Apartheid, said Professor Berger, resulted in a society in which one group was considered first-class citizens and everybody else was second-class.
"The reason for that was, of course, to benefit those who were in the first class. It wasn't a stable society – it was a recipe for conflict and was very violent. First-class citizens were those of European background, while the second class were those from African backgrounds, mixed-race or Asian backgrounds brought over by the British.
"Fortunately, it changed – thanks to the main resistance movement, the African National Congress (ANC), led by Nelson Mandela, who made a settlement that introduced peace. Today, South African society still has many problems, but it's a much better place than it used to be."
Being predominantly of European descent, Prof. Berger is from a generation in which there was a small minority of people of European descent who were dissidents – against apartheid – "and we certainly were not popular."
He was speaking to The Malta Independent on Sunday while in Malta, after delivering a speech on Freedom of Expression, Privacy and Defamation on the Internet, organised by the Fondazzjoni Tumas Fenech għall-Edukazzjoni fil-Ġurnalizmu and the Media and Communications Department, Faculty of Media and Knowledge Sciences, University of Malta.
"I myself was imprisoned for two-and-a-half years and, yes, you were regarded as a traitor by the minority. It's quite easy to imagine a society of white racism creating a society of black racism as a response, but actually you didn't have this response, and we used to stand for non-racialism. So in the black community, people were very happy to treat you as an individual with good values and so you were welcome. If there was no home for you in the white community, there was appreciation in the black community."
Prof. Berger was imprisoned for owning around 60 banned books, which included the writings of Nelson Mandela as well as those of Che Guevara. "Anything, really, that we thought would help us get out of that situation, including ANC publications such as leaflets and booklets. The government had banned thousands and thousands of different titles and they were banning anything they thought could cause dissent. At one point, they banned a film called Guess who's coming to dinner – an American film where a woman of European race married an American of African race and it was banned because it showed the races mixing."
This was the fallacy that existed, he said. "They believed that if they banned publications then the reality could be kept as it was, but people didn't need publications to see that it was a bad situation."
Prof. Berger said that discrimination also continued inside prison, even if you were there for fighting against discrimination. He was imprisoned in 1980 and there were different conditions for different racial groups. As an example, he said that prisoners of European ancestry would eat meat three times a week, but those of African ancestry would eat meat only once a week.
"In my cell, there was a bucket used for a toilet and a piece of wood to sit on. The next level down, there was only a bucket".
There were two phases of imprisonment. "The first was pre-trial and there were no real limits, so they could torture you as they wished. Such torture would include sleep deprivation and assault," he said.
Prof. Berger was in Pretoria Central Prison. "Once you're imprisoned then you're with the prisoners, so they hold you until your term is over. There were a few sadists in the prison but they didn't have the same imperative to break you down, they just had to stop you from escaping."
He was asked for his views on state-owned media as well as media owned by political parties. "Some state media is public service media, and sometimes they cover issues that are not profitable for commercial media to cover." He said that some state media is beneficial but made a differentiation between public media being used as a public service and public media being used for propaganda. "There's a question as to whether public funds should be used for propaganda, and I think most people would say 'no'.
"As for party media, if you're talking about freedom of expression, political parties, trade unions, companies, etc., have the right to express themselves through social media or a newspaper. The main question I'd ask would be 'is it transparent?". It is misleading if people don't know who owns the media that is serving them."
Speaking about media in general, Prof. Berger said that in some parts of Africa and Europe the media – not so much the party media – is ruled by hidden political interests, which then pretends to be more independent. "That's not ideal.
"The good thing about having an independent media, is that it can expose this", he said, giving as an example The Guardian's work in uncovering the UK phone-tapping scandal.
He also spoke of the importance of pluralism, and said that the moment there is one dominant media, it becomes a way of keeping society with a limited vision.
"Unfortunately, most state media does get abused, and it is very difficult to take government medium and turn it into a public service medium, as sometimes people who work there don't see themselves as journalists and sometimes the government is reluctant to relinquish control."
It is, said Prof. Berger, very difficult to convert. It depends on the political will of the authorities, as to whether they are prepared to relinquish control and also depends on to what extent society is no longer prepared to have such bias.
He spoke of safeguards to ensure that public media is independent in any country. The first regards licensing. There must, he said, be an independent council regulating all broadcasting. "There should be an independent board appointed not by the government – as then it would not be independent – but, for example, by Parliament". The public broadcaster should also have a guarantee period and a staggered term of office for the board, "meaning that you don't want to have a situation where there is a complete clean-up at the same time." The budgetary mechanism for the broadcaster is also important, he said.
