Access to information laws could help SA media companies

On 15 April, Daily Maverick shut down for the day. A statement from the publication explained: “The decision to do this was not taken lightly, but it was made in an attempt to highlight the global state of emergency in journalism.

“This crisis in journalism affects South Africa’s democratic functioning and impacts the state of our economy. Journalism is experiencing a market failure and is at risk of collapse, with effects that will be catastrophic.”

There are many complex reasons for the crisis in journalism.

This includes the fact that the media’s business model has been under threat since the advent of the digital economy. Media companies allege that much of the advertising revenue that used to come their way now goes to the major technology companies.

At the recent Competition Commission inquiry into the media and digital platforms market, media companies testified that digital platforms benefit greatly from the inclusion of their news media content and yet they do not receive fair compensation for the use of this content.

The media companies complained that digital platforms appear to aggregate news content in a way that often ensures that users don’t need to visit the source of the news. Links and snippets often give prospective readers just enough content to satisfy their interest without reading further.

And though media companies need platforms to refer and link users to their stories, the referral traffic is dependent on the platforms’ algorithms, which seem to prioritise sensational content over news content.

Lack of transparency

Perhaps the most persistent complaint by media companies (and others) at the Competition

Commission’s inquiry was the asymmetric access to information and lack of transparency of the platforms, which means negotiations with them on a level playing field are impossible.

Some South African media companies have turned to access to information laws in their quest to end this asymmetry of information. Caxton, Media24 and the Campaign for Free Expression, a non-profit company, have submitted requests for information about Google’s use of news media content and digital advertising practices under the Promotion of Access to Information Act (Paia).

Game-changer

The game-changer is that SA’S access to information laws apply not only to public but also private bodies if the requester establishes a need to have the information.

SA legislation caters for transparency and accountability in relation to “both [governments and corporations] in legislation, driven by constitutional imperatives”.

Hence, we have a rich jurisprudence in South Africa of powerful multinationals and other entities being held to account under Paia.

Paia requests may ultimately have to be adjudicated by the Information Regulator or a court, and the Competition Commission inquiry is expected to release its interim report in October.

In the meanwhile, one hopes the platforms’ algorithms will allow them to rank and give priority to the words of Judge Mahomed Navsa in the Supreme Court of Appeal (said in the context of information concerning the environment): “Corporations operating within our borders, whether local or international, must be left in no doubt that … there is no room for secrecy and that constitutional values will be enforced.”