The courts have been very active in building on the solid foundation of media freedom which section 16 of our constitution protects.
The most important decision of the year was the Constitutional Court’s ruling in September in the challenge brought by Print Media South Africa and the South African National Editors’ Forum against aspects of the Films and Publications Act of 1996.
They challenged aspects that required any person who wished to publish material that “contains sexual conduct which violates or shows disrespect for the right to human dignity, degrades a person, or constitutes incitement to cause harm” to submit the material for examination and classification to a governmental board before it could be distributed.
The prior restraint on publication was not restricted to hard-core pornography; it applied to all forms of publication, including newspapers, books, posters, paintings and internet posts and the definition of sexual conduct was so broad as to potentially include sex education material.
It was therefore a relief when a unanimous Constitutional Court struck down the prior restraint as offensive to the right to freedom of expression.
The legacy of the case is surely the attitude adopted by the court to prior restraints on publication: these are “something to be approached with circumspection and should be permitted in narrow circumstances only”.
There can be no doubt that this ruling should discourage those who seek to stifle the media by rushing off to court before publication.
Just as the print media decision may be celebrated as the case that effectively kills most prior restraints on publication, the ruling of the High Court in Bosasa versus Mail & Guardian is destined to be cited as the case that allows journalists to protect their confidential sources.
In a judgment refusing Bosasa’s application to compel the Mail & Guardian to reveal its sources, Judge Moroa Tsoka said that an order to reveal the identity of the newspaper’s confidential sources would infringe on freedom of the press. The judge said that had it not been for the M&G’s sources, the public’s right to know would be undermined.
The newspaper had valid reasons for not revealing its sources.
“If indeed freedom of the press is fundamental and [crucial] for democracy, it is essential that in carrying out this duty for the public good, the identity of their sources should not be revealed.”
After Judge Tsoka refused Bosasa permission to appeal, Bosasa petitioned the Supreme Court of Appeal.
The appeal court refused the petition, which means Judge Tsoka’s judgment stands.
The boundaries of media freedom were extended by the courts in another area this year.
The Pretoria High Court allowed the print media and Carte Blanche access to the National Prosecuting Authority’s disciplinary hearing of senior prosecutor and advocate Glynnis Breytenbach. The NPA argued that the disciplinary inquiry was private and that witnesses would not co-operate if media access were to be granted. But Judge Ronel Tolmay disagreed.
“The NPA is in my view no ordinary employer. The NPA is a public institution established under the constitution and has a particular constitutional mandate… The NPA must not only pay lip service to the constitutional values they are bound to uphold, but must be seen to do it. Therefore the public has a right to be present, via the media, at this hearing.”
The court even permitted broadcasts of the hearing.
President Jacob Zuma was in the news in two important media law cases, neither of which resulted in court judgments. The first involved The Spear, a painting on display at the Goodman Gallery and on the City Press website that showed the president with his genitals exposed.
Zuma and the ANC asked the high court to interdict the Goodman Gallery and City Press from displaying, publishing or distributing the image. Zuma cited his constitutional right to dignity and reputation in support of his application.
In defending their right to display the work, the Goodman Gallery and City Press relied on section 16 of the constitution. From the gallery’s perspective, The Spear was not only an artistic work specifically protected by section 16, but a form of political expression, and both of these lay at the heart of the constitutional guarantee of freedom of expression. As it turned out, the high court did not get to determine what would have been a fascinating contest between these competing constitutional rights, as the struggle unfolded outside the courtroom.
The Film and Publications Board also got into in the fray, and classified The Spear as a “16N”, a controversial decision later overturned on appeal. The appeal panel held that the evidence was that The Spear was “a work of artistic merit that dealt provocatively with political issues by drawing on the relationship between sex and power”.
The panel concluded that there was no basis to find The Spear would disturb, harm or be age inappropriate for children and it ought never to have been classified. The panel said if art was classified just because it contains nudity, famous works like Michelangelo’s David would be deemed harmful to children and classified.
The second case involving the president was his defamation and dignity claim against the cartoonist Zapiro and the Sunday Times in relation to the famous “rape of justice” cartoon, published in September 2008. On the eve of the hearing, Zuma withdrew his case.
The cartoon was published in the context of inflammatory statements by members of the tripartite alliance discrediting the courts and calling for a political solution to the corruption case Zuma was then facing.
The cartoon depicted him preparing to rape Lady Justice, who was being held down by the leaders of the alliance parties. Zuma sued for R5 million in damages. The cartoonist and the newspaper argued that the cartoon’s message was protected by fair comment. Given Zuma’s capitulation, the approach of our courts to criticism of the president will have to wait.
Perhaps it will come in one of the other 12 cases against the media, with claims for more than R50m – cases Zuma has not withdrawn, despite his spokesman, Mac Maharaj’s having said he was withdrawing the “rape of justice” case in the interests of free speech.
This was also the year in which the Press Council adopted the recommendations of the Press Freedom Commission, chaired by former Chief Justice Pius Langa. From next year, the print media will be subject to independent co-regulation, where the press and the public will have equal representation on the council.
The council also issued a new constitution, procedure and code of conduct, taking important steps to enhance the credibility of the regulation of print media.
It is interesting that Lord Justice Leveson’s report into the culture, practices and ethics of the print media, released last week, recommends what is in many ways a similar system – to be called “independent self-regulation” – for the British press.
Finally, a summary of media law would not be complete without reference to the Protection of State Information Bill, also known as the Secrecy Bill, recently passed by the National Council of Provinces. It will return to the National Assembly early next year. Although the bill is in better shape than before, without meaningful public interest and public domain defences, it remains a potent threat to freedom of expression. At least we know our courts will have the final say on whether the bill passes constitutional muster.
Dario Milo and Stein are partners at Webber Wentzel. Their book, A Practical Guide to Media Law, will be published by LexisNexis Butterworths next year.
This article was originally published in the Sunday Independent and is reproduced with permission and thanks