Media Regulation in South Africa: Navigating ICASA, BCCSA and the Press Ombud

South African media complaints are adjudicated by a complex network of bodies, with the regulatory landscape divided between statutory authorities like ICASA, the complaints body for NAB-member broadcasters, and the Press Council and its Ombud for print journalism. Each has distinct procedures and powers.

Who Regulates Broadcasting: ICASA and its Complaints and Compliance Committee

The Independent Communications Authority of South Africa (ICASA) was established by statute to adjudicate complaints about alleged non-compliance with broadcasting licence conditions, the ICASA Act, and underlying statutes. Its Broadcasting Monitoring and Complaints Committee (now the Complaints and Compliance Committee, or CCC) is mandated to investigate and adjudicate these matters, with powers to make findings on compliance issuing from Section 17B of the ICASA Act.

In practice, any member of the public who believes a broadcasting licensee is not adhering to its licence terms, the ICASA Act, or other relevant acts may submit a written complaint directly to ICASA or its broadcasting division. Complaints are assessed and, if they relate to alleged non-compliance, are referred to the CCC for adjudication. The consumer complaints procedure allows both the complainant and licensee to submit written responses within specified time frames.

The Broadcasting Complaints Commission: Contractual Oversight for NAB Members

Many South African broadcasters are not directly regulated by ICASA, but instead opt for self-regulation under the Broadcasting Complaints Commission (BCCSA). This body has jurisdiction over licensees that are members of the National Association of Broadcasters (NAB). Non-NAB members remain under the purview of ICASA's CCC.

The BCCSA has the power to investigate any matter referred to it by ICASA, as well as complaints that are submitted directly by the public. If the Commission finds a licensee to have breached its terms, it can issue an order to the relevant licensee directing a course of action. However, it is unclear whether these orders are backed by law, or are more in the nature of industry agreements.

Self-Regulation for Print and Online: The Press Council, Press Ombud and Appeals Panel

Print and online publications in South Africa that are members of the Press Council are adjudicated by a co-regulatory mechanism comprising the Press Council, the Press Ombud, and an Appeals Panel. This self-regulatory system was established to provide an independent dispute resolution process between the media and the public over editorial content.

Complaints must be lodged within 20 days of publication with the Public Advocate, a unit that assesses the merits of the complaint, assist in drafting, and refers it to the relevant publication for a response. If the matter is not resolved, it escalates to the Press Ombud for adjudication, which can be on the papers or involve a hearing.

The Press Ombud, often with the help of an advisory panel representing both the public and the press, issues a ruling that must be published if the complaint is upheld. While the Press Ombud can issue reprimands, caution, apologies, and publication of findings, it is unclear whether it has the power to award financial remedies.

What These Bodies Can Actually Order

Each of these regulatory bodies has specific powers to remediate perceived violations, although in most cases the remedies ordered are limited to non-monetary ones.

BCCSA has the power to issue orders to licensees as it sees fit, and non-compliance with BCCSA orders constitutes an offence. Press Ombud can order rebuke, retractions, and the publication of a response. The Ombud also can dictate the wording and placement of an apology. ICASA and its CCC body can investigate and adjudicate complaints, although the remedies at its disposal are not detailed.

What these bodies cannot do, however, is award pecuniary damages, or handle purely legal matters like libel or invasion of privacy. For those, complainants would likely have to take their case to the courts.

Where the Courts Fit In — And What They Still Decide

ICASA is a statutory body, created by legislation, and its powers are subject to the review of the Court. The Constitutional Court of South Africa has defined ICASA's complaint adjudication powers. The ICASA Act empowers ICASA to monitor compliance, grant and revoke licences, make regulations and adjudicate complaints about alleged breaches of the Act or licence terms.

However, the courts of South Africa, from the Magistrates' Courts through the High Courts to the Constitutional Court, retain the power to rule on media-related matters and set limits on the powers of media regulators. Complaints about defamation, privacy, and constitutional free expression matters may be pursued in court regardless of adjudication by ICASA, BCCSA, or the Press Ombud.

Complainants should therefore be aware that while the complaints process may resolve non-monetary issues, those seeking damages, or whose claim is beyond the scope of these bodies, will need to pursue a legal case.