I have spent the last few weeks in South Africa interviewing journalists and editors about both the gains of our media freedom and concerning signs of regressive state legislation, such as the proposed Public Service Broadcasting Bill that – if passed – would make the public broadcaster effectively a state broadcaster directly accountable to Minister of Communications, General Nyanda; and the ongoing controversy around Section 205 of the Criminal Procedure Act, an enduring Apartheid-era law that requires journalists to disclose information or identify sources regarding suspected crimes. Section 205 has suddenly taken centre stage in public debate this week and journalism has dominated its own headlines, in a self-reflexive response to the interview that e.tv aired with criminals planning to target the 2010 World Cup. The debate has raised timely questions about the ‘public interest’, media freedom and responsible journalism.

For those who haven’t followed the story, the interview was with two self-confessed criminals who were shown with their faces obscured: the one man admitting that he was planning to rob tourists during the World Cup as “payback for colonialism”, and the other warning that he would shoot his way out of any confrontation with the police – loading and cocking a firearm as he spoke. Creating further controversy, Lucky Phungula, the 43-year-old man who set up the interviews, committed suicide in Soweto on Tuesday, leaving a letter a saying to e.tv reporter, "Mpho Lakaje you put me in [a] mess,” and asking  him to look after his daughter. His daughter said Phungula had feared he had offended police National Commissioner Bheki Cele. E.tv has said that Phungula was their sole source for the story and their only link to the criminals.

The police, backed by the ANC, responded with virulent criticism of e.tv News, invoking Section 205 to serve subpoenas to news editor Ben Said and reporter Mpho Makaje who are due to appear in court this week unless they provide the police with the names and addresses of the criminals, the unedited footage and information about the firearm featured in the insert. National Police Commissioner Bheki Cele said, “E.tv is a crime kisser and have expressed themselves [sic] as such.”

The media and opposition parties have almost unanimously taken a contrary view: Ben Said claimed it was e.News’ duty to inform the public, and accused Mthethwa of shooting the messenger. South African National Editors Forum (Sanef) said it was “appalled” that Section 205 had been invoked against the journalists and that “a journalist’s independence and credibility is jeopardised if he or she were seen by the public to be willing informants of the police of other official....journalists should not be used as freelance information-gatherers for the police.” Similarly, the DA called the ANC’s attempts to identify the criminals a “full-scale assault” attempting to muzzle the media and COPE accused the police of attacking journalists for the failures of government, which was trying to “save face” through its legal action.

Indeed, as Said defends, a key tenet of responsible journalism and of the fight for press freedom is “public interest”, which seeks – among other things – to inform the public. However, writing in the British Journalism Review, Martin Moore says that “’[P]ublic interest’ has been so used and misused that it has lost much of its meaning and therefore its power. Especially since news organisations frequently invoke the ‘public interest’ when it is inappropriate.” He argues that the threats to public interest journalism come both from an untrusting Government no longer convinced of the value of the fourth estate; and from media that are failing to live up to their public interest responsibilities. Both elements are indeed at play in this instance. 

While the debate in the media has centred largely on issues of media freedom – a timely discussion in need of public debate, with valid arguments from both ‘sides’ – what has concerned me in the messy mudslinging of last week are concerning comments about our democracy that have been attached unproblematically to the points from both politicians and the press. 

Let’s start with the ANC: The party’s national spokesman Jackson Mthembu said of e.tv, “They cannot hide behind journalistic ethics and media freedoms on such a security threat to our country and our visitors. It is very unfortunate that we have a media in the country that glorifies and publicise[s] criminal intentions. The patriotism of such media is suspect.” While his assertion that journalists cannot hide behind media freedoms on issues of national security is legitimate, questioning the “patriotism” of such media is problematic. What is the ANC’s definition of patriotism? Is it a media that would turn a blind eye to government failures or negative aspects of our country in order to show the positive side of the country as an advert for 2010? Basically. The ANC, particularly under Mbeki’s leadership, has repeatedly accused the media of being “unpatriotic” in response to critical portrayals of the new South Africa, particularly in relation to crime and government shortcomings. Mbeki argued that in a continent where few states place any value on press freedom, the South African media should not be antagonistic to the democratic government. One cannot but question whether the ANC confuses the notion of patriotism as loyalty to the nation with that of loyalty to the authorities. With their promulgation at Polokwane of a state-led media appeals tribunal and the government’s current Public Broadcasting Bill, this view carries some credence.

World Cup Organising Committee Chairman Irvin Khoza supports this view, arguing that, “South Africans must consistently and insistently communicate the message [that South Africa is safe] with confidence...” However, the media should be free to inform the public and reveal the truths that those in power choose not to tell, counterbalancing the government’s somewhat obsessive attempts to ensure all coverage is positive in the run-up to the World Cup and its unrealistic assertions (lies?) that there is no reason to be concerned about crime. This is not unpatriotic and accusations to the contrary reveal concerning questions regarding the maturity of our democratic discourse and of our government’s belief in Fourth Estate functions of our press – particularly in light of its actions attempting to intervene in media regulation.

However, while Section 205 is a concerning legislation that needs to be fought, reducing the argument to Sanef’s assertion that the police are trying to make journalists into “freelance information-gatherers” is simplistic and inaccurate. As in other professions that rely on confidentiality – such as medicine, psychology, law or religion – confidentiality is contingent on the nature of the information shared and subject to specific codes of ethics.

Even in most countries seen as exemplifying free journalism, the protection of sources carries caveats: particularly, interests of national security (where the necessity for disclosure of the source will be almost automatic) and the prevention of disorder or a crime. Legal information in the UK on this issue in the UK explains, “The public interest in preventing disorder or a crime is said to be of such overriding importance that disclosure will be almost automatic. If the disclosure can prevent a criminal offence taking place or some form of public disorder which affects the general public of the country then that will be considered far more important than protecting the interests of one individual journalistic source.” This, then, is not a case of an unconstitutional ANC attempting “full scale assaults” on our media freedom - such reductive accusations are inaccurate and shift responsibility for irresponsible journalism unfairly onto government. 

As such, I agree with the National Press Club who spoke out against the report, saying that “journalists are not above the law." Press Club chairman and Primedia news head Yusuf Abramjee said, "We must ask ourselves with stories like this if we are acting in the national interest or whether we are acting to gain readers, listeners or viewers."

E.tv actively sought out criminals to interview, but claim that Phungula was their only link to the “criminals” – which raises questions regarding the journalistic integrity of the report. Further, they should not have aired the interview if there were ethical questions concerning what would best be in the public interest.  In an online survey, IOL asked its readers, “Should e.tv hand over the criminals they interviewed to the police?” Of the 1,215 people who participated, 78 percent (943 votes) voted "Yes", while only 22 percent (272 votes) answered "No".

It is my default position to take the side of journalists in their defence of free expression, and my inclination is towards concern about the ANC’s somewhat paranoid relationship with the media and some of its proposed legislation for the industry. However, in this case, while I oppose the invocation of Section 205, I think that the media has to take responsibility for irresponsible self-regulation and my allegiance has to shift towards those expressing criticism of e.tv.

The media and opposition parties must acknowledge that among the threats to media freedom is not only government intervention, but also their abuse or inappropriate use by journalists themselves. Journalists need to be responsible in their self-regulation as a maturing media in order to ensure that they do not undermine their own cause or give government any ground to legitimise increasing intervention. In many ways, this seems more a case of the messenger shooting itself than of any large-scale assault by the government.