SA media companies turn to access to information law to hold tech giants to account

Last Monday, 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.”

Media freedom and investigative journalism lie at the heart of our democracy. The other side of the media freedom coin is sustainability; as Unesco recognised in its 2021 Journalism is a Public Good global report.

“[Without] viability, media freedom is hollow, independence can be easily compromised, and pluralism becomes a shadow of what it should be,” the report stated.

There are many complex reasons for the crisis in journalism in South Africa. This includes the fact that the media’s business model — and the traditional reliance on advertising revenue — has been under threat since the advent of the digital economy.

Media companies allege that much of the advertising revenue that used to come its way now goes to the major technology companies — search companies such as Google and social media companies such as Meta (through platforms like Facebook).

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 actually 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 while media companies desperately need platforms to refer and link users to their stories, the actual referral traffic is dependent upon the platforms’ algorithms, which seem to prioritise sensational and contentious content over factual news content.

The inquiry has heard that distortions in the digital advertising market further compound the financial struggles of media companies.

All of this, of course, leads to an impoverishment of public discourse and media freedom.

This deleterious consequence is particularly problematic for local journalism. Its value to democracy and public participation is beyond doubt — it acts as a local watchdog, serves marginalised and other communities and gives them a voice, contributes to a sense of belonging, and provides local information of interest and relevance to citizens.

The decimation of local news worldwide — the creation of news deserts — is well documented and there is a clear link between the dearth of local news reportage, and the rise in corruption and the unaccountability of local government for failures of service delivery.

Hobson’s choice

Given the importance of local news, it comes as no surprise that one of the significant class actions against a tech platform currently working its way through the US District Court for the District of Columbia has been brought by a local weekly digital publisher in Arkansas, the Helena World Chronicle, against Google. The local paper’s petition alleges anti-competitive conduct and submits, “Google has coerced publishers into a Hobson’s choice: surrender their content or disappear from search and lose the single largest source of referral traffic.”

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 by the platforms, which means negotiations with the platforms on a level playing field are impossible.

Internationally, there have been findings of a lack of transparency in the online advertising markets by the Australian Competition and Consumer Commission and the UK’s Competition and Markets Authority. A lack of transparency in any relationship understandably leads to distrust, as was evident from much of the media’s testimony.

Some SA media companies have turned to access to information laws in their quest to end this asymmetry of information. Caxton, Media24 and an NPC, the Campaign for Free Expression, 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).

It will not be enough for the platforms to deal with such requests by resorting to answers such as those which Google offered the chair of the Competition Commission inquiry a few weeks ago, concerning its South African revenue: that it complies with US disclosure requirements that apply to it, and information was disclosed to the commission confidentially.

Game-changer

The game-changer is that South Africa’s access to information laws apply not only to public bodies but also to private bodies if the requester establishes a need to have the information — such as on the basis of the right to media freedom or a right to protect the media company’s copyright.

The Supreme Court of Appeal has pointed out that “[Citizens] in democracies around the world are growing alert to the dangers of a culture of secrecy and unresponsiveness, both in respect of governments and in relation to corporations.” For this reason, 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.

This game-changer is why the African National Congress was recently ordered to provide the Democratic Alliance with its cadre deployment records.

It is why the Mail & Guardian succeeded against the Fifa Local Organising Committee in 2010 when, claiming commercial confidentiality, Fifa tried unsuccessfully to resist providing details of tenders awarded for the 2010 World Cup.

This private body transparency obligation is why amaBhungane and the Financial Mail continue to fight Steinhoff for access to the PwC report concerning its corporate scandal.

And it is why the Supreme Court of Appeal ordered ArcelorMittal to provide the Vaal Environmental Justice Alliance with records of its operational and strategic approach to the protection of the environment in the areas where it had major steel plants.

The Paia requests may ultimately have to be adjudicated by the Information Regulator or a court, and the Competition Commission inquiry is due 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.” DM

Dario Milo is a partner at Webber Wentzel and an adjunct professor at Wits University. He represents the media companies and the Campaign for Free Expression in the Paia cases. 

https://www.dailymaverick.co.za/insider/