Unesco does not have an elaborated position on criminal libel
When asked about criminal libel, Prof. Berger said that Unesco does not have a defined position on criminal libel, but does have a general position on all limitations of expression "which applies perfectly here". Where there is a criminal limitation of expression, as opposed to self-regulation, one must always address whether it is proportionate and necessary in a democracy, he added. "Criminal libel is hard to justify as being necessary, as when there is a case of defamation, you can deal with it in non-criminal ways."
"For example, there could be self-regulatory mechanisms and the press could be subject to a press council and so could be ordered to publish an apology. There could even be civil court action where they can say 'publish an apology or pay damages'. Those are not criminal defamation. If you are going to criminalise it, and the state would get involved in the prosecution, meaning that the party would get a criminal record, one must ask whether that is really necessary if you have less intrusive possibilities to deal with problems of defamation".
The EU court of human rights in general does not object to criminal defamation, "which I think is debatable. But what they have said is that whatever is applied must be proportionate. If you are going to limit freedom of expression by saying 'we're going to hammer you for defamation' you cannot give someone a disproportionate sentence."
Professor Berger spoke of a case in Hungary, where the European Court of Human Rights said that the expression was an opinion. Opinion can very seldom defame a person. He said that there is a difference between saying: 'I think you're a dishonest man' and actually stating: 'You are a dishonest man'.
"If you are going to limit freedom of expression, you must ensure that the right to expression is intact. There's a right to reputation, but you don't want to overdo this right in such a way that you violate the right to expression. Yes, sometimes the right to expression could be justifiably limited, but then you have to ask 'Is it really necessary to do it this way?' – is it proportionate and is it for a good purpose such as reputation? The problem with most criminal defamation law is that it's used for political purposes, so it's actually government people using criminal law to stop political criticism and has nothing to do with individual reputation."
Safeguarding sources
Prof. Burgess believes that threatening a journalist to reveal his source is likely to have repercussions. "More than a hundred countries have laws protecting the rights of journalists to keep their sources confidential, he said, adding that this is not always an absolute right".
"Journalists, of course, have an ethical code and even under pain of law they would struggle to give up sources. The rationale is, of course, that if sources are not protected then they would not come forward and a lot of public ills would remain concealed. So the social benefit of protecting sources is amplified."
He believes that there might be some cases where ordering journalists to reveal their sources could be justified, "but one must always look at the bigger picture, and the possibility of creating a precedent.
"You might say yes, it's justified to help catch a murderer, but the repercussions of that could mean that no clues would come out through the press as to who the next killer is. More broadly, people who know about corruption might not step forward."
Courts should always ask if there are other ways to find that information without forcing a journalist to reveal a source, he said, adding that nowadays, there are always other digital ways of finding clues.
"Sometimes, journalists are asked to report on a street demonstration that turned violent, for example, and they would be called to testify against those brought before the court. But because the journalists would have published an article, it's very easy for the court to tell the journalists to provide information. Yet the police were also there, so they could testify instead of the journalists."
The protection of the confidentiality of sources is not sacrosanct, but it really should be respected and upheld as much as possible – and that something that is recognised worldwide, Prof. Berger explained.
He believes that the quality of journalism has improved on the whole, as it has had to differentiate itself more from gossip with the rise of the internet and social media. "Sometimes social media plays the role of the fifth estate, keeping an eye on the fourth estate, and so journalists have had to up their game. Journalists have more access to information than they've had before and they could use this information to improve their craft. The challenge facing journalism is that the business model is in trouble. A lot of media companies are shrinking the number of journalists and not investing in investigative journalism – which is slow and takes time."
Turning to the media's role in the pro or anti EU argument, he said that it is the media's role to be critical, both of the EU as well as those against it. "At the same time, the media criticism should not necessarily destroy things that have been an achievement. Looking at the history of Europe, creating the union was an achievement. Whether it is past its expiry date is a different debate but, of course, it is free expression and the media could take different positions as they see fit. If there was a kind of headlong plunge into nationalism, I think that's taking things back a little bit."
Prof. Berger explained that the EU project has been really important for achieving peace. "When Europe goes to war, it's something the rest of the world is seriously affected by. The media should remember that peace is good for people – which is not to say that the EU could not be reinvented, re-done or weakened and still have peace.
"I think that highlighting the differences between countries would be a really disappointing contribution to the debate, as Europe has built up commonalities.
"I'm turning 60 this year and once you have a certain achievement like freedom or union, things could be broken down much faster than built up. So its valuable to cherish, not uncritically, what historical progress has been made."
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