I am honoured to have been asked to talk about the state of media freedom on this important occasion, as we commemorate the 35th anniversary of Black Wednesday, 19 October 1977.
As you will recall, this date was about a month after the murder in detention of Steve Biko, when as part of a brutal apartheid government crackdown, three newspapers including The World were banned [the others being the Weekend World and Pro Veritate] and their editors detained under the repugnant Internal Security Act (of 1950).
The state president issued a proclamation under the Act prohibiting the “printing, publication or dissemination”, apparently being satisfied that the newspapers, and I’m quoting from part of the section under which the bannings took place, “serves as a means for expressing views or conveying information the publication of which is calculated to endanger the security of the State or the maintenance of public order”.
As Harvey Tyson, former editor of The Star, states of this event in his book, Editors Under Fire:
“The end of The World has a special meaning for journalists in South Africa. When the newspaper named The World was shut down by the government, press freedom finally died in this country. Although closure of the World could not stop the editors and journalists, and those in other newspapers, from stating their opinions and reporting many facts which the authorities wanted suppressed, we knew that from the moment they came to take [the editor] Percy Qoboza away no newspaper was safe in South Africa. The courts could no longer protect us.”
With the demise of apartheid and the advent of our constitutional democracy, we are happily now in a position where our courts frequently are called upon to protect the media, and they do so using the weaponry of section 16(1) of the Constitution, which protects freedom of expression and also freedom of the press and other media. This weapon would have dealt a fatal blow to the so-called justification for the newspaper ban put up by the apartheid government: The Minister of Justice and the Police, the despised Jimmy Kruger, was reported to have said that the ban was justified because “the [government’s] factual investigation has shown beyond doubt that [the newspapers] were endangering law and order”.
And so what I want to mainly talk about today is a narrative of media freedom in 2012 where the story is that of the courts handing down bold rulings which protect media freedom – and here I will focus especially on decisions handed down in the last 2 years. These decisions have protected the media in important pockets of media law, including defamation, source protection, and open justice. I don’t want to suggest that the courts in our constitutional democracy have always championed media freedom and always got it right. In fact, until very recently, the Constitutional Court has in my view had a fairly bad track record on media freedom. But by and large, our courts have given the media the breathing space the Constitution requires in order for them to carry on their functions as watchdogs and bloodhounds.
There is, however, a competing story to be told about media freedom in 2012, which I must also speak briefly about, and on which I know Raymond Louw will have more to say, and it is that media freedom still faces disturbing threats from various sources. I will speak only of two recent threats in particular, again focusing on the last two years:
First, the use by the executive of apartheid-era legislation to draw a veil of secrecy on matters of public interest, and here I will focus specifically on Nkandlagate.
Secondly, the use of criminal laws to chill freedom of expression, perhaps best exemplified in the draft legislation officially called the Protection of State Information Bill, but surely better known by its alias, the Secrecy Bill.
Before I continue I need to make a few preliminary points.
First, the perspective I offer is grounded in my experience as a media lawyer and so I issue a disclaimer upfront, as any lawyer worth their salt should, that my take on these issues is a narrow one, necessarily steeped in law.
Second, I don’t want to be misunderstood as suggesting that media freedom is absolute: like all other rights, it is of course constitutionally sound to limit media freedom if the limitation is reasonable and justifiable. That is why, to give obvious examples, the media have no difficulty with rules about not identifying minors involved in crimes, or victims of sexual crimes.
The third preliminary point I make is that although we will speak a lot today of “media freedom”, in fact media freedom is no more and no less than the right of the public to receive information and ideas in order to participate in our democracy. The media’s role is that of the eyes and ears of the public. It derives its claim to constitutional entitlement from the right of the public to know. And so a claim to media freedom is really a claim asserted on behalf of the public.
And finally, just as the media has freedom it also has responsibility and must be accountable. Like all those who exercise power, whether the source of that power be private or public, the media must exercise its rights responsibly and with due regard to other competing rights and values. Media freedom should never be employed as an excuse for shoddy and negligent reporting.
I think the Constitutional Court has crisply summarised much of what I am saying here in its decision in Khumalo v Holomisa in 2002:
The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society … The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate … The media must rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.
Against that background, I start with the good – recent court decisions setting precedents for media freedom- and I end with the bad – the threats to that freedom that I have identified.