Summary
Summary MDR420 EXAM NOTES
- Course
- MDR420 (LLB)
- Institution
- University Of Pretoria (UP)
Summary of 31 pages for the course MDR420 at UP (MDR420 EXAM NOTES)
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MDR420 EXAM NOTESTHEME 7 REGULATION OF THE MEDIA
Outcomes:
1. Discuss the Broadcasting Complaints Commission of South Africa’s (BCCSA) jurisdiction
2. Discuss the BCCSA’s complaints procedure
3. Discuss the BCCSA’s code of conduct
4. Explain the term ‘watershed period’ and its implications on free to air code and subscription
service broadcasters
5. Discuss the Complaints and Compliance Committee’s jurisdiction (CCC)
6. Discuss the CCC’s complaints procedure
7. Is there a difference between ICASA (Independent Commissions Authority) and CCC’S role and
duties?
8. Discuss the Press Council’s jurisdiction
9. Discuss the Press Council’s complaints procedure
10. Discuss the Press Council’s code of conduct
11. Discuss the role and functions the Films and Publications Board
12. Discuss the Films and Publications Board classification procedure of publications and its legal
effect on freedom of expression
13. Briefly discuss the Films and Publication Boards classification criteria
14. Discuss the Advertising and Standards Authority’s jurisdiction and advertising code with
reference to recent and applicable case law
15. Discuss possible sanctions that may be imposed by the Advertising and Standards Authority
with reference to applicable recent case law
Herbex v ASA (aka Advertising Standards Authority) JURISDICTION
• The Advertising Standards Authority is not empowered to consider complaints involving
non-members;
• Where licensees are not members of any organisation/industry/broadcasting regulatory
body, the CCC of ICASA is empowered to consider complaints concerning alleged breaches;
• Thus rulings of the ASA are not legally enforceable against non-members
Montsho v Etv BCCSA
• Involved the use of grossly offensive language;
• The BCCSA considered the time of broadcast and clause 7 of the BCCSA code which clearly
prohibits the use of grossly offensive language before the watershed period;
• The watershed period assists in ascertaining whether at a particular time a large number of
children are likely to be present during the airing of certain broadcasts/programmes;
• In some instances an audience advisory will not suffice in preventing a contravention of the
BCCSA code
WARNING: These notes were made by GAUKE BUYL © - please do NOT distribute them!
DISCLAIMER: These notes have been compiled using the lecture slides, class notes, and the prescribed case
law. These notes are merely my own personal summaries and my own understanding of the work, and I do not
take credit for the content.
,Justice Alliance v of South Africa v Mncube ; In re: Cause for Justice v Independent Communications
Authority of South Africa
• Concerned an application to ICASA for the broadcast of three pornographic channels;
• ICASA granted permission however subject to the following conditions
o 1. That the pornographic material only be aired during watershed periods;
o 2. That a security code is used to access such channels
• The matter was however taken on review for ICASA to consider the “stringent conditions”
Mlenga v ENCA BCCSA
• Considered a complaint regarding the “alleged incorrect” interpretation/translation of
news;
• The matter involved clause 11 of the BCCSA which provides that news reporting must be
accurate, truthful and reported in a fair manner;
• The BCCSA thus held that the disputed allegation did not compromise the integrity and
content of the story;
• Test: whether the news have been interpreted in correct context and in a fair manner as
opposed to an intentional negligent departure from the facts
THE BROADCASTING COMPLAINTS COMMISSION OF SA (BCCSA)
• Independent regulatory body that was established by the National Association of
Broadcasters (NAB) in 1993;
• Section 54 (3) of the Electronics Communications Act 36 of 2005 provides that all
broadcasting service licensees that are not members of an industry body that enforces a
code of conduct automatically fall under the jurisdiction of the Complaints and Compliance
Committee (CCC) of the Independent Communications Authority of South Africa (ICASA)
• Composition:
o Broadcasters who are members must sign the BCCSA’s Constitution;
o Membership may only be withdrawn after a minimum period of three years has
elapsed since membership;
o Withdrawn members are however still bound by the BCCSA’s prior rulings made
against it;
o BCCSA chairman serves a renewable term/period of five years;
o Adjudication is conducted by twelve commissioners who are appointed for a
renewable term of five years;
o Six members must have an interest or expertise in the broadcast media;
o Six other members must have an interest or expertise in matters which relate to the
interests of the public;
o An adjudicator who is tasked with addressing complaints at an early stage is also
appointed
• Jurisdiction:
o Has jurisdiction only with regards to its members;
o Members have to adhere to a code of conduct issued by the BCCSA;
o The BCCSA has two codes, namely: a code for free to air licensees and a code for
subscription service licensees;
WARNING: These notes were made by GAUKE BUYL © - please do NOT distribute them!
DISCLAIMER: These notes have been compiled using the lecture slides, class notes, and the prescribed case
law. These notes are merely my own personal summaries and my own understanding of the work, and I do not
take credit for the content.
