tribunal.
Annual Review 2014 to 2015