, o Jurisdiction excludes advertisements broadcast by a member of the BCCSA who is
also subject to the Code of Advertising Practice of Advertising Standards Authority of
South Africa (ASA code);
• Complaints procedure:
o A complaint must be submitted 30 days of the date of broadcast, but the registrar
has the discretion to accept late complaints;
o From practice it appears that only complaints that are controversial or complex go
directly to the tribunal;
o A party that is aggrieved by a ruling of the lower tribunal can lodge a request for
appeal to the chairperson of the lower tribunal,such a request must be lodged
within five days of the ruling;
o If the appeal is refused, the appellant can within five days, approach the chairperson
of the BCCSA, the alternate chairperson or commissioner designated by the
members of the BCCSA to request leave to appeal;
o Rulings made by the appeal tribunal are final and can only be reviewed by the High
Court under the provisions of the Promotion of Administrative Justice Act 3 of 2000
• The code of conduct:
o Regulates the following;
▪ Programmes that contain violence, sexual conduct and strong language;
▪ Children’s programming and programmes which could be harmful or
disturbing to children;
▪ Protection of privacy, dignity and reputation;
▪ Standards for news broadcasts;
▪ Reportage on controversial issues of public importance;
▪ Audience advisories; and
▪ Broadcasts that relate to competitions
PROGRAMMING THAT IS HARMFUL, DISTURBING OR UNSUITABLE FOR CHILDREN
• The free to code prohibits broadcasting of material ‘which is harmful or disturbing to
children at times when a large number of children are likely to be part of the audience;
• The subscription broadcasting code similarly states that broadcasters must ‘avoid
broadcasting programming material, including promotional material, which is unsuitable for
children and/or contains nudity, explicit sexual conduct, violence or offensive language
before the watershed period;
• ‘Watershed period’ refers to the time of day during which material which is less suitable for
children may be broadcast;
• ‘Watershed period’ runs from 21h00 to 05h00 for free-to-air broadcasters and from 20h00
to 05h00 for subscription service broadcasters;
• Marcon v Mnet Case no 53/2012 (BCCSA) = the broadcaster was fined R20 000 for a breach
of this aspect of the code, as a result of the erroneous broadcast of a programme ( rated 16)
which contained scenes of violence and strong language in the morning;
• Majora v SABC Caseno10/200(BCCSA) = involved a series called YizoYizo.
o the BCCSA must also take into account the content of the programme as a whole
when determining whether there has been a violation of the code;
WARNING: These notes were made by GAUKE BUYL © - please do NOT distribute them!
DISCLAIMER: These notes have been compiled using the lecture slides, class notes, and the prescribed case
law. These notes are merely my own personal summaries and my own understanding of the work, and I do not
take credit for the content.
, o The broadcast in the Majora case was found to be a violation of clause 6 of the free-
to air code, however the tribunal restricted the sanction to a reprimand on the basis
that the underlying aim of Yizo Yizo was to educate young people about important
topics affecting their age group;
HATE SPEECH
• Both codes of conduct prohibit the broadcast of material that amounts to hate speech;
• The definition used is that of section 16(2)(c) of the Constitution
PRIVACY, DIGNITY AND REPUTATION
• As in the case under the common law, an infringement of the right to privacy is justifiable if
the disclosure is in the public interest - Steyn v Heart 104.9 FM
• With respect to private information concerning children, consent should in general be
obtained from the child’s parent or legal guardian;
• When adjudicating complaints concerning dignity and reputation, the BCCSA has generally
adopted the common law principles of defamation;
• A complaint will be dismissed if the broadcaster is able to demonstrate that one of the
common law defenses to defamation applies - namely, truth and public interest; protected
comment; qualified privilege or reasonable publication
• Fitch v SABC 3 = involving alleged sexual violation of street children by a professor at the
University of Cape Town; in its defense, the SABC argued that the broadcast was justifiable
because it dealt with a matter of public interest; tribunal held that evidence did not
substantiate allegations;
NEWS AND CONTROVERSIAL ISSUES OF PUBLIC IMPORTANCE
• Truth, accuracy and fairness
o Mail and Guardian v SABC and SAFM = SABC 3 contravened code in that;
▪ 1. It failed to place the story in context;
▪ 2. Allegations were presented as facts and not as opinions;
▪ 3. SABC failed to verify the correctness of the allegations;
▪ 4. SABC failed to correct its news report the following day, when the Mail &
Guardian issued a press release refuting the allegations made explaining the
correct facts
• Violent images in news broadcasts
o E-tv v Chirongoma and Others Case no 12/2012 (BCCSA)
▪ Dealt with clause 11 (8) of the free to air code which states that a
broadcaster must issue an advisory when a news report contains
extraordinary violence, or graphic reporting or delicate subject- matter such
as assault…particularly during afternoon or early evening newscasts and
updates;
▪ Also dealt with clause 12 of the subscription broadcasting code and held
that the watershed clause is not applicable to news bulletins, as children do
not generally form part of the audience during a news bulletin;
WARNING: These notes were made by GAUKE BUYL © - please do NOT distribute them!
DISCLAIMER: These notes have been compiled using the lecture slides, class notes, and the prescribed case
law. These notes are merely my own personal summaries and my own understanding of the work, and I do not
take credit for the content.
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